Introduction

Litigation is widely recognised as a lengthy and costly undertaking. Depending on the complexity of the dispute, proceedings may take years before the matter even proceeds to trial, not to mention the delays occasioned by interlocutory applications and subsequent appeals.

Even after a trial is concluded and judgment is delivered, the litigation journey is often far from over. The execution stage then follows, where successful parties frequently encounter resistance. More often than not, the losing party does not voluntarily satisfy the judgment debt. Matters are further complicated where the judgment debtor faces financial distress or insolvency, sometimes as a consequence of the litigation itself.

In light of these realities, it would not be difficult to conclude that a litigant runs a real risk of being unable to reap the fruits of its litigation.

With that in mind, this article seeks to offer insight into the development of the law relating to preservation or freezing orders to mitigate those risks.

Mareva Injunctions

Mareva injunctions are, in essence, orders designed to prevent the dissipation of assets pending the conclusion of litigation. They are normally sought at the start of litigation proceedings for situations where there lies a risk that the Defendant will dissipate his or her assets during the course of the action.

For reasons which will be apparent later, we will call this a Pre-Judgment Mareva Injunction.

The law on Pre-Judgment Mareva Injunctions has long settled into a uniform test widely regarded as trite. The test for the grant of a Mareva injunction is threefold:

(i)      the plaintiff should have a “good arguable case”;

(ii)    the defendant has assets within the jurisdiction; and

(iii)   there is a risk of dissipation of the defendant’s assets.

(the “Pre-Judgment Mareva Test”)

(See: Bumi Armada Navigation Sdn Bhd v Mirza Marine Sdn Bhd [2015] MLJU 953)

Pre-Judgment Mareva Injunctions are rather draconian in nature; you will essentially be freezing the Defendant’s assets before even proving your case at trial. On this note, litigation lawyers would tell you that it is not an order that the Courts will easily allow and hence, the very stringent test.

There are also developments on the Pre-Judgment Mareva Test, where the Courts have laid out very helpful jurisprudence on evidence of risk of dissipation; being real risk and not merely speculation premised on evidence of probity or lack thereof.

However, this is a story for a different article. We would suggest visiting the High Court’s decision in Sim Kwang Kai, Adrian v Jonatan Wong Futt Po & Ors [2024] MLJU 3396.

Returning to the focus of this discussion, what happens after the conclusion of the trial and the Court delivers its judgment?

Technically, the Pre-Judgment Mareva Injunction lapses upon judgment and the Defendant is free to utilise his assets. However, where judgment is entered in favour of the Plaintiff, the Court may, in appropriate circumstances, grant an extension of the existing Pre-Judgment Mareva Injunction.

Now comes the focus of our topic, “Post-Judgment Mareva Injunction”.

Post-Judgment Mareva Injunctions

Post-Judgment Mareva Injunctions are not automatic and must be specifically sought. Usually, it comes in the form of an extension of an existing Pre-Judgment Mareva Injunction.

We have not come across any decisions where the Court allows a fresh Post-Judgment Mareva. It is also noteworthy that this is not a common order sought or allowed.

A necessary distinction must be drawn between the prerequisites for a Pre-Judgment and a Post-Judgment Mareva Injunction.

It goes without saying that the first limb of the Pre-Judgment Mareva Test – establishing a “good arguable case” – would not be of relevance in a Post-Judgment Mareva application, where judgment has already been pronounced and the merits of the case finally determined. In essence, the case has already been argued.

In this regard, the High Court judgment of Vazeer Alam Mydin Meera J (as he then was) in Goh Cheng Kum & Anor v Acepoint Venture Sdn Bhd & 8 Ors (22-NCVC-78-01 of 2012) (“Goh Cheng Kum”), as cited by Leonard Shim JC (as he then was) in Shim Yen Lin v Cedric Wong King Ti [2021] MLJU 827 (“Shim Yen Lin”), held as follows:

“Therefore, in summary the criteria for grant of a post-judgment Mareva injunction is that:

• There are assets of the defendants within jurisdiction of this Court; and
• There is a real risk of dissipation of these assets by the defendants to defeat the judgment.”

(See also: Pek Seng Co. Ltd & Ors v Low Tin Kee & Ors [1990] 1 MLJ 75 (Singapore High Court) and George Pathmanathan a/l Michael Gandhi Nathan v Portcullis International Ltd & Ors [2017] MLJU 1223)

The above Malaysian Courts’ position on the elements of a Post-Judgment Mareva Injunction – where the first limb of the common Mareva test is removed for irrelevance – saw further development in the recent High Court judgment of MIMS Career Sdn Bhd v Armand Mikhayl Yeoh Abdullah & Ors [2025] MLJU 1935 (“MIMS Career”) by his Lordship Wan Muhammad Amin Wan Yahya.

MIMS Career – Consideration of the Singaporean Courts’ Position

Before examining the decision in MIMS Career, it would be helpful to visit the Singaporean Court of Appeal decision in Jtrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2021] 1 SLR 1298 (“Jtrust”).

In Jtrust, the Court of Appeal cited with approval the Singaporean High Court’s decision in Hitachi Leasing (Singapore) Pte Ltd v Vincent Ambrose and another [2001] 1 SLR(R) 762, which set out the test for Post-Judgment Mareva injunctions as follows:

(i)      there is a real risk of the debtor dissipating his assets with the intention of depriving the creditor of satisfaction of the judgment debt;

(ii)    the injunction must act as an aid to execution; and

(iii)   it must be in the interests of justice to grant the injunction.

This position is reflected in Halsbury’s Laws of Malaysia, Equity, Vol. 11(1), Equity, at footnote 8: “in the case of a post-judgment Mareva injunction, the other precondition is that the injunction must act as an aid to execution”. This is key.

In MIMS Career, the Plaintiff had applied, among others, for a Mareva Injunction against the Defendants. The Defendants’ counsel contended that the Plaintiff’s application constituted a Post-Judgment Mareva Injunction, given that it related to an arbitration enforcement judgment pronounced by another High Court in 2021.

Having examined the facts and the available jurisprudence from on the topic, the High Court reached the following conclusion:

“[13] For the grant of a post-judgment Mareva injunction, the established test requires the Plaintiff to demonstrate that:

• There is a real risk of the debtor dissipating assets with intention to deprive the creditor of satisfaction of the judgment debt;
• The injunction must act as an aid to execution.

(George Pathmanathan (supra); Shim Yen Lin (supra))

…

[19] In the case of a post-judgment Mareva injunction, the proper procedure requires:

• Bringing the application before the court in which the judgment was obtained;
• Satisfying the legal test applicable to a post-judgment Mareva injunction application;
• Demonstrating that the injunction is sought in aid of execution of the judgment.”

In short, as an extension to the two-pronged test seen in Goh Cheng Kum and Shin Yen Lin, the High Court in MIMS Career recognised two additional procedural requirements to be fulfilled for a Post-Judgment Mareva Injunction.

Malaysian Courts’ Position Post MIMS Career

Although MIMS Career has yet to be cited with approval owing to its recency, the judgment provides a welcome clarification of the contextual requirements that determine when a Mareva injunction application should properly be treated as a post-judgment application.

By aligning more closely with the Singaporean approach in Jtrust, MIMS Career reflects a growing judicial emphasis on ensuring that Post-Judgment Mareva Injunctions serve as genuine aids to execution rather than as ancillary mechanisms to reopen determined disputes. It thus reinforces the principle that Mareva relief, whether pre- or post- judgment, remains an equitable remedy grounded in necessity and restraint – not a substitute for the enforcement process itself.