The case of Tan Bee Geok v Thai Kim Sim¹ illustrates how an interlocutory injunction granted by the Family Court, in the course of being enforced, could be mischaracterised by the injunction holder resulting in an overreach and causing injustice to the counterparty.
 
In this case, the Petitioner Wife (“Wife”) and Respondent Husband (“Husband”) were co-founders in 1987 of the Supermax Group, of which Supermax Corporation Berhad (“Supermax Corporation”) and Supermax Holdings Sdn Bhd (“Supermax Holdings”) are constituent companies.²
 
Ancillary relief pending disposal of Judicial Separation Petition
 
In 2022, upon the breakdown of their marriage of more than 34 years, the Wife filed a judicial separation and the Husband in turn filed a divorce petition. One of the interlocutory applications for ancillary relief (“Application”) was for an injunction pursuant to section 102 of the Law Reform (Marriage and Divorce) Act 1076 (“LRMDA 1976”).
 
Section 102(1) of the LRMDA 1976 provides that, amongst others, if the Court is satisfied that any disposition of property by a spouse is intended to reduce that spouse’s means to pay maintenance or depriving his or her spouse of any rights in relation that property, the Court has the power to grant an injunction to prevent that disposition (“Section 102 injunction”). A “disposition” includes a sale, gift, lease mortgage or any transaction whereby ownership or possession of the property is transferred³.
 
The Court Order
 
The Kuala Lumpur Family Court (“Court”) granted a court order (“Court Order”) in January 2024 in respect of the Husband’s property, including various landed properties, bank accounts, shares of Supermax Corporation and Supermax Holdings, and the Employees Provident Fund (“EPF”) Account belonging to the Husband. The English translation of the relevant text in the Court Order reads: The Issues
 
The Husband had applied to the Court to clarify the following issues: 

(A) Whether the Bank was authorised to freeze the Husband’s account
 
As a result of the Wife’s communications with the Husband’s bank, RHB Bank Berhad (“Bank”), the Bank froze 100% of the Husband’s funds. The Court held that the Wife had, in her communications with the Bank and other third parties, wrongly characterised the Court Order as a Mareva injunction. The Court further held that the freeze should only apply to 50% of the Husband’s assets and it was not intended to involve the Bank in any enforcement role as happened in this case. The Court also held that there was no reference in the Court Order to the authorisation or involvement of the Bank.
 
Significantly, the Court drew a distinction between a Mareva injunction obtained pursuant to Order 29 of the Rules of Court 2012 and a Section 102 injunction. The former is a legal remedy used to prevent a party from dissipating assets before a trial or judgment, typically involving a broad sweeping freezing order. On the contrary, the latter is issued in the context of a matrimonial dispute to protect specific matrimonial assets from improper disposal during divorce proceedings and whose purview was far from broad and sweeping. As the Wife’s application for the Court Order was made solely under section 102 of the LRMDA 1976, it could not operate as freezing order over all assets as a Mareva injunction would.
 
The Court stressed the importance of adhering strictly to the terms of a court order and not extending its scope which as was done in this case resulting in a broad injunction overreach.
 
(B) Effective date of freezing of 50% of the funds in the Husband’s bank accounts and EPF account
 
The Court held that when an effective date is not expressly stated in a court order, the default position is that the effective date is the date on which the court granted the order.
 
(C) Whether the shares of Supermax Corporation should be excluded from the purview of the Court Order
 
The Court Order included within its purview the shares of Supermax Corporation although the Wife had not produced any evidence to prove that the Husband held any shares in it.
 
The Court held that given the absence of any evidence of the Husband’s ownership of shares in Supermax Corporation, the reference in the Court Order to “Supermax Corporation, if any,” was not sustainable, implied uncertainty and lacked a concrete basis.
 
As clarity and precision are crucial to avoid misinterpretation or improper execution of court orders, the Court ordered that the words “Supermax Corporation Berhad, if any” be omitted from the Court Order.
 
(D) Whether the Husband could continue using bank account ending with numbers “2911”
 
The Husband proposed that 50% of the funds frozen in one of the bank accounts ending with the numbers “2911” (““2911” account”) be transferred into a new fixed deposit account. The Husband claimed that the funds would remain untouched and unwithdrawn. However, contradictorily, he contended that the complete freeze had impacted his financial stability and restricting access to his regular income, implying that the transfer would alleviate such instability and restriction although he had claimed he would not touch it or withdraw from it.
 
The Court rejected this contention and held that the Court Order had clearly and unequivocally prohibited the Husband from inter alia disposing of 50% of his assets, including the funds in the “2911” account. This was for the purpose of preserving the integrity of the assets during the legal proceedings.
 
Conclusion
 
The Court’s robust approach in its clarification and adherence to the strict terms of the Court Order is commendable. The Court peremptorily dismissed arguments that it lacked power to clarify an order and/or grant consequential orders based on res judicata and functus officio. It found its power  in Order 20 rule 11 and Order 92 rule 4 of the Rules of Court 2012; in its inherent power to reflect the original intention of the court evident in the original order; and in the ‘liberty to apply’ paragraph of the Court Order. It may be inferred that any one of these foundational bases is sufficient to arm the Court with power to clarify an order and/or grant consequential orders.
 
The grounds of judgment of this case does not explain why the shares in the Supermax Corporation were included in the sealed Court Order in the first place even though no evidence was produced to prove that the Husband owned any such shares. Arguably, part of this clarification exercise might not have been necessary had there been a nipping of the bud at the initial pleading stage or during approval of the draft Court Order.
 
Most significantly, the Kuala Lumpur Family Court has clarified that a Section 102 injunction does not operate as a Mareva injunction and any use of the former to freeze the assets of a counterparty (as opposed to protecting specific matrimonial assets from improper disposal) is liable to be set aside.
 
Article by Trevor Jason Mark Padasian (Partner) of the Family Law Practice of Skrine.
 

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