The conditions for mareva injunction.

(a) Plaintiff must have good arguable case

Mareva Compania SA v. International Bulkcarrier SA, The Mareva [1980] 1 All
ER 213, where Lord Denning M.R state that:
There is jurisdiction to grant injunction if there is danger that the debtor may
dispose of his assets so as to defect the debts before judgement

Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG; The Nidersachsen [1984] 1 All ER 398, the court state that:
A Mareva injunction will not be granted merely for the purpose of providing a
plaintiff with security for a claim, even when it appears likely to succeed and even
when the granting of the injunction will not cause hardship to the defendant

Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153 sets out the
requirements the respondents must satisfy the court in order to get a Mareva
injunction which is that the respondents must satisfy the court, first that they had a
good arguable case; secondly, that the first appellant had assets within the
jurisdiction, and thirdly, that there was a real risk of the assets being dissipated or
removed before judgment in that there must be solid evidence to establish the risk.

However, in the case of Biasamas Sdn Bhd & Ors V Kan Yan Heng & Anor [1998]
4 MLJ 1, the Appeal Court state that:
the learned judge had fallen into error in considering the ground of good
arguable case before granting the Mareva injunction
if the learned judge had given a close and proper scrutiny to the evidence
before him, in balancing the case of the respondents and the appellants, it
would show that the respondents did not show that they had a good arguable
case.

(b) The defendant had assets within jurisdiction

Third Chandris Shipping Corp v Unimarine SA, The Pythia, The Angelic Wings,
The Genie ([1979] 2 All ER 972 at 987, Lawton LJ state that:
'The mere fact that a defendant having assets within the jurisdiction ... is a foreigner
or a foreign corporation cannot, in my judgment, by itself justify the granting of a
Mareva injunction. There must be facts from which the Commercial Court, like a
prudent, sensible commercial man, can properly infer a danger of default if assets are
removed from the jurisdiction..

(c) there was a real risk of the assets being dissipated or removed before
judgment in that there must be solid evidence to establish the risk
In the case of Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153, Court
sets out the requirements the respondents must satisfy the court in order to get a
Mareva injunction. On the facts of the appeal before us, the respondents must satisfy
the court, first that they had a good arguable case; secondly, that the first appellant
had assets within the jurisdiction, and thirdly, that there was a real risk of the assets
being dissipated or removed before judgment in that there must be solid evidence to
establish the risk.
Etablissement Esefka International Anstalt v Central Bank of Nigeria [1979] 1
Lloyd's Rep 445 at 448, Lord Denning state that:
'The Mareva injunction is only to be granted where there is a danger of the
money being taken out of the jurisdiction so that if the plaintiffs succeed they are
not likely to get their money.

APPLICATION

It is submitted by the Plaintiff that they have reasonable believe that there is real risk that the
defendants assets will be remove out of jurisdiction before judgement. The question that
arises here is whether there is such risk? There is allegation that the Defendant had requested
to transfer his money in the accounts to other accounts in oversea. However, from the conduct
it could not be a conclusive proof that to show the defendant had the intention to dissipate his
assets out of jurisdiction. It is to be noted that defendant had 2 children which both of them
had further study in London and United Kingdom. The defendant might transfer the money
contain in both account for the sake of his children education. In addition, to support that
defendant transfer the money to the account, there was bill from his daughter university
which shows that defendant transfer the money to the account for his children education
expenses.
In the case of PCW (Underwriting Agencies) Ltd v Dixon and another [1983] 2 All ER 158,
It could not possibly be said that he is dissipating his assets by living as he has always
lived and paying bills such as he has always incurred. I say nothing about the cost of
defending himself in these proceedings. The Mareva jurisdiction was never intended to
prevent expenditure such as this or to produce consequences such as would inevitably follow
if this ex parte order is upheld
Besides that, the Plaintiff also alleged that there is evidence that the Defendant planning to go
abroad. The Plaintiff must prove with sufficient evidence that there is a real risk that the
Defendantd assets would be remove.
In the case of Third Chandris Shipping Corp v Unimarine SA, The Pythia, The Angelic
Wings, The Genie [1979] 2 All ER 972 at 985, [1979] QB 645 at 669, where Lord Denning
had state that:
'The plaintiff should give some grounds for believing that there is a risk of the assets being
removed before the judgment or award is satisfied. The mere fact that the defendant is abroad
is not by itself sufficient.
The evidence that Defendant planning to go abroad merely do not prove that there is risk that
he will removed his assets before the judgement. The defendant planning to go abroad for the
purpose of attending his son graduation ceremony in London school of business and this was
proof through an invitation letter from his son university which contain the invitation to the
graduation ceremony.

In the case of Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co

KG; The Nider-sachsen [1984] 1 All ER 398, the court state that:
It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He
must demonstrate this by solid evidence. This evidence may take a number of different
forms. It may consist of direct evidence that the defendant has previously acted in a
way which shows that his probity is not to be relied on. Or the plaintiff may show
what type of company the defendant is (where it is incorporated, what are its
corporate structure and assets, and so on) so as to raise an inference that the
company is not to be relied on. Or, again, the plaintiff may be able to found his case
on the fact that inquiries about the characteristics of the defendant have led to a
blank wall. Precisely what form the evidence may take will depend on the particular
circumstances of the case.
In the case of Biasamas Sdn Bhd & Ors V Kan Yan Heng & Anor [1998] 4 MLJ 1,
The court state that:
the learned judge fell into error by not addressing and evaluating the evidence before him
in considering whether there was a real risk that the assets will be dissipated or removed
before judgment.this would be a proper case which requires our interference as clearly the
learned judge made an error of law and misconceived the facts before him in the exercise of
his discretion when he made the order of Mareva injunction in favour of the respondents.

Other grounds to set aside.

(a) Non-compliance with Order 29 Rules of Court

In the case of Motor Sports International Ltd (Servants Or Agents At Federal Territory Of
Labuan) & Ors V Delcont (M) Sdn Bhd [1996] 2 MLJ 605, the court state:
that the provisions of O 29 r 2A were introduced by amendment in order to ensure that ex
parteinjunctions of any sort were not granted willy-nilly, but only in cases where they were
truly called for.. high courts must demand strict compliance with its terms as the relief

under Mareva or an Anton Piller type of injunction because of the incalculable harm and
damage that may be caused to a defendant by the grant of either of these orders
In this case, having perused the affidavit in question, this court found that there had not
been even a fee-ble attempt to meet the requirements of r 2A, especially sub-para (d) thereof
[which states that affidavit in support shall contain a clear and concise statement of any
answer asserted by the defendant (or which he is thought likely to assert) either to the claim
in the action or to the claim for interlocutory relief]. On this ground alone, the ex parte
injunction ought to have been dissolved by the judge

Further in the case of S & F International Ltd v Trans-Con Engineering Sdn Bhd said at p
66, the court state that:
We would en passant observe that a Mareva application must necessarily in respect of the
claim on which it is premised relate to the pleading of the plaintiff in the action instituted and
even if it is sought to remedy the position by affidavit, it would make no difference as any
defect or omission in a statement of claim cannot be made good by affidavit evidence.is
most important that a defendant should know from the writ what the exact claim against him
is.

(b) The Plaintiff must state the exact amount against the
defendants asset which to be freeze by the order of Mareva
injunction. (overstatement of maximum of upper limits)

In the case of Motor Sports International Ltd (Servants Or Agents At Federal

Territory Of Labuan) & Ors V Delcont (M) Sdn Bhd [1996] 2 MLJ 605, the court
state that:
In our judgment, where a plaintiff claims an exact sum, a Mareva injunction that
restrains the defendant from dissipating his assets must specify an upper limit; if it
does not, then the order is liable to be condemned as being too wide and therefore
oppressive Mareva is an which the court should carefully weigh the balance of

justice to ensure that any order it makes or any relief it grants in the exercise of its
Mareva jurisdiction is not used as an instrument of oppression
in holding that an order which fails to provide a maximum limit where the plaintiff
claims an exact sum may be regarded as oppressive
Now, it is a well-established principle governing Mareva injunctions that they ought
not to place a restraint upon a defendant more than is absolutely necessary

APPLICATION
It is submitted that the Plaintiff has failed to state maximum sum of the claim sought
under the Mareva injunction as the court need to sufficiently identify the upper limit
of the sum. In the present case at hand, the plaintiff state in its claim for the balance
on the repayment of the loan include with interest with different rate. Here, it shows
that the Plaintiff has not stated on the accurate maximum sum that they claim under
the order and it was found that it is a gross overstatement of the exact sum claimable
by the plaintiffs. It is to be remembered that a Mareva injunction should not place a
restraint on a defendant more than is absolutely necessary.

(C) the plaintiff must laid down a provision for living expenses and payment of
ordinary debt by defendant.

In Derby v Weldon (Nos 3 & 4) [1990] Ch 65, Neill LJ said:

The legitimate interests of the defendant must be respected and he must be allowed to
continue his normal business and to have funds to meet his reasonable living expenses the
grant of the injunction must not be oppressive in its outcome to the defendant

In the case of PCW (Underwriting Agencies) Ltd v Dixon and another [1983] 2 All
ER 158, the court state that,

The sole purpose of a Mareva injunction was to prevent a plaintiff being cheated
out of the proceeds of an action, should it be successful, by a defendant transferring
his assets abroad or dissipating his assets with-in the jurisdiction. The remedy was
not intended to give a plaintiff priority over those assets, or to prevent a defendant
from paying his debts as they fell due, or to punish him for his alleged misdeeds, or to
enable a plaintiff to exert pressure on him to settle an action
All injunctions are, or course, in the end discretionary. I would regard it as unjust
in the present case if the defendant were compelled to reduce his standard of living, to
give up his flat or to take his children away from school, in order to secure what is as
yet only a claim by the plaintiffs. I would regard it as even more unjust that he should
be prevented from defending himself properly (for that is what it would amount to),
merely because the plaintiffs say that in doing so he is using somebody else's
money

In the case of Larut Consolidated Bhd & Anor V Khoo Ee Bee & Ors [1997] 5 MlJ 77, the
court state that,
It was sound law that a failure to provide for living expenses and for payment of ordinary
debts as they become due in an order for a Ma-reva injunction ought to be valid grounds to
discharge that order..

In the case of Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 MLJ 143,
Edgar Joseph Jr J in his judgement said:
that the Mareva injunction is not intended to punish the defendant but is intended to
do justice to all parties.

In CBS UK v Lambert [1983] Ch 37 at p 43, Lawton LJ said:

Even more hardship might be caused to a defendant who was deprived by a Mareva
injunction of assets which he used for the purpose of living and earning his livelihood. Even
if a plaintiff has good reason for thinking that a defendant intends to dispose of assets so as
to deprive him of his anticipated judgment, the court must always remember that rogues have
to live and that all orders, particularly interlocutory ones, should as far as possible do justice
to all parties.

APPLICATION

It is submitted that the Plaintiff has failed to provide for living expenses and the payments of ordinary
debts as they become due in an order for a Mareva injunction. It is an obvious injustice to the
Defendant where he is barred from using his owned property for the purpose of living and earning. In
the present case , the defendant is at all material times is a businessman and had a company which he
need his assets to carried out his business and to pay any debts which feel sue with regard to the
business. Besides, he still has 2 children that he need to take care of on their living expenses. By
freezing all of his assets, this will cause hardship to the defendants to continue with his living and also
he needs money to pay up all the cost for the action taken against him.
Therefore, we humbly submit that a Mareva injunction granted has caused injuctice and hardship to
the Defendant as the Plaintiff failed to provide for provision for living expenses and the payment of
ordinary debts as they become due.