| Mepcom Polymer Sdn Bhd v Lee Yoke Ping & Anor [2021] 9 MLJ 1
High Court (Johor Bahru)
Plaintif filed an application for Mareva Injunction against Defendants |
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| Facts | 1. The Plaintiff in this case was the Managing Director (“MD”) of the company namely Mepcom Polymer Sdn Bhd. The Plaintiff’s accounts and human resource manager was the first Defendant. While Kumpulan Wang Simpanan Pekerja (KSWP) as the second Defendant.
2. The issue occurred when the MD discovered that the first Defendant was receiving money and salaries in excess of her actual salary and other entitlements, as well as making false declarations on her salary to the KWSP. 3. In early April 2020, when the MD received the summary table of salary March 2020, he eventually discovered that by adding up the whole sum of the employees’ nett did not with the final figure given in the summary table. The MD noticed a difference in which the total payment is substantially higher than the sum of the individual wages. 4. Furthermore, the MD claimed that when the first Defendant was asked to disclose the records in her possession in order to verify the statistics, she refused to do so. The figures were then accessed from Public Bank Bhd in which, the MD learned that the first Defendant had been receiving significantly higher salaries than she was entitled to. 5. The Plaintiff then filed an action against the first Defendant for the offence of breach of fiduciary duty and fraud. The Plaintiff claimed that the first Defendant misappropriated RM1,743,440.74 which was downed from the original claim amounting to RM1,994,709.92. 6. In order to prohibit the first Defendant from dealing with or dissipating her assets pending the decision of the court regarding the Plaintiff’s claim against her, the Plaintiff filed an application of Mareva injunction against her. |
| Issue | 1. Whether Plaintiff had a good arguable case
2. Whether Defendants’ assets were within jurisdiction of court 3. Whether there was risk of assets being dissipated or removed before judgment was satisfied |
| Ratios | 1. There were noticeably three legal requirements applied by the court before granting Mareva injunction in the Plaintiff’s favour:
a) The Plaintiff has a good arguable case b) The Defendant’s assets are within the jurisdiction of this court c) There is a risk of the assets being dissipated or removed before the judgments is satisfied. 2. The Plaintiff has a good arguable case against the Defendant. a) The affidavit in support by the Plaintiff collectively shows the discrepancies in the net sums payable for the salaries and enrolments and the actual sums paid out of the Plaintiff’s bank account. b) Suffice to say that this court found on the evidence in the affidavit in support and all the exhibits, the Plaintiff has established more than an arguable case to satisfy such first requirement required for a Mareva injunction to be granted. 3. The Defendant’s assets are within the jurisdiction of this court. a) The first Defendant admitted to having assets within the jurisdiction of this court which is monies in her bank account in Public Bank Bhd. And the house located in Johor Bahru which could be considered as evidence. 4. There is risk of the assets being dissipated or removed before the judgment is satisfied. a) Mareva injunction may be allowed if there is the presence of a risk of dissipation or removal of first Defendant’s assets out of jurisdiction before any judgment can be satisfied. b) It was claimed by the first Defendant that the MD have been complicit in manipulating the Plaintiff’s accounts for the purpose of evading taxes and making payments to the MD for the alleged personal use of the monies. c) Such allegations were made without any evidence but her admission reflects her untrustworthy character. Her allegation that the acts were committed on the instruction of the MD is irrelevant as it was done willingly with a view of sharing the ill-gotten gains. d) The lack of probity and conduct of the first Defendant and her dishonest admission has given rise to almost certain risk that the assets will be dissipated or removed before the judgment is satisfied. |
| Decision | 1. The Mareva injunction applied by the Plaintiff was allowed by the court as all the three requirements has been duly fulfilled.
2. The court applied such three requirements as legal consideration into the merits of the case before granting the Mareva injunction in the Plaintiff’s favour. |
| Key Takeaways | 1. The court would be called upon to observe all the three requirements before allowing any application for Mareva injunction to the applicant.
2. With regards to the first requirement, “Good arguable case” is difficult to define but it is safe to say that the applicant need not show that he have a case so strong as to warrant summary judgment nor even a strong prima facie case. It is sufficient if the applicant can show on evidence available whereby there is a fair chance that he will obtain judgment against the defaulting party. 3. According to Order 29 Rule 1 of Rules of Court 2012, an application for a Mareva injunction may be made by way of ex-parte notice of application supported by an affidavit. The purpose is to prevent the defaulting party from knowing about such action to ensure the assets are not dissipated out of jurisdiction. |
