Originally from Attachment of Assets

1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?

In the absence of local Brunei decisions, the Brunei Courts still refer to English law decisions on similar statutes as well as English Common law as persuasive authorities. Furthermore, there is in Brunei the existence of a legislation entitled the Application of Laws Act (CAP 2) wherein Section 2 of the Application of Laws Act (Cap. 2) provides that:

“Subject to the provisions of this Enactment and save in so far as other provision has been or may hereafter be made by any written law in force in the State, the Common Law of England and the doctrines of equity, together with statutes of general application, as administered or in force in England at the commencement of the Enactment, shall be in force in the State: Provided that the said common law, doctrines of equity and statutes of general application shall be in force in the State so far only as the circumstances of the State and of its inhabitants permit and subject to such qualifications as local circumstances and native customs render necessary.”

At the outset, it is important to bear this close relationship to English laws and procedural practices in mind and as such, a reader is generally advised to look at the judgments rendered by the Higher Courts of England, Malaysia and Singapore and also to look at the rules of procedure of those countries which all share general features of the English legal system. The former Chief Dato Sir Denys Roberts held in the case of RJ McGuinness v. Ahmad Zaini1 that “Since by virtue of the Application of Laws Enactment (Cap. 2) the common law of England has been imported into the law of Brunei, it is the common law, as expounded in the decisions of the English courts, which must govern the principles on which damges in Brunei are assessed.