Malaysian Civil Litigation Series

• Published date: 15 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: One Asia Lawyers
• Author: Mr Yuki Hashimoto and Clarence Chua Min Shieh

1. Introduction

In our previous edition, we have looked into the commencement of a legal suit. However, they may be instances where drastic measures need to be taken in order to protect a party's rights and sometimes there is not enough time to file in a writ and statement of claim. For this article, we shall explore one of the more well-known orders to freeze assets, which is the Mareva injunction.

2. What is a Mareva Injunction?

The Mareva injunction derives its name from the case of origin, which is Mareva Compania Naviera SA v International Bulkcarriers SA¹ . This is a temporary order which blocks the defendant from disposing of his/ her assets until the determination of a case that he/she is involved in. Naturally, this order will be requested for by the plaintiff. In the local courts, it has been defined as a form of injunction which 'restrains a defendant by himself or by his agents or servants or otherwise from removing from the jurisdiction or disposing of or dealing with those of his assets that will or may be necessary to meet a plaintiff's pending claim'² . This means that a Mareva Injunction can take place even if a claim has not been filed by a potential plaintiff. The procedure changes slightly in the event that the injunction is required before a suit has been filed or during the filing of such a suit.

This form of injunction is also known as a freezing order under the Civil Procedure Rules 1997³ and it is not uncommon that the words 'Mareva injunction' and 'freezing orders' are used interchangeably in court hearings.

3. Procedural Steps for a Mareva Injunction

In terms of how it is applied, reference must be base to the Rules of Court 2012. Firstly, the application must be made via a notice of application supported by an affidavit. It is common that this application is made without notifying the defendant and without requiring the defendant to be present in court, also called an ex-parte application.

If it is of utmost urgency, it is possible for a plaintiff to file an application before an actual suit was filed to begin with. The affidavit supporting this application must contain the following points^4:

• the facts giving rise to the claim;
• the facts giving rise to the application for an interim injunction;
• the facts relied on to justify the application ex parte including details of any notice given to the other party or, if notice has not been given, the reason for not giving notice;
• any answer by the other party (or which he is likely to...