injunctions 2 - The Perak Bar

together… in partnership
S. Nantha Balan
5th October 2012
RULES OF COURT 2012 (P.U. (A) 205/2012)
CORRIGENDUM (P.U. (A) 226/2012)
(P.U. (A) 232/2012
Subordinate Court
(Amendment) Act 2010
 Act has been passed but has not come into
force yet.
 Act now enables the Sessions Court to deal
with matters in relation to injunctions/
equitable relief.
Types of Injunctions
 Prohibitory – restrains party from doing a positive act.
 Mandatory – compels party to do a positive act.
 Interim/Interlocutory – limited to last until a further order, or
until the final hearing of the case.
 Quia Timet – granted against a threatened or apprehended
wrong which has not been committed.
 Mareva – granted in certain cases where it is desired to
restrain the dissipation or disposal of assets.
 Erinford – a stay order until the appeal is heard.
 Perpetual – a final injunction where the order is made at the
end of the hearing.
 Anton Piller – order to enter premises and seize
Sources of Legislations
 Section 25(2) Courts of Judicature Act
1964 [paragraph 6 of the Schedule to
 Section 50 to 54 Specific Relief Act 1950
 Order 29 Rules of Court 2012
Right to an Injunction
 Right to an Injunction
 A right to obtain an interlocutory injunction is not a cause
of action…the right to obtain an interlocutory injunction is
merely ancillary to the pre-existing cause of action
Dial Singh a/p Tara Singh v Mann Foong Realty Sdn Bhd
[2000] 3 MLJ 153 at160 CA
See also: (Siskina (Cargo Owners) v Distos SA [1979] AC
What is it?
 In the words of Salleh Abbas FJ:
Interlocutory injunction is a temporary and discretionary remedy.
The court is not concerned with the chances of success or
failure of the appellants in proving their suit at trial. The court is
concerned with what it has to do to protect the right of the
parties so that no irreparable injury would caused to either of
Lian Keow Sdn Bhd v Overseas Credit Finance Bhd
[1982] 2 MLJ 162
 Is limited to last until a further order, or until the final
hearing of the case.
General Purpose:
 To maintain or preserve the status quo.
 To prevent hardship or prejudice to one or other parties.
 To preclude one party from overreaching or outwitting the
opposite party.
 To prevent “surprise” at trial - Ensure all cards are on
the table.
 To preserve a fair balance between the parties and to give
them due protection while awaiting the finality of any
 By Notice of Application (Form 57)
 Application
 Affidavit
- made in chambers or open
- written evidence under oath
containing material and
relevant facts or statements
by way of evidence relating
to the matter in question
Notice of Application (Form 57)
 Ex Parte Applications
 Where it is a matter of urgency
 Made by affidavit – Lim Hean Pin v Thean Seng Co Sdn Bhd [1992]
2 MLJ 10
• Full & Frank Disclosure – No F&F Disclosure may result in the
ex parte being set aside. This discretion is exercised based on
the nature and severity of the non disclosure
“party seeking ex parte injunctions must proceed with the highest
good faith, and keep back no material facts" - Schmitten v. Faules
[1893] WN 64
Setting aside Ex-Parte orders (Order 32 rule 6 ROC 2012)
"There is a right in interlocutory proceedings for a party
to apply to set aside an order made in his absence,
whether or not the matter had been heard on its merits,
and whether the matter was an appeal against the
decision of the registrar or an application in chambers
per se
RHB Bank Bhd v F G G Wood Mouldings Industries Sdn
Bhd [2001] 4 MLJ 86
Order 29
 Order 29 r 1: Even a Defendant may
apply for an ex –parte injunction –
[1988] 1 CLJ 244 (Rep) [1988] 1 CLJ 31 which had
held that a defendant may not make an application
for an injunction on an ex-parte basis is no longer
good law.
Order 29 (con’t)
 Mandatory conditions in support of the
application? To satisfy the requirements as
set out in r 1(2A) – affidavit must contain
(amongst others):
 Facts giving rise to the claim and application
 Facts relied to justify the application ex parte
 any facts which may lead to the Court not to grant the
application ex parte or at all
 The precise relief sought…
Order 29 (con’t)
 If originating process is not issued within two days of
the Order, the injunction may be discharged – r 1(3)
 O29 – states that an ex-parte application is only valid
for 21 days from the date of the order
 Order for interim injunction must be made in Form 53
Order 29 (con’t)
 Order 29, rule 1
(2B) Unless sooner revoked or set aside, an interim injunction
obtained on an ex-parte application shall automatically
lapse at the end of 21 days from the date on which it is
(2BA)The ex parte interim injunction must be served on the
relevant party within one week of the date of the order
granting the Interim injunction, and the Court when granting
the injunction must forthwith fix a date for inter partes
hearing to be held before the expiry of the 14 days
Order 29 (con’t)
Order 29 r 1(2BA) has been amended to state that
the Court must fix the inter partes date within 14
days of the ex-parte Order, and not 21 days as
under RHC.
Order 29 (con’t)
 Order 29 will apply to the Sessions
Court only when the Subordinate Courts
Amendment Act 2010 comes into effect.
Interlocutory Injunctions
 Guidelines by Lord Diplock: American
Cyanamid Co v Ethicon Ltd [1975] A.C. 396
 Gopal Sri Ram JCA: Keet Gerald Francis
Noel John v Mohd Noor @ Harun Abdullah &
2 Ors [1995] 1 AMR 373
American Cyanamid Co v Ethicon
Ltd [1975] A.C. 396
Guidelines :
There must be a serious question to be tried;
P must show that damages would not be an adequate
final remedy; and
The interim relief is justified on the balance of
convenience –weigh the balance of convenience in
deciding whether to grant an injunction.
Balance of convenience
 Is an evaluation of the degree of harm either party might suffer if
the injunction is, or is not granted,
 And the extent to which such harm could be compensated by
 Court is not required to consider this test where there is no
arguable defence
 Court is required to consider the essential justice of the case
 Syarikat Jeleta Bumi Sdn Bhd v Nadarajah a/l Ramasamy
[2003] 5 MLJ 542
 Defendants occupying the premises for several generations,
to ask them to vacate and cause the premises to be
demolished would cause great hardship as they were poor
and did not have alternative place to stay
 See also Chong Chooi Ying v Guan Soon Development Pte Ltd
[1991] 2 CLJ 2277
b) Balance of convenience test
 Other factors:
The importance of preserving status quo
of parties ( Garden Cottage Foods Ltd v
Milk Marketing Board (1983) 3 AC 130 )
Relative strength of parties’ respective
Public interest (Zainal Abidin bin Omar v
Tenaga Nasional Berhad [1993] 4 CLJ
c) Adequate remedy
 If the applicant succeeds at the trial, an award
compensation, then interlocutory injunction
will be refused.
Parkway Properties Pte Ltd v Page OneThe Book Shor Pte Ltd [1986] 1 MLJ 291
Puncak Niaga Holdings Bhd v NS Water
Sdn Bhd [2004] 5 MLJ 430
Situations in which American
Cyanamid is inapplicable
 Not applicable to an irrevocable letter of credit
and to an on demand performance bond.
Lotteworld Engineering & Construction Sdn
Bhd) v Castle Inn Sdn Bhd & Anor [2000] 3
MLJ 339
 Where the Applicant does not have the legal
status to claim for injunction.
Ming Yueh Holdings Sdn Bhd v Kong Ming
Bank Bhd [1990] 1 MLJ 374
American Cyanamid is inapplicable
(con’t) - Winding Up petition
 When a court exercises its discretion to issue an
injunction to restrain the presentation of a winding up,
it exercises its inherent jurisdiction.
 Tan Kok Tong v Hoe Hong Trading Co. Sdn Bhd
[2007] 2 CLJ 305
 When deciding whether to grant an injunction to
restrain a petition that is based on a statutory
demand for a debt, the court must be satisfied that
the debt is bona fide disputed on substantial
 Stonegate Securities Ltd v. Gregory [1980] 1 All
ER 241
American Cyanamid is inapplicable Winding Up petition (con’t)
Stonegate Securities Ltd v Gregory [1980] 1 All ER 241
 When deciding whether to grant an injunction to
restrain a petition that is based on a statutory
demand for a debt, the court must be satisfied that
the debt is bona fide disputed on substantial grounds.
Hence it is not enough that there is a serious
question to be tried. In other words, this is one of
those cases to which the general test laid down
in American Cynamid.
American Cyanamid is inapplicable Winding Up petition (con’t)
Natseven TV Sdn Bhd v Television New Zealang Ltd [2001] 4
CLJ 722, Low Hop Bing J
American Cynamid Co v. Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504
as applied in Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah &
Ors [199] 1 MLJ 193 is not applicable as the applications there were not
applications to restrain winding up petitions or proceedings, such as in the
instant case before me. Illustration of a prima facie case may be provided
by necessary evidence that there is a bona fide dispute by the plaintiff
in relation to the statutory demand or that the plaintiff is solvent.”
When Injunctions may not be granted?
Delay - Evercrisp Snack Products (M) Sdn Bhd v Sweeties
Food Industries Sdn Bhd [1980] 2 MLJ 297
Plaintiff was suspended for six months and sought interim
relief after delay of two(2) months; interim injunction
refused as discretionary remedies are exceptional in
nature and should not be made available to those who
sleep on their rights.
When Injunctions may not be granted?
Larut Consolidated Bhd & Anor v Khoo Ee Bee & ors [1997] 5
MLJ 77
There was a delay of over 3 years before the Plaintiff sought
redress from the court. The court however held that “ongoing
negotiations” is excusable:
For delay to operate as a bar, it was essential that it should
prejudice the defendants. From the facts of the case, in no way
whatsoever were the defendants disadvantaged by the delay.
The plaintiffs had raised sufficient evidence to warrant the
grant of the ex parte Mareva injunction. The plaintiffs had also
satisfactorily explained the delay in that their main cause of
action was the tort of conspiracy which ought to be pleaded
with great particularity and required sufficient evidence.
When Injunctions may not be granted?
 “Ongoing negotiations” (con’t)
As for the delay in the application for interim injunction.
I believe the defendants are not prejudiced. Besides the
delay was due to ‘ongoing negotiations’ between the
parties. Also a delay of two years was excused in Larut
Consolidated Bhd v Khoo Ee Bee [1997] 5 MLJ 77.
SAP (M) Sdn Bhd & Anor v. I World HRM Net Sdn Bhd &
Anor [2006] 2 MLJ 678
When Injunctions may not be granted?
II. Full and Frank Disclosure
 Order 29 r 2A RHC
• Duty to disclose to the court all matters which are material to the
proceedings including any defence that the applicant has
reason to believe may be advanced by the other party.
• The provisions of O 29 r 2A were introduced by amendment in
order to ensure that ex parte injunctions of any sort were not
granted, but only in cases where they were truly called for.
When Injunctions may not be granted?
 Full and Frank Disclosure (con’t)
• … Having perused the affidavit in question, we find that
there has not been even a feeble attempt to meet the
requirements of r 2A. On this ground alone, the ex parte
injunction ought to have been dissolved by the learned
Motor Sports International Ltd (servants or Agents at
Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd
[1996] 2 MLJ 605
However …
 Circumstances where the court may still grant the injunction
despite failure to make full and frank disclosure:fact was not known or it’s relevance was not perceived
by the applicant;
(b) the Defendant has not been prejudiced.
See: Asia Polyurethane Manufacturing Pte. Ltd. v. Woon
Sow Liong [1990] 2 MLJ 463
When Injunctions may not be granted?
III. No cause of action
 Indorsement in writ must disclose a justifiable cause of action –
Lim Hean Pin v. Thean Seng Co Sdn Bhd & Ors [1992] 2 MLJ 10
“One of the essential requirements for granting and interlocutory
injunction is that the court must be satisfied that there is a serious
question to be tried and the grant of an injunction depends on
whether there is a cause of action” - Lim Chong Construction Co Sdn
Bhd v. Silam Quarry Sdn Bhd [1990] 2 MLJ 423
When Injunctions may not be granted?
IV. Other matters to be considered
Compliance with Order 29 r 2(A) for Ex-Parte.
Equitable Principles (“unclean hands”).
Duty to Full and Frank Disclosure.
Motor Sports International Ltd (servants or Agents at Federal
Territory of Labuan) & Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ
All the proper, necessary and interested parties must be before
the court for the application.
Hong Kong Vegetable Oil Company Ltd v Malin Sirinaga
Wicker & Ors [1978] 2 MLJ 13
Mareva v. International Bulkcarriers Ltd
[1980] 1 All ER 213
 In that case, an injunction was granted to
restrain the defendant from improperly
disposing of his assets or concealing, or
moving them abroad for the sole purpose of
defeating an action against him.
 The courts have inherent powers under O 92
r4 to grant Mareva injunction.
Mareva injunction
 Only granted if satisfies the 3 fold test
(a) Whether the applicant has an arguable
(b) The respondent has assets within
jurisdiction?; and
(c) Is there a risk of dissipation?
Mareva Injunction - Procedure
 Ex-parte application supported by affidavit.
 Must set out information to the existence of
the assets sought and the grounds for belief
that a refusal would involve a real risk that
assets would be dissipated and if judgment
obtained in his favour, the Defendant will not
be in a position to pay it.
Mareva Injunction
 Considerations in applying for Mareva
 How broad need the terms of the proposed injunction be to
safeguard the plaintiff’s claim.
 To what particular assets of the proposed defendant should
the injunction be applied-identifying the same.
 If it is known that assets are in the hands of 3rd parties,
everything should be done to define their location. i.e
Bank:(a) which bank(s)
(b) address of relevant branch
(c) Account numbers-if possible
Mareva Injunction
 Considerations in applying for Mareva
See also : Tan Sri Dato’ Dr Awang Had B Salleh v
Dato Dr Haji Mohamad Haniffa Bin Haji Abdullah
[2007] 6 MLJ 293
Interim order granted to preserve status quo by
restraining Defendant from disposing shares and
cash as Plaintiff had a genuine proprietary tracing
Mareva Injunction
Practice Point, the Mareva Order should : clearly identify the assets covered, and to what extent, e.g
(a) The location of the money
(b) The bank which holds it and which branch
(c) the number and type of account.
 make clear whether the Order covers all assets held by the
bank (including chattels) or just monies. If Plaintiff is unsure:
(a) to include all assets in the order
(b) to ask the court to order the defendant to swear an
affidavit listing his assets and their value.
Mareva Injunction
 Factors vitiating a Mareva order
No good arguable case
Failure to disclose
Set off
Insufficient evidence of risk of
Variation of order
Mareva Injunction
 Factors vitiating a Mareva order (con’t)
 No provision for the Ds necessities
“The Mareva injunction granted was oppressive as the
order failed to make provisions for the fourth defendant's
living expenses and legal costs and it also overstated the
maximum monetary limits of the injunction's intended
coverage. It was sound law that a failure to provide for
living expenses and for payment of ordinary debts as they
become due in an order for a Mareva injunction ought to
be valid grounds to discharge that order”.
Larut Consolidated Bhd & Anor v Khoo Ee Bee & ors
[1997] 5 MLJ 77
Mareva Injunction
 Limitation to Mareva order: No priority
• Its not a pre-trial attachment but a relief in personam
which prohibits certain acts in relation to the assets in
question hence limits the relief sought through the
 Does not block a judgment creditor
• A judgment creditor can enforce a judgment against
frozen assets. See Iraqi Ministry of Defence v Arcepey
Shipping Co. SA [1980] 2 WLR 488
 Does not block a pre-existing creditor.
Mareva Injunction
 How to avoid limits to Mareva
 Seek from defendant a consideration for discharge of
Mareva:(a) Compel D to pay money into court
(b) Compel D to provide a bond or guarantee that
the Plaintiff’s debt will be met
[The Assios [1979] 1 Lloyd’s Rep. 331]
Anton Piller KG v Manufacturing
Processes Ltd [1976] 1 All ER 405
 Preconditions
 extremely strong prima facie case against the D.
 damage, potential or actual to the P is great if the
order is not granted.
 clear evidence that the D has in his possession
incriminating documents.
 real possibility that the D may destroy such
incriminating material before any application inter
partes can be heard.
Anton Piller
Basic Requirements (amongst others):
Arthur Anderson & Co v Interfood Sdn Bhd [2005] 6 MLJ
239 at 253:
(a) defendant has in its possession the relevant documents
and/or materials being sought for and that there is a
real possibility that the defendant may destroy such
documents and/or materials,
(b) applicant required to make a full and frank disclosure.
Yousif v Salama [1980] 3 All ER 405
 The court had a discretion to grant an Anton Piller order to
enable the preservation of a document which did not itself
form the subject matter of the action.
Anton Piller
Duty of full and frank disclosure (con’t)
 if the duty of full and frank disclosure was not observed
by the plaintiff and that there were misleading
averments advanced by the plaintiff, the court is entitled
to discharge the Anton Piller order.
Apparatech (M) Sdn Bhd v Ng Hock Chong & Anor [2006] 1 CLJ
60, [2006] 2 MLJ 61
Anton Piller
 Anton Piller may include a batch of other orders:
 An injunction to restrain
• Particular activities
 An order to disclose the names and addresses of 3rd
parties “mixed up” in the allegedly tortuous activities.
 An order directing the Defendant
• To permit a search of its premises and the removal of
particular items
• Immediately disclose the whereabouts of materials or
information covered by the Order
Privilege against Self-Incrimination
 At Common Law
 Rank Film Distributors Ltd & Others v Video Information
Centre & Others [1980] 2 All ER 273 (CA), [1981] 2 All ER 76
• the English Court of Appeal held that part of the Anton
Piller order requiring the disclosure of certain
incriminating evidence was contrary to well established
principle of privilege against self-incrimination and
would accordingly be expunged.
Privilege against Self-Incrimination
 In Malaysia
 In Television Broadcasts Ltd & Ors v Mandarin
Video Holdings Sdn Bhd [1983] 2 MLJ 346, the
court held that a person is not entitled to claim such
privilege. In that case, the Court held that in this
country the privilege against self-incrimination had
been withdrawn by section 132 of the Evidence Act,
Privilege against Self-Incrimination
 In Malaysia (con’t)
 It was held further in Television Broadcasts Ltd that
such privilege will only be available should the Anton
Piller order be modified to include a statement that
the Ds are to be informed that the answers given will
not subject them to the risk of prosecution and
criminal proceedings except a prosecution for giving
false evidence.
See also :
Arjunan v Kesatuan Kebangsaan Pekerja-pekerja Ladang [1993] 1
MLJ 326
Attorney General of Hong Kong v Zauyah Wan Chik & Ors and
anor appeal [1995] 2 MLJ 620, CA
Privilege against Self-Incrimination
 In Malaysia (con’t)
 However the case of PMK Rajah v. Worldwide
Commodities Sdn Bhd & Ors (supra) [1985] 1 MLJ
86 held that the case of Television Broadcasts Ltd
had wrongly interpreted the application of Section
132 of the Evidence Act.
Privilege against Self-Incrimination
 In Malaysia (con’t)
It was held in PMK Rajah a person served with
an Anton Piller order, is not subject to crossexamination or re-examination hence they do
not fall within the meaning of the word
"witness" in section 132 of the Evidence Act. In
other words, section 132 does not apply at all
to discovery in respect of an Anton Piller order.
Erinford Injunction
Erinford Properties Ltd v Cheshire County
Council [1974] 2 All ER 448
 It is an injunction to preserve the status quo pending
disposal of any appeal against the initial refusal of an
”the exercise of jurisdiction by a court of first instance
restraining the successful litigant from enjoying the fruits
of his success until the correctness of the decision in
question has been tested through the appellate process”
Erinford Injunction
 Considerations
• whether there are special circumstances;
• Probability that the order refusing an injunction may
be reversed;
• Whether successful party ought to be free to act;
• whether damages would be an adequate remedy;
• Would the appeal be rendered nugatory.
Erinford Injunction
Injunction to restrain the sale of pledged shares or
property where the complaint is that sale is at an
“undervalue”. Erinford may not be granted.
Injunction to restrain the D from continuing to excavate
which causes settlement cracks on P’s property. Interim
injunction refused. However Erinford might be allowed
so that the P’s appeal may not be rendered nugatory.
Quia Timet Injunction
 To prevent an injury occurring
 to obtain injunction, applicant must show that
there is an imminent danger of substantial
damage being suffered, and that it will be
impossible for the applicant to protect himself
if the injunction is not granted
Prohibitory Injunction
 Whether mandatory or prohibitory, the test is whether there
is a serious question to be tried. If there is, and no injustice
would be occasioned by the grant of the injunction then the
balance of convenience would ordinarily lie in favor of the
grant of the injunction
Datuk Johari Abdul Ghani & Ors v QSR Brands Bhd & Ors
[2007] 4 MLJ 19
Interstate M&E Sdn Bhd v Fore –Sight Trading Sdn Bhd
[2007] 6 MLJ 677
Mandatory Injunction
 Principles
• Must show a very strong probability upon the present facts that
grave damage will accrue to him in the future
• Damages will not be sufficient or adequate remedy
• Question of the cost to the defendant to do work to prevent or
lessen the likelihood of a future apprehended wrong – Redland
Bricks Ltd v Morris & Anor [1970] AC 652, 665
 Interlocutory Mandatory Injunctions
• The plaintiff has to show that it has an unusually strong and clear
case and that there are special circumstances in existence
warranting this court to grant the injunction in question – Cekal
Berjasa Sdn Bhd v Malaysia Building Society Bhd [2005] 3 MLJ
Mandatory Injunction (con’t)
 Never granted before trial save in exceptional
and extremely rare cases
 Test is much more rigid to obtain an ex-parte
mandatory injunction
 However, note the unprecedented order was
granted in Ayer Molek Rubber Co. Bhd & Ors
v Insas Bhd & Anor [1995] 2 MLJ 734
Mandatory Injunction – Ayer
Molek’s case
 The High Court granted an ex-parte mandatory
injunction against the defendants to effect the
registration of the transfer of 540,000 shares of
the defendant to the plaintiff within 2 working
 Although Court of Appeal heavily criticised the
decision and went as far as to say that the court’s
inherent powers have been abused, the Eusoff
Chin CJ however expunged the criticism in the
Federal Court.
Injunctions against the Government
 Interim and
 S 29 of the Government Proceedings Act 1956 Act does not
prohibit the grant of temporary injunctions against the
Government. In it was held that the section 'does not take
away therefore the right of the court to grant an interlocutory
Tengku Haji Jaafar & Anor v Government of the State of
Pahang [1978] 2 MLJ 105
Distinguish with:
Nanthakumaran v Jafanese Co-operative Housing
Ltd [1980] 1 MLJ114
Sabil Mulia (m) Sdn Bhd v Pengarah Hospital
Tengku Rahimah & Ors [2005] 3 MLJ 325
The courts have jurisdiction to grant interim and permanent
injunctions against any servant of the Government. Since a
Government servant or a member of the Cabinet may be
restrained by injunction, it is strictly unnecessary from a
practical point of view to decide whether the Government itself
may be restrained in appropriate circumstances .
MALAYSIA [2012] 3 CLJ 385 ( where relevant cases are all
discussed )
Injunction in Defamation suits
Harakas v Baltic Merchantile and Shipping
Exchange Ltd [1982] 2 All ER 701
Where the defences of justification or qualified
privilege are raised to an action for libel, an
interlocutory injunction will not be granted unless
malice can be shown on the part of the publisher.
Injunction in Defamation suits
Herbage v Pressdram Ltd [1984] 2 All
ER 769
It was held that the publication of spent convictions
is actionable only if activated by malice, in the
sense of irrelevant, spiteful or improper motive. An
injunction to restrain publication will only be
granted only if the evidence of malice is
Injunction in Defamation Suits (con’t)
The News Straits Times Press (M) Bhd v Airasia Bhd
[1987] 1 MLJ 36
 The respondent claimed damages against the
appellants for libel alleged to be contained in articles
published in the Sunday Mail. The appellants in their
defence raised the defences of justification and fair
comment in the public interest.
 Respondent had applied for an injunction and by ex
parte application applied for an interim injunction in
libel actions.
The News Straits Times Press (M) Bhd v
Airasia Bhd [1987] 1 MLJ 36 (con’t)
 It was held that the judge should not have
granted the injunction against a defendant
who specifically pleaded justification and had
raised a defence fair comment on a matter of
public interest.
S. Nantha Balan
Email : [email protected]
Tel : 03-6209 8371
Fax :03-6209 8373

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