IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR, MALAYSIA

(CIVIL DIVISION)
SUIT NO. D-22-27-06 OF 2021

BETWEEN

SUMO ENGINEERING SDN BHD

(COMPANY NO: 8761217-X) ...PLAINTIFF

AND

TAN XI CHO

(NRIC NO: 850103-14-5181) ...DEFENDANT

PLAINTIFF’S WRITTEN SUBMISSION

Solicitors for the Plaintiff

Messrs NAS & Co,
Suite 4, AC746, Academic Building 2, Faculty of Law,
Universiti Teknologi Mara,
40450 Shah Alam, Selangor.
A. INTRODUCTION

This written submission is filed for the purpose of the Plaintiff’s Application for
Summary Judgment pursuant to Order 29 Rule 1 of the Rules of Court (ROC) 2012. The
Plaintiff prays for this Honourable Court for a Mareva Injunction to be granted on the
following grounds:

a) The Plaintiff has a good arguable case against the Defendant based on the
evidence and in particular, as the Defendant had failed to pay the Plaintiff the
remaining RM 1,421,000.00 despite being served several invoices upon the
completion of the Project on 1 May 2021.

b) The Defendant has assets within the jurisdiction since the Defendant has control
over Cajun Design Sdn Bhd’s bank account and had made a withdrawal
transaction for the sum of RM 700,000.000 in which the said money is now in
the possession of the Defendant.

c) There is a real risk of the assets being uplifted, dissipated or removed by the
Defendant before judgement as the Defendant had absconded with substantial
sums of RM 700,000.00 taken from the bank account of Cajun Design Sdn Bhd
relating to the project.

d) The orders sought is to preserve the assets and prevent it from dissipation and
that the Plaintiff hereby disclosed full and frank disclosure of the facts.

e) The Plaintiff hereby undertakes to pay damages in case the Defendant suffers
any loss in the circumstance this Order is not granted.

B. FACTS OF THE CASE

The Plaintiff and Defendant entered into a sub-contract agreement dated on 1

September 2020 (hereinafter referred to as the sub-contract) wherein the Plaintiff was the
sub-contractor for Cajun Design Sdn Bhd, a company where the Defendant was the
majority shareholder and Director. The main terms of the sub-contract were the agreed
contract sum of RM 1,450,000.00 and the completion date of 5 May 2021. Cajun Design
Sdn Bhd had obtained an award from Green Garden Sdn Bhd to conduct renovation
works for ‘Chinese Wok Kitchen’. On the day of signing the contract, the Defendant has
 paid the sum of RM 29,000.00 to the Plaintiff. The Plaintiff has issued several invoices to
the Defendant in the course of carrying out the renovation works. On 1 May 2021, the
project was completed and the Plaintiff issued the last invoice. However, when the
Defendant still failed to pay after 10 days, the Plaintiff issued a Letter of Demand to
demand the outstanding payment of RM 1,421,000.00 on 11 May 2021. After several
failed attempts to contact the Defendant, the Plaintiff even visited the Defendant’s
business premises, but it was closed. Later, it was discovered that the Defendant had
transferred a sum of RM 700,000.00 to his personal bank account on 3 May 2021.

C. ENCLOSURES

We ask for the leave of this Honourable court to refer to the following cause papers:

1. Plaintiff’s Notice of Appointment dated on 18 June 2021 (Enclosure No.1).

2. Plaintiff’s Writ of Summons dated on 18 June 2021 (Enclosure No.2).

3. Plaintiff’s Statement of Claim dated on 18 June 2021(Enclosure No.3).

4. Plaintiff’s Ex-parte Notice of Application for Mareva Injunction dated on 18

June 2021 (Enclosure No.4).

5. Plaintiff’s Affidavit in Support dated on 18 June 2021 (Enclosure No.5).

6. Plaintiff’s Certificate of Urgency dated on 18 June 2021 (Enclosure No.6).

7. Plaintiff’s Draft Order dated on 21 June 2021 (Enclosure No.7).

D. PROCEDURE FOR MAREVA INJUNCTION

1. Mareva injunction is defined in the case of S & F International Limited v

Trans-Con Engineering Sdn. Bhd. [1984] 1 MLJ 63 as;

“The order known as Mareva injunction - so named after the case of Mareva
Compania Naviera SA v International Bulkcarriers SA decided in June, 1975 and
the second case in which the English Court of Appeal granted this form of relief - is
a species of interlocutory 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. According to Order 29 Rule 1(1) of the Rules of Court 2012, an application for
the grant of an injunction may be made by any party to a cause or matter before or
after the trial of the cause or matter, whether or not a claim for the injunction was
included in that party’s originating process, counterclaim or third party notice, as the
case may be.

3. The guidelines in the granting of a Mareva Injunction has been laid down in the case
of Third Chandris Shipping Corporation and others v Unimarine SA; The
Pythia, The Angelic Wings, The Genie [1979] 2 All ER 972 where;

i. The plaintiff should make full and frank disclosure of all matters in his
knowledge which are material for the judge to know;
ii. The plaintiff should give particulars of his claim against the defendant, stating
the ground of his claim and the amount thereof, and fairly stating the points
made against it by the defendant;
iii. The plaintiff should give some grounds for believing that the defendants have
assets here;
iv. The plaintiff should give some grounds for believing that there is a risk of the
assets being removed before the judgment or award is satisfied; and
v. The plaintiff must, of course, give an undertaking in damages, in case they fail
in their claim or the injunction turns out to be unjustified.

4. Furthermore, the procedure to apply for Mareva Injunction by an ex parte

application before a judge in chambers is laid down in Order 29 Rule 1(2) of the
Rules of Court 2012 where;

“(2) Such application may be made by a notice of application supported by an

affidavit and where the case is one of urgency, may be made ex parte.”

5. Followed by the Order 29 Rule 1(2A) of the Rules of Court 2012 whereby;

“(2A) The affidavit in support of an application made ex-parte must contain a clear
and concise statement of-

i. the facts which is the full frank disclosure of facts giving rise to the claim;
 ii. the facts giving rise to the application for interim injunction;
iii. 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;
iv. any answer by the other party (or which he is likely to assert) to the claim or
application;
v. any facts which may lead the Court not to grant the application ex parte or at
all;
vi. any similar application made to another Judge, and the order made on that
application; and
vii. the precise relief sought.”

E. GROUNDS OF SUBMISSION

1.0 The plaintiff has a good arguable case.

1.1. It is the Plaintiff’s submission that it has a good arguable case against the
Defendant as the Defendant had breached Article 1 of the sub-contract.

1.2. The Court of Appeal in Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor
[1998] 4 MLJ 1 held that,

“What is a good arguable case is difficult to define. The respondents need not
show that they have a case so strong as to warrant summary judgment nor
even a strong prima facie case. It would generally be sufficient if the
respondents can show on the evidence available, there is a fair chance that
they will obtain judgment against the appellants.”

1.3. Additionally in Menk Sdn Bhd v Joerg Hugo Schmidt [2009] 3 MLJ 205,
the Court of Appeal said:

‘In order to succeed in satisfying the requirement of a good arguable case,

much depends on the circumstances of the case, and invariably will depend on
the available evidence, normally gleaned from the affidavits….’
 1.4. Further, in Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken
v Persons Unknown & Anor [2021] 7 MLJ 178, the High Court provides
that

‘The threshold for a ‘good arguable case’ is one which is more than barely
capable of serious argument but not necessarily one which has to be better
than 50% chance of success.’

1.5. In the present case, the Defendant and the Plaintiff had entered into a
sub-contract agreement (Exhibit SESB-4) to conduct renovation works for
‘Chinese Wok Kitchen’. The Plaintiff has already completed his part of the
obligation under the said sub-contract agreement on 1 May 2021 in
accordance with Article 2 of the sub-contract.

1.6. The Plaintiff had issued 3 invoices to the Defendant, according to the
Schedule for the payment of the works pursuant to Article 1 and Article 6 of
the sub-contract. However, the Defendant failed to pay 3 of the invoices
(Exhibit SESB7, SESB-8 and SESB-9) which amounting to RM
1,421,000.00.

1.7. The Defendant had breached Article 1 and Article 6 of the sub-contracts
because the Defendant has failed and/or refused and/or ignored to pay the
Plaintiff for the work done as claimed through the said Invoices.

1.8. Therefore, based on the abovementioned reasons and evidence, the Plaintiff
has a good arguable case against the Defendant.

2.0 The Defendant has assets within the jurisdiction of the Court.

2.1. In Bank Bumiputra Malaysia Bhd & Anor v Lorrain Osman & Ors
[1985] 2 MLJ 236, the court referred to judgment made in Ace King Pte Ltd
v Circus Americano Ltd & Ors [1985] 1 MLJ 75 whereby the court stated
that there are two requirements to be satisfied with for a Mareva Injunction to
be granted. However, for the purpose of the present judgment, the judge
proposed to split them into three ingredients, which are firstly, the Plaintiffs
must show that they have a good arguable case. Secondly, the Plaintiffs must
produce evidence that the Defendant has assets within jurisdiction and thirdly
that there is a risk of the assets being removed before the judgment is satisfied.
2.2. In Aspatra Sdn Bhd & Ors v Bank Bumiputra Malaysia Bhd & Anor
[1988] 1 MLJ 97, the court referred to the case of Zainal Abidin bin Haji
Abdul Rahman v Century Hotel Sdn Bhd [1982] 1 MLJ 40 and stated that
the importance of the relief by way of injunction in order to preserve assets
and restrict a Defendant from dissipating his assets within jurisdiction before
judgment is made clear in the following passage at page 263 of the Federal
Court judgment:

"In this country we encourage greater foreign participation and investment in

development projects. In such a situation where foreign businessmen including
foreign multinational corporations have injected large sums of money and
have substantial assets in this country, it would be a potential vehicle of
injustice if the plaintiff is denied the facilities afforded by a Mareva injunction
against the foreign defaulter who may try to dissipate his funds and assets in
this country."

2.3. According to the investigation conducted by a Private Investigator appointed

by the Plaintiff, Maju Investigator Sdn. Bhd, the Defendant has assets within
the jurisdiction as the Defendant is a citizen of Malaysia, having control of the
bank account and assets within the jurisdiction. The assets include:-

2.3.1. The Defendant has a saving account at Maybank Bhd, at Shah Alam
Main Branch, 10 Persiaran Perbandaran Section 14, 40000 Shah Alam,
40702 Shah Alam, Selangor, with account number 158181223222
which was established and has its running business in Malaysia.

2.3.2. The Defendant as the director of Cajun Design Sdn Bhd, shall have
control of the savings account of Cajun Design, with account number
158181414256 was opened at Maybank Bhd, which was established
and has its running business in Malaysia.

2.3.3. Furthermore, on 3 May 2021 the Defendant had transferred RM

700,000.00 from the bank account of Cajun Design Sdn Bhd to his
personal savings account with account number 158181223222. The
money is now in the possession of the Defendant.

2.4. Hence, the Defendant has assets within the jurisdiction.

3.0 There is a real risk that the Defendant’s assets will be removed out of the
jurisdiction before judgment.

3.1. The Plaintiff has reasonable ground to believe that there is a real risk that the
Defendant’s assets will be removed out of jurisdiction before a judgment is
satisfied.

3.2. In Bank Bumiputra Malaysia Bhd & Anor v. Lorrain Osman & Ors
[1985] 2 MLJ 236, the court turned to the third ingredient which is whether
there is a risk of the assets being removed before the judgment is satisfied. The
issue in question here is what is the test applicable for the court in determining
whether there is such a risk, in which the court applied the test in Third
Chandris Shipping Corporation & Ors v Unimarine SA [1979] 2 All ER
972, Lawton L.J. mentioned in his judgment at pages 671, 672, “There must
be facts from which the Commercial Court, like a prudent, sensible
commercial man, can properly infer a danger of default if assets are removed
from jurisdiction”.

3.3. The court in Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd
[1984] 2 MLJ 143 preferred the view that it would be sufficient for the
Plaintiff to merely show a risk of disposal of assets which has the effect of
frustrating the Plaintiff in his attempt to recover the fruits of a judgment he is
likely to obtain against the Defendant.

3.4. In S & F International ltd v. Trans-Con Engineering Sdn Bhd [1985] 1

MLJ 62, the court referred to judgment elucidated in Ninemia Maritime
Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG KG [1984] 1
All ER at p 413 in which the court asserted that before the relief is granted,
the Plaintiff must show that there is a risk that assets will be dissipated and he
must demonstrate this by solid evidence. For instance, the Defendant’s
previous actions show his probity is not to be relied upon or that the corporate
structure of the Defendant infers that it is not to be relied upon.

3.5. In the present case, one of the Directors of Cajun Design Sdn Bhd, Ms Chan
Wei Ming was informed by a representative from Maybank that the Defendant
 transferred a sum of RM 700,000.00 from their company bank account to the
Defendant’s personal bank account on 3 May 2021 (Exhibit SESB-12). Based
on this fact alone, it is sufficient for a ‘prudent and sensible man’ to infer a
danger that the Defendant would remove the assets from the jurisdiction, when
the need arose because the RM 700,000.00 was supposedly to be paid to the
Plaintiff for the Plaintiff’s payment.

3.6. In addition, the Chief Executive Officer (CEO) of Green Garden Sdn Bhd,
Aleeya binti Ajmal also already provided Cajun Design Sdn Bhd a cheque in
the sum of RM 1,470,000.00 as a payment to the Plaintiff for the main
contract. (Exhibit “SESB-11).

3.7. Accordingly, the Defendant had received the money from Green Garden Sdn
Bhd as a payment to the Plaintiff but the Defendant did not deliver the
payment to the Plaintiff and later it was discovered that a sum of RM
700,000.00 was transferred from his company’s bank account to the
Defendant’s personal bank account as stated at paragraph 22 of the Affidavit
in Support (Enclosure No. 5).

3.8. Besides that, Plaintiff’s several attempts to seek the payment due was to no
avail. There is no reply to the Letter of Demand and an attempt to visit the
Defendant’s place of business was not successful because it was closed. This
clearly shows he had no intention to make any payment to the Plaintiff at all
and this is compounded by the fact that the Plaintiff could not contact the
Defendant which portrays the Defendant’s intention to abscond the money and
to remove his assets from the jurisdiction.

3.9. Other than that, the Defendant’s failure to settle payment of the Plaintiff’s
claim in another suit, JA-22NCC-18-05/2020 (“Civil Suit No 18”) also
completely indicates that his probity is not to be relied upon and if the Mareva
Injunction is not granted to freeze the Defendant’s assets, this will definitely
frustrate the Plaintiff in his attempt to recover the fruits of a judgment he is
likely to obtain against the Defendant.
4.0 The Plaintiff has made a full and frank disclosure of all matters in its knowledge
which are material to this case.

4.1. In the case Third Chandris Shipping Corporation & Ors v Unimarine SA
[1979] 2 All ER 972, Lord Denning MR set out certain guidelines before a
Mareva injunction will be granted in which one of the requirements is that the
Plaintiff should make a full and frank disclosure of all matters in his
knowledge which are material for the judge to know.

4.2. In a rather recent case of Toyota Tsusho (M) Sdn Bhd v Lau Kum Foon &
Ors [2019] 10 MLJ 596, Noorin Badaruddin J commented that it is
mandatory for an applicant of a Mareva Injunction to make a full and frank
disclosure of material facts including any defence the applicant has reason to
anticipate in their ex parte application to the court.

4.3. This can be further reaffirmed in the case of Creative Furnishing Sdn Bhd v
Wong Koi [1989] 2 MLJ 153, SC) where the Mohamed Azmi SCJ emphasised
that for an ex parte order for a Mareva injunction, it is incumbent on the
applicant to make frank and full disclosures of all material facts. Every
material representation must not be misleading, and there must not be any
suppression of material facts.

4.4. Accordingly, the Plaintiff has made a full and frank disclosure of all material
facts within its knowledge on the application for Mareva Injunction against the
Defendant through its Affidavit in Support affirmed by Amirul bin Ali (NRIC
No.: 850103-14-5181).

4.5. In this instant case, the Plaintiff in its Affidavit in Support, Enclosure No. 5,
has attached and disclosed all the material exhibits marked as SESB-1 until
SESB-11. The deponents to the affidavits in support by the Plaintiff contain
personal and detailed knowledge of the matters sworn to, without
overstatements or speculation.

4.6. Therefore, the Plaintiff has made the fullest possible disclosure of all facts
within his knowledge that are material to this case.
5.0 The Plaintiff has given an undertaking as to damages with regards to the
application for a Mareva Injunction.

5.1. In the case of Hubbard v Pitt [1974 H. No. 4527] [1976] Q.B. 142, one of
the reasons for requiring an undertaking as to damages upon the grant of an
interlocutory injunction was that it aided the court in doing that which was its
great object, viz. abstaining from expressing any opinion upon the merits of
the case until the hearing.

5.2. In the case of Elias bin Mooin & Anor v Dato’ Zainal Abidin bin Johari
[1997] 5 MLJ 359, where James Foong J held that, when a judge makes an
order for an Interim Injunction, one relevant factor taken into consideration is
the undertaking by the Plaintiff to pay damages. Though this may not be
written into the order, the affidavit itself is sufficient to bind the Plaintiff to
pay damages when so ordered.

5.3. In the present case, the Plaintiff has made an undertaking as to damages as can
been seen in Enclosure 5 at paragraph 35 of the Affidavit in Support. Such an
undertaking made by the Plaintiff is proof that it will abide by any order that
the court will make as to damages included, should the Defendant suffer any
loss in the circumstance this Order is not granted.

5.4. Thus, the Plaintiff has given an undertaking as to damages with regards to the
application for a Mareva Injunction.

E. PRAYERS FOR RELIEF

The Plaintiff humbly prays from the Honourable Court for an order in terms of its application
as follows:
a. The Defendant whether by himself, his servants or agents or nominees or
otherwise howsoever be restrained and an injunction is hereby granted
restraining him from removing from the jurisdiction of this Court, selling,
disposing of, charging, pledging, transferring or otherwise dealing with his
assets within the jurisdiction insofar as the same do not exceed the sum of RM
1,421,000.00 whether owned by the Defendant alone or jointly or in common
with any other person or persons howsoever or in the names of companies,
 partnerships, sole proprietorships or business controlled or directed by him
including, and in particular —
i. all monies held in the Defendant's accounts in Malayan Banking
Berhad (Maybank), Saving Account No: 158181414256, except
monthly withdrawals of RM 6,000.00 for monthly expenses., hereto at
their main offices in Kuala Lumpur and at all their branches in
Malaysia;
ii. all monies held in the accounts operated by the companies,
partnerships, sole proprietorships and business of Cajun Design Sdn
Bhd (Company No.:JM0223921-X) hereto with Malayan Banking
Berhad (Maybank), Saving Account No: 158181414256, hereto at their
main offices in Kuala Lumpur and at all their branches in Malaysia;
iii. all the shares held in the Defendant's name or in the names of his
nominees in the companies, partnerships, sole proprietorships and
businesses held in Cajun Design Sdn Bhd (Company
No.:JM0223921-X) hereto;
iv. that Cajun Design Sdn Bhd (Company No.:JM0223921-X), by their
agents or servants or otherwise be restrained and an injunction is
hereby granted restraining them from selling, transferring, disposing of
or otherwise howsoever dealing with any shares or securities in the
Defendant's name or in the names of his nominees;
b. Costs of this application; and
c. Any further and/or other relief that this Honourable Court shall deem fit and
just.

Dated this 18 June 2021

………………………………………..

Messrs. NAS & Co.

Solicitors for the Plaintiff