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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the

rights of the other


forty-nine. Thomas Jefferson--

PART I

INJUNCTIONS

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Let the first act of every morning be to make the following resolve for the day:
- I shall not fear anyone on Earth.
- I shall fear only God.
- I shall not bear ill will toward anyone.
- I shall not submit to injustice from anyone.
- I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering.
Mahatma Gandhi

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

Introduction
Meaning of an injunction
Nature of injunctions
Characteristics of injunctions
Legal principles
Types of injunctions
No grant of injunctions
Injunction to perform negative agreement
Powers of the court to grant damages
Case law Analysis
Comparative Studies
Syariah Perspective
Critical Comments
Conclusion

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Introduction
An

injunction is an order of the court directing a person or persons to


refrain from doing or continuing some particular act or thing
complained of, or less often, to do some particular act or thing. In other
words, an injunction is an order of court to prohibit threatened or
continuing illegal conduct of certain kinds. Thus, where a beneficiary
has reasons to believe that a trustee is about to commit a breach of
trust he or she need not wait until it has happened before taking
action. Instead he or she may obtain an injunction to restrain the
threatened breach.
Examples

of instances in which the court has granted injunction to


prevent breaches of trust abound in the law reports.
Case Law Analysis
Fox

v Fox (1870) LR 11 Eq 142 an injunction was granted to prevent


trustees distributing the trust property other than in accordance with
the terms of the trust instrument.
overriding

objective of an injunction is to protect and preserve legal


rights and interests and to prevent the commission or . of a legal
wrong.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Meaning of an injunction/Nature of injunctions:
An

injunction is an order to restrain the person to whom it is directed


from performing a specified act, or requiring him to perform a specified
act, as the case may be. In other words, an injunction is an order by the
court to a party to do or refrain from doing a particular act.
It

is important therefore to note that a court may be able to restrain a


party from committing a breach of trust by issuing an injunction. Thus,
in Malaysia the general power of the High Court to grant injunctions
can be found under paragraph 6 of the Schedule to the Courts of
Judicature Act 1964, and under the Specific Relief Act 1950, sections 50
and 51
Para

6 of the Schedule of the Courts of Judicature Act 1964 deals with


preservation of property and provides: Power to provide for the
interim preservation of property the subject-matter of any cause or
matter by sale or by injunction or the appointment of a receiver or the
registration of a caveat or a lis pendens or any other manner
whatsoever.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
General characteristics of an injunction
The

granting of an injunction is discretionary

Injunction

is a discretionary remedy based on the inadequacy of


common law remedies. However, it is not conferred according to the
caprice of the judge, but according to sufficient legal reasons or on
settled legal principles. (See sections 50 and 53 of the Specific Relief
Act 1950)
The

plaintiff must have an interest to protect that would allow the


courts to exercise the discretion in granting it.

An injunction will be refused if damages are considered to be an


adequate remedy
Damages

must be shown not to be an adequate remedy i.e. plaintiff


will suffer irreparable harm if the injunction is not granted.
Case Law Analysis
Although

this is the situation, it should be noted that damages in lieu


of an injunction should not be awarded where this would, in effect, be
depriving an individual of specific private rights as per the English case
of Elliot v Islington Borough Council (1990) The Times 6 July- the
decision of the COA.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
General characteristics of an injunction
Refusal to obey an injunction may result in the criminal penalty of
contempt of court, with the risk of fine and/or imprisonment
Non-compliance

with an injunction (or an undertaking given in lieu) is


contempt of court, punishment by imprisonment or fine. As
disobedience may lead to imprisonment, the injunction must be
expressed in exact terms, so that the defendant (trustee) knows
precisely what to do, or refrain from doing.

Injunction is a remedy in personam


In

granting an injunction the court acts in personam and will not suffer
anyone within its reach to do what is contrary to the notions of equity.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Legal principles that govern the granting of injunctions:
legal

principles governing the granting of injunctions can be


summarised by looking into the different types of injunctions e.g. like
temporary injunction may be granted at any period of a suit. On the
other hand, perpetual injunction can only be granted by a decree made
at the hearing and upon merits of the suit. Hence the 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. (See sec 52(2) of the Specific Relief Act 1950)

The

Law

mandatory injunction (which requires a defendant to reverse the


effect of an existing breach- see sec 53 of the Special Relief Act 1950);
a

prohibitory injuction (which orders a defendant not to do something


in breach of trust/contract- see sec 53 of the same Act)

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
First

and foremost, injunctions may be classified in several ways, and


the Specific Relief Act 1950 provides in respect of temporary (or
interlocutory
or
interim),
perpetual
(or
final)
and
mandatory/prohibitory injunctions.
Perpetual
Sec

injunctions

51(2) of the Specific Relief Act 1950

perpetual injunction can only be granted by a decree made at the


hearing and upon merits of the suit; the 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.
to

prevent the breach of an obligation existing in favour of the


applicant, whether expressly or impliedly (see sec 52(1); and when the
obligation arises from contract, the court shall be guided by the rules
and provisions as provided in Chapter II of the Act which deals with
specific performance of contracts (see sec 52(2) of the Specific Relief
Act 1950)

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions

Perpetual injunctions

Case Law Analysis


It is vital to make reference to the case of Muniandy Subramanian &
Ors v Majlis Perbandaran Langkwi Bandaraya Pelancongan & Anor
(2003)
plaintiffs were the committee members of the Sri Muniswaran temple
at Jalan Kisap, Kuah, Kedah. They applied for an interim injunction
against the defendants, the Majlis Perbandaran Langkawi and the State
Government of Kedah, to restrain them from demolishing the said
temple. The issues were: (1) whether a local authority was a
government department; (2) whether an interim injunction could be
issued against a government body in view of s.54(d) of the Specific
Relief Act 1950; (3) whether there was a serious question to be tried;
and (4) whether the balance of convenience lay in favour of the
plaintiffs. The court held that: the local authority is not a government
department; sec 29(1)(a) of the Government Proceedings Act 1956
specifically prohibits the court to grant an injunction against a
government department; and disagreed with the plaintiffs submission
that if the interim injunction was not allowed the subject matter would
perish. This was because the two newspaper reports exhibited in court
showed that the plaintiffs were willing to accept an alternative site for
the temple if granted.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Perpetual

injunctions

sec 52 which address the issue of perpetual injunctions when granted.


For example sec 52(1) states that a perpetual injunction may be
granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication.
Sec

52(2) states that when such an obligation arises from contract, the
court shall be guided by rules and provisions contained in Chapter II
(which deals with specific performance). In other words, in granting an
injunction by the court in the context of a breach of contract, reference
must be made to Chapter II of the Act as part of the procedure.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Perpetual injunctions
sec

52(3) deals with a situation where the defendant invades or


threatens to invade the plaintiffs right to, or enjoyment of, property,
the court may grant a perpetual injunction in cases such:
(a)

where the defendant is trustee of the property for the plaintiff;

(b)

where there exists no standard for ascertaining the actual damage


caused, or likely to be caused, by the invasion;
(c)

where the invasion is such that pecuniary compensation would not


afford adequate relief;
(d)

where it is probable that pecuniary compensation cannot be got for


the invasion ; and
(e)

where the injunction is necessary to prevent a multiplicity of judicial


proceedings. (See the explanation to this sec viewing a trademark as
property)

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Perpetual injunctions

operation of sec 52 on perpetual injunctions when granted better


especially, it becomes inevitable to make reference to some few
illustrations given under the sec. The following are some of the
illustrations:

A lets certain land to B, and B contracts not to dig sand or gravel


thereout. A may sue for an injunction to restrain B from digging in
violation of his contract.

A trustee threatens a breach of trust. His co-trustees, if any, should,


and the beneficial owners may, sue for an injunction to prevent the
breach.

The directors of a public company are about to pay a dividend out of


capital or borrowed money. Any shareholders may sue for an injunction
to restrain them.

The directors of a fire and life insurance company are about to engage
in marine insurances. Any of the shareholders may sue for an injunction
to restrain them.

A, an executor, through misconduct or insolvency, is bringing the


property of the deceased into danger. The court may grant an
injunction to restrain him from getting the assets.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

Note: These are not the only illustrations and thus reference must be
made to Sec 52 of the Specific Relief Act 1950 for further illustrations.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Perpetual injunctions

Case Law Analysis


In addressing the operation of perpetual injunction, reference could be
made to the local case of Neoh Siew Eng & Anor v Too Chee Kwong
[1963] MLJ 272
plaintiffs were the tenants of rent-controlled premises and the
defendant was the landlord. One of the terms of the tenancy
agreement was that the defendant as landlord and registered
consumer in respect of water supply to the whole of the premises
would pay $2 towards the water charges and that the plaintiffs would
pay the amount in excess of that sum. To put that in different words,
the landlord covenanted not to interrupt the tenants water supply. As a
result the plaintiffs had an uninterrupted flow of water to their part of
the premises from the date of the commencement of the tenancy in
January 1962 until 24 Dec 1962 when the water supply stopped.
Following inspection of the pipes, the Waterworks Engineer wrote a
letter dated 2 Jan 1963 stating that the common pipe serving the
premises was badly corroded and recommending that early action be
taken to have the whole of the communication pipe replaced through
PWD registered plumber. The defendant did not take any action to
have the corroded pipe replaced. The plaintiff sued for, inter alia,
restoration of water supply and damages. On 20 Feb 1963, the Court
made an interim injunction requiring the defendant to restore the
water supply. The corroded pipe was finally replaced on 17 March
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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

1963. It was held that a perpetual injunction would issue against the
defendant requiring her to keep the water supply open and for that
purpose to comply with all regulations of the Waterworks Department.
The plaintiffs were awarded damages for such damage as they had
suffered as a result of the lack of water from the date by which the
defendant could reasonably have had the corroded pipe replaced to
the date of restoration of the water supply.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Mandatory injunctions
restrains

the act or omission by directing a person to perform a


positive act. In other words, mandatory injunctions would order the
performance of an act or acts. Mandatory injunction is an order of
court directing the defendant (s) to do something.
legislative
sec

framework for the grant of mandatory injunction

53 of the Specific Relief Act 1950 which provides

When, to prevent the breach of an obligation, it is necessary to


compel the performance of certain acts which the court is capable of
enforcing, the court may in its discretion grant an injunction to prevent
the breach complained of, and also to compel performance of the
requisite acts.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Mandatory injunctions
illustrations

A, by new buildings, obstructs lights to the access and use of which B


has acquired a right by prescription. B may obtain an injunction, not
only to restrain A from going on with the buildings, but also to pull
down so much of them as obstructs Bs light.

A builds a house with caves projecting over Bs land. B may sue for an
injunction to pull down so much of the caves as so project.

In the case put as illustrations (i) to sec 52, the court may also order all
written communications made by B, as patient, to A, as medical
advisor, to be destroyed.

In the case put as illustration (v) to sec 52 the court may also order As
letter to be destroyed.

A threatens to publish statements concerning B which would be


punishable under Chapter XXI of the Penal Code. The court may grant
an injunction to restrain the publication, even though it may be shown
not to be injurious to Bs property.

Note: These are not the illustrations to sec 53 and thus reference must
be made to the other illustrations as well under the sec.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Mandatory injunctions

Case Law Analysis


In addressing or discussing mandatory injunctions, it is vital to make
reference to some case law.
TR Hamzah & Yeang Sdn Bhd v Lazar Sdn Bhd [1985] 2 MLJ 45
The grant of mandatory injunction is entirely discretionary. Every case
must be upon its own particular circumstances. It is a jurisdiction to be
exercised sparingly and with caution but in a proper case
unhesitatingly. When the court decides to grant such an injunction then
the court must see to it that the person against whom is granted knows
exactly what he has to do (per Lee Hun Hoe CL (Borneo)).
In TR Hamzah & Yeang Sdn Bhd, the respondent employed the
appellant, a firm of architects to build a 27 storey office at Jalan
Ampang on the usual terms as defined by the Pertubuhan Arkitek
Malaysia (P.A.M.) conditions of engagement. The overall fee agreed
was 4% of the total contract cost of the project. While approval of the
plans was still under consideration by the relevant authority, the
appellant sued the respondent for balance of the professional fee of
$514, 000.00. The respondent denied the claim and counterclaimed for
breach of contract. Subsequently the appellant terminated its services
as architects on the ground of failure of payment of fees. The
respondent requested that the dispute be referred to the P.A.M. for
decision and pending reference that the appellant should issue a letter
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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

of release to enable them to engage another architect to continue with


the work. The appellant denied the request and said until all the fees
were paid they would not issue a letter of release.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Mandatory

injunctions

Case Law Analysis


TR Hamzah & Yeang Sdn Bhd- The respondent applied by summons-inchambers for an order that the appellant forthwith issue the
respondent with a letter of release to enable the responded to engage
another architect to proceed with the proposed construction of the
building. The learned judge of the High Court made an order in terms.
The appellant appealed. On appeal, the court held that in the
circumstances of this case, the court could not allow the architect to
withhold the letter of release as to do so would mean that the
architect can hold the client to ransom.
Case Law Analysis
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
[1998] AC 1. House of Lords refused to grant mandatory injunction to
compel a party to carry on a business; on the other hand, such a grant
may be justified in respect of orders requiring him to achieve a result.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions: (.)
Mandatory injunctions

Case Law Analysis


TSC Education Sdn Bhd v Kolej Yayasan Pelajaran Mara & Anor [2002]
2 CLJ
plaintiff and the first defendant entered into an agreement wherein the
plaintiff was appointed by the first defendant as independent advisers
to recruit students from China to pursue courses and programmes with
the first defendant. The plaintiff successfully recruited the first batch of
students. Subsequently, the plaintiff was requested to stop taking the
second batch of students which were already scheduled to arrive in the
country. Further, the plaintiff was requested to transfer the first batch
of students currently with the first defendant to other colleges. The
plaintiff now applied to the court, inter alia, to compel the first
defendant to comply with the terms of the agreement. The second
defendant was subsequently added as a party. The court held that the
second defendant was a corporation established under Majlis Amanah
Rakyat Act 1966 and pursuant to the Majlis (Yayasan Pelajaran MARA)
Order 1969. Under r.2 of the Order, the creation of the second
defendant was confined to the provisions relating to the training and
educational facilities of Bumiputras only. It did empower the second
defendant to provide training and educational facilities to nonBumiputras. The question as to whether the defendants should be
compelled to carry on with the agreement under sec 56 of the Specific
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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

Relief Act 1950 did not arise at as the agreement was not valid in the
first place being contrary to the Act and the Order.

INJUNCTIONS
Types of injunctions
Prohibitory injunctions

A prohibitory injunction is an order directed to a person to refrain from


the commission, . or repetition of a wrongful act. This form of remedy
represents the original form injunction. In other words, a prohibitory
injunction would prohibit certain act or acts. Hence, a prohibitory
injunction orders a defendant not to do something say in breach of
contract.

It is important to note that there is a difference between prohibitory


and mandatory injunctions i.e. prohibitory injunctions would prohibit
certain act or acts, and mandatory injunctions would order the
performance of an act or acts. Also, with prohibitory injunctions, a
court, in the exercise of its discretion, will not be influenced by the fact
that the defendants compliance with the injunction would be unduly
onerous or that the breach would cause the plaintiff little prejudice.
However, with mandatory injunctions, a court will apply the balance of
convenience test, refusing relief if the hardship caused to the
defendant by compliance with the order outweighs the consequential
advantages to the plaintiff.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

Interlocutory (also referred to as temporary or interim) injunctions are


such as to continue until a specified time, or until further order of the
court, and may be granted at any period of a suit. Hence, interlocutory
injunctions are designed to regulate the position of the parties pending
a hearing.
Case Law Analysis
Dr David Vannisingham Ramanathan v Subang Jaya Medical Centre
Sdn Bhd [2007] 1 MLJ 713

appellant was a surgeon who sought an interlocutory injunction the


effect of which would have been to prevent the respondent employer
from dismissing him until his claim against the employer was finally
decided. Delivering the judgment of the COA, Abdul Aziz Mohamad JCA
said that the learned trial judge had rightly relied on Penang Han
Chiang as authority that bars granting of the interlocutory injunction to
enable a workman to remain in his job until his representations are
finally settled.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

Case Law Analysis


Penang Han Chiang Associated Chinese Schools Association v
National Union of Teachers in Independent Schools, West Malaysia
[1988] 1 MLJ 302- where the appellant was the employer of certain
teachers who were members of a trade union, the respondent.
Disputes arose between the appellant, as employer, of the one part and
the teachers in the former employment of the appellant, of the other
part. A complaint was made to the Ministry of Labour and the Minister
referred the trade dispute to the Industrial Court for determination
under the Industrial Relations Act 1967. Following the reference to the
Industrial Court, the respondents filed a civil suit. The respondent
obtained an interlocutory injunction restraining the appellant from
terminating the services of the teachers pending the outcome of the
proceedings before the industrial court. The appellant appealed. The SC
held that sec 20(1)(b) of the Specific Relief Act 1950 gives statutory
force to the well established rule that a contract for service contract
cannot be specifically enforced. And sec 54(f) of the same Act enacts
that an injunction cannot be granted to prevent the breach of a
contract of performance of which would not be specifically enforced.
On the basis of, inter alia, these statutory provisions, the appeal was
allowed.

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

Note: An injunction will not normally be granted to prevent either an


employer or an employee from breaching a contract of service.

INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

It is important to note that the procedural aspects in respect of the


application, orders and related manners are governed by the Rules of
the High Court, Order 29.

Case Law Analysis


Cheah Cheng Lan v Heng Yea Lee [2001] 1 AMR 981; [2001] 1 MLJ 433where the COA held that the inherent power under Order 29 r 4 is not
to be used to extend the life span of an ex parte interim injunction in
view of Order 29 r 1 (2B) which provides that unless sooner revoked or
set aside, an interim injunction obtained in an ex parte application shall
automatically lapse at the end of 21 days from the date on which it was
granted, holding that such position is required in order to prevent
injustice or to prevent an abuse of the process of the court that its life
span must be limited at p 986, per Lamin bin Mohd Yunus).

Case Law Analysis


Cheah Cheng Lan v Heng Yea Lee, the applicant prayed for an order
that the order of the High Court setting aside an ex parte injunction
order be set aside and the ex parte injunction order continue to be in
force and effect until disposal of the applicants appeal. The issue

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

before the court was whether the court has an inherent power to
extend an ex parte injunction order from time to time until the disposal
of the main suit. The court held that by virtue of O 29 r 1(2BA) of the
Rules of the High Court, the life of ex parte injunction cannot go beyond
the period of 21 days. The court has no power to extend the life of an
ex parte injunction beyond 21 days because of the words shall
automatically lapse.

INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The principle purpose of the remedy is to protect the plaintiff against
injury by violation of his or her right for which he or she could not be
adequately compensated in damages recoverable in an action if the
uncertainty were resolved in his favour at the trial.
Case Law Analysis
American Cyanmid Co v Ethicon Ltd [1975] AC 396, per Lord Diplock).
Case Law Analysis
Lord

Hope in the case of AG v Punch Ltd [2003] 2 WLR 49, he said that
the purpose of interlocutory injunction is to regulate, and where
possible to preserve, the rights of the parties pending the final
determination of the matter which is in issue by the court. That
purpose should not be confused with courts reason for deciding that it
would be appropriate to grant interlocutory injunction.
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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

It

is important therefore to note that the purpose of interlocutory


injunction is to prevent a litigant, who must necessarily suffer the
laws delay, from losing by that delay the fruit of his litigation.
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
In addressing the discussion of interlocutory injunctions, it becomes
vital to deal with the issue of the test applicable since it is considered
only a temporary or interim injunction that the applicant or plaintiff is
seeking. The following is the test:

(Prior to American Cyanamid


The often-cited test here was a strong prima facie case that the
applicants rights had been infringed. He or she had to show that
damages would be inadequate remedy, and that the balance of
convenience favoured the grant. In other words, in order to obtain the
injunction, an applicant has to show that it was more likely than not
that he or she would succeed in securing a final injunction at the trial.
Note: A more flexible approach found favour in Hubbard v Vosper
[1972] 1 All ER 1023- where Lord Denning:
In considering whether to grant an interlocutory injunction, the right
course for a judge is to look at the whole case. He must have regard not
only to the strength of the claim but also to the strength of the
defence, and then decide what is best to be done

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

INJUNCTIONS
Types of injunctions
d)

Interlocutory (or interim) injunctions

(ii)

The test in in American Cyanamid

The court must be satisfied that the applicants case is not frivolous or
vexatious and that there is a serious question to be tried. Once this is
satisfied, the crucial element would then be the balance of convenience
i.e. the claimant need establish only a real possibility of success not a
probability.

Case Law Analysis


American Cyanamid Co v Ethicon Ltd [1975] AC 396 the House of Lords
decided that there was no need for the plaintiff to establish a prima
facie case. The courts should address themselves to whether there was
an important point at issue, and the paramount consideration should
be the balance of convenience. If the balance of convenience did not
clearly favour either party then the relative strengths of the parties
should be considered. In no circumstances should the court attempt to
act in a manner which would, in effect, be a full trial in action.
Note: This test does not affect the rules pertaining to the grant of
interim injunction in defamation cases.
Case Law Analysis

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A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--

Herbage v Pressdram Ltd [1984] 1 WLR 1160- where the court stated
that the American Cyanamid has not affected this principle, which
might, therefore, be regarded as a special factor.)

INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

The test in American Cyanamid

In addressing the issue of not turning the process of granting


interlocutory injunction to look like a case of full trial or anything
resembling a trial of the action upon the conflicting affidavits.

Case Law Analysis


Eshwara Engineering Sdn Bhd v Delta Structure Sdn Bhd [2003] 4 MLJ
18

whether interlocutory injunction relief should be granted or not. The


court held that at this stage, it was not justified in embarking upon
anything resembling a trial of the action upon the conflicting affidavits.

Case Law Analysis


Mohamed Zainuddin bin Puteh v Yap Chee Seng [1978] 1 MLJ 40

a Notice of Motion for an order that the interlocutory injunction


granted on Oct 11, 1976, be set aside. It would appear from the notice
as well as the affidavits supporting the application that the sole ground
for the application that the injunction be set aside was that the plaintiff

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had not stated the facts fully and accurately to the court and that he
had not disclosed all material facts. Applying the principles in American
Cyanamid Co v Ethicon, the court held that the motion to dissolve the
injunction should be dismissed, as there was a serious question to be
tried and therefore measures should be taken to preserve the status
quo.
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

The test in American Cyanamid

In addressing the issue of not turning the process of granting


interlocutory injunction to look like a case of full trial or anything
resembling a trial of the action upon the conflicting affidavits.

Case Law Analysis


Eshwara Engineering Sdn Bhd v Delta Structure Sdn Bhd [2003] 4 MLJ
18- where the court held that it was not justified in embarking upon
anything resembling a trial of action upon the conflicting affidavits in
addressing the issue of whether interlocutory injunction relief should
be granted or not.
Case Law Analysis
Mohamed Zainuddin bin Puteh v Yap Chee Seng [1978] 1 MLJ 40where there was a Notice of Motion for an order that the interlocutory
injunction granted on Oct 11, 1976, be set aside. It would appear from
the notice as well as the affidavits supporting the application that the
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sole ground of the application that the injunction be set aside was that
the plaintiff had not stated the facts fully and accurately to the court
and that he had not disclosed all material facts. The could held that
applying the principles in American Cyanamid Co. v Ethicon, the motion
to dissolve the injunction should be dismissed, as there was a serious
question to be tried and therefore measures should be taken to
preserve the status quo.

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INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions

The test in American Cyanamid

It is equally important to point out that probably in dealing with this


test i.e. the balance of convenience test as laid down in American
Cyanamid, we need to consider the test based on factors such as: (a) If
the applicant could be adequately compensated were he to succeed at
the trial and the defendant would be in position to make the
compensation, the application for an interlocutory injunction should be
rejected, even if his or her claim appears strong.

Case Law Analysis


Perbadanan Setiausaha Selangor v Metroway Sdn Bhd [2003] 4
AMR550. (b) If the application could not be rejected on account of (a),
the court must go on to consider whether , if the injunction is granted
but the defendant is successful at the trial proper, the defendant would
receive adequate monetary compensation from the plaintiff and the
plaintiff is in position to pay them. If the answers to both are in the
affirmative, interlocutory injunction may properly be granted. (c) If
there is doubt as to the sufficiency of the respective remedies in
damages available to either party or to both, then the question of the
balance of convenience becomes relevant.

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INJUNCTIONS
Types of injunctions
d)

Interlocutory (or interim) injunctions

(ii)

The test in American Cyanamid

Another issue to address while dealing with this test is that of the
factors which may be relevant in determining balance of convenience.
Case Law Analysis
American Cyanamid, Lord Diplock mentioned three considerations and
they are: (i) the preservation of the status quo; (ii) strength of the case
in relation to the opponent; & (iii) other special factors (i.e. public
interest argument etc).

balance of convenience test.


Case Law Analysis
Azman bin Mohd Yusoff v Vasaga Sdn Bhd [2001] 2 AMR 2040, a case
founded on nuisance coming from unlicensed disco and pub business.
Here the plaintiff applied for an injunction to restrain the defendant
from operating a disco and pub business called Vasaga Exclusive Dance
Club & KTV on the grounds that the business disturbed their peace,
tranquillity and safety resulting from the loud music till late at night,
vibration to the building and others. The defendant denied the
accusations and said that the plaintiffs complaint was frivolous,
baseless and vexatious. The defendant only operated during the trial

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run and the sound of the music was under control. There was no
objection from the authorities which controlled the operation of the
business. The defendant claimed that the plaintiff acted with mala fide.
Allowing the plaintiffs application for an injunction after scrutinising all
the facts, the court held the defendant be restrained by an injunction
from causing nuisance to the plaintiff until the disposal of the trial of
the plaintiffs claim against the defendant.

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INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The test in American Cyanamid
Case Law Analysis
UMAS

Sdn Bhd v RHB Bank Bhd [2001] 1 AMR 1024- where the
plaintiff brought an action against the first and second defendants,
alleging trespass of a certain site, and conversion of its equipment and
machines and an injunction was granted in their favour preventing the
defendants from entering the site or, among others, removing the
machines.
_

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INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The

test in American Cyanamid

It

is equally important to address the issue or question of whether the


factors relevant to the balance of convenience test should be
considered on a step-by-step basis, or considered together at one go
while trying to apply the test in a given case or scenario.
Case Law Analysis
Pekeliling

Triangle Sdn Bhd v Chase Perdana Bhd [2003] 1 AMR 378;


[2003] 1 MLJ 130- where the Court of Appeal dealt with this issue by
saying that: the balance of convenience test must be applied in the
manner intended by American Cyanamid, that is, a step-by-step
approach as reflected in the dicta of Lord Diplock. The first step is to ask
whether the applicant could be adequately compensated by damages,
and if the answer to this is affirmative, that would be the end of the
matter. In this respect, in so far as the steps were not followed, the
High Court had erred

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INJUNCTIONS

Types of injunctions

Interim mandatory injunction

grant of interlocutory mandatory injunctions.

Case Law Analysis


Syed Agil Barakbah SCJ in Tinta Press Sdn Bhd v Bank Islam Malaysia
Bhd [1987] 2 MLJ 192 where he said: The discretionary power of the
court to grant mandatory injunction is provided by sec 53 of the
Specific Relief Act 1950. 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.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 plaintiffs interest be protected by
immediate issue of an injunction, otherwise irreparable injury and
inconvenience would result.

Case Law Analysis


Tinta Press Sdn Bhd v Bank Islam Malaysia, the respondents had
leased certain printing equipment to the appellants. The appellants
having defaulted in payment of the monthly rentals, the respondents
brought an action to recover possession of the equipment and to
recover the arrears of rent. The respondents also made an ex parte
application for an obtained a mandatory injunction to enable the
respondents to recover possession of the equipment. The appellants

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then appealed to dissolve and set aside the mandatory injunction. This
was refused and the appellants appealed. The learned judge on the
facts and circumstances of the case rightly concluded that this was an
exceptional case where the court was justified in granting a mandatory
injunction on an ex parte application before trial.

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INJUNCTIONS
Types

of injunctions

Interim

mandatory injunction

Probably

in addressing interim mandatory injunction.

Case Law Analysis


Timbermaster Timber Complex (Sabah) Sdn Bhd v Top Origin Sdn Bhd
[2002] 1 AMR 25; [2002] 1 MLJ 23 where the Court of Appeal noted
that an interlocutory mandatory injunction would be appropriate
where the applicant show an unusually strong and clear case and that
there are special circumstances before the court.

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INJUNCTIONS
When injunctions cannot be granted
It

is important to note that there are instances where the court may
refuse to grant an injunction based on some reasons or arguments. For
example, sec 54 of the Specific Relief Act 1950 provides that injunctions
cannot be granted in the following cases:
(a) To stay a judicial proceeding at the institution of the suit in which
the injunction is sought, unless such restrain is necessary to prevent a
multiplicity of proceedings;
(b) To stay proceedings in a court not subordinate to that from which
the injunction is sought;
To

restrain person from applying to any legislative body;

To

interfere with the public duty of any department of any


Government in Malaysia, or with the sovereign acts of a foreign
government.
To

stay proceedings in any criminal matter;

Note: These are not the only cases where an injunction cannot be
granted by the court. There are other cases as well under the sec.

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INJUNCTIONS
When injunctions cannot be granted
In order to understand the provision of sec 54 better, reference must
be made to some of the illustrations given under the sec. The following
are some of the illustrations:

(a) A seeks an injunction to restrain his partner, B, from receiving the


partnership debts and effects. It appears that A had improperly
possessed himself of the books of the firm and refused B access to
them. The court will refuse the injunction.
(b) A manufactures and sells crucibles, designating them as patent
plumbago crucibles though, in fact, they have never been patented. B
pirates the designation. A cannot obtain an injunction to restrain the
piracy.
(c) A sells an article called Mexican Balm stating that it is
compounded of divers rare essences, and has sovereign medicinal
qualities. B commences to sell a similar article to which he gives a name
and description such as to lead people into the belief that they are
buying As Mexican Balm. A sues B for an injunction to restrain the sale.
B show that As Mexican Balm consists of nothing but scented hogs
lard. As uses of his description is not an honest one and he cannot
obtain an injunction.
Case Law Analysis

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Dr David Vanniasingham Ramanathan v Subang Jaya Medical Centre


Sdn Bhd (2006)

INJUNCTIONS
Injunction to perform negative agreement
The

issue of an injunction to perform a negative agreement is dealt


with under sec 55of the Specific Relief Act 1950 which provides:
Notwithstanding paragraph 54(f), where a contract comprises an
affirmative agreement to do a certain act, coupled with a negative
agreement, express or implied, not to do a certain act, the
circumstances that the court is unable to compel specific performance
of the affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement: Provided that the
applicant has not failed to perform the contract so far as it is binding on
him.
Case Law Analysis
Medlux

Overseas (Guernsey) Ltd v Faber Medi-Serve Sdn Bhd [2001] 3


AMR 3664-where Gopal Sri Ram JCA explained: In our judgment,
where there is a breach of a negative covenant, the court in this
jurisdiction ought to treat it no differently from any other application
for an interlocutory injunction

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INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
Pertama

Cabaret Nite Club Sdn Bhd v Roman Tam [1981] 1 MLJ 149where the appellants were the owners of a night club in Kuala Lumpur.
The respondent was a well known singer from Hong Kong. The
respondent had signed a contract agreeing to appear and sing at the
appellants night club for a number of days. Clause 15 of the contract
provided that if the respondent breached any of its terms, the
appellant could terminate the contract; and that in the event of such
termination, the respondent was not to perform in Kuala Lumpur for a
fixed period of three months thereafter. The respondent declined to
honour his contract and began performing to another night club. The
appellant sued and applied for an ex parte interim injunction to restrain
the defendant from appearing at any opera house, theatre, concert hall
or other public or private entertainment in Kuala Lumpur until the
hearing of the summons. The SC granted an interim injunction
restraining the defendant from singing in any place in Kuala Lumpur
given that in the contract with the plaintiffs, the defendant had
covenanted not to perform in the stipulated area during the validity of
the contract or three months thereafter.
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INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
It is important to note that under English law, an injunction may be
granted as to restrain breaches of negative covenants. See the case of
Doherty v Allman (1978)-where the court stated that: If parties for
valuable consideration, with their eyes open, contract that a particular
thing shall not be done, all the court of equity has to do is to say, by
way of injunction, that which the parties have already said by way of
covenant, that the thing shall not be done; and in such case the
injunction does nothing more than give the sanction of the process of
the court to that which already is the contract between the parties
Case Law Analysis
Lumley v Wagner (1852)- where Miss Wagner, an opera star, had
agreed with Lumley that she would sing at Her Majestys Theatre during
a certain period, and would not sing anywhere else without his written
permission. She made another engagement with Gye to sing at Covent
Garden and abandoned her previous commitment to Lumley, who
sought an injunction to restrain her from singing for Gye. Lord St.
Leonards held that an injunction should be granted to restrain the
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breach of the negative stipulation; it would not of course have been


possible to obtain specific performance of the promise to sing).

INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
an injunction to perform a negative agreement. Common law position
or approach is, the court will not normally grant an injunction to
restrain a defendant from acting in breach of a negative undertaking if
to do so would compel performance of an agreement otherwise
unenforceable in equity.
Case Law Analysis
Dayang Nurfaizah bte Awang Dowty v Bintang Seni Sdn Bhd [2004] 2
AMR 555, [2004] 2 MLJ 39- where Muhamed Hishamudin J found that
the management agreement entered into by the parties was in essence
a contract for personal services and was thus unenforceable (see sec
20(1(b) of the Specific Relief Act 1950).
In Dayang Nurfaizah, the first defendant applied for an interlocutory
injunction against the plaintiff to restrain the plaintiff from appointing
or engaging any person, other than the first defendant , as her personal
manager and to restrain the plaintiff from making any public
performance without the consent of the first defendant. The court held
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that in deciding whether or not to grant the interlocutory injunction,


the court was duty bound to consider whether the first defendant had a
cause of action against the plaintiff. For, should the court find that the
first defendant had no cause of action against the plaintiff, it must
dismiss the interlocutory injunction. As the defendant, was seeking to
enforce the performance of a contract for personal services, a remedy
which is barred by sec 20(1)(b) of the Specific Relief Act 1950, she
therefore had no cause of action against the plaintiff.

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INJUNCTIONS
Injunction to perform negative agreement
In order to understand the provision of sec 55 of the Specific Relief Act
1950 better, it would be vital to make reference to some few
illustrations given under the sec. The following are the illustrations:

(a) A contracts to sell to B for $1,000 the good-will of a certain


business unconnected with business premises, and further agrees not
to carry on that business in Kelang. B pays A the $1,000 but A carries on
the business in Kelang. The court cannot compel A to send his
customers to B, but B may obtain an injunction restraining A from
carrying the business in Kelang.
A contracts to sell to B the good-will of a business. A then sets up a
similar business close to Bs shop, and solicits his old customers to deal
with him. This is contrary to his implied contract, and B may obtain an
injunction to restrain A from soliciting the customers, and from doing
any act whereby their good-will may be withdrawn from B.

Note: These are not the only illustrations to sec 55 of the Specific Relief
Act 1950. Thus, reference could be made to other illustrations under
the sec as well.

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INJUNCTIONS
Powers of the court to grant damages in lieu of injunction
It

is important to note that since the granting of an injunction is


considered discretionary in nature (i.e. See sec 50 of the Specific Relief
Act on preventive relief how granted. See sec 53 of the Specific Relief
Act 1950 on granting of mandatory injunctions), the courts may not
grant an injunction if damages are considered to be an adequate
remedy.

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INJUNCTIONS
Conclusion
overriding

purpose of an injunction is to protect and preserve legal


rights and interests and to prevent the commission or . of a legal
wrong.
injunction

is a matter of discretion, in general, an order to restrain the


breach of a negative contract may be obtained almost as of right.
sec

55 of the Specific Relief Act 1950 does not take away the
fundamental that a grant of an injunction remains a matter a of judicial
discretion.

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Q & A Session

Source: attorneys-sc.com

A democracy is nothing more than mob rule, where fifty-one percent of the people may

take away the rights of the other forty-nine.


Thomas Jefferson

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TUTORIAL QUESTIONS
Discuss, explain and analyse the following with good case support :1.
2.
3.
4.
5.
6.
7.
8.

Meaning of an injunction
Nature of injunctions
Characteristics of injunctions
Legal principles
Types of injunctions
No grant of injunctions
Injunction to perform negative agreement
Powers of the court to grant damages

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PART II

INJUNCTIONS

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As my sufferings mounted I soon realized that there were two ways in which I could respond
to my situation -- either to react with bitterness or seek to transform the suffering into a
creative force. I decided to follow the latter course.
Martin Luther King Jr.

Introduction
Injunctions in public law
Mareva injunction
Conditions for the grant of Mareva injunctions
Activities of third parties
Anton Piller order
Conditions for Anton Piller order
Case law Analysis
Comparative Studies
Syariah Perspective
Critical Comments
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Conclusion

INJUNCTIONS
Introduction
Injunctions

are private law remedies that are available in


judicial review proceedings as far as public law is concerned.
For example, in public law injunctions are understood as orders
that prevent an administrative body, including a minister, from
acting unlawfully. They can be interim (temporary) or
permanent.
Injunctions in public law
Injunctions in public law can be understood by way of making
reference to the operation of the concept of judicial review
involving public bodies. These public bodies provide services for
and regulate the public across a huge range of activities. A list
of such activities would include: education, health, housing,

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employment, social security, town planning, transport, fuel,


immigration, licensing and taxation.
It is important to note that the state regulates and provides for
us through powers given to various administrative authorities
such as ministers, central government departments,
governmental agencies, local authorities, tribunals, public
corporations and so on. These persons and bodies are provided
by statute with necessary powers, either duties or discretions
to carry out their tasks.

INJUNCTIONS
Injunctions in public law
Therefore, injunctions in public law play an important role by
acting as a remedy in protecting people from arbitrary and an
affair actions and decisions of these public bodies.

Injunctions in public law can be used in a situation where a


public body reached a decision acting outside its powers given
under a given statute i.e. ultra vires.

Injunctions though considered a private law remedy, they are


still available as a form of remedy even in public law cases e.g.
they may be granted by the court in administrative law cases or
even in criminal law cases.

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INJUNCTIONS
Mareva injunctions
The Mareva injunction is a specialised form of injunction. It is a
judicially crafted remedy.

Case Law Analysis

Mareva Compania Naviera SA v International Bulk Carriers


SA [1975] 2 Loyd Rep 509.

According to Lord Denning MR, a Mareva injunction is


interlocutory, not final; it is ancillary to a substantive pecuniary
claim for debt damages; it is designed to prevent the
judgment

The principle aim of a Mareva order or injunction is to restrain


a defendant from disposing or otherwise dealing with any of

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their assets within the jurisdiction of the court . In other words,


the essential purpose of this injunction is to prevent foreign
parties from causing assets to be removed from the jurisdiction,
in order to avoid the risk of having to satisfy any judgment
which may be entered against them pending proceedings in this
country.
To put it in a different way, a successful plaintiff sometimes
finds that he is unable to satisfy the judgment because the
defendant may have spirited his assets out of the jurisdiction.
In extreme cases, the defendant may do this as soon as he
becomes aware of the possibility of a suit being instituted
against him. Where a plaintiff apprehends a real risk of this
happening, he may apply ex parte to the court for an injunction
restraining the defendant in a pending action from removing
the assets from the jurisdiction.

INJUNCTIONS
Mareva injunctions
It is important to note that the restraint is not restricted to
prevent the removal of assets from jurisdiction but extends to
their dissipation within jurisdiction as well.

All in all, the object of a Mareva injunction (freezing order) is


to prevent the frustration of a monetary judgment by
preventing the dissipation or removal of the defendants assets

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(judgment proofing"). A Mareva injunction does not effect


seizure of an asset. It restrains a defendant from dealing with
an asset in certain ways. Mareva injunctions act in personam
against defendants, not in rem against their assets. It does not
confer any property rights.

INJUNCTIONS
Conditions for the grant of Mareva injunctions
The legal basis for the grant of a Mareva injunction is the risk
that the defendant may deal with its property in such a way as
not to satisfy judgment in favour of the plaintiff, and for the
purpose, the order or injunction may be granted whenever it is
just and convenient to do so.

Case Law Analysis

Zainal Abidin bin Haji Abdul Rahman v Century Hotels Sdn Bhd
[1982] 1 MLJ 260- This was an appeal from the decision of
Hashim Yeop A. Sani J. The respondent had let the third floor of
a nine-storey building belonging to them to the appellant for

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purposes of running a recreation centre. The respondent


subsequently decided to close the hotel business run by them
and they informed the appellant that there would no longer be
guests of the hotel requiring the services provided by the
appellant. The appellant issued a writ claiming wrongful
repudiation of the contract & damages. The appellant then filed
a notice of motion to restrain the respondent from selling,
transferring or in any manner whatsoever disposing of the land
and building until the hearing and disposal of the suit or until
further order. He claimed that if the land and building were
sold he would be deprived of the fruits of any judgment he
might obtain against the respondent. Hashim Yeop A Sani J.
dismissed the application as he held inter alia that the relief
sought by the appellant was unknown in our law as there was
no equivalent to sec 45 of the English Court of Judicature
(Consolidation) Act, 1925. He also held that the appellant had
not disclosed sufficient grounds to justify any intervention by
the court. In allowing the appeal, the court held that the High
Court in Malaysia has jurisdiction to grant Mareva injunction in
appropriate circumstances, as the provisions of para 6 of the
Schedule to the Courts of Judicature Act, 1964, are equivalent
of the provisions of sec 45 of the English Court of Judicature
(Consolidated) Act, 1925. In this case although the appellant
has raised a serious question to be tried on the question of
damage he has suffered by reason of alleged wrongful
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repudiation of the lease agreement, there was no evidence to


show that there was a danger that the available assets of the
respondent would be dissipated to prejudice the appellants
claim. In the circumstances it would not be proper to make the
order sought by the appellant against the respondent.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis

Poly Electronic & Electrical (M) Sdn Bhd v Daewoo Corp (No.1)
[2003] 2 MLJ 310- where the plaintiff had obtained a Mareva
injunction. By the Mareva injunction, the defendant was
restrained until further order of the court, whether by
themselves, their servants, agents or howsoever, from
disposing of or dealing with its assets within the jurisdiction, in
so far as the same does not exceed the sum of RM5,263,475
save such sums as are reasonably necessary for the defendants
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ordinary operational expenses. The plaintiff discovered that


they could not ascertain whether the defendant had in fact set
aside assets to the value of RM5,263,475 pursuant to the
Mareva injunction. The stand of the plaintiff was that there was
a need for the defendant to disclose to this court that the sum
of RM5,263,475 had, in fact, been retained in the bank account
of the defendant within jurisdiction in compliance with the
Mareva injunction that was issued. This was an application by
the plaintiff for an order that the defendant discloses all its
assets within the jurisdiction to the value of RM5,263,475 by
way of an affidavit. In allowing the application, the court held
that a Mareva injunction is an in personam order. It becomes in
rem when it is brought to the notice of a third party not to aid
in dealings with the assets of the defendant.
INJUNCTIONS
Guidelines for the grant of Mareva injunctions:
guidelines governing the grant of the injunction or order

The applicant must have a good arguable case- See the case of
Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213where Gopal Sri Ram stated that in the present case there was
an added consideration in that the appellants were applying for
a Mareva injunction. As such, the relative strength or weakness
of the defence filed during the early stages of action was
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extremely relevant in assessing whether the appellants had an


arguable case, which must be established to a higher standard
than that applicable to the usual application for an injunction.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
The following are the guidelines governing the grant of the
injunction or order:

The applicant must have a good arguable case-

Case Law Analysis

Ang Chee Huat v Engelbech Thomas Joseph [1995] 2 MLJ 83where in dismissing the appeal the court held that the three
essential requirements for granting a Mareva injunction had
been considered by the judicial commissioner. With regard to
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the requirement of a good arguable case, after reading the


pleadings and the affidavits, the respondent has shown that he
has a good arguable case in respect of his claim for the return
of the RM500,000.
Case Law Analysis

Kembara Dinamik Corporation Sdn Bhd v Bahtera Sensasi Sdn


Bhd [2004] 3 AMR 312.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis

The applicant must make full and frank discloser of all the
material matters.

Creative Furnishing Sdn Bhd v Wong Koi @ Wong Khoon Foh


t/a Syarikat Sri Jaya [1989] 2 MLJ 153- In allowing the appeal,
the court held that it is incumbent on the applicant to make
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frank and full disclosure of all material facts. Every material


representation must not be misleading and there must not be
any suppression of material facts. Failure to do so at the crucial
time of making the ex parte application would invariably be
fatal. In this case the respondent had sued the appellant and
another defendant for alleged partnership debt for materials
supplied and work done in respect of millworks on two floors of
the Shangrila Inn, Penang under the terms of sub-contract. On
the date of the issue of the writ the respondent obtained ex
parte a Mareva injunction against the appellant and the other
defendant to restrain them from disposing or otherwise dealing
with their assets not exceeding $95,000. The appellant applied
to set aside the ex parte Mareva injunction. This was dismissed
and the appellant appealed.
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
The applicant must make full and frank discloser of all the
material matters.

Case Law Analysis

Aspatra Sdn Bhd v Bank Bumiputra Malaysia Bhd [1988] 1


MLJ 97- where the court held that in ex parte or inter parte
Mareva proceedings by the court all relevant affidavits filed
must be considered by the courtIn this particular case the

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learned judge was satisfied on the evidence before him that the
respondents had shown that they had a good arguable case,
that the defendant had assets within the jurisdiction and that
there was a risk of the assets being removed before judgment
could be satisfied. In the circumstances the learned judge not
only had jurisdiction to grant the Mareva injunction prayed for
but he had also granted the injunctive remedy on correct
principles. In this case, the respondent had brought an action
against Lorrain Osman, who was a director of the respondent
and the chairman of the second respondent, for the total sum
of $27,625,853.06 which they claimed to be secret profits made
by Lorrain without their knowledge and approval. The
respondents also made an ex parte application for a Mareva
injunction to restrain Lorrain from transferring his assets out of
jurisdiction and also for an order of discovery for Lorrain to
disclose the value, nature and whereabouts of all his assets.
The orders which were made on January 10, 1985 could not be
served on Lorrain and the learned trial judge, on the application
of the respondents, extended the Mareva injunction to
Lorrains assets in 32 other banks in addition to the 6 banks
cited in the earlier order and also to his shares in 104 other
companies apart from Aspatra Sdn Bhd and the 4 companies
mentioned in the original order.
INJUNCTIONS
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Guidelines for the grant of Mareva injunctions


The applicant must state the grounds of his claim and the
amount, as well as state the points made against it by the
defendant.
Case Law Analysis

Bank Bumiputra Malaysia Bhd v Lorrain Osman [1985] 2 MLJ


236- In this case the first plaintiff is a company incorporated in
Malaysia and carries on the business of banking. The second
plaintiff is a wholly owned subsidiary of the first plaintiff and is
a company incorporated under the laws of Hong Kong. The
defendant, Lorrain Osman, was at all material times a director
of the first plaintiff company and Chairman of the Board of
Directors of the second plaintiff company. The plaintiffs
brought an action against the defendant. The plaintiffs alleged
that the defendant received the sum of $27,652,853.06
through his solicitors in Kuala Lumpur wrongfully and without
the knowledge and approval of the plaintiffs and in breach of
his fiduciary duty as a director of the 1st plaintiff and Chairman
of the Board of Directors of the 2nd plaintiff. They asked the
court to order the defendant to return to them the sum of
$27,652,853.06 which they claim are secret profits made by the
plaintiffs and made an ex parte application for a Mareva
injunction to restrain the defendant from transferring his assets
out of jurisdiction. The application also asked the court to order
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the defendant to disclose the value, nature and whereabouts of


his assets. An order was obtained See also the case of Pacific
Centre Sdn Bhd v United Engineers Bhd [1984] 2 MLJ 143.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis

Pacific Centre Sdn Bhd v United Engineers Bhd [1984] 2 MLJ


143. In this case, an application for Mareva injunction was
made inter partes. This was because it was a sequel to a
successful application by the defendants to discharge an ex
parte order made earlier by the court under sec 19 of the

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Debtors Act 1957. The targets of the said application were two
parcels of land belonging to the defendants, or the proceeds of
sale thereof, insofar as the same did not exceed M$16,823,443
until the hearing of the action or until further order. The two
properties were the Sungei Besi property and the Petaling
Jaya property.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
The applicant should provide some grounds of believing that
there is some risk of the assets being removed before
satisfaction.
Case Law Analysis

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Ang Chee Huat v Engelbech Thomas Joseph [1995] 2 MLJ 83where in dismissing the appeal the court held that there was a
clear inconsistencies between the declaration of trust and the
title to the land, and between the appellants statement of
defence and his affidavit in reply. Having considered the
evidence, the conduct of the appellant was lacking in probity
and honesty. In the circumstances, there was a real risk that the
assets of the appellant would be dissipated should the
respondent succeed at the trial.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis

Metrowangsa Asset Management Sdn Bhd v Ahmad bin Hj


Hassan [2004] 4 AMR 30. In granting a Mareva injunction to the
plaintiff, the court held that a Mareva injunction in the context

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of the present case serves as a remedy for the purpose of


restraining a judgment debtor or a potential judgment debtor
from committing the abuse of dissipating or hiding
clandestinely assets that the judgment creditor might lawfully
attach for the purpose of satisfying a judgment that is to be
given or likely to be given in his favour. In this case, the
plaintiffs had earlier taken out an action against the defendants
over a purported embezzlement of funds belonging to Lembaga
Tabung Haji. Two applications were before the court in this
case. In the first application, the plaintiffs applied for a Mareva
injunction over the bank accounts and properties of the first,
fourth and fifth defendants. In the second application, the first
defendant applied for an order that an earlier Mareva
injunction granted on 21 Feb 2003 be varied to allow the first
defendant to withdraw and/or to spend a sum of money
amounting to RM150,000 or a reasonable sum thereof from
two named banks for payment of legal feesThe court held
that evidence before the court showed that the first, fourth and
fifth defendants had conspired to defraud the plaintiffs out of
the investment sums that were rightly due to them. Thus, to
sum up, there was a real risk that the defendants together or
on a separate basis have and would dissipate the assets.

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INJUNCTIONS
The applicant must give undertaking in damages.
It is important to note that in deciding to grant a Mareva
injunction given the possible drastic effect of the grant,
considerable caution should be exercised.

Case Law Analysis

RK Nathan JC in Best Electronics Sdn Bhd v Chen Li Yeng [1997]


1 CLJ supp 572 illustrates the application of the leading
principles of law governing the grant of Mareva injunction. In
Best Electronics Sdn Bhd, the 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. The defendant resisted this by alleging that the
money had been credit to her account with the companys
consent being her reward for helping the company to evade
tax. The company had earlier lodged police report, and the
defendant in turn had been in touch with the Inland Revenue.
The company submitted that the defendant might dispose of
her immovable assets to defeat the claim. The action was filed
some 16 months after the plaintiff first discovered the alleged

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misconduct. The court concluded that on the facts of the


application of the plaintiff company must be rejected. Among
the reasons given for the rejection are: (i) the fact that the
claim is made inter partes may indicate that the fear of the
defendant disposing of the property may not always be
justified; (ii) the fact that a claimant fails to commence
proceedings immediately or within a reasonable period of time
may persuade the court not to exercise its discretion in favour
of the plaintiff save where the delay could be explained; (iii) an
application may appropriately be denied if he comes to equity
with unclean hands.

INJUNCTIONS
Guidelines for the grant of Mareva injunctions

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RK Nathan JC in Best Electronics Sdn Bhd v Chen Li Yeng dealt


with the law surrounding the granting of Mareva injunction by
the court by considering the following issues:

An application for a Mareva injunction made at an inter partes


hearing would be determined on its merit and after hearing
arguments from both the plaintiff and the defendant.

The fact that the application is made inter partes may indicate
that the fear of the defendant disposing of the property may
not always be justified.

The fact that a claimant fails to commence proceedings


immediately or within a reasonable period of time may
persuade the court not to exercise its discretion in favour of the
plaintiff save where the delay could be explained.

The conditions for the grant of a Mareva injunction, namely (i)


that the plaintiff has a good arguable case, (ii) that the
defendant has assets within jurisdiction, and (iii) that there is
real risk of the assets being dissipated or removed before
judgment. On the facts of the case, (ii) was satisfied but not (i)
and (iii).

An application may appropriately be denied if he comes to


equity with unclean hands.

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The applicant is required to provide an undertaking as to


damages if in case the ruling is not in his favour.

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INJUNCTIONS
Activities of third parties
Case Law Analysis

Cardile v LED Builders Pty Ltd (1999) 162 ALR 294- the
Australian High Court stressed that the expression that there
ought to be a flexibility in the grant of Mareva orders ought not
to be understood as to allow it to cloak a lack of analytical
rigour and to escape the need to find a doctrinal and principled
basis for orders that are made. In so far as the substantive law
is concerned, a distinction is to be maintained between its
grant so as not to defeat satisfaction of the plaintiffs claims
and orders which extend to third parties who cannot be shown
to have frustrated, actually or prospectively, the administration
of justice.

The court (Kirby J) went further and explained that it would be


necessary for the party seeking it to show, in addition to the
conditions ordinary to the grant of relief injunctive in nature
that (i) there is a danger that the non-party will dispose of the
relevant assets or property in its possession or under control;
and (ii) that the affairs of the actual or potential judgment
debtor and the non-party are closely intermingled, and that the
actual or potential judgment creditor has a vested or accrued

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cause of action against the non-party or may otherwise become


entitled to have recourse to the non-party, its property and
assets to meet the claim.

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INJUNCTIONS
Anton Piller order
The Anton Piller Order, an exceptional and powerful prelitigation mechanism, can be resorted to by a plaintiff to
preserve evidence against infringers.

Essentially, an Anton Piller Order is an Order from a Court,


obtained ex parte, ordering an infringer, and sometimes more
than one infringer, to let the plaintiffs solicitor search its
premises and deliver up evidence of infringement of the
plaintiffs rights.

From the above foregoing paragraph, it would appear that the


order is designed to prevent the defendant from concealing,
removing or destroying vital evidence such as documents, or
other moveable property, prior to an inter partes hearing of the
pending action. In other words, the purpose of the order is to
prevent the removal or destruction of evidence before inter
partes application.

Case Law Analysis

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER


779 while addressing purpose of this important concept. In

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Anton Piller KG, Lord Denning explained that: if the


defendant were forewarned, there is a grave danger that vital
evidence will be destroyed, that papers will be burnt or lost or
hidden, or taken beyond the jurisdiction, and so the ends of
justice can be defeated
The order allows the plaintiff to enter the premises of the
defendant and to look at and make copies of any documents or
similar material. Hence, failure to comply with an Anton Piller
order is punishable by contempt of court.

All in all, such orders are rarely made, and will only be
considered by the courts if there is no suitable alternative
method of securing justice for the plaintiff.

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INJUNCTIONS
Conditions for granting an Anton Piller order

A plaintiff needs to show the following:

An extremely strong prima facie case

In keeping with the extraordinary nature of the remedy, the


Court has emphasized the strength of the case which the
plaintiff is required to put forward in order to obtain an Anton
Piller order: not only must it be a strong one, but plaintiffs have
been required to establish that they have a very or
extremely strong prima facie case.

Very serious potential or actual damage to the plaintiff


A plaintiff must establish that, in the absence of the requested
Anton Piller order, the defendants actions cause it harm that
will potentially or actually cause it losses.

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INJUNCTIONS
Conditions for granting an Anton Piller order
Clear evidence that the defendant is in possession of
incriminating materials.
Given that the strategic advantage and the uniqueness
presented by the execution of Anton Piller orders is the
preservation of evidence for the purpose of trial, the plaintiff is
correspondingly required to establish that, should the infringer
be given advance notice of the remedy sought, there is a real
danger that important evidence will be destroyed, concealed or
taken out of the jurisdiction.

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INJUNCTIONS
Conditions for granting an Anton Piller order
Real possibility that they may, unless restrained, destroy such
material before the marking of inter partes application.
Abuses associated with the execution of this order are real, it
becomes vital that certain requirements be fulfilled from the
very beginning.

Execution of an Anton Piller order

Case Law Analysis

Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840


where Sir Donald Nicholls VC laid down the rules & followed in
the local case of Arthur Anderson & Co v Interfood Sdn Bhd
[2005] 2 AMR 650, CA; [2005] 6 MLJ 239). The requirements
are:

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The order should normally contain a term that before


complying the defendant may obtain legal advice, provided this
is done forthwith.

Unless this is clearly not appropriate, the execution of orders


must be restricted to working days and normal working hours.

The order may contain an injunction to restrain the defendant


from informing others of the existence of the order for a period
as may be appropriate in the circumstances of the case, save a
communication with a legal advisor for the purposes of
securing legal advice.

Except where there are good reasons for doing otherwise, the
order should not be executed at business premises save in the
presence of a responsible officer or representative of the
company or trader in question.

In general the orders should expressly provide that, unless this


is seriously impracticable, a detailed list of the items being
removed should be prepared at the premises before they are
removed, and the defendant should be given an opportunity to
check the list at the time.
If the order is to be executed at a private house, and it is likely
that a woman may be in the house and alone, the solicitor
serving the order must be, or must be accompanied by, a
woman.

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Ideally, the court should consider the desirability of providing,


by suitable undertaking or otherwise (i) that the execution of
the order should be supervised by a solicitor who is not from
the firm representing the plaintiff; (ii) that the said solicitor
should be suitably experienced in the execution of Anton Piller
orders; (iii) that the said solicitor should prepare a written
report as to what had transpired in the execution of the orders;
(iv) that a copy of the report should be given to the defendant;
and (v) the plaintiff is to present that report at the inter partes
hearing.

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INJUNCTIONS
Conditions for granting an Anton Piller order

Execution of an Anton Piller order

Case Law Analysis

Arthur Anderson & Co v Interfood Sdn Bhd [2005] 6 MLJ 239the respondent had applied and on 9 March 1999 was granted
several interim reliefs against the appellant, mainly a Anton
Piller order (the Order). The appellant then applied to set
aside the Order while the respondent sought an order to
continue to retain the documents seized pursuant to the Order.
The same High Court judge who granted the Order (1) allowed
the respondents application to retain the documents; but (2)
dismissed the appellants application to set aside the order. The
appellant appealed against both orders. In allowing both
appeals, the court held that even with the absence of any
Practice Direction, the application and execution of an Anton

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Piller order is subject to stringent requirements, guidelines and


safeguards. In other words, any departure would be contrary to
the common law of Malaysia as such point has already been
well established. (See the requirements mentioned above)

INJUNCTIONS
Privilege from self-incrimination
In respect of the local law as to the applicability of the privilege
from self incrimination and the application for an Anton Piller
order in the context of interlocutory proceedings, there are two
conflicting views.

Position 1

The privilege remains applicable.

Case Law Analysis

PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ


86- where the court held that the defendants were entitled to
the privilege not to give discovery of documents, the disclosure

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of which would incriminate them. In this case, the first, second,


sixth and seventh defendants sought for an order of the court
to discharge an Anton Piller order granted on Dec 30, 1982. The
defendants contended that (a) the plaintiff had misled the
court by stating in his affidavit in support of the ex parte
application that the first defendant was required by law to keep
a segregated bank account in respect of the plaintiff & (b) it
was not possible to show the trading statements to solicitors of
the plaintiff without disclosing particulars of other clients which
were confidential in nature. The production of the documents
referred to in the order would incriminate the defendants by
providing evidence on which they could be prosecuted for
offences under the Commodities Trading Act 1980 and for
conspiracy and fraud.
In respect of the local law as to the applicability of the privilege
from self incrimination and the application for an Anton Piller
order in the context of interlocutory proceedings, there are two
conflicting views.

The privilege remains applicable.

Case Law Analysis

Riedal-de Haen AG v Liew Keng Pang [1989] 2 MLJ 400- where


the court held that before the privilege against selfincrimination (the privilege) can be claimed successfully, it

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must be shown that that there is a real risk that incriminating


answers would expose the person concerned to arrest or
prosecution for any criminal offences. In this case, the plaintiffs
obtained an Anton Piller order against the defendant ordering
the defendant inter alia to disclose the names of their suppliers
and customers of goods bearing the plaintiffs trademarks. The
defendant applied to discharge the order on the ground that it
infringed the privilege against self-incrimination.

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INJUNCTIONS
Privilege from self-incrimination

Case Law Analysis

Arjunan a/l Ramasamy & 9 Ors v Kesatuan Kebangsaan


Pekerja-Pekerja Ladang & 12 Ors [1993] 1 MLJ 326- where the
court held that the defendants were entitled to the privilege
not to give discovery of documents because such disclosure
would incriminate them. In this case, one the issues before the
court was whether the defendants must give discovery
documents which might subject them to prosecution. The
counsel for the defendants argued that under sec 55(3) of the
Trade Unions Act 1959, the account should be verified by
statutory declaration and if not true, would subject their
members (of the Trade Union/defendants) to prosecution.

In respect of the local law as to the applicability of the privilege


from self incrimination and the application for an Anton Piller
order in the context of interlocutory proceedings, there are two
conflicting views.

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INJUNCTIONS
Privilege from self-incrimination

Position 2

The privilege no longer exists.

Case Law Analysis

Television Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd


[1989] 2 MLJ.

AG of Hong Kong v Zauyah Wan Cik [1995] 2 MLJ 620- where


the court held that in Malaysia, the common law privilege
against self-incrimination has been removed by sec 132(1) of
the Evidence Act. The section applies where a court in this
country is recording evidence in municipal proceedings or in aid
of proceedings pending before a foreign tribunal.

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INJUNCTIONS
Conclusion
Both types of injunctions do play vital roles in helping the
plaintiff in his or her journey or quest for justice. For example,
Mareva injunction would restrain a defendant from disposing
or otherwise dealing with any of their assets within the
jurisdiction of the court, in such a way as not to satisfy
judgment in favour of the plaintiff. On the other hand, an Anton
Piller order would prevent the defendant from concealing,
removing or destroying vital evidence such as documents, or
other moveable property, prior to an inter partes hearing of the
pending action.

courts are aware of the dangers associated with both types of


injunctions and thus rules or guidelines have been formulated
in the process of granting these two types of injunctions.

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Q & A Session

Source: attorneys-sc.com

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TUTORIAL QUESTIONS
Discuss, explain and analyse the following with good case support :1.
2.
3.
4.
5.
6.

Injunctions in public law


Mareva injunction
Conditions for the grant of Mareva injunctions
Activities of third parties
Anton Piller order
Conditions for Anton Piller order

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