Civil Procedure II

A. PREVENTIVE RELIEF

 The Specific Relief Act 1950 lays down some established principles of
equity upon which injunction are founded.

 The principle that an injunction cannot be granted when the conduct of the
applicant or his agent has been such as to disentitle him to the assistance
of the Courts. This clause is based upon two well-known principles “he who
seeks equity must do equity” and “he who comes into equity must come
with clean hands”.

 Equitable remedy will not be granted unless the conduct of applicant is fair
and honest and free from any taint or fraud or illegality.

 Basic concept – to preserve the status quo between the parties as before
the action is filed.

 The powers of the Court – Para 6 of the Schedule to the Courts of

Judicature Act 

‘Preservation of property
6. 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 in any other
manner whatsoever

1. INJUNCTIONS (O. 29 RHC 2012)

1.1 Introduction

1. If a defendant’s alleged wrongdoing will cause the Plaintiff irreparable

continuing damage pending trial, or if the damage may have already been
done by the time the case comes on for trial, it is appropriate for the
courts to have power to make orders to avoid the potential injustice that
would otherwise arise.

2. To meet this need- the courts have jurisdiction to grant interlocutory

injunctions to regulate the position between the parties pending the trial.

3. A number of special terms are used in this area, and the following
definitions may be of assistance :

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Temporary Interim Injunction Interlocutory Injunction

Injunction

Granted for a specified  Granted in urgent  Granted before or

period at any stage of cases during the trial where
the proceedings  Valid for 21 days the case is not urgent
 Ex-parte application  Valid until the end of
 Application supported the trial where a
by affidavit perpetual /final
injunction may then be
given
 Inter-partes application
 Application supported
by affidavit

4. Injunctions can be classified as:

i. Order to refrain from doing specific acts.

Prohibitory ii. S. 52 SRA 1952 provides that a perpetual prohibitory
Injunction injunction may be granted :
a. To prevent a breach of an obligation which
arises from contract
b. When D invades P’s rights. For example,
where:
 D is the trustee of property for P and
misappropriates it;
 there is no standard to assess damage
caused by the invasion;
 the pecuniary compensation is inadequate
or cannot be obtained;and
 it is necessary to prevent multiple
proceedings

1. Order requiring specific acts to be done.

Mandatory 2. S. 53 SRA 1950 provides that a court may grant a
Injunction mandatory injunction to prevent the breach of an
obligation and compel the performance of the required
act.

Perpetual Injunction 1. Final judgment for an injunction where an order is

made after hearing both sides-usually at the end of a
trial- and binds the parties finally and perpetually.
2. The court will consider whether to grant this injunction
as part of the relief and damages claimed by Plaintiff.

1.2 Quia Timet Injunction

 Order to prevent an apprehended legal wrong, where none has been
committed at the date of the application

 May be granted where Plaintiff’s right is threatened but not yet infringed

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 PPES Resorts Sdn Bhd v Keruntum Sdn Bhd [1990] 1 MLJ 436:

Court : to obtain a quia timent injunction, the applicant must show that
i. there is an immediate danger of substantial damage; and
ii. it is impossible for the applicant to protect himself if the injunction is not
granted

 Plaintiff must show that a substantial damage will be suffered and must
apply promptly

1.3. Erinford Injunction

 An injunction granted pending appeal against the decision of the judge

who has set aside an injunction which had earlier been granted

 The power of the court is discretionary.

 It is an order granted to a plaintiff who had failed, at first instance, either

in his main action or in his application for an interlocutory injunction, and
had appealed against the said decision.

 In other words, the court has jurisdiction on dismissal of an application for

an interlocutory injunction to grant the unsuccessful applicant an
injunction pending an appeal against the dismissal.

 This type of injunction is a prohibitory order granted to restrain the other

party from interfering with the subject matter of the dispute pending the
appeal or restraining the successful party from acting on their success
pending appeal.

 An application for an Erinford Injunction is made ex parte

 Also referred to as “the Erinford stay”.

 The principle applicable was set out by Megarry J in Erinford Properties

Ltd v Cheshire Country Council [1974] 2 ALL ER 448

“…when a party is appealing, exercising his undoubted right of appeal,

this court ought to see that the appeal, if successful, is not nugatory.”

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 It is basically to preserve status quo until the appeal is heard or to prevent

an appeal from being rendered nugatory.

 The court is discharging an injunction previously granted, it may order that

the restraint on the defendant be continued pending appeal against the
order to discharge.

 Injunction will be granted only where there is a likelihood of a successful

appeal being rendered nugatory or if the plaintiff would not be adequately
compensated in damages for the temporary damage between the date of
hearing and the date when its appeal is heard (Cocoa Processors Sdn
Bhd v United Malayan Banking Corp Bhd (No.2

 Principles in Ooi Meng Sua v Aetna Universal Insurance Sdn Bhd

[1995] :

where factors for the courts to consider in its discretion to grant an

Erinford injunction:

i. Whether the applicant for stay had shown in his grounds special
circumstances peculiar to his case;

ii. Probability based on facts/law that the judgment or order may be

reversed/varied;

iii. Whether the successful party ought to be free to act (i.e party who has
successfully set aside the injunction) despite the pendency of an appeal;

iv. Comparative effects of granting or refusing a stay pending an appeal

are such that it would be right to preserve the status quo pending appeal;

v. Subject matter of the case and whether damages would appear to

be a suitable alternative.

1.4 Interlocutory Injunction- Principles

1.4.1 The American Cynamide Guidelines

1. Interlocutory injunctive relief is both temporary and discretionary.

2. Guidelines on how that discretion should be exercised were laid down by

the House of Lords in the leading case of American Cynamid Co v
Ethicon Ltd [1975] AC 396

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3. Facts: - Ethicon (Defendants), manufactured absorbable catgut sutures.

- Cynamid patented a synthetic absorbable suture, and started
eating into Ethicon’s market.
- Ethicon then produced its own synthetic suture with a slightly
different chemical composition from Cynamid’s.
- Cynamid issued proceedings, and applied for an interlocutory
injunction to restrain Ethicon’s sales.
- Ethicon claimed that their suture was different from that
patented by Cynamid, or alternatively the patent was invalid.
-
4. Lord Diplock set out the famous principles:

i. There is a serious question to be tried

-the Court must be satisfied that the claim is not frivolous or
vexatious

Keet Gerald Francis John v Mohd Noor @ Harun b Abdullah

[1995] 1 AMR 373, COA, (Gopal Sri Ram JCA)- the court looks at the
totality of facts presented and decides whether there are bona fide
issues in the affidavit which are serious enough to merit a trial.

ii. Adequacy of damages to the Plaintiff

-the court should first consider whether, if the P were to succeed at
the trial in establishing his right to a permanent injunction, he would
be adequately compensated by an award of damages for the loss
he would have sustained as a result of the D’s continuing to do the
act from the time of the application to the trial.

- If damages in the measure recoverable at common law would be

an adequate remedy and the D would be in a financial position
to pay them, no interlocutory injunction should normally be
granted, however strong the P’s claim appeared to be at that
stage

iii. P’s undertaking as to damages

- This is on the contrary hypothesis- if the D were to succeed at
the trial in establishing his right to do that which was sought to
be enjoined, D would adequately be compensated under the P’s
undertaking as to damages for the loss he would have sustained
by being prevented from doing so between the time of the
application and the trial.

iv. Balance of Convenience

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- American Cynamid-the balance of convenience tended to favour

the Plaintiffs. Ethicon’s new sutures were not at that time on the
market.
- Granting the injunction would not close factories or cause
unemployment.
- If injunction is refused- Cynamid may have failed to increase its
growing market and effectively lost the benefit of its patent.

v. P must make full and frank disclosure of all material facts.

vi. Special factors

-there may be other special factors to be considered
-a special factor identified in American Cynamid was that, once
doctors and patients had got used to Ethicon’s suture in the period
prior to trial, it might well have become commercially impracticable
for Cynamid to insist after trial that it be withdrawn. Therefore the
interlocutory injunction was granted.

vii. Not rigid rules

-the principles stated by Lord Diplock above must not be read as if
they were statutory provisions.
-the remedy is always discretionary and the American Cynamid
principles are applied with some degree of flexibility.

5. Application must be prompt

- Delay may be calculated to throw considerable doubt upon the
reality of his alleged injury

- Evercrisp Snack Products v Sweeties Food Industries

[1980] 2 MLJ 297- no interlocutory injunction granted because
P had delayed in his application and gave no satisfactory
explanation.

- Haji Wan Habib v Datuk Patinggi Haji Abdul Taib Mahmud

[1986] 2 MLJ 198- The SC held that an injunction is only a
discretionary remedy and should not be available to those who
slept on their rights.

6. Form of order and duration

a) Form 58: O29 r 1 (4)

b) Duration of an interim injunction obtained ex parte:

- 21 days from the date on which it is granted (O29 r. 1(2B)
- Issues: whether ex parte injunction could be continued or
extended: Cheah Cheng Lan (p) v Heng Yea Lee [2001]-the
Court has no power to extend the life of an ex parte injunction

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beyond 21 days because of the words “ shall automatically

lapse” in O29 r 1 (2B) RHC

7. Failure to comply
- If D fails to comply with the interlocutory injunction, then it
amounts to contempt of court.
- When the injunction is drawn up it will contain a penal notice
warning the defendant of this fact.

8. Grounds for Discharge

-D can apply to set aside the injunction on the grounds that include :
a. No serious issues to be tried , or
b. Balance of convenience in D’s favour, or
c. Damages can be assessed or P cant pay damages if D wins, or
d. Suppression of material fact; or
e. The oppressive effect of the injunction
f. A material change in the circumstances of the parties or in law since
the injunction was granted,
g. That the inunction interferes with the rights of innocent third
parties.

1.5 MAREVA INJUNCTION

A. Introduction

1. In certain circumstances, a P, who has a very strong case against a D, may

feel that there is a serious risk that the D will dispose of his or her assets
before the case proceeds to trial – thereby, preventing the P, if successful at
the trial, from being able to execute the judgment- as there may no longer
be any assets available which would realise the value of the judgment.

2. The Mareva Injunction is a form of interlocutory injunction designed to

guard against this.

3. It has the effect of restraining D from disposing of, or dissipating their

assets so as to frustrate any judgment which the P may obtain against
them.

4. The order takes its name from the decision of the COA in Mareva
Compania Naviera SA v International Bulk Carriers SA [1980] 1 All
ER 213

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5. Facts - P were the ship owners, D voyage charterers.

- D failed to pay the hire charges due to the P.
- D had sub-chartered the ship to the President of India and while
the President of India was paying the defendant into a London
bank account, the defendant was not making its payments to the
plaintiff.
- The plaintiff brought an application ex parte for an injunction
restraining the defendant from removing or disposing of money
in the London bank account and the injunction was granted at
first instance but only for a specified time until the case could be
heard by the Court of Appeal. In the Court of Appeal the case
was heard by Lord Denning and he concluded that:

‘If it appears that the debt is due and owing, and there is a
danger that the debtor may dispose of his assets so as to defeat
it before judgment, the court has jurisdiction in a proper case to
grant an interlocutory judgment so as to prevent him disposing
of those assets. It seems to me that this is a proper case for the
exercise of this jurisdiction. ‘(at p.215)

Procedure

6. As it would defeat the purpose of the order if the D were to be warned of

the application, applications for Mareva injunctions are made ex-parte.

7. P may apply before an action has been commenced or after full trial.

1.5.1 Principles

a. A good arguable case

8. The P’s affidavit must disclose a good arguable case as regards the merits
of the substantive claim against the D.

9. In Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak Dan

Gas Bumi Negara [1977] 3 All E.R. 324 (C.A.) Lord Denning addressed
the issues of the test that the applicant had to meet in terms of the
strength of the case and what assets the injunction could be issued against.
With respect to the strength of the case that the applicant had to advance
Lord Denning indicated that the case did not have to be so strong as to
justify the court in issuing summary judgment. Rather, it was sufficient that
the applicant be able to demonstrate that he had a good arguable case.

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b. Assets within jurisdiction

10. In general, the P has to show that the D has some assets within the
jurisdiction.

11. ‘Assets’ for this purpose is given a wide meaning, and includes chattels
such as motor vehicles, jewellery, choses in action, and money.

12. Bank account – if the order is to be made against a bank account, P must
give the best possible particulars of that account ( eg branch, acc number if
known).

c. Risk of disposal

13. In order to obtain a Mareva injunction, P must show that there is a risk that
the D will remove assets from the jurisdiction, or dispose them, or dissipate
them, or hide them.

d. P to give undertaking as to damages

14. Third Chandris Shipping Corp v Unimarine Sa [1979] 2 All ER 972,

Lord Denning gave guidelines in the granting of Mareva Injunction :

i. P must make full and frank disclosure of all matters;

ii. P must specifically give reasons for the amount of his claim;
iii. P must show that D has assets within the jurisdiction;
iv. P must give grounds for believing that there is a risk of D disposing
of his assets; and
v. P must give undertaking as to damages.

15. Bank Bumiputra v Lorraine Osman [1985]- the Court granted Mareva
injunction to restrain D from transferring his assets out of the jurisdiction
and held that the requirements for a Mareva injunction are:

i. P must show good arguable case;

ii. P must give evidence that D has assets within the jurisdiction;
iii. P must show there is a risk that D may dispose his assets before
judgment.

1.5.2 Purpose of the Order

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16. (i) The object of Mareva is not to give the P priority over the D’s other
creditors.

(ii) The effect of Mareva should not be such as to place undue pressure on
the D to settle the action on terms unduly favourable to the P.

Therefore  to ensure the just operation of the Mareva Injunction, certain

provisos must be incorporated into each Mareva Order.

1.5.3 Provisos

17. Banks – to safeguard the bank, the order will expressly state that it does
not prevent the bank from exercising any right of set-off it may have in
respect of facilities afforded by it to the D before the date of the Order.

18. Living Expenses – the order should make a provision for the D’s ordinary
living expenses and payment of ordinary debt by the D.
- The court may make a blanket order where usually about 70% is
for Mareva injunction and 30% for living expenses and ordinary
debts.
- Larut Consolidated Bhd v Khoo EE Bee [1997] 5 MLJ 77 –
must not be oppressive and should provide for living expenses
and legal costs..

1.5.4 Effect of the Order

19. The order is addressed to the D, but, it also binds 3 rd arties with knowledge
of it.

20. A person who assists in the disposal of assets with knowledge of the order is
therefore in contempt of court.

21. If an order is made against a bank account, it operates to freeze the

account as soon as the bank has notice of the order.

22. The bank would be in contempt of court if it subsequently honoured

cheques drawn on the account.

23. The order should therefore be served on the bank and the D.

1.5.5 Grounds For Discharge

a) Not an appropriate case

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 An application to discharge the order may be made where the D can show
that the P does not have a good arguable case on the merits or by
showing that there is insufficient risk that the assets will be dissipated.

b) D providing security

 The D may also obtain discharge of the order by offering security for the
P’s claim instead. E.g. – creating a charge over D’s property, paying
money into bank account in the joint names of the solicitors acting for
the P & D, or paying the sum claimed into court.

c) P guilty of material non-disclosure

 The P is under a strict duty to make full and frank disclosure in the
affidavit.
 This means- P is also under a duty to make reasonable inquiries.
 Material facts must appear in the affidavit in support itself. It is not
sufficient if they appear in exhibited documents.
 Motor Sports Int Ltd v Delcont (M) Sdn Bhd [1996]

1.5.6 Discretion
The court has a power to grant Mareva injunctions where it is ‘just and
convenient’.

In deciding whether or not to grant a Mareva, the court will consider the
value of the D’s assets from the P’s point of view, namely their resale
value in the light of the amount which the P is claiming.

In other words – would these assets in fact assist the P in a material way
to satisfy any judgment that may be obtained?

E.g.- in Rasu Maritima v Perusahaan Pertambangan [1978] QB 644,

CA

-Facts-
- P a Liberian company and the D an Indonesian state-owned company.
- The claim was for very substantial damages for a breach of charterparty.
- The assets in respect of which the P sought a Mareva injunction
comprised part of a fertiliser plant to be built in Indonesia.
-Its value as such was some $12 million; but its scrap value was only about
$350,000.
-Lord Denning MR described that (pg 663) as a ‘drop in the ocean’
compared to the immense claim which was being made.

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-His Lordship said that ‘this amount is so trifling in the circumstances that
it does not seem proper to interfere with the construction work on this
fertiliser plant to secure it’.

1.6 ANTON PILLER ORDERS

1.6.1 Introduction
1. Derives its name from Anton Piller KG v Manufacturing Processes
[1976] Ch. 55, CA.

2. Facts - P- German manufacturers of electric motors and generators.

- One of their products was a frequency converter for use in
computers.
- D were the P’s UK agents.
- 2 ‘defectors’ employed by the D flew to Germany and informed
the P that the D had been secretly negotiating with the P’s
competitors with the object of supplying the competitors with
manuals, drawings and other confidential information which
would allow the competitors to copy the P’s product and ruin
their market.
- The ‘defectors’ had documentary evidence in support of their
claims.
- The P were worried if the D were given notice of court
proceedings they would destroy or remove any incriminating
evidence.
- So, before they had time to even issue the writ in the
contemplated proceedings, the P’s solicitors applied ex-parte
and obtained an order requiring the D to permit the P to
enter their premises for the purposes of inspecting and
removing relevant documents and other evidence.
1.6.2 Procedure

3. Secrecy is essential if the order is to be effective. The application is

therefore made ex-parte , supported by an Affidavit.

4. Normally, P applies this before the issuance of writ.

1.6.3 Principles
5. In Anton Piller KG v Manufacturing, Ormrod LJ identified 3 basic
requirements that must be satisfied before the court may grant an Anton
Piller order.

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6. Each of the requirement must be substantiated in the Affidavit in Support.

7. The 3 requirements are :

I. There must be an extremely strong prima facie case.

II. The D’s activities must cause very serious potential or actual harm to
P’s interests,
III. There must be clear evidence that incriminating documents or things
are in the D’s possession and there is a real possibility that such
material may be destroyed before any application inter partes can be
made.

8. Malaysian case - Lian Keow Sdn Bhd v Paramjothy [1982] 1 MLJ 217.

1.6.4 Enforcing an Anton Piller Order

9. Makonka Electronic Sdn Bhd v Electrical Industry Workers' Union &

Ors [1997] MLJU 93 which sets out the requirements and safeguards
pertaining to the application, grant and execution of Anton Piller Orders in
the following terms:

The Anton Piller order is a valuable procedure and ought to be preserved.

The efficacy, however, of the Anton Piller procedure depends very much on
all the parties seeking a fine balance to protect their respective interests
and rights. A solicitor acting for an applicant must remember at all times
that he is an officer of the court, and to ensure that the application he is
putting forward contains adequate safeguards of the basic rights of the
other party. It is not that he is obliged to act for the other party, but that he
is bound to ensure the procedure is not abused. He must put forward a
reasonable application if it is to be entertained. He should for example
ensure:

A. That there is full and frank disclosure of all relevant information and
evidence to justify the issue of the order.

B. The order must be drawn such that it extends no further than the
minimum necessary to achieve the preservation of evidence which
may be otherwise removed or destroyed.

C. The application includes first alternative prayers for orders to

produce and deliver specific evidence. Only upon the respondents'

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failure to produce and deliver such evidence would the other orders
of the Anton Piller order (sic) are to come into effect. This would
offer a "less draconian unless necessary" approach, and by
specifying the evidence to be produced avoid fishing expeditions
and unnecessary invasion into unrelated information.

D. That the application contains clear and specific undertakings that

the order will be served by a solicitor who will at the same time
supply a copy of the application and all affidavits and documents
put before the judge in making the application; explain its exact
terms to the respondent; advise him to seek immediate legal advice
and that he has a reasonable time to do so.

E. That the application contains clear undertakings for damages, and

that the evidence obtained will not be used in any other
proceedings without the consent of the court.

F. As a further safeguard, to have a separate solicitor to supervise the

execution by the applicants' solicitors, and persons who are to
accompany him are to be named in the order so that they may be
identified by the respondent (see Vapormatic Co Ltd v Sparex Ltd
[1976] 1 WLR 939).

10. In Bhimji v Chatwani [1991] 1 All ER 705- when an Anton Piller order is
served on the D, D has the right to refuse entry for 2 hours to contact his
lawyers.

1.6.5 Privilege against Self-Incrimination

11. Rank Film Distributors Ltd v Video Information Centre [1982] AC

380 HOL – where a criminal charge was more than a contrived, fanciful or
remote possibility the D could refuse to provide the information, relying on
the privilege against self-incrimination.

12. In Malaysia- the courts are at variance as seen in these cases :-

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 Television Broadcasts Ltd & Ors v Mandarin Video Holdings Sdn

Bhd [1983] 2 MLJ 346, the court held that a person is not entitled to
claim such privilege. In this case, the Court held that in this country the
privilege against self-incrimination had been withdrawn by section 132 of
the Evidence Act, 1950

 However the case of PMK Rajah v. Worldwide Commodities Sdn Bhd

& Ors (supra) [1985] 1 MLJ 86 held that the case of Television
Broadcasts Ltd had wrongly interpreted the application of Section 132 of
the Evidence Act.

 It was held in PMK Rajah a person served with an Anton Piller order, is
not subject to cross-examination or re-examination hence they do not fall
within the meaning of the word "witness" in section 132 of the Evidence
Act. In other words, section 132 does not apply at all to discovery in
respect of an Anton Piller order.

1.6.6 Setting Aside the Anton Piller Order

1. Grounds – no cause of action

- damage is not serious

- suppression of material fact

- non- compliance with the rules

1.7 INTERIM AND PERMANENT INJUNCTIONS AGAINST

GOVERNMENT

Tengku Haji Jaafar & Anor v Government of the State of Pahang

[1978] 2 MLJ 105

Distinguish with:

Nanthakumaran v Jafanese Co-operative Housing Society

Ltd [1980] 1 MLJ114

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Sabil Mulia (m) Sdn Bhd v Pengarah Hospital Tengku Rahimah &
Ors [2005] 3 MLJ 325

The courts have jurisdiction to grant interim and permanent injunctions

against any servant of the Government. Since a Government servant or a
member of the Cabinet may be restrained by injunction, it is strictly
unnecessary from a practical point of view to decide whether the
Government itself may be restrained in appropriate circumstances.

**TIDALMARINE ENGINEERING SDN BHD v. KERAJAAN MALAYSIA

[2012] 3 CLJ 385 ( where relevant cases are all discussed )

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