ILC Co., Ltd. v Saitama Hiroshi and others

ILC Co, Ltd has a pending claim against the 1st and 2nd respondents, Saitama Hiroshi and Hora Yohei, for US$6,718,925.11, and against the 3rd and 4th respondents, Asia Capital Management Pte Ltd and Oshima Yumiko, for US$194,031.23. On 27 February 2023 it obtained a Mareva injunction against all four, with the usual order to file affidavits disclosing assets.

The orders were served on the 3rd and 4th respondents but not on the 1st and 2nd. The 3rd and 4th respondents set aside the sum claimed against them in a frozen bank account but did not file disclosure affidavits. In Originating Application No 652 of 2023 the applicant sought leave to begin committal proceedings against all four respondents.

1. Whether leave to commence committal proceedings should be granted against the 3rd and 4th respondents for failing to file asset disclosure affidavits, when they had set aside and frozen the full sum claimed against them.
2. Whether leave could be granted against the 1st and 2nd respondents although the Mareva order had not been personally served on them.

The court accepted that only a prima facie case of contempt is needed for leave, but said leave is not a rubber stamp; the court may look at the purpose of the application to prevent abuse. A Mareva disclosure order exists only to guard against concealment or dissipation of assets, so once a claim is fully secured, pressing for disclosure may be excessive. The 3rd and 4th respondents had frozen the full sum claimed against them. Even so, the applicant suspected they held assets for the 1st respondent, the four were connected, and the claims against the 1st and 2nd respondents exceeded the sum secured, so leave was granted.

As for the 1st and 2nd respondents, evidence of service to their active email addresses and of their awareness of the proceedings showed they had fair notice of the Mareva order, so personal service could be dispensed with.

The court granted leave to commence committal proceedings against the 3rd and 4th respondents, leaving it to them to show they had no connection to the rest of the claim beyond the sum set aside. It dispensed with personal service under O 7 r 1(2) of the Rules of Court 2021 and granted permission to bring committal proceedings against the 1st and 2nd respondents too. Costs were reserved.