lOMoARcPSD|4330718

Injunctions notes

Equity and trust (Multimedia University)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by narihays imhays (narihaysimhays@gmail.com)
 lOMoARcPSD|4330718

Injunctions notes
Hanbury and Mandsley - an order by court to a party to the effect that he shall do or refrain from doing a
particular act.

Halsbury Laws of Malaysia – the object of an injunction is to protect and preserve legal rights and interests
and to prevent the commission or continuation of a legal wrong

Perpetual Injunctions
-at the hearing and upon the merits of the suit.
-defendant is thus perpetually enjoined from the assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff.
-s.51
-s.52(1) - (3)
High Mark (M) S/B v Pacto Where injunction is applied for in support of a legal right, it must be
Malaysia S/B shown that damages are inadequate remedy.
Hotel Continental Sdn Bhd Appellant who owned the hotel were building a 20-storey extension
v Cheong Fatt Tze Mansion to their hotel. The respondent who owned the adjacent land claimed
S/B that the piling works of the appellants caused severe cracks to appear
in their heritage building.
-Their application for injunction was allowed as it was found that
unless an alternative system of piling was adopted, the safety and
structural stability of their building would be endangered.
Evans Marshall & Co Ltd v there are areas in damage that cannot be adequately be remedied by
Bertola SA pecuniary means like loss of goodwill and trade reputation. Key
determinant factor is whether damages alone are sufficient to
provide justice to the applicant.
Cooperative Insurance Soc carrying out a business, it is settled rule that mandatory injunction
Ltd v Argyll Stores (H) Ltd will not be normally granted , as damages are adequate remedy
Hodgson v Duce injunction ought to be made available to the plaintiff where it is
probable that pecuniary compensation is not available for the
invasion
Angelides v James injunction ought to be made available to prevent a multiplicity of
Stedman Henderson’s judicial proceedings involving the commission of repeated acts which
Sweets Ltd may require the claimant to pursue consecutive actions
Day v Brownrig the grant of an injunction is dependant on the plaintiff showing some
property, right or interest in respect of the matter in dispute
White v Mellin where the cause of action requires proof of special damage, must be
proved.
AG v Sharp UK, in cases of breach of statutory duty, the Attorney General may
seek the injunction. Malaysia, local authorities no such power to
institute such proceedings in their own name.

Mandatory injunction
-s.53: court can grant injunction to prevent breach and compel performance.
-order the performance of an act/acts.
Tinta Press Sdn Bhd v Bank plaintiffs had leased certain printing equipment to the first
Islam Malaysia Bhd defendant. The first defendant having defaulted in

Downloaded by narihays imhays (narihaysimhays@gmail.com)

 lOMoARcPSD|4330718

payment of the lease rent, the plaintiffs brought an action to recover

Sivaperuman v Heah Seok
Yeong Realty Sdn Bhd
Neoh Siew Eng v Too Chee
Kwong
TR Hamzah & Yeang Sdn
Bhd v Lazar Sdn Bhd
Cooperative Insurance Soc
possession of the equipment and to recover the arrears of rent. The
plaintiffs also made an ex parte application for a mandatory
injunction to enable the plaintiffs to recover possession of the
equipment.
Held: Injunction granted. The court has jurisdiction to grant a
mandatory injunction on an ex parte application in urgent and
exceptional cases
-An interlocutory mandatory injunction was dissolved because it gave
to the respondents the full relief sought to be secured at the trial and
the balance of convenience was in favor of the appellant.
-”Where damages would be an adequate remedy, no interlocutory
injunction should normally be granted, but if there is doubt as to the
adequacy of damages, the question of the balance convenience
arises…”
-An mandatory injunction was granted requiring the landlord to keep
the water supply open for his tenants.
courts may grant an award for mandatory injunctions based on
discretion but must see to it that the defendant knows exactly what
he has to do
-application for mandatory injunction to compel a party to carry on a
business was refused.
-In situations where the object of an application was to achieve a
result, mandatory injunctions could be likely granted.

Prohibitory Injunction
-s.53
-granted to prohibit certain act/acts

Interlocutory/ temporary/ interim injunction

-to maintain the status quo of the subject-matter in a pending suit.
AG v Punch Ltd Issued before the proper trial to preserve the status quo. Purpose is
to protect the plaintiff against damage or loss that cannot be
adequately compensated in damages if the trial ends in his favour
Hubbard v Vosper a more flexible approach by Lord Denning who stated that it must be
kept so and not bound to strict rules. The key is to evaluate the case
as a whole, weighing the respective strength of the claim and
defence.

Test to determine if interlocutory injunction may be granted: (before American Cyanamid)

1. Prima facie case that the applicant’s rights had been infringed.
2. Damages inadequate remedy.
3. Balance of convenience favoured grant of an interlocutory injunction.

American Cyanamid Co v Test to determine if interlocutory injunction may be granted:

Ethicon Ltd
1.Applicant’s case must not be frivolous or vexatious and that there

Downloaded by narihays imhays (narihaysimhays@gmail.com)

 lOMoARcPSD|4330718

is a serious question to be tried.

 Valid cause of action?
 Real prospect of succeeding in securing a permanent one at the
trial?

2. Balance of convenience
 Could applicant be adequately compensated if he succeed at
the trial? If can, injunction rejected.
 If cannot be rejected and granted, but D succeeded in trial,
would D receive adequate compensation from P and P can pay
them? If can, injunction granted.
 If there is doubt on the sufficiency of the remedies, question of
balance of convenience becomes relevant.
 Include preservation of the status quo, strength of case in
relation to the opponent and other special factors.

Not frivolous or vexatious

Dora Phua Siaw Yen v there must be a serious question to be tried
Shaw Brothers (Kuching)
Sdn Bhd;
Lim Chong Construction Co there must be a valid cause of action, otherwise the application will
Sdn Bhd v Silam Quarry be denied
Sdn Bhd;
Sivaperuman v Heah Seok the applicant must present to the court a sufficient and convincing
Yeong Realty Sdn Bhd case that there is a real prospect of succeeding in securing a
permanent injunction at trial.
Eshwara Engineering Sdn the court should not weigh or evaluate the matter as it would upon
Bhd v Delta Structure Sdn standards in a trial
Bhd;
Mohamed Zainuddin b
Puteh v Yap Chee Seng

Balance of Convenience
Perbadanan Setiausaha If the applicant could be adequately compensated if he wins at trial
Selangor v Metroway Sdn and the defendant would be in the position to compensate,
Bhd application will be denied even if the claim appears to be strong
Sivaperuman v Heah Seok “...the balance of convenience will be the overriding consideration.”
Yeong Realty Sdn Bhd
American Cyanamid Co v Lord Diplock listed considerations in determining the balance of
Ethicon Ltd convenience:
 Preservation of the status quo
 Strength of case in relation to the opponent
 Other special factors

Preservation of the status quo

Downloaded by narihays imhays (narihaysimhays@gmail.com)


Si Rusa Beach Resort Sdn
Bhd v Asia Pacific Hotels
Management Pte Ltd
Garden Cottage Foods Ltd
v Milk Marketing Board
Strength of case in relation to the opponent
-revealed in the affidavit evidence submitted in the application for the interlocutory injunction.
Intel Corp v Intelcard It is done by evaluating only apparent facts that have no credible
Systems Sdn Bhd
Other special factors
Hotel Continental Sdn Bhd
v Cheong Fatt Sze Mansion
Sdn Bhd
Kenidi b Sima v The Gov of
the State of Sabah;
Zainal Abidin b Omar v
Tenaga Nasional Bhd;
Tahan Steel Corp Sdn Bhd v
Bank Islam Malaysia Bhd
(No.1)
Dunia Raya Enterprise Sdn
Bhd v Ganesan @ of convenience
Muniandie a/l Irusen @
Erusen
Keet Gerald Francis Noel
John v Mohd Noor b
Abdullah
Pekeliling Triangle Sdn Bhd
v Chase Perdana Bhd
lOMoARcPSD|4330718
Respondent applied for an interim injunction to restrain A from
interfering in the running hotel. Application was successful, A
appealed. It was held that the learned trial judge failed in
considering all material facts that A was in possession of hotel. If
status to be maintained the only order that could be made is to
allow A to continue run the hotel until the action is finally litigated.
Lord Diplock considered the balance of convenience in granting an
interlocutory injunction: ‘The status quo is the existing state of
affairs; but since states of affairs do not remain static this raises the
query: existing when? In my opinion, the relevant status quo to
which reference was made in American Cyanamid is the state of
affairs existing during the period immediately preceding the issue of
the writ claiming the permanent injunction or, if there be
unreasonable delay between the issue of the writ and the motion
for an interlocutory injunction, the period immediately preceding
the motion.
dispute.
application for injunction due to nuisance granted for a heritage
building
public interest is good grounds to tip the balance of convenience
supervision on a continuous basis is good grounds to tip the balance
1. Where there is a bona fide serious issue to be tried
2. Where the justice of the case lies. Who would suffer greater
injustice? Will P able to meet his undertaking to damages?
3. Judge is entitled to take into account all discretionary
considerations, e.g., delay in making application, adequate
alternative remedy, public interest.
MUST read the factors in considering the balance of convenience in
American Cyanamid in a step by step basis.
Downloaded by narihays imhays (narihaysimhays@gmail.com)
 lOMoARcPSD|4330718

-First is to ask whether the applicant could be adequately

compensated by damages, and if the answer to this is in the
affirmative, that would be the end of the matter.
-Second: if x adequate remedy for the plaintiff in the event of it
succeeding at the trial, would D be adequately compensated by P’s
undertaking of damages?
-Third: if there is doubt as to the adequacy of the respective
remedies in damages available to either or both parties, then only
the judge should consider the balance of convenience.
-Last: Where other factors appeared to be evenly balanced the
question of the preservation of the status quo would then come into
play.

Interlocutory mandatory injunction

Tinta Press Sdn Bhd v Bank Derives from s.53 of SRA. It is to be granted only in exceptional and
Islam Malaysia Sdn Bhd extremely rare cases that are unusually strong and clear in that the
court must feel assured that a similar injunction would probably be
granted at trial and not protecting the applicant in the interim
would result in irreparable injury and inconvenience.
Locabail International referring to the Halsbury’s Laws of England, the application is
Finance Ltd v Agroexport awarded upon consideration that the act applied for is a simple and
summary one which can be easily remedied.
Shepherd Homes Ltd v the court is far more reluctant to grant a mandatory injunction than
Sandham it would be to grant a prohibitory injunction.
Timbermaster Timber Interlocutory mandatory injunction would be appropriate where the
Complex (Sabah) Sdn Bhd v applicant could show “an unusually strong and clear case and that
Top Origin Sdn Bhd there are special circumstances before the court”.

Injunction to perform negative agreement

-s.55
Lumley v Wagner injunctions may be granted to restrain breaches of negative
promises. The court will not normally grant an injunction to restrain
a defendant from acting in breach of a negative undertaking if doing
so would enforce an agreement that is unenforceable in equity.
Dayang Nurfaizah bte court found that the management agreement entered into by the
Awang Dowty v Bintang parties was essentially a contract for personal services, thus
Seni Sdn Bhd unenforceable.
Broome (Selangor) Rubber no necessity in Malaysian case law that the words of the contract
Plantations v RH Whitley; indicate that it is a negative contract.
Dato’ HM Shah v Dato’
Abdullah b Ahmad
Pertama Caberet Nite Club interim injunction was granted restraining the defendant from
Sdn Bhd v Roman Tam singing in any place in Kuala Lumpur. The contract stated that the
defendant will not perform in Kuala Lumpur during the term of the
contract.
The court observed that the contract consisted an affirmative

Downloaded by narihays imhays (narihaysimhays@gmail.com)


Grocott v Ayson
Erinford Injunction
Erinford Properties Ltd v
Cheshire County Council
Celcom (M) Sdn Bhd v
Inmiss Communication Sdn
Bhd
Quia Timet Injunction
Redland Bricks Ltd v Morris
Woodhouse v Newry
Navigation Co
Mareva Injunction
-to restrain a defendant from disposing or otherwise dealing with any of their assets within the jurisdiction
of the court.
-Para 6 of the Schedule to the CJA 1964
Cardile v LED Builders Pty -this is to protect and defend the court’s process from abuse as to
Ltd
lOMoARcPSD|4330718
undertaking to sing in the plaintiff’s premises, which cannot be
enforced. Just because the court could not enforce specific
performance of the affirmative agreement did not preclude it from
granting an injunction to compel performance of the negative
undertaking.
similar to the principles on injunctions for positive contracts, an
injunction for negative contracts can be denied if it is a contract in
futility, disproportionate hardship or appropriately remedied by
damages.
A judge who feels no doubt in dismissing a claim to an
interlocutory injunction may, perfectly consistently with his
decision, recognise that his decision may be reversed, and that the
comparative effects of granting or refusing an injunction pending
an appeal are such that it would be right to preserve the status quo
in pending the appeal.
Order is designed to see that an appeal is preserved and not
rendered nugatory.
2 types of quia timet actions:
 Defendant threatens to cause harm to plaintiff – negative
injunction
 Plaintiff was compensated for the harm but further alleges that
the defendant’s earlier actions may lead to future causes of
action – positive injunction
where the defendant has acted unreasonably, callously or tried to
evade the jurisdiction of the court he may be ordered to repair his
damage even if the expense to him is all out of proportion to the
advantage to the plaintiff.
Where the defendant has acted reasonably the cost he bears in
repairing is important. This is because the plaintiff has not suffered
any damage as of yet, may not even suffer any damage at all. If the
plaintiff does suffer damage in the future, can always claim as cause
of action has already been established in equity.
protect and defend the interests of the potential judgment
creditor.
Downloaded by narihays imhays (narihaysimhays@gmail.com)

Z Ltd v A-Z
Mareva Compania Naviera
S.A v International
Bulkcarriers S.A.
BBMB & Anor v Lorrain
Osman & Ors.
Best Electronics Sdn Bhd v
Chen Li Yeng
Cardile v LED Builders Pty
Ltd
good arguable case
Ang Chee Huat v Engelbech
Thomas Joseph
full & frank disclosure of all material matters
Creative Furnishing Sdn Bhd Every material representation must not be misleading, and there
v Wong Koi @Wong Khoon must not be any suppression of material facts. Failure to do so at
Foh t/a Syarikat Sri Jaya
lOMoARcPSD|4330718
-granting this injunction will have a significant effect on the
property of the defendant. As a result, a high degree of caution
has to be practised by the court to avoid injustice and hardship to
the defendant.
Read:
not only removal of assets from jurisdiction but also to dissipation
of assets within the jurisdiction.
the guidelines for obtaining Mareva injunction:
 cause of action
 good arguable case
 full & frank disclosure of all material matters –
 satisfy court that defendant has assets –
 there is real risk that the defendant will deal with the assets –
 undertaking as to damages.
Plaintiff company alleged that the defendant had
misappropriated company funds by false pretext and applied for
a Mareva injunction not on ex parte basis but inter partes.
-This shows that there was no immediate fear to cause the
plaintiff to move by stealth so as to pre-empt the defendant from
doing whatever the plaintiff fears the defendant would do.
-Plaintiff also failed to commence proceedings immediately or
within a reasonable period of time.
Held that granting of this injunction has great effect on the
defendant’s property and, thus, high degree of caution is
required to avoid injustice and hardship to the plaintiff
In 1988, the R had sought the assistance of A to help him find a
suitable piece of land to set up a sealant plant in JB. The A
induced R to give him RM500k to be put in a fixed deposit and
also to buy a land in JB. The land was registered solely in the
name of A as R was a foreigner. In 1990, appellant wrote to the
respondent informing him that he had failed to acquire the land.
Held: Respondent has shown that he has a good arguable case in
respect of his claim for the return of the RM500k after reading
the pleadings & the affidavits.
the crucial time of making the ex parte application would
invariably be fatal.
Downloaded by narihays imhays (narihaysimhays@gmail.com)
 lOMoARcPSD|4330718

satisfy court that defendant has assets

Pacific Centre Sdn Bhd v United Assets of the defendants were within jurisdiction.
Engineers Bhd

there is real risk that the defendant will deal with the assets
Aspatra S/B v BBMB Mere refusal to pay a disputed debt and issuing of a dishonoured
personal cheque by a director of the second defendant (who was
not a party in this appeal), as presented before the learned judge,
fell far too short of the necessary evidence to establish real risk of
dissipation of assets of the appellant before judgment.
Pacific Centre S/B v United Sufficient for the plaintiff to merely show a risk of disposal of
Engineers Bhd assets which as the effect of frustrating the plaintiff in his attempt
to recover the fruits of a judgment he is likely to obtain against
the defendant.

When injunctions cannot be granted

-s.54
 (a) to stay a pending judicial proceeding unless it is to prevent multiplicity of proceedings
 (b) to stay a proceeding in another court not subordinate to the one which injunction is sought
 (c) to restrain a person from applying to any legislative body
 (d) to interfere with public duties of department of government or sovereign act of foreign
government
 (e) to stay proceeding in any criminal matter
 (f) to prevent breach of contract which its performance will not be specifically enforced
 (g) to prevent any act which is not reasonably clear to be nuisance
 (h) to prevent a continuing breach which the applicant has already acquiesced
 (i) when other efficacious remedy can be obtained by other usual mode of proceeding, except in
case of breach of trust
 (j) when the conduct of applicant or his agent has disentitled him from obtaining assistance of the
court
 (k) where the applicant has no personal interest in the matter

Downloaded by narihays imhays (narihaysimhays@gmail.com)