Scribd
Upload
89 views3 pages

Understanding Mareva Injunctions

1. A Mareva injunction is an order granted by courts in civil proceedings to prevent a defendant from dissipating or disposing of assets within the court's jurisdiction before a judgment is obtained. 2. The injunction derives its name from the landmark Mareva Compania Naviera SA v International Bulk Carriers SA case. It aims to preserve a defendant's assets within the jurisdiction so that any prospective judgment is satisfied. 3. In granting a Mareva injunction, courts must consider whether the plaintiff has an arguable case, evidence that the defendant has assets in the jurisdiction, and evidence those assets may be dissipated before judgment. Courts also seek to balance the effects of the injunction and the defendant's ordinary business

Uploaded by

Shahrul Iman
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
89 views3 pages

Understanding Mareva Injunctions

1. A Mareva injunction is an order granted by courts in civil proceedings to prevent a defendant from dissipating or disposing of assets within the court's jurisdiction before a judgment is obtained. 2. The injunction derives its name from the landmark Mareva Compania Naviera SA v International Bulk Carriers SA case. It aims to preserve a defendant's assets within the jurisdiction so that any prospective judgment is satisfied. 3. In granting a Mareva injunction, courts must consider whether the plaintiff has an arguable case, evidence that the defendant has assets in the jurisdiction, and evidence those assets may be dissipated before judgment. Courts also seek to balance the effects of the injunction and the defendant's ordinary business

Uploaded by

Shahrul Iman
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

CIVIL PROCEDURE BENCH BOOK 2009

INJUNCTION

MAREVA INJUCTION

1. Provision
O 29 RHC.

A
SI
2. Commonly known as an 'asset preservation order'
or a 'freezing order' in other jurisdictions, this form

AY
of injunction derives its name from the landmark
case of Mareva Compania Naviera SA v

AL
International Bulk Carriers SA [(The Mareva)
[1980] 1 All ER 213]. It is a form of preventive
relief granted to restrain the defendant (who has
M
assets within the jurisdiction of the court) from
dissipating or disposing of those assets out of the
N
jurisdiction before any judgment is obtained by
AA

the plaintiff.

3. Power to grant such an injunction is derived from


AJ

section 25(2) of the Courts of Judicature Act,


1964 and the inherent jurisdiction of the court.
R
KE

4. In granting such an injunction, the following


matters must be considered:
IK

(a) The plaintiff must have a good arguable


case against the defendant;
IL

(b) The plaintiff must show clear evidence that


M

the defendant has assets within the


jurisdiction of the court;
AK

(c) The plaintiff must show clear evidence that


the defendant's assets may be dissipated
H

before judgment can be obtained by the


plaintiff.
[Pacific Centre Sdn Bhd v United Engineers
Berhad [1984] 2 MLJ 144 Creative Furnishing
Bhd v. Wong Koi [1989] 2 MLJ 153; S&F
International Ltd v Trans-Con Engineering Sdn
25
CIVIL PROCEDURE BENCH BOOK 2009
INJUNCTION

Bhd [1985] 1 MLJ 62; Zainal Abidin bin Haji


Abdul Rahman v Century Hotel Sdn Bhd
[1982] 1 MLJ 260; Biasamas Sdn Bhd v Kan
Yan Heng [1998] 4 CLJ 754]

5. A Mareva injunction may have a devastating

A
effect on the operations of a company or the life

SI
of an individual. For this reason, the court must be

AY
mindful of not granting such an injunction in wide
terms and should only make an order as is
necessary to prevent the injustice sought to be

AL
prevented by the plaintiff. The following matters
must be considered -

(a) M
An application for a Mareva injunction is
N
commonly moved ex parte. The court must
ensure that the plaintiff makes full and
AA

frank disclosure of all the material facts;


(b) An application for a Mareva injunction must
AJ

be supported by an affidavit establishing


the matters set out in para 4 above. Most
R

importantly, the court must evaluate


the evidence adduced by the plaintiff in
KE

establishing the danger or risk that the


defendant's assets within the jurisdiction
IK

are being removed, disposed of or


dissipated from the jurisdiction so as to
IL

frustrate the judgment or prospective


judgment of the plaintiff. There must be
M

evidence from which a prudent, sensible


commercial person can properly infer a
AK

danger of default; [Third Chandris


Shipping Corporation v Unimarine SA
H

[1979] QB 645]
(c) A Mareva injunction should not interfere
with the ordinary course of business of the
defendant or prevent the payment of
creditors in the ordinary course of
business. A Mareva injunction should not
prevent the defendant from dealing with its
26
CIVIL PROCEDURE BENCH BOOK 2009
INJUNCTION

assets for legitimate purposes e.g.


payment of ordinary living and business
expenses, reasonable legal expenses, the
discharge of obligations under contracts
entered into bona fide before the order was
made [PCW (Underwriting Agencies) Ltd
v Dixon and another [1983] 2 All ER

A
158]. In this regard, the Mareva order must

SI
make provision for an amount that the
defendant may utilise for ordinary living

AY
expenses and a reasonable sum for legal
advice and representation;

AL
(d) A Mareva injunction must specify the upper
monetary limit sought to be protected by
the injunction. Any amount exceeding this
M
limit may be dealt with by the defendant.
[Motor Sports International Ltd v
N
Delcont (M) Sdn Bhd [1996] 2 MLJ 605].
AA

The limit should not usually exceed the


maximum amount of the plaintiffs claim.
AJ

6. The plaintiff may also apply for discovery of


information and documents in aid of execution of
R

a Mareva injunction. [CBS United Kingdom Ltd


KE

v Lambert [1982] 3 All ER 237; Aspatra Sdn


Bhd v Bank Bumiputra Malaysia Bhd [1988] 1
MLJ 97]
IK
IL
M
AK
H

27

You might also like