THE BASICS OF ANTON PILLER 2.

potential damage that is serious

AND MAREVA INJUNCTIONS FOR to Pf
PUPILS AND YOUNG LAWYERS 3. clear evidence that Df has
by Vivian Kuan on 9.12.2021 incriminating documents
viviankuan@nhp.com.my 4. there’s real possibility that Df will
destroy these evidences before
Special Form of Injunction: trial
 Anti-arbitration Injunction
Case: Government of MY v  Causes Papers – important
Nurhima Hiram because only 1 shot given
preventive injunction restraining a a. Notice of Application
party from instituting a proceeding b. Affidavit in Support
c. Certificate of Urgency
Anton Piller
 a search order, a permission to go  Notice of Application
to Df’s premises and search for 1. No. of persons permitted and
evidence to support Pf’s case where they are from :
 gives 3rd party a permission to enter supervising solicitors (“SS”), Pf’s
offices, warehouses; has a very solicitors, Pf’s representative
high standard (client), expert (i.e IT expert)
 to prevent Df from 2. Dealing with privileged
destroying/incriminating evidence – documents – where privileged is
reason why it’s given ex-parte claim, bring such documents to
 to authorize Pf to enter premises supervising solicitors and let him
and retrieve all documents to keep the documents, court letter
support Pf’s case – make copies, will decide whether such
put in safe custody etc document is privileged or not

 burden is very high 3. Custody of supervising solicitors

– acts as a referee, must be

 Tests for granting : independent, ears and eyes of

1. an extremely strong prima facie the Court; record every single

case against the Df incident during the search, write

a report and file an affidavit in

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 Court of how the AP was carried,
keep documents in custody that
you want to photocopy
4. Obtaining legal advice and
applying to Court – Df’s right
5. Delivery of listed items and
computer print outs – don’t be
super specific, put it behind NOA
6. Permit photocopying/file
transfer/seizure – originals
belong to Df
7. Disclosure of information by Df
8. Prohibited acts by Df – Df cannot
remove things
9. Restrictions – i.e restricting Df’s
employees from sending
information to other labs (Df will
surrender their phone during the
search)
10. Ancillary Orders
11. Variation of discharge of the
Order – by application
12. Undertakings given by Pf – give
promise to damages if case falls
13. Undertakings given by Pf’s
solicitors
14. Undertakings given by SS
15. Listed items
 Affidavit in Support
1. comply with O 29 R 1(2A)
2. contains story in the SOC
3. must plead evidence to support
whatever you’re saying
4. need to prove a strong prima
facie case
5. full and frank disclosure
6. need for relief – imminent risk Df
will destroy evidence
7. undertakings to damages
 Certificate of Urgency
1. want to move fast – afraid Df will
know and destroy evidence
2. passing of time will jeopardize
the documents
 Anton Piller Order
1. Contents a per NOA –
depending on which prayers
granted by Judge
2. Remember to include
Indorsement pursuant to O 45 R
7
3. Personal service
 Supervising Solicitors
1. since very technical, choose
wisely experienced SS – Pf’s
solicitor
2. Not a member/employee of the
Pf
3. Evidence in support include the
identity and experience of the
SS
4. at least 1 person attending the
service of order shold be a
woman
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 5. to produce SS Report – will be 5. Implied undertaking not to use
exhibited in the affidavit material disclosed not allow it to
be used, for any purpose other
 What can you do as a Defendant: than the proper conduct of the
1. Setting aside (urgent action
application) – but not
recommended because if he  Steps after execution
fails, he renders himself liable for 1. original items seized to be
proceedings for contempt returned after photocopying
2. Settings aside (after execution) completed (where photocopying
– material non-disclosure of was not done in time)
facts (no clean hands) 2. analysis and extraction of
3. Variation of discharge of Order – documents to be done on an
apply to same High Court or urgent basis (usually in the
different one presence of both Pf and Df and
4. Privilege against self- SS)
incrimination – refuse evidence 3. electronic devices, computers,
which may expose Df to risk of servers etc to be returned
criminal proceeding hereafter

 Important Safeguards:  Practical Aspect: Collating

1. The Order – no further than the evidence systematically
minimum extent necessary to 1. Evidence on liability – i.e suit on
achieve purpose, terms must be breach of confidential
strictly complied with information (name cards,
2. Recording of the material before material)
removal 2. Evidence of quantum – how
3. No material should be taken much they have stolen? general
from Df’s premises unless it is ledges, list of customers etc.
clearly covered by terms of
Order
4. No seizing of material where
ownership is disputed

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Mareva Orders exceed what you claimed, the
 to freeze assets of Df because Pf remaining belong to Df, you
has knowledge that Df is going to don’t want Df not able to pay
flee to another premise, transfer the when case has disposed
money, to prevent Df from defeating 2. restraing from dealing with
a judgment by disposing the assets assets (movable or immovable,
tangible or intangible) up to the
 Principles value of RM X
1. interlocutory, not final 3. Disclosure by Df – compelling Df
2. not a cause of action to disclose assets like bank
3. court will not ordinarily grants in account
support of a claim for purely 4. Monthly ordinary living expenses
declaratory relief and legal advice
4. does not give applicant any right 5. Restrained from departing out of
over those assets, nor any jurisdiction
preference over other creditors 6. Undertaking by Pf
5. served not only on Df but also
those holding any assets of Df  Affidavit in Support
 Ex-parte: burden is high 1. reasons to believe that
dissipation is happening/going to
 Tests happen
1. good arguable case 2. evidence of monies siphoned (if
2. Df has assets within jurisdiction any)
3. real risk of dissipation 3. lack of probity
4. list of assets in jurisdiction –
 Cause Papers bank accounts, company

1. NOA shareholding, immovable

2. AIS property
3. Certificate of Urgency
 Ingredients in affidavit

 Notice of Application 1. elaborate on ex-parte

1. restraining from withdrawing RM 2. full and frank disclosure (ex-

X from bank account – must not parte)

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 3. particulars and grounds of claim
against the Df
4. necessity for ex-parte
5. facts which may result in court
not granting order sought should
be disclosed
6. grounds for believing that Df has
assets in relevant place
7. Grounds for believing that Df has
assets within jurisdiction; such
assets to be dissipated
8. Undertaking as to damages
9. good arguable case
10. serious questions to be tried
11. allowance for legal expenses
and for ordinary living
12. to inserts maximum amount to
be restrained – in case Df has
assets which exceed amount
that has been claimed
13. order should not be used to
prevent Df from living as he has
always lived
 Certificate of Urgency
1. passing of time would increase
risk of dissipation by Df
 Mareva Order
1. contents as per NOA
2. remember to include
Indorsement – O 45 R 7
3. personal service
 Duty as Defendant
1. disclosure the nature, location
and value of all his assets
 What can you do as Defendant
1. apply for Variation – as to legal
expenses/ordinary living costs
2. Setting aside – no full and frank
disclosure, abuse of process
 Assets outside jurisdiction
1. Granted in limited circumstances
2. Factors – plain and admitted
intention of Df to move assets
out of reach of courts of law,
resources they have obtained
and the skill they have shown,
magnitude of the sums involved
3. a pre-judgment Mareva will more
readily be granted in respect of
assets outside the jurisdiction
where Pf asserts a proprietary or
tracing claim
 Serving on banks
1. searching for accounts
maintained by Df – if you don’t
know which bank account, just
serve on all banks’ HQ
2. joint accounts and accounts in
the name of 3rd parties
3. maximum sum orders
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 4. honouring cheques and cheque - damages
or credit cars
5. letters of credit and performance (Mareva) If Client has no knowledge or
bonds information of bank account to be
6. the banker’s right of set-off injunct against, is it viable to file for
7. in the serving letter – attach the discovery?
Mareva order, highlight that such - the test for discovery is relevancy
ex-parte order will lapse within and not for fishing expedition – no
21 days point when you have no
8. after 21 days, apply for ad information/knowledge. Hence, no
interim – to continue the lifespan need for discovery. With only pay
of the Order until application has slip, just proceed with Mareva
disposed
Whether we can include assets out of
 Practical Tips when serving upon jurisdiction in NOA and AIS
bank - yes but in special circumstance
1. ascertain all banks in MY - for instance, in situation of tracing
2. serve order on ALL banks; claim where money being
specify the monthly sum transferred from 1 account to
permissted to be withdrawn for another account
living expenses and legal
advices; inform such order will - under special circumstance, it goes
lapse within 21 days to an account that is outside the
3. Follow up with Banks – that have jurisdiction
yet to reply

Q&A
(AP) Does Bailiff accompany Pf’s
solciitors during execution of Order?
- can request from Court

(AP) What would undertaking by Pf’s

solicitors entail – as to damages or
oneself professionally?