Defendant’s 1st Affidavit in Reply

Plaintiff’s Application for Mareva Injunction

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORIES
(CIVIL DIVISION)
CIVIL SUIT NO: D5-22-225 OF 2019

BETWEEN
SEMESTA INSURANCE UNDERWRITING AGENCY SDN BHD …PLAINTIFF

(Company No.:117933-P)

AND

KOPERASI INSURANCE (M) S BHD …DEFENDANT

(Company No.: 435318-U)

Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

I, ​RAFAEL ALVARO (NRIC NO: 691120-10-5349)​, a Malaysian citizen of full age,

with an office address at 1A-03-28, Kondominium Mawar, Jalan Bunga, 40450 Shah
Alam, Selangor Darul Ehsan do hereby sincerely and solemnly affirm and say as follows:

1. I am the Manager of the abovementioned Defendant. I am duly authorized

by the defendant to affirm this affidavit for and on their behalf.

2. The facts deposed herein are within my personal knowledge or derived

from the records of the Defendant and documents in my possession, control
and/or safekeeping, to which I have full and direct access and which I
verily believe to the best of my knowledge to be true and accurate, save
where I expressly state otherwise.

3. I crave leave of this Honourable Court to refer to the following cause

papers filed herein:

i. The Plaintiff’s ​(Ex-Parte) Notice of Application dated

22.04.2019 ​(the Application)​;

ii. The Plaintiffs’ Affidavit in Support affirmed by Dato’

Thanabalasingam Jayanaidu (NRIC No: 580604-10-5561), on
22.04.2019 (the ​“Plaintiff’s 1​st​ Affidavit”​);
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

iii. The Certificate of Urgency by Nurfarahyasmin binti Abd Talib

(No K/P: 950808-14-5018) dated 22.04.2019 (​“Certificate of
Urgency”​)

4. I am affirming this affidavit in opposition to the Plaintiff’s Application for

Mareva Injunction and in reply to the Plaintiff’s 1st Affidavit filed herein.

5. I refer to paragraphs 5 to 8 of the Plaintiff’s 1st Affidavit and deny all the
averments contained therein and put the Plaintiff to strict proof thereof. For
the record, the Defendant denies and/or dispute that it owes the alleged
outstanding sum to the Plaintiff. The Defendant verily believed that there is
debt due and owing by the Plaintiff to the Defendant.

6. I refer to paragraph 9 of the Plaintiff’s 1st Affidavit and deny all the
averments contained therein and put the Plaintiff to strict proof thereof. In
reply, I aver that:

i. The deed of assignment executed between the Plaintiff and the

Defendant has not been stamped to date and therefore rendered
invalid and unenforceable.

7. I refer to paragraph 10 of the Plaintiff’s 1​st Affidavit and admits the

Defendant maintains that it supported the Plaintiff’s application for the
renewal of the licence.
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

8. I refer to paragraph 11 to 14 of the Plaintiff’s 1​st Affidavit and deny all the
averments contained therein and put the Plaintiff to strict proof. In reply I
aver that:

i. The Defendant had ceased its business with the Plaintiff since the
month of September 2014 on the basis that the Plaintiff did not
obtain its underwriting agency licence.

9. The averments contained in paragraph 19 of the Plaintiff’s 1st Affidavit are

denied and the Plaintiff is put to strict proof of the matters contained
therein. In reply thereof, I aver that:

i. The Plaintiff does not have a good and arguable against the
Defendant.

10. I refer to paragraph 20 of the Plaintiff’s 1​st Affidavit are denied and the
Plaintiff is put to a strict proof of the matter contained therein. In reply, I
aver that:

i. The Defendant does not wholly and solely owned the

Commercial Building at the address Unit No. 07-03-4, Pinnacle
PJ, Jalan 51A/223, PJS 52, 46200 Petaling Jaya, Selangor Darul
Ehsan. It is jointly owed by the Defendant and one Errecca
Georgetin on an equal share of ownership. The issue of document
of title of the said property is referred as ​Exhibit “D-1”

ii. The Defendant does not owned the Commercial Building at the
address PG-02C, Jaya 33, Jalan Semangat, Seksyen 13, Petaling
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

Jaya, 59200 Petaling Jaya, Selangor. The property is rented by

the Defendant from a third party, Randy Denn J. The tenancy
agreement between the Defendant and the landlord is referred as
Exhibit “D-2”

iii. The Shares of 25,000 unit from the Defendant’s account in

Petronas Dagangan amounting to RM900,000 and Shares in
Maybank 30,000 unit amounting to RM 1,200,000.00. However,
in reply, I aver that the dividend obtained from the shares is used
to maintain the usual ordinary course of business.

iv. The current account in OCBC Bank (M) Sdn Bhd at 18, Jalan
Tun Perak, 50050, Kuala Lumpur amounting to RM 1, 775,
000.00 and the reserve fund in CIMB Bank Berhad at Plaza Yeoh
Tiong Lay, 55, Jalan Bukit Bintang, Kuala Lumpur amounting to
RM 10, 375, 000.00 is admitted. However, in reply, I aver that
the fund are used to maintain the Defendant’s usual ordinary
course of business.

11. I refer to paragraph 21 of the Plaintiff’s 1​st Affidavit and deny that there is
no real risk of the Defendant’s assets being dissipated or removed to
frustrate any efforts by the Plaintiff to recover what is due to them in the
event the Plaintiff is successful in its claim against the Defendant. In reply,
I aver that:

i. The Defendant’s act of advertising the property in Mudah.my

certainly does not constitute an immediate risk of dissipating
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

assets. The Defendant could not dissipate the immovable assets

due to the fact that it is not wholly and solely owned by the
Defendant.

ii. The Defendant would not dissipate the movable assets due to the
fact that the share and fund are used to maintain the Defendant’s
usual ordinary course of business.

12. I refer to paragraph 22 to 23 of the Plaintiff’s Affidavit are denied. In reply,

I aver that:

i. The Plaintiff does not have any grounds to obtain a Mareva

Injunction against the Defendant.

ii. The Plaintiff’s undertaking of damages is hollow and unfounded

as during the course of the Plaintiff being an agent of the
Defendant, the statement of account of Plaintiff’s agency was in
deficit. The Plaintiff failed to make full and frank disclosure of
all matters in his knowledge which are material to this case i.e
the statement of account which would show Plaintiff’s financial
status in relation to his business.

iii. The Plaintiff’s financial standing during the course of business

with the Defendant was in deficit. Furthermore, the facts of the
case prove that the Plaintiff still has an outstanding debt owed to
the Defendant.
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction

13. I refer to paragraph 24 to of the Plaintiff’s 1st Affidavit and deny all the
averments contained therein. I verily believe that the Plaintiff has a no valid
and meritorious grounds to this action.

14. Wherefore, I pray that the Plaintiff’s Notice of Application filed herein be
dismissed with costs.

To an affidavit by one deponent ]

RAFAEL ALVARO ]
(NRIC No: ​691120-10-5349​) ]
affirmed at Kuala Lumpur ]
on ​25th April 2019 ]
(interpretation not required) ] ________________________

Before me,

…………………………..
Commissioner for Oath

This ​Defendant’s 1st Affidavit in Reply is affirmed by ​RAFAEL ALVARO on 25th

April 2019 and filed on 25th April 2019 ​by Messrs Sasha Jane & Partners, Solicitors for
the Defendant whose address for service is at AC750, Level 7, Academic Building 2,
Faculty of Law, Universiti Teknologi MARA, 40450 Shah Alam, Selangor Darul Ehsan.
TEL 603 80710025 FAX 603 80710000 REF MCIS/SJP/31042
Defendant’s 1st Affidavit in Reply
Plaintiff’s Application for Mareva Injunction