THE CUSTOMS AND TAX ADMINISTRATION OF THE KINGDOM OF DENMARK SALING CAPITAL LIMITED AND (LL10332) & 39 OTHERS

THE CUSTOMS AND TAX ADMINISTRATION OF THE KINGDOM OF DENMARK SALING CAPITAL LIMITED AND (LL10332) & 39 OTHERS

The Court of Appeal allowed the appeals, holding that SKAT had established a good arguable case and, on the available affidavit evidence, a real risk of dissipation and destruction of evidence requiring preservation orders; the Learned JC erred in setting aside the ex parte Mareva, Anton Piller and Labuan secrecy uplift orders because material non-disclosure was not established, delay was not inordinate given the complexity and multi-jurisdictional investigations, and the Revenue Rule did not bar SKAT’s civil fraud claims; accordingly the ex parte orders were restored and an inter partes worldwide Mareva injunction was ordered with asset disclosure.

Citation
S-02(IM)(NCvC)-1130-06/2019 (Mahkamah Rayuan)
Parties
Appellant/plaintiff: The Customs and Tax Administration of the Kingdom of Denmark (SKAT); Respondents/defendants: Forty Respondents (24 Labuan companies, their directors, shareholders and associated entities)
Court
IM
Jurisdiction
Malaysia
Judgment Date
26 February 2021
Case Number
S-02(IM)(NCvC)-1130-06/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (interlocutory Injunctions) / Court of Appeal Grounds of Judgment (final Disposition on Appeals)
Outcome
Appeals allowed; decision of Learned JC dated 24.10.2019 set aside; ex parte orders restored and inter partes Mareva granted
Legal Topics
Mareva Injunction (worldwide Freezing Order), Anton Piller Order (search and Seizure), Labuan Secrecy Uplift, Revenue Rule, Full and Frank Disclosure, Fraudulent Misrepresentation, Jurisdiction and Forum
Source Language
Malay/English
Civil Procedure Equity and Trusts Commercial Fraud Private International Law Tax Law Mareva Injunction (worldwide Freezing Order) Anton Piller Order (search and Seizure) Labuan Secrecy Uplift +4 more

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Parties

The Customs and Tax Administration of the Kingdom of Denmark (SKAT)

Appellant/plaintiff

Forty Respondents (24 Labuan companies, their directors, shareholders and associated entities)

Respondents/defendants

Procedural Posture

Civil Appeal (interlocutory Injunctions) / Court of Appeal Grounds of Judgment (final Disposition on Appeals)

Legal Issues

  1. 1 Whether appellant established a good arguable case on fraud and knowing receipt
  2. 2 Whether there was a real risk of dissipation of assets (necessitating a Mareva injunction)
  3. 3 Whether there was an extremely strong prima facie case and risk of destruction of evidence (necessitating Anton Piller relief)

Ratio Decidendi

The Court of Appeal allowed the appeals, holding that SKAT had established a good arguable case and, on the available affidavit evidence, a real risk of dissipation and destruction of evidence requiring preservation orders; the Learned JC erred in setting aside the ex parte Mareva, Anton Piller and Labuan secrecy uplift orders because material non-disclosure was not established, delay was not inordinate given the complexity and multi-jurisdictional investigations, and the Revenue Rule did not bar SKAT’s civil fraud claims; accordingly the ex parte orders were restored and an inter partes worldwide Mareva injunction was ordered with asset disclosure.

Court Disposition

Appeals allowed; decision of Learned JC dated 24.10.2019 set aside; ex parte orders restored and inter partes Mareva granted

Orders

  • Inter partes Mareva injunction granted against relevant respondents; respondents to file asset disclosure affidavits within 30 days
  • Ex parte Mareva orders (previously set aside) restored for Appeals 1127-1129,1131-1133 and 1139