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INTERLOCUTORY
INJUNCTIONS
By
S. Nantha Balan
5th October 2012
PROCEDURAL FRAMEWORK
RULES OF COURT 2012 (P.U. (A) 205/2012)
CORRIGENDUM (P.U. (A) 226/2012)
AMENDMENT TO RULES OF COURT 2012
(P.U. (A) 232/2012
AMENDMENT (No. 2) TO RULES OF COURT 2012 (P.U. (A)
286/2012)
INJUNCTIONS
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
documents.
Sources of Legislations
Section 25(2) Courts of Judicature Act
1964 [paragraph 6 of the Schedule to
CJA].
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 actionthe 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
210)
INTERLOCUTORY
INJUNCTIONS
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
them.
INTERLOCUTORY INJUNCTIONS
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
proceedings.
MODE OF APPLICATION
By Notice of Application (Form 57)
Application
Affidavit
statements
relating
MODE OF APPLICATION
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
MODE OF APPLICATION
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
PERMODALAN MBF SDN. BHD. v. TAN SRI
DATUK SERI HAMZAH ABU SAMAH & ORS. [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 (cont)
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 (cont)
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 (cont)
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
granted.
(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 (cont)
Order 29 (cont)
Note:
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
b)
c)
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
damages
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
c) Adequate remedy
If the applicant succeeds at the trial, an
award of damages would be adequate
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
SAP (M) Sdn Bhd & Anor v. I World HRM Net Sdn Bhd &
Anor [2006] 2 MLJ 678
However
Circumstances where the court may still grant the injunction
despite failure to make full and frank disclosure:(a) fact was not known or its 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
MAREVA INJUNCTION
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
case?;
(b) The respondent has assets within
jurisdiction?; and
(c) Is there a risk of dissipation?
Mareva Injunction
Considerations in applying for Mareva
How broad need the terms of the proposed injunction be to
safeguard the plaintiffs 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 3 rd 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 claim.
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
dissipation
Variation of order
Mareva Injunction
Factors vitiating a Mareva order (cont)
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
Order.
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
ANTON PILLER
Anton Piller
Anton Piller
Anton Piller
Anton Piller may include a batch of other orders:
An injunction to restrain
Particular activities
Erinford Injunction
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
Eg.:
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.
vs
Injunction to restrain the D from continuing to excavate
which causes settlement cracks on Ps property. Interim
injunction refused. However Erinford might be allowed
so that the Ps appeal may not be rendered nugatory.
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
Permanent
Injunctions
against
Society
Injunction in Defamation
suits (cont)
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
overwhelming.
THANK YOU
S. Nantha Balan
Email : nb@zulrafique.com.my
Tel : 03-6209 8371
Fax :03-6209 8373