Facts
This was an ex-parte application for a Mareva injunction to prohibit and restrain the respondents from removing, disposing, dealing with and/or diminishing the value of any of their assets and any of their bank accounts in the jurisdiction of Mauritius.
The applicants claimed that they were swindled by means of fraudulent manoeuvres leading them to believe in some chimerical events of being possessed by evil spirits, following which therehave been various remittances of money amounting to Rs 15,402,475.
Hence, the Judge in Chambers had to determine whether to grant the application.
Held
A Judge in Chambers may grant a Mareva(freezing) injunction restraining a respondent to dispose of assets provided the applicant shows that:
- He has a good and arguable claim;
- He is entitled to money from the Respondent;
- The Respondent possesses assets within the jurisdiction of Mauritius; and
- There is a real risk that Respondent will remove assets from the jurisdiction of Mauritius or will dispose of them to render them unavailable or untraceable.
While the Court found first two points above established, it was put forward in Injunctions by David Bean, Isabel Parry and Andrew Burns, 12th Edition, at paragraphs 7-16, that:
“It is important that there be solid evidence adduced to the court of a real risk of dissipation: Thane Investments Ltd v Tomlinson [2003] EWCA Civ 1272.Objective facts are required, not mere expressions of anxiety or suspicion.”
The Court stated that based on the affidavit, the applicants failed to “disclose objective facts and solid evidence of a realrisk of dissipation of assets, whether actual or contemplated.”The averment that there was a “real risk”, or a “grave risk” of such dissipation was not enough.
There was no evidence of a real risk of any of the respondents dissipating the assets or any indication that the respondents were equally holders of foreign nationalities, or had bank accounts in foreign countries where they might transfer the assets to put it out of reach of the Mauritian jurisdiction, nor that they started the process of selling the immoveable property.
Accordingly, the Court held that not all the conditions were fulfilled for granting a Mareva injunction, and therefore set aside the application.
Case commentary
It is trite law that a Mareva or Freezing injunction is a major exception to the rule that an injunction cannot be issued against a debtor restraining him from parting with his property: Injunctions by David Bean, Isabel Parry and Andrew Burns, 12th Edition.
Reference
Equitable remedy – mareva injunction – solid evidence of a realrisk of dissipation of assets
