IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
CIVIL SUIT NO: 22NCC-249-07/2014
BETWEEN
1. CHIN WAI HONG
(No. K/P: 751001-08-5227)
2. BEH LEE LEE
(No. K/P: 801027-07-5556)
...PLAINTIFFS
AND
1. LIM GUAN HOE
(No. K/P: 821202-14-5389)
2. WONG YOKE MEI
(No. K/P: 850729-14-5206)
...DEFENDANTS
GROUNDS OF JUDGMENT
(Plaintiffs’ application for interlocutory injunctions)
A.
First suit
1.
On Wednesday, 9.7.2014, Ms. Beh Lee Lee (Ms. Beh) filed an
action in Kuala Lumpur High Court Civil Suit No. 22NCC-24707/2014 (1st Suit) against the following persons:
2
(a) Mr. Lim Guan Hoe (1st Defendant); and
(b) Ms. Wong Yoke Mei (2nd Defendant).
2.
On the next day, Thursday, 10.7.2014, Ms. Beh made an ex
parte application with a certificate of urgency (certified by Ms.
Beh’s learned counsel) for, among others, the following orders
pending the disposal of the 1st Suit (1st Application):
(a) a mandatory injunction to compel the Defendants to hand
over “immediately within 24 hours” a resolution (2nd
Resolution) of Tian Yik (M) Sdn. Bhd. (TYSB) to Ms. Beh
from the date of service of the mandatory injunction;
(b) an injunction to restrain “immediately” the Defendants from
operating TYSB’s bank accounts and bank facilities
(TYSB’s Bank Accounts);
(c) a mandatory injunction to compel TYSB to adhere to an
earlier resolution of TYSB made in May 2014 regarding the
conduct of TYSB’s Bank Accounts (1st Resolution);
(d) an injunction to restrain immediately the Defendants from
having access to TYSB’s stocks in TYSB’s store (TYSB’s
Stocks); and
(e) a mandatory injunction to compel the Defendants to cooperate “immediately” with Ms. Beh to pay off TYSB’s debts
with TYSB’s funds.
3
3.
The cause papers for the 1st Suit and the 1st Application (1st
Cause Papers) were brought to my attention at about 3 pm,
Thursday, 10.7.2014. After perusing the 1st Cause Papers, at
about 3.30 pm the same day, I directed the following (1st
Direction):
(a) the 1st Cause Papers should be served on the Defendants’
solicitors
and
if
the
Defendants
were
not
legally
represented, the 1st Cause Papers should be served
personally on the Defendants; and
(b) the 1st Application be heard inter partes on short notice at
2.30 pm, Monday,14.7.2014. I am aware that Order 32 rule
3 of the Rules of Court 2012 (RC) requires not less than 2
clear days of service of a notice of application. Nonetheless,
in view of the fact that a certificate of urgency had been filed
in respect of the 1st Application, I directed a hearing of the
1st Application on the following Monday.
B.
Discontinuance of 1st Suit and commencement of second
action
4.
Despite the 1st Direction, at about 3.30 pm, Friday, 11.7.2914, I
was given –
(a) a notice of discontinuance of the 1st Suit filed in the morning
on 11.7.2014 which stated that Ms. Beh discontinued the 1st
4
Suit with no order as to costs and with liberty to file afresh
(Discontinuance of 1st Suit);
(b) a second suit (2nd Suit ) filed by Mr. Chin Wai Hong (Mr.
Chin) and Ms. Beh against the Defendants. The contents of
the statement of claim (SOC) in the 1st and 2nd Suits are
essentially the same except that Mr. Chin is now a coplaintiff with Ms. Beh in the 2nd Suit (Plaintiffs); and
(c) a second ex parte application (2nd Application) for the
same interlocutory relief as the 1st Application save that Mr.
Chin is now a co-applicant with Ms. Beh in the 2nd
Application and the affidavit in support had been affirmed by
both Plaintiffs (Plaintiffs’ Affidavit). A second certificate of
urgency was affirmed by the same learned counsel for the
Plaintiffs. The 2nd Application however omitted to state
about the 1st Suit, 1st Application, 1st Direction and
Discontinuance of 1st Suit (I will discuss about this omission
later).
5.
The same solicitors acted in the 1st and 2nd Suits.
6.
After perusing the cause papers for the 2nd Suit and 2nd
Application (2nd Cause Papers), I gave the same direction for
the 2nd Cause Papers to be served on the Defendants or their
solicitors and for the 2nd Application to be heard inter partes at
2.30 pm, Monday, 14.7.14 (the initial hearing date for the 1st
Application).
5
C.
Plaintiffs’ claim
7.
According to the SOC and the Plaintiffs’ Affidavit –
(a) the Plaintiffs are husband and wife. The Defendants are
married to each other;
(b) each of the Plaintiffs and Defendants holds 25% of the
shares in TYSB. Ms. Beh and the Defendants are directors
of TYSB;
(c) Ms. Beh was tasked with the internal management of TYSB
as well as the responsibility to make all purchases for
TYSB. The 1st Defendant was in charge of all dealings
between TYSB and external parties, including TYSB’s
sales;
(d) the 1st Resolution provided that TYSB’s Bank Accounts
were to be jointly operated by –
(i)
Ms. Beh; AND
(ii) either the 1st or 2nd Defendant;
(e) in March 2014, the Plaintiffs and Defendants agreed
(Alleged Agreement) –
(i)
to cease the business of TYSB in June 2014 and to
wind up TYSB;
6
(ii) the 1st Defendant was required to sell all of TYSB’s
Stocks by June 2014; and
(iii) after paying off TYSB’s creditors, any balance of
TYSB’s Stocks and cash would be divided to the
Plaintiffs
and
Defendants
according
to
their
shareholding; and
(f)
at about the end of June 2014, the Plaintiffs found out that
the Defendants had breached the Alleged Agreement
(Alleged Breach) by –
(i)
substituting the 1st Resolution with the 2nd Resolution
without the Plaintiffs’ knowledge and consent;
(ii) the 1st Defendant established 2 other entities which
conducted the same business as TYSB and took away
TYSB’s clients without the Plaintiffs’ knowledge and
consent; and
(iii) the Defendants had taken away TYSB’s Stocks without
the Plaintiffs’ knowledge and consent.
8.
It is to be noted that despite the Plaintiffs’ above allegations –
(a) the Alleged Agreement and the 1st Resolution were not
exhibited in the 2nd Application; and
7
(b) the 2nd Resolution was not signed
(Infirmities in Plaintiffs’ Case).
D.
Hearing of 2nd Application
9.
At the hearing of 2nd Application at 2.30 pm, Monday, 14.7.2014,
only the Plaintiffs’ learned counsel was present. According to
her, the 2nd Cause Papers had only been served on the
Defendants’ solicitors in the morning of 14.7.2014.
10. In view of the short service of the 2nd Cause Papers, I directed
the hearing of the 2nd Application be adjourned to 3 pm, Friday,
18.7.2014.
11. The Plaintiffs’ learned counsel applied for an ad interim order of
all the prayers of the 2nd Application pending the disposal of the
2nd Application.
12. The court clearly has the jurisdiction to grant an ad interim
injunction or holding over injunction pending the disposal of the
interlocutory injunction application –
(a) s 51(1) of the Specific Relief Act 1950 (SRA) provides as
follows “Temporary injunctions are such as to continue until a
specified time, or until the further order of the court.
They may be granted at any period of a suit, and are
regulated by the law relating to civil procedure.”
(emphasis added); and
8
(b) the Court of Appeal’s judgment in RIH Services (M) Sdn
Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83, at
91-92.
13. I declined to grant an ad interim order for reasons which I will
discuss later in this judgment.
14. At 3 pm, Friday, 18.7.2014, the Defendants’ learned counsel
was not present despite the assurance of the Plaintiff’s learned
counsel that the 2nd Cause Papers had been served on the
Defendants’ solicitors.
15. I was mindful that the Plaintiffs’ Affidavit had not been rebutted
by any affidavit from the Defendants and was therefore deemed
to have been accepted by the Defendants (Federal Court’s
judgment in Sunrise Sdn Bhd v First Profile (M) Sdn Bhd &
Anor [1997] 1 CLJ 529, at 535). Despite the unrebutted
Plaintiffs’ Affidavit and the oral submission by the Plaintiffs’
learned counsel, I was unable to accede to the 2nd Application.
This is due to the following brief reasons (which I will elaborate
below):
(a) damages was an adequate remedy for the Plaintiffs in this
case;
(b) the Plaintiffs did not have an unusually strong and clear
case for this court to grant interlocutory mandatory
injunctions;
9
(c) the Plaintiffs’ inequitable conduct disentitled them from
seeking for the equitable relief of interlocutory injunctions
and
(d) the 2nd Application sought interlocutory relief in respect of
TYSB’s Bank Accounts, TYSB’s Stocks, the 1st and 2nd
Resolutions but TYSB had not been sued as a codefendant in this case.
E.
Remedy of damages is adequate in this case
16. It is clear that in the 2nd Application, the Plaintiffs bear the onus
to satisfy the court that the remedy of damages in not an
adequate remedy – the Court of Appeal’s judgment in Gerak
Indera Sdn Bhd v Farlim Properties Sdn Bhd [1997] 3 MLJ
90, at 99.
17. The sole basis of the Plaintiffs’ claim was the Alleged Breach of
the Alleged Agreement. Assuming the averments in the 2nd
Application were true, damages for the Alleged Breach was an
adequate remedy for the Plaintiffs and hence, the 2nd Application
should be refused on this ground alone –
(a) the Supreme Court’s judgment in Associated Tractors Sdn
Bhd v Chan Boon Heng & Anor [1990] 1 CLJ (Rep) 30, at
32 “… the most important factor to consider as a matter
of principle is the question of whether in lieu of the
injunction damages would be an adequate and
proper remedy because in the matter of injunctions
10
and exercising its jurisdiction the Court acts upon
the principle of preventing irreparable damage. As
Lindley LJ said in London & Blackwell Rly Co v Cross
(1886) 31 Ch D 354 at p. 369:
The very first principle of injunction law is
that you do not obtain injunctions for
actionable wrongs for which damages are
the proper remedy.”
(emphasis added);
(b) the Court of Appeal’s judgment in Hong Huat Sdn Bhd v
Golden Vale Golf Range & Country Club Sdn Bhd [2001]
1 CLJ 181, at 191 [Golden Vale Golf Range & Country
Club (No. 1)]; and
(c) the Court of Appeal case of Inter Heritage (M) Sdn Bhd v
Asa Sports Sdn Bhd [2009] 2 CLJ 221, at 233.
F.
When should an interlocutory mandatory injunction be
granted?
18. In deciding the 2nd Application regarding the prayer for
interlocutory mandatory injunctions, the question that arises is
what is the test to decide these applications? Is the test to
determine interim mandatory injunctions the same for deciding
interlocutory restraining injunction applications?
11
19. In Alor Janggus Soon Seng Trading Sdn Bhd & 6 Ors v Sey
Hoe Sdn Bhd & 2 Ors [1995] 1 CLJ 461, at 473-474 and 484,
the Supreme Court held that in deciding an interim restraining
injunction application, the court should consider whether the
applicant has raised a serious question to be tried or not
(“serious question to be tried” test).
20. For interlocutory mandatory injunctions, the preponderance of
appellate decisions in our country apply a higher threshold (as
compared to interlocutory prohibitory injunctions). I refer to the
following appellate decisions:
(a) in Tinta Press Sdn Bhd v Bank Islam Malaysia Bhd
[1987] 2 MLJ 192, at 193-194, the Supreme Court decided “The discretionary power of the Court to grant a
mandatory injunction is provided by section 53 of the
Specific Relief Act 1950 (Act 137). By judicial process,
the power is extended to the granting of an interlocutory
mandatory injunction before trial. Such discretion
however must be exercised and an injunction granted
only in exceptional and extremely rare cases as was held
in Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia
Ngen Yiok [1975] 2 MLJ 109 and confirmed by the
Federal Court in Sivaperuman v Heah Seok Yeong
Realty Sdn Bhd [1979] 1 MLJ 150. The case must be
unusually strong and clear in that the Court must feel
assured that a similar injunction would probably be
granted at the trial on the ground that it would be just
and equitable that the plaintiff's interest be protected
by immediate issue of an injunction, otherwise
irreparable injury and inconvenience would result.
(See Gibb & Co v Malaysia Building Society Bhd
[1982] 1 MLJ 271, 273 and Shepherd Homes Ltd v
Sandham [1971] 1 Ch 340, 349).”
(emphasis added).
12
It is to be noted that the Supreme Court in Tinta Press Sdn
Bhd adopted a more stringent “unusually strong and clear”
test (not the “serious question to be tried” test) for interim
mandatory injunctions. In respect of this higher threshold
for interlocutory mandatory injunctions, Tinta Press Sdn
Bhd approved 2 earlier Federal Court judgments in –
(i)
Gibb & Co v Malaysia Building Society Bhd [1982] 1
MLJ 271, at 273; and
(ii) Sivaperuman v Heah Seok Yeong Realty Sdn Bhd
[1979] 1 MLJ 150, at 150;
(b) in Karuppannan s/o Chellapan v Balakrishnen s/o
Subban [1994] 4 CLJ 479, at 487, the Federal Court
followed the English High Court case of Shepherd Home
Ltd v Sandham [1971] Ch 340 and held that the plaintiff’s
case was “unusually clear and sharp” to justify the granting
of an interlocutory mandatory injunction in that case; and
(c) Tinta Press Sdn Bhd has been applied in, among others,
the following Court of Appeal’s decisions –
(i)
in Foong Seong Equipment Sdn Bhd (receivers and
managers appointed) v Keris Properties (PK) Sdn
Bhd (No. 2) [2009] 5 MLJ 393, at 399-401 and 405;
(ii) Inter Heritage (M) Sdn Bhd, at p. 231-233; and
(iii) Timbermaster Timber Complex (Sabah) Sdn Bhd v
Top Origin Sdn Bhd [2002] 1 MLJ 33, at 40-41.
21. A slightly different approach was laid down by the Court of
Appeal in Marina bte Mohd Yusoff v Pekeliling Triangle Sdn
Bhd (receiver and manager appointed) [2008] 1 MLJ 317, at
328, as follows:
13
“In the instant case the remedy which PTSB seeks against MY
includes delivery of possession of the said lands and building
which in substance is a mandatory interlocutory injunction.
Such injunctions are granted on the same basic principles
as are prohibitory injunctions, namely there is a question
to be tried and the balance of convenience. However in
addition the plaintiff, in order to succeed, has to show
that his case has a higher probability of success at the
trial of the action. This test was adopted in Timbermaster
Timber Complex (Sabah) Sdn Bhd v Top Origin Sdn Bhd
[2002] 1 MLJ 33 following the English Court of Appeal case
of Locabail International Finance Ltd v Agroexport [1986] 1
All ER 901 (see also MBf Holdings Bhd v East Asiatic Co
(Malaysia) Bhd [1995] 3 MLJ 49). The rationale given for this
different approach is that in the case of a mandatory
interlocutory injunction the plaintiff will in substance obtain the
reliefs that he seeks in the main action.”
(emphasis added).
As I have stated above, Timbermaster Timber Complex
(Sabah) Sdn Bhd actually applied the “unusually strong and
clear” test. I will describe the approach taken in Marina bte
Mohd Yusoff as a “higher probability of success” test.
22. A third approach applies the “serious question to be tried” test
and does not distinguish between an application for an
interlocutory mandatory injunction and an application for an
interim restraining order. This approach is illustrated in the
following Court of Appeal cases:
14
(a) Hong Huat Sdn Bhd v Golden Vale Golf Range &
Country Club Sdn Bhd [2001] 1 CLJ 181, at 188-189 and
192 [per Siti Norma Yaakob JCA (as her Ladyship then
was)]; and at 195 (per Abu Mansor JCA (as his Lordship
then was)] [Golden Vale Golf Range & Country Club (No.
1)];
(b) in ESPL (M) Sdn Bhd v Radio & General Engineering
Sdn Bhd [2004] 4 CLJ 674, at 691-694, Gopal Sri Ram JCA
(as his Lordship then was) decided as follows “As already observed, what the defendant has sought is
a mandatory injunction. The question arises: Is the grant
of a mandatory injunction governed by principles different
from those applicable to prohibitory injunctions? At one
time, that was thought to be the case. No longer so. In
Films Rover International Ltd and Others v. Cannon
Film Sales Ltd [1986] 3 All ER 772, Hoffmann J (as he
then was) demolished the myth that there was any
difference in the principles applicable to the grant of
interlocutory mandatory and prohibitory injunctions. …
The views of Hoffmann J have been adopted and applied
by our courts and also by the courts of Singapore. See,
Timbermaster Timber Complex (Sabah) Sdn Bhd v.
Top Origin Sdn Bhd [2002] 1 CLJ 566 (CA); BSNC
Leasing Sdn Bhd v. Sabah Shipyard [2000] 2 CLJ 197
(CA); Thomas M Heysek & Anor v. Boyden World
Corp [1989] 1 MLJ 219; Singapore Press Holdings Ltd
v. Brown Noel Trading Pte Ltd [1994] 3 SLR 151 (CA).
15
It follows that the steps to be followed in an
application for a mandatory injunction are the same
as
those
in
an
application
for
a
prohibitory
injunction. Those steps were set out in the judgment of
this court in Keet Gerald v. Mohd Noor bin Abdullah &
Ors [1995] 1 CLJ 293 …”
(emphasis added); and
(c) the Court of Appeal held in Golden Vale Golf Range &
Country Club Sdn Bhd v Hong Huat Sdn Bhd [2008] 6
CLJ 31, at 37 [Golden Vale Golf Range & Country Club
(No. 2)] –
“It is also pertinent to note that in an application for an
interlocutory
injunction;
whether
mandatory
or
prohibitory; the primary question for the court is whether
the justice of the case warrants the grant of relief. See,
Keet Gerald Francis Noel John v. Mohd Noor bin
Abdullah & Ors [1995] 1 CLJ 293. It is upon that issue
that this court made its pronouncement in its earlier
decision.”
23. I am of the view that the “unusually strong and clear” or
“unusually sharp and clear” test (not the “serious question to be
tried” test or the “higher probability of success” test) should apply
in interlocutory mandatory injunction applications. My reasons
are as follows:
16
(a) the
“unusually
strong
and
clear”
test
has
been
authoritatively laid down, not once but twice by our highest
courts. First, by our then apex court, the Supreme Court, in
Tinta Press Sdn Bhd and second, by our Federal Court in
Karuppannan. Until the Federal Court revisits and
overrules Tinta Press Sdn Bhd and Karuppannan, both of
these cases are binding on me as a matter of stare decisis.
It is to be noted that when the Federal Court decided Gibb
& Co and Sivaperuman, appeals could be made to the
Privy Council for civil matters. In other words, Gibb & Co
and Sivaperuman were not decided by our highest court
then;
(b) an interlocutory restraining injunction generally preserves
the status quo pending the disposal of a suit. Unlike an
interim
prohibitory
order,
an
interlocutory
mandatory
injunction usually has the effect of altering the status quo
even before the plaintiff goes to trial to prove his or her
case. This is because an interim mandatory injunction
compels the defendant to do a positive act even before the
commencement of the trial of the plaintiff’s suit. Accordingly,
a more stringent test should apply to interlocutory
mandatory
injunction
applications
vis-à-vis
interim
restraining injunction applications. Having said that, I
acknowledge that there may be exceptional circumstances
whereby an interim mandatory injunction is needed to reestablish the status quo ante (the position before the wrong
in question has been committed by the defendant);
17
(c) if a lower threshold is applied and an interim mandatory
injunction is more “easily” obtained, I am concerned that the
interlocutory mandatory injunction may be abused in the
following manner –
(i)
an interim mandatory injunction may be obtained as a
“pre-emptive strike” to compel a defendant to comply
with that injunction within a short period of time under
threat of contempt of court proceedings; and
(ii) once
the
defendant
complies
mandatory
injunction
under
with
pain
the
of
interim
committal
proceedings, the plaintiff may then proceed to settle the
suit on the plaintiff’s terms and need not prove his or
her case at trial.
An example is this case where the Plaintiffs sought for,
among others, an ex parte mandatory injunction to compel
the Defendants to hand over the 2nd Resolution within 24
hours from the date of service of that injunction. If I had
granted the ex parte mandatory order and if the Defendants
did not comply with that order within 24 hours, the Plaintiffs
would be entitled to cite the Defendants for contempt of
court for breaching that injunction. In such an instance, the
Plaintiffs would have an undue advantage against the
Defendants even before the hearing of the inter partes
interlocutory injunction application!
18
With effect from 1.3.2013, s 65(5)(a) of the Subordinate
Courts Act 1948 (introduced by Subordinate Courts
(Amendment) Act 2010) confers jurisdiction on Sessions
Courts to grant injunctions, including ex parte interlocutory
mandatory injunctions (please note the Chief Registrar’s
Circular No. 1 of 2013 which provides certain “safeguards”
concerning Sessions Court’s power to grant injunctions). As
Sessions Court Judges now have the jurisdiction to grant
interlocutory mandatory injunctions, it is therefore prudent
for a higher threshold to be fulfilled by plaintiffs seeking
interim mandatory injunctions;
(d) a higher threshold for interim mandatory injunctions is also
required in Singapore and India. I will begin with the
appellate decisions in Singapore as follows –
(i)
in NCC International AB v Alliance Concrete
Singapore Pte Ltd [2008] 2 SLR 565, at paras 19 and
75, the Singapore Court of Appeal (its apex court) held
as follows “19. … We found that the Judge had, in the
exercise of his discretion, correctly refused to grant
the relief sought, an interlocutory mandatory
injunction being, it must be emphasized, a very
exceptional remedy. …
75.
In
any
event,
an
interim
mandatory
injunction is a very exceptional discretionary
19
remedy. There is a much higher threshold to be
met in order to persuade the court to grant such
an injunction as compared to an ordinary
prohibitive injunction. Case law has established
that the courts will only grant an interim
mandatory injunction in clear cases where
special circumstances exist …”
(emphasis added); and
(ii) in Chin Bay Ching v Merchant Ventures Pte Ltd
[2005] 3 SLR 142, at para 37, the Singapore Court of
Appeal held that the court must be satisfied of the
existence of special circumstances which warrants
the issue of an exceptional relief like an interlocutory
mandatory inunction; and
(iii) Singapore Press Holdings Ltd was cited in ESPL
(M) Sdn Bhd, at p. 694. In Singapore Press
Holdings Ltd, at p. 158-160, the Singapore Court of
Appeal followed its own earlier decision in Chuan
Hong Petrol Station Pte Ltd v Shell Singapore
(Pte) Ltd [1992] 2 SLR 729. In Chuan Hong Petrol
Station Pte Ltd, at p. 742-744, the Singapore Court
of Appeal held as follows “Mandatory
guidelines
and
prohibitory
injunctions:
the
20
Counsel for the respondents submitted that what
the appellants sought, at least as far as the supply
contract was concerned, was in the nature of
mandatory interlocutory injunctions. He submitted
that this being the case, the relevant test was
whether the court had a high degree of assurance
that at the trial it would appear that the decision of
granting the application was rightly made.
If, as we understand it, the difference between the
two kinds of interim relief lies in whether the status
quo is disturbed, it seems clear in this case that
what the appellants sought was no more than to
preserve the status quo pending final determination
of the action, to carry on what they had been doing.
In a normal case, following the guidelines
in American Cyanamid Co v Ethicon Ltd [1975]
AC 396, an interlocutory injunction may be granted
on the applicant showing a serious question to be
tried. This was in fact the approach taken by the
learned judge when he referred to the issues raised
by the appellants.
It seems to us that the status quo would not be
disturbed if it were merely a question of granting the
reliefs which the appellants sought. However, when,
as was the case, the appellants' application was
refused, even without the respondents' application
being granted, the effect was to fundamentally alter
the status quo. For this purpose, the status quo
must be by reference to a time before the
respondents stopped supplying fuels to the
appellants and before the appellants were
compelled to cease operations.
The refusal of the appellants' application and the
granting of the respondents' application, had a
mandatory effect in the real sense of the word.
We agree that in such circumstances, more than
what is normally required in a case of a
prohibitory injunction was required. Counsel
mentioned the 'high degree of assurance' test in
this connection.
We take the opportunity to refer to what has been
said in certain recent cases concerning the
principles involved. We were referred to the English
Court of Appeal decision in Locabail International
Finance Ltd v Agroexport & Anor [1986] 1 WLR
21
657, in which the following statement of Megarry J
in Shepherd Homes Ltd v Sandham [1971] Ch
340 at p 351 was referred to and applied:
... on motion, as contrasted with the trial,
the court is far more reluctant to grant a
mandatory injunction than it would be to
grant comparable prohibitory injunction.
In a normal case, the court must, inter
alia, feel a high degree of assurance that
at the trial it will appear that the
injunction was rightly granted; and this is
a higher standard than is required for a
prohibitory injunction.’
In the Locabail case [1986] 1 WLR 657, the
injunction sought was a mandatory one which, if
granted, would amount to granting a major part of
the relief claimed in the action. Mustill LJ, following
what was said in Shepherd Homes [1971] Ch 340,
said that such an application must be approached
with caution and the relief granted only in a clear
case.
These cases and the general question of principle
were well analysed by Hoffman J in Films Rover
International v Cannon Film Sales Ltd [1987] 1
WLR 670.
We respectfully agree with Hoffman J that it is
important to distinguish between fundamental
principle and what are sometimes described as
'guidelines', ie useful generalizations about the
way to deal with the normal run of cases falling
within a particular category. We agree with him
that a fundamental principle is that the court
should take whichever course appears to carry
the lower risk of injustice if it should turn out to
have been wrong at trial in the sense of granting
relief to a party who fails to establish his rights
at the trial, or of failing to grant relief to a party
who succeeds at the trial. We agree with
Hoffman J that the guidelines for the grant of
both kinds of interlocutory injunctions are
derived from this principle.
22
The 'high assurance' test mentioned by counsel
is no more than a generalization, albeit a useful
one, of what courts normally do. It is not a
principle in the sense of being capable of
application in all cases or capable of explaining
what courts do in all cases. It is a factor, no
doubt often a strong factor, which the court will
take into consideration when granting a
mandatory injunction. The stronger the case
appears at this stage, the lesser the risk of
being proved wrong at the trial. However, the
court, of necessity, has to consider other
relevant factors, such as the conduct of the
parties and whether damages instead of an
injunction are an adequate remedy. The
strength of a party's case (reaching a 'high
assurance' or 'clear case' standard) is neither a
necessary, nor is it a sufficient, condition for
the grant of a mandatory injunction.
Thus, in the Films Rover case [1987] 1 WLR 670
itself, although the case was put no higher than an
arguable case, Hoffman J, nevertheless, allowed a
mandatory injunction on the ground that the risk of
injustice to the plaintiffs was greater if the injunction
was withheld than the risk of injustice suffered by
the defendant if the injunction was granted. On the
other hand, in the Shepherd Homes case [1971]
Ch 340, there was a clear-cut infringement by the
defendant of a restrictive covenant, but the plaintiffs
were denied a mandatory injunction to require the
defendant to remove a wall erected in breach of the
covenant. Megarry J took into consideration, among
other things, the fact that the plaintiffs delayed in
taking proceedings. He said: 'No doubt a mandatory
injunction may be granted where the case for one is
unusually sharp and clear; but it is not a matter of
course.”
(emphasis added).
I have cited Chuan Hong Petrol Station Pte Ltd in extenso
as the court in that case applied both –
23
(1) the
higher threshold for interlocutory mandatory
injunctions as held by Megarry J (as his Lordship then
was) in the English High Court case of Shepherd
Homes Ltd; AND
(2) the lower threshold test of a serious question to be tried
and which interlocutory decision carries the lower risk
of injustice [as decided by Hoffmann J (as his Lordship
then was) in the English High Court in Films Rover
International Ltd v Cannon Film Sales Ltd [1986] 3
All ER 772]. In Films Rover International Ltd, at p.
780-782, an interim mandatory injunction was granted
despite the plaintiff not having a “high degree of
assurance” of success because the risk of injustice to
the plaintiff was greater if the interlocutory mandatory
injunction was withheld than the risk of injustice
suffered by the defendant if that injunction was granted.
It is to be noted that the Court of Appeal in ESPL (M)
Sdn Bhd, at p. 694, relied on Films Rover
International Ltd.
It is however clear that the more recent Singapore Court of
Appeal’s decisions in NCC International AB and Chin Bay
Ching have adopted a higher threshold for interlocutory
mandatory injunctions
circumstances; and
by requiring
proof
of
special
24
(e) in India, a higher threshold is required. Suffices for me to
cite 2 decisions of the Indian Supreme Court as follows –
(i)
Dorab Cawasji Warden v Coomi Sorab Warden &
Ors AIR 1990 SC 867, at 871-874 (paras 10-15), the
Indian Supreme Court considered both Shepherd
Homes Ltd and Films Rover International Ltd and
yet held that for an interlocutory mandatory injunction,
the plaintiff should have “a strong case for trial … it
shall be a higher standard than a prima facie case that
is normally required for a prohibitory injunction”; and
(ii) in Kishore Kumar Khaitan & Anor v. Praveen Kumar
Singh AIR 2006 SC 1474, at 1476-1474 (para 5), P.K.
Balasubramanyan J delivered the Indian Supreme
Court’s judgment as follows –
“An interim mandatory injunction is not a remedy
that is easily granted. It is an order that is passed
only in circumstances which are clear and the
prima facie materials clearly justify a finding that
the status quo has been altered by one of the
parties to the litigation and the interests of
justice demanded that the status quo ante be
restored by way of an interim mandatory
injunction.”
(emphasis added).
25
Indian cases are significant as Part 3 of our SRA (ss 50-55)
providing for injunctions is based on the Indian Specific
Relief Act, 1877 (now the Indian Specific Relief Act 1963).
24. The possible problem of enforcing and/or supervising the
enforcement of an interlocutory mandatory injunction, in my
view, is not relevant to decide whether a higher or lower
threshold should apply. If there is any problem in enforcing
and/or
supervising
the
enforcement
of
an
interlocutory
mandatory injunction, then the court may decline to grant that
interlocutory mandatory injunction on the ground that the
balance of convenience is not in favour of such an interlocutory
relief.
25. It is to be noted that the Court of Appeal in Golden Vale Golf
Range & Country Club Sdn Bhd (No. 1), ESPL (M) Sdn Bhd
and Golden Vale Golf Range & Country Club Sdn Bhd (No.
1) did not refer to Tinta Press Sdn Bhd and Karuppannan.
26. I am of the view that Golden Vale Golf Range & Country Club
(No. 1) may be explained on the following grounds:
(a) in Golden Vale Golf Range & Country Club (No. 1), the
appellant company applied for an interlocutory mandatory
injunction to direct the respondent company to remove all
barriers leading to the respondent company’s land and to
allow the appellant company access to that land so that the
26
appellant company could continue with its sand mining
operations (at p. 188-189);
(b) the High Court dismissed the interim mandatory injunction
on the ground that the appellant company “had failed to
show that its case was unusually sharp and clear to warrant
the grant of an interlocutory mandatory injunction in its
favour” (at p. 194-195 and 196). In other words, the learned
judge applied the more stringent test in respect of
interlocutory mandatory injunctions; and
(c) the Court of Appeal affirmed the High Court’s dismissal of
the interim mandatory injunction application on the ground
that the appellant company had no right to be on the
respondent company’s land and hence, there was no
serious question to be tried (at p. 191-192 and 196-197).
27. Golden Vale Golf Range & Country Club (No. 2), at p. 36,
concerned an appeal after trial and not the merits of an
interlocutory mandatory injunction application. The appeal to the
Court of Appeal against the High Court’s refusal to grant an
interim mandatory injunction had already been decided in
Golden Vale Golf Range & Country Club (No. 1). As such, I
am of the respectful view that the dicta expressed in Golden
Vale Golf Range & Country Club (No. 2) concerning
interlocutory mandatory injunctions is obiter.
27
28. The Court of Appeal in ESPL (M) Sdn Bhd, at p. 694, referred to
Timbermaster Timber Complex (Sabah) Sdn Bhd, BSNC
Leasing Sdn Bhd v Sabah Shipyard [2000] 2 CLJ 197,
Singapore Press Holdings Ltd
and Thomas M Heysek &
Anor v Boyden World Corporation [1989] 1 MLJ 219. It is
pertinent to note that (a) Timbermaster Timber Complex (Sabah) Sdn Bhd, at p.
40-41, applied a higher threshold;
(b) BSNC Leasing Sdn Bhd, at p. 206, concerned an
application for an injunction to restrain the appellant
company from prosecuting legal proceedings in Equador or
in any jurisdiction concerning a turbine (anti-suit injunction
application). In BSNC Leasing Sdn Bhd, there was no
application for an interim mandatory injunction; and
(c) as explained above, Singapore Press Holdings Ltd, at p.
158-160, adopted Chuan Hong Petrol Station Pte Ltd, at
p. 742-744, which applied both the “high degree of
assurance” test and the lower threshold. Similarly in
Thomas M Heysek, at p. 222-223, the Singapore High
Court applied both tests. No preference for either the higher
or lower threshold test was expressed in Chuan Hong
Petrol Station Pte Ltd, Singapore Press Holdings Ltd
and Thomas M Heysek.
F1. The English position
29. In England, 2 earlier Court of Appeal decisions favoured a higher
threshold. These cases are -
(a) in Astro Exito Navegacion SA v Southland Enterprise
Co Ltd & Anor (No 2) (Chase Manhattan Bank NA
Intervening) [1982] QB 1248, at 1269, the Court of Appeal
28
upheld the High Court’s granting of an interlocutory
mandatory injunction on the ground that the plaintiff had a
prima facie right to specific performance of the contract in
question against the first defendant. This decision was
affirmed by the House of Lords on appeal in [1983] 2 AC
787 but there was no discussion by the House of Lords
regarding interlocutory mandatory injunctions. It is to be
noted that Astro Exito Navegacion SA did not discuss
Shepherd Homes Ltd; and
(b) in Locabail International Finance Ltd v Agroexport &
Ors, The Sea Hawk [1986] 1 All ER 901, at 905-906, the
English Court of Appeal expressly followed the “high degree
of assurance” test in Shepherd Homes Ltd and set aside
the
High
Court’s
interlocutory
mandatory
injunction
(directing the appellant company to pay money to the
respondent company). Mustill LJ (as his Lordship then was),
at p. 905 and 906, held that the High Court erroneously
applied a lower test of “fairly arguable case” which was “a
lesser degree of conviction than … was appropriate”.
30. In Films Rover International Ltd, at p. 780-782, Hoffmann J
held that Shepherd Homes Ltd and Locabail International
Finance Ltd did not lay down principles but only guide-lines
which were derived from the “fundamental principle” that the
court should take whichever course which carries a lower risk of
injustice. Hence, once a plaintiff has raised a serious question to
be tried, whether the court will grant an interlocutory mandatory
29
injunction depends on whether the grant of an interlocutory
mandatory injunction will carry a lower risk of injustice or not.
Film Rover International Ltd has been followed in the following
English appellate decisions (a) by Lord Jauncey in the House of Lords’ case of R v
Secretary of State for Transport, Ex parte Factortame
Ltd & Ors (No. 2) [1991] AC 603, at 676 and 682-683;
(b) by Staughton LJ in the Court of Appeal case of Channel
Tunnel Group Ltd & Anor v Balfour Beatty Construction
Ltd & Ors [1992] 2 All ER 609, at 626, who felt “bound to
say that in view of great harm to [plaintiff] which might
ensue if an [interlocutory mandatory] injunction were not
granted, this might well be a case where it was not
essential for a strong probability of success to be shown”. It
is to be noted that the Court of Appeal did not grant an
interlocutory mandatory injunction in Channel Tunnel
Group Ltd, at p. 624, due to the application of the rules of
private international law in that case. The Court of Appeal’s
decision in Channel Tunnel Group Ltd has been affirmed
by the House of Lords in Channel Tunnel Group Ltd &
Anor v Balfour Beatty Construction Ltd & Ors [1993] 1
All ER 664, at 690, where Lord Mustill held as follows –
“I also accept that it is possible for the court at the pretrial stage of a dispute arising under a construction
contract to order the defendant to continue with a
30
performance of the works. But the court should approach
the making of such an order with the utmost caution, and
should be prepared to act only when the balance of
advantage plainly favours the grant of relief.”;
(c)
in Leisure Data v. Bell [1988] F.S.R. 367, the Court of
Appeal applied a lower
threshold in the following
judgments -
(i)
Dillon LJ (as his Lordship then was) held “The court has to keep firmly in mind the risk of
injustice to either party. Beyond that, there are
many cases where there is a salvage element
involved, and where it is necessary that some form
of mandatory order shall be made to deal with a
situation which cannot on the practical realities of
the situation be left to wait until the trial. Here the
court will act whether or not the high standard of
probability of success indicated by Megarry J [in
Shepherd Homes Ltd]”; and
(ii) Neill LJ stated that –
“… the balance that one is seeking to make is
more fundamental, more weighty, then mere
'convenience'. I think that it is quite clear from both
cases that, although the phrase may well be
substantially less elegant, the 'balance of the risk of
31
doing an injustice' better describes the process
involved.”; and
(d) Zockoll Group Ltd v Mercury Communications Ltd
[1998] FSR 354.
31. It seems to me that the present English decisions favour Film
Rover International Ltd. In National Commercial Bank
Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405, at
1409-1410, on an appeal from Jamaica, the Privy Council in an
opinion given by Lord Hoffmann, approved Film Rover
International Ltd.
32. Despite my preference for a higher threshold as decided in
Shepherd Homes Ltd, I think Film Rover International Ltd
can be understood, if not justified, on the ground that an
interlocutory mandatory injunction was given in that case to
restore the status quo ante (the position before the commission
of the wrong by the defendant company). In Film Rover
International Ltd, the defendant company agreed to deliver
dubbing material to the plaintiff company so as to enable the
plaintiff company to dub and distribute a number of films. After
sending some dubbing material for the first few films, the
defendant company wanted to “re-negotiate” the contract and
consequentially
refused
to
deliver
those
materials.
An
interlocutory mandatory injunction was ordered in Film Rover
International Ltd to compel the defendant company to deliver
the dubbing material to the plaintiff company so that the plaintiff
32
company could dub and distribute the films in question. The
interlocutory mandatory injunction ordered in Film Rover
International
Ltd,
in
my
opinion,
a
was
“restorative”
interlocutory mandatory injunction, an order which restored the
status quo ante after the defendant company had earlier
wrongfully altered the status quo – please see the Indian
Supreme Court’s judgment in Kishore Kumar Khaitan, at 14761474 (para 5).
F2. The Australian position
33. The earlier Australian cases as follows applied a higher
threshold for interim mandatory injunctions:
(a) in
State
of
Queensland
v
Australian
Telecommunications Commission (1985) 59 ALR 243, at
245, Gibbs CJ sitting alone in the High Court of Australia
(the apex court in Australia) refused to grant an interlocutory
mandatory injunction by following Shepherd Homes Ltd
and held as follows –
“Although, as I have already indicated, there is a
serious question to be tried in the present case, I
lack a “high degree of assurance” that the plaintiff
will necessarily succeed …”
(emphasis added); and
33
(b) the “high degree of assurance” test was applied in the
following Australian cases –
(i)
by Northrop J in the Federal Court of Australia (court of
first instance in Australia) in Australian National
Airlines Commission v Commonwealth of Australia
& Ors (1986) 66 ALR 545, at 552; and
(ii) by Foster J in the Federal Court case of Midland Milk
Pty Ltd & Ors v Victorian Dairy Industry Authority
(1987) 82 ALR 279, at 291.
34. Subsequent Australian cases, beginning with Gummow J in the
Federal Court in Businessworld Computers Pty Ltd v
Australian Telecommunications Commission (1988) 82 ALR
499, at 502-504, followed Films Rover International Ltd and
not State of Queensland v Australian Telecommunications
Commission and Australian National Airlines Commission v
Commonwealth of Australia. Businessworld Computers Pty
Ltd was followed in the following Australian cases:
(a) Hely J in the Federal Court in South Sydney District
Rugby League Football Club Ltd v News Ltd & Ors
(1999) 169 ALR 120, at 127; and
(b) Sackville J in Australian Rugby Union Ltd v Hospitality
Group Pty Ltd [1999] FCA 1136, at paras 30 and 31.
34
F3. Application of a higher threshold together with other
considerations
35. Whichever test the court takes, be it the “unusually strong and
clear” test or the “serious question to be tried” approach, it is to
be emphasised that the court also needs to consider two
additional questions, namely the balance of convenience and
whether policy or equitable considerations apply to bar equitable
relief.
36. If my view regarding the “unusually strong and clear” test is
correct, in considering an interlocutory mandatory injunction, the
court should decide the following:
(a) whether remedy of damages is an adequate remedy for the
plaintiff;
(b) whether the plaintiff has established an unusually strong
and clear case to justify the granting of an interim
mandatory injunction;
(c) whether the balance of convenience is in favour of granting
an interlocutory mandatory injunction or otherwise; AND
(d) whether the plaintiff is disentitled by policy or equitable
considerations from being granted an interim mandatory
injunction.
35
G. Plaintiffs had no unusually strong and clear case
37. In view of the Infirmities in Plaintiffs’ Case, I do not think the
Plaintiffs have an unusually strong and clear case. On this
ground alone, I will decline the prayers in the 2nd Application for
interlocutory mandatory orders.
H.
When should an interlocutory injunction be applied ex
parte?
38. As 2 successive ex parte interlocutory injunction applications
have been made to me, it is necessary to discuss when should
such applications be made and how should the court respond?
39. In Sigma Elevator (M) Sdn Bhd v Bahagia Indah Properties
Sdn Bhd, Company’s Winding Up No. 28 NCC-1045-11/2013,
[2014] AMEJ 872, I stated as follows:
“16. Mahkamah ini berpendapat bahawa sesuatu pihak hanya
berhak untuk memohon secara ex parte apabila undangundang prosedur yang berkenaan membenarkan secara
nyata permohonan sedemikian, contohnya Aturan 29
kaedah 1(2) Kaedah-kaedah Mahkamah 2012 (KM).
Andai kata undang-undang bertulis yang berkenaan tidak
memperuntukkan
pemfailan
permohonan
ex
parte,
permohonan sedemikian tidak boleh dibuat walaupun
keadaan terdesak. Dalam keadaan terdesak dan bila
undang-undang
prosedur
tidak
membenarkan
36
permohonan ex parte, pihak yang berkenaan, pada
pendapat saya, seharusnya –
(a)
memfailkan
suatu
perakuan
segera
yang
diperakukan oleh peguam bela atau peguam cara
yang mewakili pemohon dengan alasan-alasan
kenapa pendengaran permohonan tersebut harus
disegerakan (sila lihat Nota Amalan No. 3/1985).
Perakuan segera itu tidak boleh diperakukan oleh
calang-calang peguam yang tidak mewakili pemohon
(walaupun mengamal undang-undang dalam firma
yang sama dengan peguam bela atau peguam cara
yang mewakili pemohon). Andai kata pemohon tidak
diwakili
peguam,
pemohon
dikehendaki
mengikrarkan suatu affidavit yang mengesahkan
alasan-alasan kenapa pendengaran permohonan
tersebut harus disegerakan;
(b)
memohon singkatan tempoh masa (abridgment of
time) untuk menyampaikan kertas kausa di bawah
Aturan 3 kaedah 5(1) KM; dan
(c)
pada
pendengaran
inter
partes
permohonan
tersebut, walaupun terdapat penyampaian singkat
(short service), atas kepentingan keadilan dan
memandangkan
wujudnya
keadaan
terdesak,
pemohon boleh memohon perintah ad interim
sementara
menunggu
perlupusan
permohonan
tersebut (sila lihat penghakiman Mahkamah Rayuan
dalam kes dalam RIH Services (M) Sdn. Bhd. lwn
Tanjung Tuan Hotel Sdn. Bhd. [2002] 3 CLJ 83, di
91-92).
37
17. Andai
kata
permohonan
undang-undang
prosedur
dibuat
ex
secara
membolehkan
parte,
permohonan
sedemikian tidak harus disalahgunakan dan hanya boleh
didengar secara ex parte dalam hal keadaan yang
terkecuali (exceptional). Dalam kes Permodalan MBF
Sdn. Bhd. lwn Tan Sri Datuk Seri Hamzah Abu Samah
[1988] 1 CLJ (Rep) 244, di 246, Mahkamah Agung
memutuskan bahawa secara amnya, suatu permohonan
harus
didengar
secara
inter
partes
manakala
pendengaran permohonan secara ex parte merupakan
suatu kekecualian “Inter-party hearing appears to be the rule while
an ex parte application for injunction appears to
be the exception in the circumstances provided
by [the then O 29 r 1(2) and (3) of the Rules of
the High Court 1980] and is to be allowed only
in cases of urgency on the application of the
plaintiff”.
18. Dalam kes Million Group Credit Sdn. Bhd. lwn [1985]
CLJ (Rep) 575, di 578, Shankar H (seperti YA adalah
pada ketika itu) memutuskan yang berikut:
“…
in
these
modern
days
of
swift
communication, ex-parte applications should be
the exception rather than the rule.”
Berdasarkan nas Million Group Credit Sdn. Bhd.,
dengan penggunaan luas emel dan telefon bimbit yang
mempunyai akses kepada emel, secara amnya sesuatu
38
permohonan kepada mahkamah harus didengar secara
inter partes.
19. Mahkamah
Rayuan
dalam
kes
Motor
Sports
International Ltd. (Servants or agents at Federal
Territory of Labuan) lwn Delcont (M) Sdn. Bhd. [1996]
2 MLJ 605, di 611, melalui suatu penghakiman yang diberi
oleh Gopal Sri Ram HMR (seperti YA adalah pada ketika
itu), telah memberi panduan yang berikut:
“The provisions of O 29 r 2A [Rules of the High
Court 1980] were introduced by amendment to
ensure that ex parte injunctions of any sort
were not granted wily-nilly, but only in cases
where they were truly called for.”
20. Berlandakan nas-nas di atas, apabila undang-undang
prosedur membenarkan permohonan dibuat secara ex
parte, permohonan sedemikian sayugianya dibuat dalam
hal keadaan yang berikut:
(a)
apabila tujuan permohonan tersebut tidak boleh
dicapai dengan memberi notis permohonan tersebut
– sila lihat penghakiman Mahkamah Tinggi dalam
kes
Pacific
Center
Sdn.
Bhd.
lwn
United
Engineers (M) Bhd. [1984] 2 MLJ 143, di 146.
Contoh-contoh lazim di mana permohonan ex parte
perlu dibuat ialah bila perintah-perintah Anton Piller
dan Mareva dipohon; DAN
(b)
keadaan
terdesak.
perakuan
segera
Sehubungan
daripada
dengan
peguam bela
ini,
atau
peguam cara pemohon yang mengandungi alasanalasan kenapa pendengaran permohonan perlu
39
disegerakan,
mahkamah
penting
untuk
membolehkan
mempertimbangkan
sama
ada
permohonan tersebut -
(i)
harus didengar secara ex parte;
(ii)
didengar secara ex parte dalam kehadiran
peguam bela pihak penentang (opposing party).
Dalam
keadaan
ini,
mahkamah
boleh
mengarahkan notis permohonan ex parte diberi
kepada
peguam
Pendengaran
cara
sedemikain
pihak
penentang.
disifatkan
dalam
undang-undang kes sebagai “opposed ex
parte” – sila lihat penghakiman Mahkamah
Rayuan dalam kes Datuk M.Kayveas lwn PV
Das (untuk beliau sendiri dan bagi pihak
Parti Progresif Rakyat Malaysia) [1997] 3
MLJ 671, di 678; ATAU
(iii)
harus didengar secara inter partes dan dalam hal ini,
notis pendengaran permohonan tersebut bersamasama dengan segala kertas kausa harus diserahkan
kepada peguam cara pihak penentang – sila lihat
keputusan Mahkamah Rayuan dalam kes Chellapa
a/l K. Kalimuthu (menyaman sebagai pemegang
jawatan Kuil Sri Maha Mariamman, HICOM, Shah
Alam) lwn Sime UEP Properties Bhd. [1998] 1 MLJ
20, di 25-26.”
40. In summary, I express the following view in Sigma Elevator (M)
Sdn Bhd:
40
(a)
an application can only be made ex parte if the law
expressly provides for it. In the case of interlocutory
injunctions, Order 29 rule 1(2) RC provides that “where the
case
is
one
of
urgency”,
interlocutory
injunction
applications may be made ex parte;
(b)
despite the urgent nature of the interlocutory injunction
application in question, ex parte interlocutory injunction
applications should only be made when “it is genuinely
impossible to give notice without defeating the purpose of
the order” (please see Pacific Center Sdn Bhd lwn
United Engineers (M) Bhd [1984] 2 MLJ 143, di 146).
Applications for Anton Piller and Mareva orders, by their
very nature, have to be made ex parte. After my decision in
Sigma Elevator (M) Sdn Bhd, my research reveals that
the Privy Council’s opinion (on an appeal from Jamaica) in
National Commercial Bank Jamaica Ltd, at p. 1408
(para 13), supports the requirement to give notice of an
interlocutory injunction application, no matter how urgent,
to the defendant –
“… there appears to have been no reason why the
application for an injunction should have been
made ex parte, or at any rate, without some
notice to the bank. Although the matter is in the
end one for the discretion of the judge, audi
alteram partem is a salutary and important
principle. Their Lordships therefore consider that
41
a judge should not entertain an application for
which no notice has been given unless either
giving notice would enable the defendant to take
steps to defeat the purpose of the injunction (as
in the case of a Mareva or Anton Piller order) or
there has been literally no time to give notice
before the injunction is required to prevent the
threatened wrongful act. … Their Lordships
would expect cases in the latter category to be
rare, because even in cases in which there was
no time to give the period of notice required by
the rules, there will usually be no reason why the
applicant should not have given shorter notice or
even made a telephone call. Any notice is better
than none.”
(emphasis added);
(c)
if the purpose of an interlocutory order will not be defeated
if an inter partes application is made (as held in Pacific
Center Sdn Bhd), that application should be not be made
ex parte even though there are “urgent” and compelling
circumstances because –
(i)
the plaintiff may apply to court under Order 3 rule
5(1) RC to abridge time for short service of the
application in question on the defendant; and
42
(ii)
when the court fixes an early date to hear the inter
partes
interlocutory
injunction
application
(presumably on a certificate of urgency filed by the
plaintiff’s solicitor or counsel), the plaintiff may apply
for an ad interim mandatory injunction in the
defendant’s presence (please see RIH Services (M)
Sdn Bhd, at p. 91-92); and
(d)
even if the court hears an ex parte interlocutory injunction
application, the court has the discretion to direct the
plaintiff to inform the defendant so that the application in
question may proceed on an “opposed ex parte” basis as
explained by the Court of Appeal in Datuk M.Kayveas v
PV Das (for himself and on behalf of People’s
Progressive Party of Malaysia) [1997] 3 MLJ 671, di 678.
I.
Plaintiffs’
inequitable
conduct
disentitled
them
from
claiming for equitable relief
41. It is trite law that the court may exercise its discretion to decline
equitable relief to a plaintiff who has been guilty of inequitable
conduct – the High Court’s judgment in Natseven TV Sdn Bhd
v Television New Zealand Ltd [2001] 4 AMR 4648, at 4666.
42. I am of the view that the Plaintiffs have been guilty of the
following inequitable conduct which disentitled them from making
the 2nd Application:
43
(a) the 2nd Application concealed the following material facts (i) the filing of the 1st Suit and the 1st Application;
(ii) the 1st Direction; and
(iii) Discontinuance of 1st Suit
(Plaintiffs’ Concealment);
(b) despite the 1st Direction, the Plaintiffs still persisted to file
the 2nd Application on an ex parte basis! If the 2nd Suit had
been heard by another court, that court would not know
about the 1st Direction in view of the Plaintiffs’
Concealment; and
(c) the Discontinuance of the 1st Suit and the subsequent
speedy filing of the 2nd Suit, support the inference that the
Plaintiffs have been guilty of “forum-picking”. This is
because Mr. Chin could be easily added as a co-plaintiff in
the 1st Suit under Order 15 rule 6(2)(b)(i) and/or (ii) RC.
There was therefore no need for the Discontinuance of the
1st Suit, especially when the hearing date for the 1st
Application (on the following Monday) had already been
fixed on an urgent basis.
J.
TYSB is not cited as a co-defendant
43. It is trite law that generally, the court cannot make an order
against a non-party – the Court of Appeal’s judgment in Re
Thien Kon Thai [2008] 6 MLJ 278, at 282.
44. In this case, the 2nd Application applied for interlocutory
mandatory and prohibitory injunctions regarding TYSB’s Bank
Accounts, TYSB’s Stocks, 1st and 2nd Resolutions. It was
therefore necessary for the Plaintiffs to cite TYSB as a co-
44
defendant because the 2nd Application would directly and
adversely affect TYSB. The Plaintiffs did not explain in the
Plaintiffs’ Affidavit why TYSB was not made a co-defendant in
this case. Accordingly, the non-joinder of TYSB as a codefendant in the 2nd Suit is fatal to the 2nd Application.
K.
Court’s decision
45. Based on the aforesaid reasons, I not only refused to grant an
ad interim order but I also dismissed the 2nd Application. I made
no order regarding costs of the 2nd Application in view of the fact
that the Defendants’ learned counsel was not present.
46. In the interest of justice, I direct an early trial of This Suit (as was
directed in Associated Tractors Sdn Bhd, at p. 32).
WONG KIAN KHEONG
Judicial Commissioner
High Court (Commercial Division)
Kuala Lumpur
DATE: 6 AUGUST 2014
For the Plaintiffs:
Cik Wahidah binti Bakhtiar (Messrs Lee & Lim)
For the Defendants:
Not present
45
Postscript
1.
After completing this judgment on 6.8.2014, I have been
informed by my learned Deputy Registrar on 7.8.2014 of the
following:
(a) in view of my direction for an early trial of the 2nd Suit, the
case management of the 2nd Suit had been fixed on
25.7.2014; and
(b) on 25.7.2014, the Plaintiffs filed a notice of discontinuance
of the 2nd Suit with liberty to file afresh and with no order as
to costs (Discontinuance of 2nd Suit).
2.
The Discontinuance of 2nd Suit, regrettably, substantiated the
concern in this case, that there might have been an abuse of the
ex parte interlocutory mandatory injunction procedure in
particular and an abuse of court process generally.
WONG KIAN KHEONG
Judicial Commissioner
High Court (Commercial Division)
Kuala Lumpur
DATE: 12 AUGUST 2014