Trust Asia Pte Ltd v Group Lease Holdings Pte Ltd and Others [2020] SGCA 54: Filing for a Mareva injunction. (Photo credits: Arbitration.Site)

It is settled law that an applicant for a Mareva injunction pending trial must demonstrate that it has a good arguable case, which has been described as one which is more than barely capable of serious argument, but not necessarily one which a judge considers would have a better than 50% chance of success (Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and another and another appeal [2015] 5 SLR 558).

What if the plaintiff’s claim is dismissed at the trial but it wishes the Mareva to continue pending its appeal? Having failed at the trial, it cannot be said at that stage that it has a good arguable case. What then is the applicable threshold to determine whether the unsuccessful plaintiff is entitled to a Mareva pending the appeal? That was the issue before the CA in JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and Others [2020] SGCA 54.

CASE SUMMARY

The plaintiff brought an action against several defendants in the torts of deceit and conspiracy in connection with investments made by the plaintiff. Following the commencement of the action, the plaintiff obtained Mareva injunctions against the defendants.

At the conclusion of the trial, the High Court Judge (“the Judge”) dismissed the plaintiff’s claims. The Judge also discharged the Mareva injunctions and refused the plaintiff’s application to renew them pending the appeal. The plaintiff filed an appeal against the Judge’s dismissal of the action and thereafter applied to the CA for the Mareva to continue pending the appeal.

THE CA‘S DECISION

The parties agreed that the threshold should be whether the appellant has a good arguable appeal rather than a good arguable case. Where parties differed was what, in practical terms, was the difference between the 2 thresholds.

In opposing the application, the respondents contended that a good arguable appeal is one which the court regards that the appeal is more likely than not to succeed, i.e. a more than 50% chance of success in the appeal. The CA rejected the argument on the ground that “[t]aking this submission to its logical conclusion would mean that the appellate court hearing an application to maintain the injunction would have to essentially decide and pre-empt the outcome of the substantive appeal before the substantive appeal is even heard.”

The CA then held that in practical terms, the threshold to satisfy a good arguable appeal would effectively be similar to that of a “good arguable case”. This is however subject to 2 caveats:

  • The first involves the situation where the appellant would in the appeal have to challenge the trial judge’s findings of facts (as opposed to the trial judge’s inferences drawn from the primary facts). In this scenario, it is incumbent on the appellant to show that the trial judge’s assessment was plainly wrong or against the weight of the evidence.
  • The second is that in determining whether a good arguable appeal is made out, the court can only refer to the evidence that was proved at the trial. Unlike an interlocutory application for a Mareva, it cannot rely on hearsay evidence.  

It is only in either scenario that it can rightly be said that that the good arguable appeal threshold would likely be a more difficult test to satisfy.

Applying the principles to the case

Based on the evidence adduced at the trial, the CA was able to conclude that the appellant had a good arguable appeal as it is arguable that (among others):

  • The Judge misapplied the legal and evidential burdens of proof.
  • Some of the matters on which the Judge ruled in favour of the respondents were either unsupported by the evidence or were against the weight of the evidence.
  • There was evidence which the Judge appeared not to have considered. 

Turning then to the second requirement of a “real risk of dissipation of assets”, the CA emphasised that the focus of the court’s attention would be on the current circumstances, not the circumstances prevailing before the trial.  

Based on the above, the CA allowed the Mareva to continue against all of the respondents bar one. The exception was made as new management had stepped in and based on their conduct, it could no longer be said that there was a real risk of dissipation.

CONCLUDING REMARKS

It is extremely rare that a plaintiff whose claim is dismissed after a trial successfully applies for a Mareva pending the appeal. As such, the decision is welcome as it sheds light on the applicable principles.

To read the full judgment, click here.