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INJUNCTIONS

UEQ3622 EQUITY & TRUST II


Definition

Hanbury and Mandsley an order by court to a


party to the effect that he shall do or refrain
from doing a particular act
An in personam order, directing the defendant
to act, or to refrain from acting specified way
Dobbs
Halsbury Laws of Malaysia the object of an
injunction is to protect and preserve legal
rights and interests and to prevent the
commission or continuation of a legal wrong
Statutory provisions

Specific Relief Act 1950 S4, S5, S50-S55;

Rules of Court 2014 O29;

Courts of Judicature Act 1964 S25(2)


Nomenclature

Prohibitory Order to restrain from


Injunction doing certain act(s)

Order requiring the


Mandatory performance of certain
Injunction act(s)

Interlocutor A kind of temporary order


y Injunction made before the trial
Cont.

Interim Temporary order to have effect only until


further hearing or until a named date
injunction

Perpetual After hearing arguments from both


parties, this order if issued will finally
injunction settle the dispute between the parties

Quia An order to prevent the commission of a

Timet threatened legal wrong where none has


been committed at the date of the
application
Injunction
Perpetual injunction

S.52(1) Subject to the other provisions contained in, or referred to by, this Chapter, a
perpetual injunction may be granted to prevent the breach of an obligation existing in
favour of the applicant, whether expressly or by implication.
(2) When such an obligation arises from contract, the court shall be guided by the rules
and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or
enjoyment of, property, the court may grant a perpetual injunction in the following
cases, namely:
(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.
S.52(3)(c) damages must be inadequate
relief is a well established principle High
Mark (M) Sdn Bhd v Pacto Malaysia Sdn Bhd;
Hotel Continental Sdn Bhd v Cheong Fatt Tze
Mansion Sdn Bhd
Evans Marshall & Co Ltd v Bertola SA
Cooperative Insurance Soc Ltd v Argyll Stores
(H) Ltd
Hodgson v Duce

Angelides v James Stedman Hendersons


Sweets Ltd; Pride of Derby and Derbyshire
Angling Assoc Ltd British Celanese Ltd
Day v Brownrig

White v Mellin

AG v Sharp
Mandatory injunction

An award that orders the performance of an act/s

S.53 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.
ILLUSTRATIONS

(a) 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 B's lights.
(b) A builds a house with eaves projecting over B's land. B may sue for an
injunction to pull down so much of the eaves as so project.
Tinta Press Sdn Bhd v Bank Islam Malaysia Bhd; Sivaperuman v Heah Seok
Yeong Realty Sdn Bhd; Neoh Siew Eng v Too Chee Kwong
TR Hamzah & Yeang Sdn Bhd v Lazar Sdn Bhd

Cooperative Insurance Soc Ltd v Argyll Stores


(H) Ltd
Prohibitory injunction

An award that prohibits the performance of an act/s

S.53 ILLUSTRATIONS

(e) A threatens to publish statements concerning B


which would be punishable under Chapter XXI of the
Penal Code [Act 574]. The court may grant an
injunction to restrain the publication, even though it
may be shown not to be injurious to B's property.
(f) A, being B's medical adviser, threatens to publish
B's written communications with him, showing that B
has led an immoral life. B may obtain an injunction to
restrain the publication.
Interlocutory /
temporary / interim
injunction
Issued before the proper trial to preserve the
status quo. Purpose is to protect the plaintiff
against damage or loss that cannot be
adequately compensated in damages if the trial
ends in his favour AG v Punch Ltd
Ex-parte application

Principle:
Not to establish prima facie case;
To show that there is a serious question to be
tried;
Pre American Cyanamid

Test to determine if interlocutory injunction


may be granted:
Prima facie case
Damages inadequate remedy
Balance of convenience favoured grant of an
interlocutory injunction
American Cyanamid Co
v Ethicon Ltd
Test to determine if interlocutory injunction
may be granted:
Applicants case must not be frivolous or
vexatious
Balance of convenience
Lord Diplock in American Cyanamid listed
considerations in determining the balance of
convenience:
Preservation of the status quo
Strength of case in relation to the opponent
Other special factors
Preservation of status
quo
If the defendant is enjoined temporarily from
doing something that he has not done before,
the only effect of the interlocutory injunction in
the event of his succeeding at the trial is to
postpone the date at which he is able to
embark upon a course of action which he has
not previously found it necessary to undertake
whereas to interrupt him in the conduct of an
established enterprise would cause much
greater inconvenience to him since he would
have to start again to establish it in the event
of his succeeding at the trial.
Strength of case in
relation to the opponent
Where the balance of inconvenience arising
from uncompensatable disadvantage to each
party appears to be matched the court can
take into account the relative strength of
each partys case as revealed in the affidavit
evidence submitted in the application for the
interlocutory injunction.
Other special factors

in addition to which I have referred, there may be


many other special factors to be taken into
consideration in the particular circumstances of
individual cases.
Hotel Continental Sdn Bhd v Cheong Fatt Sze Mansion
Sdn Bhd
Kenidi b Sima v The Gov of the State of Sabah; Zainal
Abidin b Omar v Tenaga Nasional Bhd; Tahan Steel
Corp Sdn Bhd v Bank Islam Malaysia Bhd (No.1)
Dunia Raya Enterprise Sdn Bhd v Ganesan @
Muniandie a/l Irusen @ Erusen
Read:
American Cyanamid Co v Ethicon Ltd
Keet Gerald Francis Noel John v Mohd Noor b
Abdullah
Pekeliling Triangle Sdn Bhd v Chase Perdana
Bhd MUST read the factors in considering the
balance of convenience im American Cyanamid
in a step by step basis.
Interlocutory
mandatory injunction
A mandatory injunction applied at the
interlocutory stage.
Tinta Press Sdn Bhd v Bank Islam Malaysia
Sdn Bhd; Timbermaster Timber Complex
(Sabah) Sdn Bhd v Top Origin Sdn Bhd
Locabail International Finance Ltd v
Agroexport
Shepherd Homes Ltd v Sandham