Introduction

In any property deal, due diligence is the magic that transforms chaos into clarity. It is like a complex puzzle. Each piece – the initial process, the land search, the ownership history, the state and nature of the property itself – must fit together to create a harmonious outcome. This guide equips the Purchaser with invaluable insights on the due diligence manner from a legal perspective to ensure a seamless and informed transaction process.

Before you say I-do

Before boarding on the property purchase journey, it is crucial to establish a solid financial foundation. Conducting a comprehensive assessment of your budget, including potential monthly payments and deposit requirements, is essential. Malaysian employees contributing to the Employees Provident Fund (EPF) may consider utilizing funds from Account 2 for the deposit.

Property Inspection and Assessment

Upon deciding to proceed with the purchase, it is important to conduct a meticulous physical inspection of the property. This involves evaluating the property’s condition, identifying any structural deficiencies, and anticipating potential renovation or repair needs. Clarifying the inclusion of fixtures and fittings and documenting the property’s current state through photography can be used as evidence during negotiation with the Vendor especially if there are visible issues or defects that need to be addressed.

Land Search and Ownership Verification

Conducting a land search before committing to a property purchase is crucial as this mundane task will reveal crucial information that could impact the entire sale and purchase process.

The land search reveals essential information such as land tenure, whether it is erected on a leasehold or freehold land which will influence tenure and ownership rights. Additionally, knowing if the property is still under master title or issued strata title discloses not only who is the registered owner but also if developer’s consent is prerequisite for the sale and purchase. You might need to conduct a further search if a caveat has been lodged on that property for whatever reason.

By ensuring that the Vendor holds the legal right to sell with or without the state authority consent, you mitigate the risk of purchasing a property riddled with disputes or conflicting claims. Do not be misled by the representative. A bankrupt Vendor must obtain a sanction from Insolvency Department. On the other hand, you might need to acquire the beneficiaries’ approval and the Court order prior to the purchase from a deceased Vendor.

Sale and Purchase Agreement (SPA)

The SPA serves as the comprehensive blueprint for the property transaction, encapsulating critical clauses including but not limited to the purchase price, deposit amount, completion date, conditions precedent, possession conditions, warranties, defect liability, and termination rights.

Special considerations may arise, particularly concerning properties with unique features such as elevators or swimming pools, which may necessitate the inclusion of an extra warranty period to cover any associated risks or maintenance requirements. Ultimately, once your name is endorsed on the issued document of title, the property is legally yours.

Conclusion

Owning your dream property is a significant milestone, and ensuring a smooth and secure journey requires thorough due diligence. Remember, due diligence isn’t just a formality; it’s an investment in peace of mind and the foundation for a successful property transaction.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

War has far-reaching consequences that extend beyond the battlegrounds. Shipping plays a pivotal role in the global economy, facilitating the movement of goods across borders and connecting nations. In times of war, the effects on shipping can be both immediate and enduring, impacting various aspects of the industry.

Insurance Costs

Inherent risks associated with shipping are exacerbated during times of war. Insurance costs for maritime assets skyrocketed at an unaffordable rate as insurers factor elevated threat of damages, loss, or seizure. Insurers might also impose additional premiums or exclude certain regions from coverage altogether. The London Market’s Joint War Committee (JWC) publishes a list of areas of perceived enhanced risk in relation to hull war, strikes, terrorism and related perils.

Once an area is perceived as a ‘High Risk’ area, the underwriter shall give a notice to the standard war risk insurance subscriber, canceling and reinstating the insurance policy excluding the new high risk area from coverage.

Ukraine-Russia War

This is one of the effects of the Ukraine-Russia War, where vessel owners who subscribes to the standard war risk insurance are no longer covered. Owners might have to purchase additional premiums insurance coverage, when the Black Sea adjacent to Ukraine-Russia is listed as a ‘High Risk’ area.

Gaza-Israel War

Currently, vessels are attacked by drones, missile strike, and seized by the Yemen’s Houthis in the Red Sea as a global consequence of the Israel-Gaza war. The Houthis have threatened to target Israeli vessels in the waterway, demanding Israel to stop the aggression towards Gaza. In response to these attacks, the JWC has widened the ‘High Risk’ area in the Red Sea.

Constructive Total Loss (CTL)

Vessels in a war-torn region often suffer from destruction, attacks, seized, or trapped. CTL is whereby the vessel is effectively loss but not actually destroyed, is a unique concept in marine insurance. In claiming CTL, Owners must show they have been deprived of ownership of the vessel within reasonable time, also called as the “Bamburi test”.

This test was developed during the Iran-Iraq Tanker War in the 1980-1988, where almost 70 vessels were trapped in the Persian Gulf during the war. Justice Staughton in The Bamburi [1982], held that a 12-month duration is deemed satisfactory to determine what is regarded as “reasonable time”.

Notice from Owners is required to address the situation to relevant parties such as the banks, charterers, insurers, and cargo owners. Subsequent notice is essential after the expiration of the 12-months period and a proper notice of abandonment shall be given. Owners must ensure that the vessel is unlikely to be recovered at the time these notices were sent.

Conclusion

The effect of war on the shipping industry is a complex interplay of geopolitical, and economic factors. From disruptions of trade routes and increased security concerns, and to the rising costs on insurance and damages which affect the global economy, the shipping industry must adapt to the challenges posed in the ever-changing landscape of war, finding ways to navigate through troubled waters.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

In the event that a company has been dissolved, but there are still outstanding assets which have not been dealt with, it is important to understand the legal procedures involved in managing the said assets. This article will discuss on the standard process for handling the outstanding movable assets of a dissolved company.

Pursuant to Section 557 of the Companies Act 2016 (“CA 2016”), any outstanding property will be vested in the Registrar of the Companies Commission of Malaysia (“CCM”). This property encompasses both movable and immovable assets, including things in action, whether located within or outside Malaysia, that, at the time of the company’s dissolution, were either:-

a)    Vested in the company;
b)    The company was entitled to it; or
c)    The company had a disposing power.

Typically, when a company has been dissolved, there should not be any outstanding property left, as the company or its liquidator, depending on the situation, would have disposed of or dealt with the assets before the company’s dissolution. Additionally, the company must make a declaration to CCM confirming that there are no assets of the company still not disposed of and that the company’s liabilities have been settled with or waived.

However, in situations where a dissolved company still possesses property, especially if the company voluntarily struck itself off rather than undergoing winding-up proceedings, those interested in the property have two options:-

1. First, by reinstating the company under Section 555 of the  CA 2016 by filing the necessary Originating Summons before the High Court of Malaya. Once the Court grants the Order for reinstatement, the outstanding property can be dealt with accordingly. 
2. Second, the outstanding property can be acquired from the Registrar of CCM. This process is initiated by the interested party to first notify the dissolved company’s shareholders and directors and obtaining their written consent for the acquisition. 

It is worth noting that the interested party can also be a party associated with the dissolved company, for instance a former director of the said company. The approval, together with the necessary application and supporting documents, should subsequently be submitted to the Registrar of CCM. If all requirements are met with, the outstanding property can be sold to the interested party.

Regarding the proceeds from the sale, the Registrar of CCM is entitled to 30% of the amount, as stipulated in Item 31 of the Companies Regulations 2017. The remaining 70% is allocated to cover the necessary expenses associated with the sale. If there still remains balance, this monies is then transferred to the “Jabatan Wang yang Tidak Dituntut”. If the dissolved company intends to retrieve this remaining monies, the process of reinstating the company under Section 555 as mentioned earlier must be followed.

If the party interested in the assets is the same party having interest in the proceeds, for example, the previous director/shareholder of the dissolved company, it will be advisable to choose the first option, which is reinstating the dissolved company pursuant to Section 555 of the CA 2016.

Reason being, the interested party would need to only undergo one process, that is the reinstatement of the dissolved company. Once the dissolved company is reinstated, the interested party may proceed to deal with the assets accordingly.

The second option is best for those who are interested in the assets but has no nexus with the dissolved company. They will not be entitled to the remaining monies as their purpose is just to obtain the assets for their own use.
In conclusion, while there is still a chance to deal with the outstanding movable assets after the dissolution of the company, it is important to weigh the time involved in the legal proceedings one may need to undertake and the associated expenses. Different types of property may require distinct procedures, supporting documents and legal considerations.

Perhaps, the wisest course of action is to ensure that, when one voluntarily dissolve his/her company, no assets are left behind.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

Introduction

A restraining order (RO), vested in Section 368 of the Companies Act 2016 (“CA”), provides a temporary reprieve from the commencement of any legal proceedings/actions  against a financially distressed company, while it restructures its’ business resources and debts obligations. 

Ex Parte application for an RO

In Mansion Properties Sdn Bhd v Sham Chin Yen & Ors, the CA did not expressly mention that an application for an RO must be made inter parte. Hence, there was nothing objectionable about filing an ex parte application. To prevent the effort of developing and approving  an SOA from being thwarted, applying for an RO is deemed necessary. Moreover, the time constraint faced by distressed companies requires decisions concerning the proposed scheme to be made as soon as possible. A company is vulnerable between the initial formulation of the scheme and the sanction of the court.

Generally, the purpose of filing an ex parte application is to ease applicant companies to seek urgent moratorium protections in due course.  Provided that the RO was applied in good faith, an ex parte application would not warrant it to be set aside  unless such  application  is  an abuse of process of the law and/or there is no special circumstances which are not in conjunction with the practice and procedure before the court. 

(i) Abuse of process of the law

An action may amount to an abuse of the legal process when its legality is used in a manner that do not serve the underlying goal but rather to achieve other collateral purposes. 

In Dynawell (M) Sdn Bhd v Universal Trustee (M) Berhad (Proposed Intervener), Dynawell’s repetitive RO application has indicated that it originated from the same source or author, showing that it has been proposed with the knowledge and involvement of the directors to delay the foreclosure proceedings that commenced in November 2011. At the same time, Dynawell had failed to obtain leave from the winding-up court and had instead filed a separate ex parte application in the present court. 

There has been a blatant disregard of the provision by Dynawell when it had also failed to comply with the mandatory requirement provided in Section 176(1)(a) until (d) of the Companies Act 1965. The RO was then to be set aside due to Dynawell’s mala fide intent of concealing the material facts from the present court. 

(ii) Exceptional/special circumstances

Creditors are allowed to intervene and bring its own proceedings against the company at any time before the scheme is sanctioned by the court, whereby the creditors must be able to prove the existence of ‘exceptional circumstances.’

Creditors’ right to intervene is not absolute. Granting of leave depends on whether there is such special circumstances that can be demonstrated. To do so can be challenging, especially when the courts would be reluctant to accept the mere reason of “having the real possibility of success”. Aggrieved creditors must show that the circumstances are of sufficient weight to overcome the strong imperative to have the claims dealt with under the machinery of SOA. It necessitates a careful evaluation to ensure the claims made align with the overarching objective of the scheme.

The high court in Re Top Builders Capital Bhd & Ors ruled that monetary compensation may not likely grant the creditor the right to intervene, as it would impede the achievement of the scheme since companies need to consider paying off their debts while undergoing rehabilitation. Claiming for monetary relief would procedurally be rejected asit would defeat the whole purpose of an SOA. Ultimately, it shall be the court’s discretion in determining what may amount to ‘exceptional circumstances’ on a case-to-case basis.

Conclusion

The question of whether an RO can be easily set aside would depend on the ground reasoning rooted at the foot of the RO. If the RO is embedded on the basis of an ill-will intent to achieve a deceitful end, the RO can be set aside.

The purpose of filing for an RO is to aid the effort of formalizing an SOA for distressed companies with financial liabilities. Misusing it for personal gain is unjustified under the law and may warrant it to be set aside by courts.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

Introduction

The Construction Industry Development Board (“CIDB”) is a statutory body established under the CIDB Act 1994 (“the Act”). The Act empowers CIDB to be a one stop body to promote and stimulate the development of the construction industry in Malaysia.

Under Section 34(2) of the Act, CIDB is authorised to impose on every registered contractor (but before the commencement of any construction works having a contract sum of above RM500,000.00) a levy of a quarter per centum of the contract sum. 

(1) How the Court Interpret Statutes involving Tax/Levy

Essentially, a levy is a tax and taxing statutes are to be interpreted in the same way as any other statute, that is taxing statutes must be given a purposive interpretation to fulfil the objective of the statute.

In the Federal Court case of LEMBAGA HASIL DALAM NEGERI MALAYSIA V ALAM MARITIM SDN BHD [2014] 2 MLJ 1, it was held that when interpreting provisions of a taxing statute, the intention of Parliament must be construed from the language used and the Court is to interpret it accordingly. If the language is clear, unambiguous and applies accurately to existing facts, the Court shall accept the ordinary meaning. If the words are not so explicit, it is incumbent upon the Court to undertake an exercise to seek out the purpose of Parliament, avoiding both injustice and absurdity.

The Act would be interpreted strictly by the Court within its four corners and the words used.  However, if the words used are vague, it is upon the Court to discover the true intention and/or purpose of the Parliament in enacting the said statutes.

(2) Whether the Act applies to Offshore Construction Works

Section 34 spells out the obligations of a contractor under the Act. Those obligations are divided into two, firstly the contractor needs to declare and submit to the CIDB any contract (having a contract sum of above RM500,000.00) that has been awarded to the contractor. Secondly, there is a levy quarter per centum of the contract sum imposed to the said contractor.

Subsections (1) and (3) require a contractor to declare their contracts to the CIDB, failing which under subsection (10), the contractor shall be liable to a fine not exceeding RM50,000.00.

Subsections (2) and (4) provides for the contractor to pay the levy imposed on them by the CIDB, failing which subsection (9) provides for a fine not exceeding RM50,000.00 or four times the amount of such levy payable, whichever is higher.

In the Federal Court Case of LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA V KONSORTIUM JGC CORP & ORS [2015] 6 MLJ 612, the Court held that it is well settled that the language of a statute imposing a tax, duty, charge or levy must be strictly construed, with no intendment permitted. Words must be given their ordinary meaning. Nothing is to be read in or implied and once that meaning is clear, due regard must be given to it. Any ambiguity must be decided in favour of the taxpayer charged. These general principles of interpreting a tax imposing statute are still woven into the fabric of the principles of construction of taxing provisions despite the introduction of Section 17A of the Interpretation Acts 1948 and 1967. 

The Federal Court was of the view that the consequential effect of the rapid economic growth in this country where mega projects and joint ventures by Malaysian based companies together with offshore entities are no more a rarity, makes it all the more imperative that the objective and purpose of the Act be implemented. This purposive and practical approach will surely assist and fulfil the task of the appellant, together with the levy mechanism, to manage, develop and regulate the construction industry tremendously.

Conclusion

Based on the above observation, it can be seen that offshore construction works falls under the purview of Section 34 of the Act and CIDB can impose levy accordingly. 

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

In the last article, we explored the law that regulates a Freight Forwarder’s responsibilities (FF) according to different industries (air, sea, road, rail). This article will focus on whether FFs share the same obligation with the Shipper and the Carrier.

Lastly, we will also touch on whether a FF be subjected to a criminal or administrative offence (if there is any violation of laws).

Freight Forwarder = Carrier/ Shipper?

Based on the case Jones v General Express [1920] 4 LI.L. Rep 127, the Court held that:

‘A forwarding agent is not a carrier; he does not obtain the possession of the goods; he does not undertake the delivery of them at the other end. 

He only acts as an agent for the owner of the goods to make arrangements with the people who do carry.’

In short, FF is merely a facilitator and a middle person who will make arrangement with the Carrier and/or the Shipper with regards to transportation of hazardous cargo. However, the transaction process does not end at FF’s stage. Hence, the legal status of a FF is merely an agent.

Malaysian Context

Similar facts can also be seen in the Malaysian case of Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight Systems (M) Sdn Bhd (Malaysian Airline System Bhd, third party) [2011] 3 MLJ 98. 

In Etonic Garment’s case, the Defendant, a FF, was sued for failure to deliver goods within a reasonable period of time. The Court held that the Defendant, as a FF has complied with its contractual obligations by delivering the goods from the Plaintiff Shipper’s factory to MASkargo and arranging for the transport of Plaintiff Shipper’s goods through MAS (Carrier). As the Defendant, a FF, did not undertook to deliver the goods to Dublin itself nor ensure that MAS as Carrier did so, the Defendant was not responsible for failure to deliver the goods in a timely manner, nor were they responsible for any damage, loss or loss of profit suffered by the Plaintiff Shipper. 

Therefore, it is established that FF is not a carrier and its responsibilities are the moment they collect the goods from the Shipper/Manufacturer premises and later deliver the goods to the Carrier, to be delivered to Consignee.

Another case worth mentioning is Ing Hua Fu Marine Line Sdn Bhd v Vitachem (M) Sdn Bhd & Anor [2013] 9 MLJ 825.

In this case, the cargo contains agrochemical products which is known in the shipping industry as dangerous cargo. The cargo exploded on board the Vessel and the Vessel sank. Freight Forwarder was sued as the 2nd Defendant for failing to notify that the cargo was of dangerous nature. 

The Court held that under the tort of negligence, the FF is exempt from liability and all damages suffered by the Carrier is borne by the Shipper. However, since the FF provided an independent warranty to the Carrier that the goods were safe for shipment, it is liable for breach of warranty

Key takeaways

1. Generally, FF is not a Carrier nor a Shipper if its role is merely to make arrangements for the transport of shipments as per Etonic Garment’s case;
2. However, based on the Ing Hua Fu Marine’s case, FF may be liable under contract if it provides a warranty that the shipment is safe and not dangerous. Therefore, FF still should ascertain the nature of the goods upon arranging for transport.
3. In tort, legal liability is determined by whether the FF undertakes to deliver the goods themselves, or undertakes to ensure that the goods will arrive promptly by the Carrier.
4. FF is bound by its contractual obligations between parties and may be found liable for breach of contract.

*This article is only for informative purposes. If you have any specific freight forwarder or shipping relevant matters, consult a professional to understand better.

Rahayu Partnership provides a wide range of services that cover internationally and locally. Please do not hesitate to contact us for a consultation.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

The usage of logistics has significantly increased over the decades. Particularly during the pandemic when no one is allowed to go out. People have been shopping online, locally or even globally.

The demand for cross country goods exchange did not slow down at all. All these goods are carried by cargo in various ways: by air, sea, road and rail. Typically, the party that arranges and manages the entire process is the freight forwarders (FF).

In this article, we will discuss the FF’s liability for carrying hazardous goods by air, sea, road and rail.

What is ‘Hazardous Goods’?

The general meaning of it is referring to goods that are capable of causing physical damage in either a direct or an indirect manner (as per Scrutton on Charterparties and Bills of Lading [125th Ed])

As we discuss the global shipping norm, its definition varies from country to country. Moreover, it also has specific meanings across different ways of transport. Let’s explore more below.

Carried by air

The definition by air is set out in Civil Aviation Directives 18 – National Transport of Dangerous Goods Programme (CAD 18 – NTDGP), Issue 01/ Revision 00, which is:

‘Dangerous Goods’ means things that can risk health, safety, property or the environment. It is all specified in the list of dangerous goods in Technical Instructions.’

For the obligation of the operator (carrier) and shipper, Section 134 of the Civil Aviation Regulations 2016 can be referred to.

Malaysian Context

The list of Dangerous goods created by the International Civil Aviation Organisation (ICAO) in the ICAO Technical Instructions is applicable in Malaysia.

*Do note that local Air Carriers and Shipper should have ICAO Technical Instructions in hand to ensure that they comply with international requirements for transporting dangerous goods/hazardous material.

Carried by sea

Internationally, the transport of dangerous goods is regulated by:

1. Chapter VII of the International Convention for the Safety of Life at Sea 1974 (SOLAS)
2. International Maritime Dangerous Goods (IMDG) Code

Locally, it is regulated by:

1. Merchant Shipping Ordinance 1952, Carriage of Goods by Sea Act (COGSA)
2. Each Port’s by-laws

*By-laws refer to the law made by the local authority.

Malaysian Context

For instance, Pasir Gudang Port in Johor is regulated Johor Port Authority (Pasir Gudang Port) (Scale of Charges) By-Laws 2011 (PU(A) 175/2011). Therefore, people have to comply with international and local laws when dealing with freight forwarding matters.

So far, as Malaysia is a signatory to SOLAS, Chapter VII of SOLAS and IMDG Code are applicable for transport of dangerous goods by sea.

Ultimately, the IMDG Code covers the technical/operational part of carriage of dangerous goods by sea, including the classification, packing, marking, labelling and placarding, documentation and storage of hazardous goods.

These requirements are essential for all parties, especially Manufacturer and Shipper.

Carried by road

Dangerous goods are defined in Section 2 of the Motor Vehicles (Construction and Use) (Vehicles Carrying Dangerous Goods) Rules 2015:

“Dangerous goods” means referring to the materials listed in First Schedule (the First Schedule is attached for easy reference);

“Class of dangerous goods” means referring to the classes listed in Second Schedule;

“Dangerous goods vehicle” means any goods vehicle constructed or adapted to carriage dangerous goods.”

Malaysian Context

In Malaysia, the road transport industry is regulated by:

1. Land Public Transport Act 2010 [Act 715];
2. Panduan Dasar Pelesenan SPAD; and
3. Guidebook on Approval of Vehicle Types (Amendment) 2015

The road transport industry is slightly different from others. It is not subject to international conventions. Hence, for the definition of hazardous goods, it has to be cross-referred with the local law as mentioned above.

Conclusion

All the relevant responsibilities or obligations of each party/ industries are regulated by many different laws and international conventions. Therefore, each case or scenario might involve cross-checking international and local law to further examine the matter.

*This article is strictly for informative purposes. If you have any specific freight forwarder or shipping relevant matters, consult a professional for a better understanding.

Rahayu Partnership provides a wide range of services that cover internationally and locally. Please do not hesitate to contact us for a consultation.

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com

We sometimes hope that there is a magic spell to compel a person from not doing or doing something. But, we are not living in a magical world. Therefore, no one can force or control you against your will.

Realistically, we can still achieve that. Not by magic, but with a court order– injunction. There are so many types of injunction granted by the court. Once established, the court can order someone to stop doing things. For example, a man is no longer allowed to enter this neighbourhood. But, on the other hand, the court can compel a person to compensate in monetary form to another person.

Nevertheless, only serious matters can consider by the court. Therefore, the above examples are only for explanation purposes. In this article, we will only discuss ‘Mareva injunction’.

What is ‘Mareva Injunction’?

This specific injunction is derived from the landmark case of Mareva Compania Naviera SA v International Bulk Carriers SA(“The Mareva”) [1980] 1 All ER 213. It is originated from the United Kingdom. It intended to stop a shipping dispute and prevent the foreign party from transferring the money out of the country.

The legal definition is an ‘asset preservation order’ or a ‘freezing order’ in other countries. Mareva injunction aims to prohibit the defendant from disposing of his or her assets out of the jurisdiction before the plaintiff secures any judgment.

In simple words, it is a court order from stopping a person from moving their assets (money, property, belongings) out of the country before the plaintiff (the person who file an application against them) get a judgment.

Let’s read below to see how Mareva injunction is incorporated in Malaysia.

Mareva Injunction In Malaysia

The prominent national case of 1MDB is an excellent illustration of the Mareva injunction. Amid the legal suit, 1Malaysia Development Berhad (1MDB) and its subsidiaries filed a Mareva injunction against our former Prime Minister.

It is a Mareva injunction with the condition. Our former prime minister is allowed to withdraw RM100,000 for covering his living expenses. Other than that, Najib has to get written permission from 1MDB if he wants more.

Upon the injunction, Najid unable to use or move any of his assets out of the country until further legal proceedings. His lawyer can choose to apply to set aside the injunction. Nevertheless, there is no further update on the case.

Global Mareva Injunction

From Malaysia’s context, the Malaysian court can issue a Mareva injunction that is effective worldwide. Due to the convenience of owning an asset overseas, it is reasonable to cover all assets of a person (if all the assets, including the overseas, are under the same person’s name).

The earlier worldwide Mareva injunction dated back in 2005 (a case from stopping the person from embezzling his assets within and outside of Malaysia- Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad b Hj Hassan & Ors [2005] 1 MLJ 654).

Until now, the recent Court of Appeal case (The Customs and Tax Administration of The Kingdom of Denmark v Saling Capital Ltd & 39 Ors). Malaysia’s Court of Appeal granted the injunction as the party fulfilled the requirement of the principle.

Conclusion

The application of Mareva injunction (including worldwide) uses the same principles. For a party to file a case, the applicant must have:

• A good arguable case
• There is a real threat of the defendant transferring their assets out of the country
• The assets must be within the jurisdiction (for example, within Malaysia to file a case in Malaysia)

A Mareva injunction is merely safeguarding the assets and funds. It does not provide any additional rights over the property. Rahayu Partnership offers a wide range of services that cover internationally and locally. We urge everyone to take care and stay safe. Contact us if you need a consultation.

References:

1. https://www.freemalaysiatoday.com/category/nation/2022/02/09/najib-to-mount-strong-challenge-against-mareva-injunction-says-lawyer/ 
2. Mareva Injunction as a Preventive Relief – IIUM Journals
3. https://www.theedgemarkets.com/article/najib-strongly-challenge-mareva-injunction-freezing-his-assets

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com