Najib fails to set aside RM42m Mareva injunction

File photo by Mohd Suhaimi Mohamed Yusuf/The Edge

File photo by Mohd Suhaimi Mohamed Yusuf/The Edge

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PUTRAJAYA (Dec 6): Datuk Seri Najib Razak failed on Tuesday (Dec 6) to set aside a Mareva injunction — obtained by SRC International Sdn Bhd and Gandingan Mentari Sdn Bhd — against him relating to assets up to RM42 million from being removed from Malaysia, after the Court of Appeal (COA) dismissed the former prime minister's appeal to set aside the injunction.

A three-member bench led by Datuk Yaacob Md Sam ruled that the High Court judicial commissioner had properly considered the law and evidence to support the application for the Mareva injunction before arriving at the decision.

The judge said that normally, a court in its appellate function would be slow in intervening in the decision of the High Court, unless there is an error in law or facts in the matter.

“Having considered the submissions, both orally and written, the bench found there is no appealable error that warrants the appellate court’s intervention. The order of the High Court [to impose the Mareva injunction] is therefore affirmed,” Yaacob said in dismissing the appeal.

Sitting with Yaacob were COA judges Datuk P Ravinthran and Datuk Seri Mariana Yahya in making the unanimous decision.

Fined RM210 million, Najib is presently serving 12 years in jail since Aug 23 this year after he was found guilty in the SRC case.

He was also ordered by the appellate bench to pay costs of RM15,000 to SRC and Gandingan Mentari.

Counsels Harvinderjit Singh and Muhammad Farhan Shafee appeared for Najib, while senior counsels M Nagarajah and Clement Tay appeared for SRC and Gandingan Mentari.

Harvinderjit in his submissions had argued that the High Court erred in considering there was a strong arguable case based on Najib’s failure to file his defence in the suit, and considering there was a possible dissipation of the funds when such transactions were said to be in 2014 and 2015.

“There is no evidence that Najib was involved in the transfer of funds from SRC to Ihsan Perdana Sdn Bhd (IPSB) and the said funds entered into his (the former PM’s) accounts,” he said.

“What the plaintiffs (SRC and Gandingan Mentari) showed was to reiterate what they say in their statement of claim. There is also no risk of such funds dissipating as my client is also faced with other cases, namely the income tax matter. To grant a Mareva injunction, the two companies must show evidence that there would be dissipation, and they have not shown any,” he said.

Nagarajah in reply said the fact that Najib did not file his defence statement to the suit has shown that the companies have a strong arguable case.

“The judicial commissioner had commented in his grounds that there is a strong arguable case as SRC was originally set up as a subsidiary of 1Malaysia Development Bhd (1MDB), that the company was set up under Najib’s express approval, he was the advisor emeritus of SRC, and the articles of association of SRC showed that the company was to consider his advice and implement it.”

“The evidence produced by the plaintiffs (SRC and Gandingan Mentari) shows that the monies from SRC and Gandingan Mentari were transferred through the accounts of [IPSB] and eventually ended in Najib’s accounts. These were made fraudulently, in breach of the duties owed by the directors to the companies, and wrongfully retained by Najib without justification,” he said.

This, he added, was not rebutted by Najib and in the absence of evidence to his own personal account, the High Court had considered it and considered that the companies have a strong arguable case as there was no rebuttal to any explanation whatsoever.

Second Mareva injunction

Last March, High Court judicial commissioner Datuk Mohd Arief Emran Arifin granted the inter-partes Mareva injunction sought by SRC and Gandingan Mentari against Najib, and ordered him not to remove, dispose of, deal with or diminish the value of any of his assets in and outside of Malaysia up to RM42 million, pending the final determination of the suit.

In addition, the court directed that the former PM must disclose to the plaintiffs' solicitors his assets in writing, in and outside of Malaysia, up to the value of RM42 million, within 30 days after the order was served on Najib.

But the judge allowed the former Umno president to draw up to RM100,000 a month for his ordinary living and legal expenses. The amount was inclusive of the ad interim Mareva injunction that was granted last month to 1MDB.

Najib in complying with the Mareva injunction requirements on SRC and Gandingan Mentari, however, disclosed to the court in his affidavit in August that his assets were worth RM4.49 million.

The injunction imposed on Najib was the second imposed on the former PM, as 1MDB earlier in February also imposed a separate Mareva injunction on him, barring him from removing US$681 million of his assets.

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High Court allows SRC's application for second Mareva injunction against Najib