CHAPTER 1 INJUNCTIONS

Transcription

1 MAREVA INJUNCTIONS ISBN Author: Hamid Ibrahim Binding: Softcover/Extent: 564 pp Publication Price: MYR The law is stated as of September CHAPTER 1 INJUNCTIONS IntroductionIntroduction... 1 Injunctions Meaning ofinjunctions Meaning of... 2 Inherent Jurisdiction of the Court and Specific PrInherent Jurisdiction of the Court and Specific Provisions of the Rules... 3 Jurisdiction to Grant Injunctions MalaysiaJurisdiction to Grant Injunctions Malaysia... 4 Jurisdiction to Grant Injunction SingaporeJurisdiction to Grant Injunction Singapore... 4 Power of the High Court to Grant InjunctionsPower of the High Court to Grant Injunctions... 5 Source of the Power of the High Court to Grant ansource of the Power of the High Court to Grant an Injunction... 6 Grant of Injunctions Discretion of High Court Grant of Injunctions Discretion of High Court... 7 Duty of Judge Hearing an Application For An InjuncDuty of Judge Hearing an Application For An Injunction... 8 Cause of Action Cause of Action... 9 Legal Right Sufficient to Give Rise to A Cause oflegal Right Sufficient to Give Rise to A Cause of Action Pre-existing Cause of Action for Substantial ReliePre-existing Cause of Action for Substantial Relief Whether Statement of Claim Disclosed a Reasonable Cause of Action Cause of Action in the Writ - Interlocutory Inju Cause of Action in the Writ - Interlocutory Injunction Principles to be Applied in Applications for Inter Principles to be Applied in Applications for Interlocutory Injunctions Application for Interlocutory Injunction Duty ofapplication for Interlocutory Injunction Duty of Judge Serious Questions To Be TriedSerious Questions To Be Tried Justice of the CaseJustice of the Case Balance of ConvenienceBalance of Convenience Adequacy and or Inadequacy of DamagesAdequacy and or Inadequacy of Damages 21 Whether Damages would be an Adequate RemedyWhether Damages would be an Adequate Remedy... 21

2 Whether Damages was a Sufficient Remedy Issue ofwhether Damages was a Sufficient Remedy Issue of Law Status QuoStatus Quo CHAPTER 2 INTERLOCUTORY INJUNCTIONS Interlocutory Injunctions - Order 29 of the Rules of the High Court Scope of Order 29 of the Rules of the High Court Specific Property - Order 29 r 2 of the Rules of the High Court Application Must be made by Summons Whether or not a Claim for the Injunction was Included in that Party s Writ TIME FOR MAKING APPLICATION Urgency Propriety of Filing for an Ex Parte Injunction Urgently Application for Ex parte Injunction - Speed Ex Parte Application - Secrecy - Need for secrecy Justification for Proceeding Ex Parte Ex Parte Mandatory Injunctions Delay in Making Application Effect of Delay Equitable Relief - Delay Inordinate Delay - Conduct of Parties Delay - Exercise of Discretion Delay Court to Weigh All Considerations Delay Acquiescence by Plaintiff Duration of Ex Parte Injunction Scope of Order 29 r 1 (2B) of the Rules of the High Court Lapse of Ex Parte Injunction Ex Parte to Inter Partes AFFIDAVIT EVIDENCE Ex Parte Applications - Affidavit Evidence Affidavit in Support Plaintiff s Further Affidavit in Reply Introduction of Fresh Evidence Exhibits Application for Renewal of Injunction - Failure to Resist Application for Renewal of Injunction Suspension of Injunction - Jurisdiction of High court to suspend an injunction Abuse of Process - Multiplicity of Proceedings... 69

3 Application for Injunction - Estoppel Continuation of Mareva Injunction Until Trial Hardship Balance of Convenience Arbitration and Interlocutory Injunctions Temporary Injunction Against the Government Appeal - Function of Appellate Court Court of Appeal Functus Officio Interference with Trial Judge s Exercise of Discretion Appeal against Ruling Appeal Procedure CHAPTER 3 THE MAREVA INJUNCTION Introduction Historical Development Equity & the Mareva Injunction The Law and the Fast Evolving World of Business - Rationale for Granting a Mareva Injunction Development of the Mareva Procedure Worldwide Mareva Injunction Guidelines for Worldwide Mareva Injunction Jurisdiction of Courts to Grant a Mareva Injunction Jurisdiction - Principles and Policy underlying a Mareva Order Mareva Doctrine - Malaysia - Jurisdiction in Malaysia for the Application of the Mareva Doctrine Malaysia - Jurisdiction of the High Court to Grant a Mareva Injunction Inherent Powers of the High Court Inherent Jurisdiction of High Court to grant Mareva Relief Application of Order 92 rule 4 of the Rules of the High Court Mareva Injunctions - Singapore Mareva The Australian Experience Jurisdiction & Correct Principles CHAPTER 4 NATURE AND SCOPE OF A MAREVA INJUNCTION Nature of Mareva Injunction Difference in Scope and Relief Between the Grant of Interlocutory Injunction and Mareva Injunctions

4 Mareva Injunction and the Debtors Act Order under Section 19 of the Debtors Act 1957 v Mareva Injunction - Differences between Two Remedies Caveat and Injunctions Differences Nature of Mareva Injunction Risk of Dissipation of Assets Purpose of a Mareva Injunction SCOPE OF THE RELIEF Mareva Injunction - Not a Remedy of Unlimited Application Scope of Mareva Injunctions and the Assets of the Defendant The Defendant Has Assets Within Jurisdiction Extent of Restraint on Defendant Mareva Injunctions and Assets of a Defendant - Payment to Creditors Alternative Remedies for Attachment of Defendant s Assets Mareva Injunction and Execution Proceedings Mareva Injunction and Garnishee Order Mareva Injunction Not to Inhibit the Ordinary Course of Business or to Interfere with a Defendant s Ordinary Transactions Mareva Injunction and Third Parties Third Party & Variation of Mareva Injunction Principles Relating to the Privilege Against Self-Incrimination Assets in Name of Third Party Third Party Assets Third Party - Dispute between Plaintiff and a Third Party as to the Ownership of Assets within Jurisdiction Breach of a Mareva Injunction Order by a Third Party Third Party s Right of Set-off against a Defendant for Liabilities incurred Prior to the Date of the Mareva Order CHAPTER 5 APPLICATION FOR MAREVA INJUNCTION Introduction Application for Mareva Injunction Principles Applicable Essential Requirements for Granting a Mareva Injunction

5 Good Arguable Case & Risk of Dissipation of Assets Test for Mareva Injunction Grant of Mareva Injunction Discretion of Court Balance Of Convenience - Whether Balance Of Convenience Is In Favour Of The Granting Of The Mareva Injunction - The Law Interim Mareva Injunctions Urgency Determination of the Urgency Factor Guidelines to be Observed in An Application for a Mareva injunction Establishing a Prima Facie Case for the grant of a Mareva Injunction- Onus on Plaintiff Just and Convenient Jurisdiction of the Courts & Substantive Claim Locus Standi of Plaintiff Locus Standi Incapacity of Plaintiffs as Directors Plaintiff s Financial Standing Mareva Injunction - Equitable Remedy - Conduct of Plaintiff Cause of Action Onus on Plaintiff Cause of Action - Defamation Mareva Injunction in Defamation Cases Principles Applicable Time for Application and Delay Mareva Order in Excess of the Value of the Pleaded Claim Overstatement of Maximum Upper Limits Determination of Mareva Sum Competing Claims Counterclaim by Defendant Principles Applicable Claim for Damages and/or Additional Costs Application for Mareva Order Affidavits - Rules of the High Court Mareva Affidavit Evidence Conflicting Affidavit Evidence - Resort to Cross-Examination Information obtained in Contravention of Section 97 of the Banking and Financial Institutions Act Mareva - Introduction of Evidence at Inter Partes Stage Fresh Evidence Mareva Injunction - Introduction of Fresh Evidence at Inter Partes Stage Order for Discovery in aid of a Mareva Injunction Validity of Mareva Order Point of Time Extension of Mareva Injunction Interveners Application to Intervene

6 Interest of Intervening Party Effect of Interlocutory Mareva Injunction on a Defendant Approach of Courts Practice Direction [1994] 4 All ER 52, [1994] 1 WLR Standard Form of Order contained in Annexe 3 to the Practice Direction, Mareva Injunctions and Anton Piller Orders Hardship to the Defendant Imposing Conditions Imposition of Extraneous Conditions Imposition of Improper Conditions - Dissolution of Mareva Order Mareva Injunctions Whether Oppressive Acceptance of Guarantee by Plaintiff Oppressive to Impose Mareva Injunction Improperly Made Mareva Injunctions A Mareva Order and Penal Notice Defects in Application Effect on Subsequent Application for Mareva Injunction Sample Ex Parte Mareva Orders Post Judgment Mareva - Power to Grant an Interlocutory Injunction between Final judgment and Execution Post Judgment Mareva Injunction in Aid of Execution Perpetual Mareva Injunction CHAPTER 6 GOOD ARGUABLE CASE Introduction Threshold Good Arguable Case - Requirement of Proof Arguable Case - Defences - Strength or Weakness Good Arguable Case - Good Arguable Defence Post Judgment Mareva Injunction Good Arguable Case Good Arguable Case - Preservation of Status Quo Pending Arbitration Good Arguable Case Building Contract Dispute Good Arguable Case Certificates of Payment Good Arguable Case - Construction Contract Dispute Good arguable Case Guarantee - Liability under a Guarantee Good Arguable Case Land Dispute Whether Mareva Order Obtained for Wrong Purpose

7 CHAPTER 7 RISK OF DISSIPATION OF ASSETS Introduction Object of Mareva Injunction - Risk of Dissipation of Assets Policy Underlying a Mareva Injunction Risk of Dissipation of Assets - Development of the Principles Risk of Dissipation of Assets Applicable Principles Risk of Dissipation of Assets - Jurisdiction to Grant a Mareva Injunction Presence of Requisite Circumstance Assets Within Jurisdiction Evidence of Assets Within Jurisdiction Disclosure of All Assets Within Jurisdiction Pursuit of Information Plaintiff s Burden of Proof Risk of Dissipation of Assets Factors to Be Considered Domicile of Defendant Course of Dealings and the Historical Antecedents of the Defendant s Business Conduct of Defendant Probity of Defendant Conduct of Defendant Lack of Probity Risk of Dissipation of Assets Question of Fact Proof of Dissipation of Assets Matter of Evidence Danger of Default Evidence of Danger of Default A Real Danger of Disposal of Assets Test to Be Applied Inferences can be drawn from Available Evidence Risk of Dissipation of Assets Affidavit Evidence Averment in Affidavit of Threat of Dissipation of Assets Where Defendant is Short of Money Refusal to Pay Disputed Debt Mere Disposal of Funds Insolvency of Defendant and Risk of Dissipation of Assets Evidence of Risk of Dissipation of Assets Real Risk of Dissipating Assets Duty of Court Evidence of Risk of Dissipation of Assets Risk of Dissipation of Assets Plaintiff s Claim Interests of Defendant - Striking a Balance

8 Threat of Disposal of Property - Balance of Convenience Maintaining the Status Quo Error in Evaluation of Evidence Risk of Dissipation of Assets - Construction Contract Dispute Risk of Dissipation of Assets Land Dispute Absence of Risk of Dissipation of Assets Oppression to the Defendant Assets to Be Injuncted - Mareva Sum The Essence of A Mareva Injunction Upper Limit of Mareva Order Disposal of Assets Pending Mareva Injunction Application Ancillary Orders in Aid of Mareva Orders Discovery in Aid of Mareva Injunction Restraining a Defendant from Leaving the Jurisdiction - Ancillary Order to Mareva Injunction Foreign Incorporated Companies Risk of Dissipation of Assets Mareva & Lifting the Corporate Veil Lifting the Corporate Veil Existence of Assets Within the Control of the Defendant Evidence of Fraudulent Purpose or a Dishonest Intent Effective Control Lifting the Corporate Veil Burden of Proof CHAPTER 8 FULL AND FRANK DISCLOSURE Introduction Material Facts Meaning of Full Disclosure of Material Facts Meaning of Materiality of Any Fact - Question of Fact Full Disclosure Principles - Duty of Candour Practicality Striking a Balance Determinor of What is Material for Disclosure Full Disclosure & Ex Parte Applications - Application for Ex parte Injunction- Material Facts Full Disclosure Purpose of Full Disclosure Scope of Duty of Disclosure Full and Frank Disclosure and the Rules of Court Duty Upon an Applicant For An Ex Parte Injunction Application for Ex parte Mareva Injunction - Full and Frank Disclosure of All Material Facts Duty Not To Mislead the Court Duty of Applicant to Disclose Any Anticipated Defence

9 Duty of Applicant to Make Proper Inquiries Affidavit Evidence Principles of Full Disclosure Order 29 r 2A(c) of the Rules of the High Court Order 29 r 2A(d) and (e) of the Rules of the High Court Whether there was Non-Disclosure of Material Facts by the Plaintiff Determination by Court No Suppression of Material Facts Suppression of Material Facts Failure to Make Full Disclosure at Ex Parte Stage Discretion of Court Proof of Material Non-Disclosure Discretion of Court Failure to Make Full Disclosure Court s Discretion Order 29 r 1(2B) of the RHC Fetter of Court s Discretion Whether Non-Disclosure Was Severe Relevant Non Disclosure and Consequences Non Disclosure Approach of the Courts Ex parte Mareva Order Obtained Without Proper Disclosure of Material Facts - Whether Continuation of Mareva Order Should Be Allowed Rules of High Court 1980 Non Disclosure at Inter Partes Stage Without Prejudice Negotiations CHAPTER 9 UNDERTAKING AS TO DAMAGES History of the Undertaking as to Damages Purpose of Undertaking as to Damages Damages which may Constitute Assets Available To Meet The Liability on the Undertaking Clean Hand Principle - Undertaking as to Damages Undertaking as to Damages Plaintiff s Ability to Satisfy Undertaking Undertaking in Damages Financial Position of Plaintiff Proof on a Balance of Probabilities Duty of Judge and Undertaking as to Damages No Assets Within Jurisdiction Security For Undertaking Fortification of the Plaintiff s Undertaking as to Damages Post Judgment Mareva Injunction - Undertaking as to Damages

10 Damages Payable to the Defendant by Plaintiffs on their Undertaking to Pay Damages Remoteness of Damage Measure of Damages - Undertaking as to Damages Measure of Damages CHAPTER 10 VARIATION, DISCHARGE & APPEAL Rights of Defendant Application to Vary or Discharge a Mareva Injunction Angel Bell Order Duty of Court Procedure for Variation of Mareva Injunction Variation of Mareva Injunction Policy Underlying the Mareva Jurisdiction Variation of Mareva Injunction Factors to be Considered Variation of Mareva Injunction Defendant to Disclose All Assets Variation of Mareva Injunction Whether Assets Belonged to Defendant Variation Duty of Court Legitimate Debts Daily Expenses Living Expenses and Legal Costs of the Defendant Variation of Mareva Injunction Payment of Legal Fees Legal Proceedings Abroad Removal Of Assets Burden of Proof Discharge of Mareva Injunction Setting Aside Interlocutory Injunction Dissolution of Injunction Setting Aside Injunction - Jurisdiction of Court to Discharge Interlocutory ex parte Injunction Discharge of Injunction - Factors to be Considered Factors to be Considered in Application to Set Aside Injunctions Conduct of Plaintiff s Solicitors Discharge of Mareva Injunction Motive of Plaintiff Obtaining Security Discharging of Mareva Injunction - Prejudice To The Defendant Application to Discharge Mareva Injunction Rehearing Application to Set Aside Ex Parte Order made in Chambers - Hearing of Motion to Set aside an Ex Parte Order made in Chambers

11 Fresh Evidence Introduction of Fresh Evidence Application to Dissolve a Mareva Injunction - Balance of Convenience Application to Dissolve a Mareva Injunction - Material Non-Disclosure Misleading Averments Discharge of Injunctions Discharge of Injunction - Non-Disclosure of Material and Cogent Relevant Facts Application to Set Aside Mareva Injunction - Abuse of Process Non Compliance of Rules Failure to Give Notice of Intention to Proceed Application to Dissolve a Mareva Injunction Delay Delay - Application for Further Argument in Open Court Effect of Withdrawal of Application to Set Aside Injunction and Appeal Dismissal of Application to Discharge a Mareva Injunction Dismissal of Application to Set Aside Injunction Inter Partes Application as Sequel to Defendant s Successful Application to Discharge an Ex Parte Order Granting a Fresh Injunction Subsequent to Discharge of Injunction Stay of Mareva Injunction Appeal Role and Duty of Appellate Court Appeal against Refusal to Grant Mareva Injunction Effect of Preservation Order Issued by Appellate Court CHAPTER 11 MAREVA & CONTEMPT Contempt of Court Introduction Power to Punish for Contempt of Court Contempt of Court - Standard of Proof Evidence of Contempt Affidavit Evidence Injunctions and Contempt of Court Terms of Injunction and Contempt Contempt Mens Rea Right of Contemnor to be Heard Registrar - Contempt of Court Mareva Injunctions and Contempt of Court Defective Mareva Order & Contempt

12 CHAPTER 12 ANTON PILLER ORDERS Introduction Anton Piller KG v Manufacturing Processes Ltd & Ors Anton Piller Order Malaysia Nature of Anton Piller Order & Duty of Court Anton Piller Order in Aid of a Mareva Injunction Jurisdiction to Grant Anton Piller Order Pre-Conditions For Grant of Anton Piller Order Basic Requirements for an Anton Piller order at Ex Parte Stage Strong Prima Facie Case A Real Possibility Grant of Anton Piller Order Exercise of Court s Discretion Full & Frank Disclosure Anton Piller Order Failure to make a Full Disclosure Non-Disclosure by the Plaintiffs Application to Discharge Anton Piller Order Ground of Material Non-Disclosure by the Plaintiffs Non-Disclosure of Material Facts Time for Determination Documents Need Not Form Part of Subject Matter of Action Court Can Order Discovery of Assets and Delivery Up of such Assets Serious Practical Effects and Consequences of an Anton Piller Order