You are on page 1of 29

PREVENTIVE

RELIEF
BY NORMAN ZAKIYY

1

The jurisdiction to grant injunction in Malaysia can be found
in Chapter IX of the Specific Relief Act 1950 which states
that preventive relief may be granted at the discretion of
the court by injunction.
Section 50 - Preventive relief how granted

Preventive relief is granted at the discretion of the court by
injunction, temporary or perpetual.

2

temporarily or permanently.INJUNCTION form of court order to: oeither prohibit a party from doing. or oto compel a party to do. In appropriate circumstances. A breach of an injunction amounts to a contempt of court and the party in breach may be subjected to committal proceedings. a temporary or interim injunction may be granted to maintain the status quo prior to trial. 3 . a specific act.

4 .INJUNCTION An injunction which prohibits the doing of an act is prohibitory while an injunction which directs the defendant to do something to repair an omission is mandatory – MBf Holdings v East Asiatic Co (Malaysia) Bhd [1995] 3 MLJ 49.

or (2) perpetual. 5 .INJUNCTION Case: Niino & Co Ltd v Kow Lup Kai [1992] 1 MLJ 463 Syed Ahmad Idid – ‘What is an injunction? Stroud’s Judicial Dictionary (4th Ed) Vol 3 p 1369 defines an injunction as a judgment. to do or to refrain from doing a particular thing. ie when it commands the doing. ie a judgment determining or concluding the right in litigation. ie when it inhibits the doing of anything. or (b) mandatory. It is either (1) interlocutory or interim. it is also (a) restraining. ie an order until the hearing of the action or further order. or restoring. or order. of anything’.

Interlocutory injunction – granted at an earlier stage in the proceedings.CLASSIFICATION OF INJUNCTION Perpetual injunction – a final judgment. 6 .00 am on 26th February ( or so soon thereafter as counsel may be heard). granted after a trial on the merits except by consent of the defendant. It is generally expressed to continue in force ‘until the trial of this action or further order’. before the court has had an opportunity to hear and weigh fully the evidence on both sides. Interim injunction – is still more temporary and remains in force only until a named day eg Thursday 11.

Cont. that is an action for an injunction to prevent an apprehended legal wrong. Lord Upjohn stated that ‘to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action. plaintiff obtains a quia timet injunction because he fears that wrong will be done to him if the order is not made – Redland Bricks Ltd v Morris [1970] AC 652. though none has occurred at present’. 7 . Quia timet injunction –granted even before plaintiff’s legal rights have not yet been infringed.

the application for the Mareva injunction did not get a good start. 8 . on the ground that the Malaysian court had no jurisdiction to grant such relief. by way of attachment of property before judgement was also an obstacle to the introduction of the Mareva injunction.MAREVA INJUNCTION Purpose to freeze the assets of the defendant prior to trial. The legal remedy under the Debtors Act 1957. In Malaysia.

9 . the application for the Mareva injunction did not get a good start. by way of attachment of property before judgement was also an obstacle to the introduction of the Mareva injunction. on the ground that the Malaysian court had no jurisdiction to grant such relief.MAREVA INJUNCTION Purpose to freeze the assets of the defendant prior to trial. In Malaysia. The legal remedy under the Debtors Act 1957.

in 1984. in the case of Zainal Abidin v. Century Hotel Sdn Bhd. 10 .MAREVA INJUNCTION However. that such an application was granted when Raja Azlan CJ held that Mareva injunction shoud be available in Malaysia to fulfill modern commercial need.

MAREVA INJUNCTION Further reading: Ali. pp. ISSN 0128-2530 This paper examines the development of the Mareva injunction and its implementation in Malaysia. 11 . 225- 245. Zuraidah (2009) Mareva injunction as a preventive relief: the Malaysian experience. IIUM Law Journal. 17 (2).

PROCEDURE RELATING TO MAREVA INJUNCTION Ex parte Urgency Secrecy Must have a good arguable case (Rasu Maritima v Perusahaan etc) Application in support must show full a 12 .

Plaintiff shows grounds believing there is a risk of assets being removed from jurisdiction Read 13 . Plaintiff must set out grounds of his claim with particularity and fairly state the points made against defendant 3. Full and frank disclosure by Plaintiff 2. Plaintiff show grounds believing defendant’s assets within jurisdiction 4.PROCEDURE RELATING TO MAREVA INJUNCTION Application in support must show : 1.

PROCEDURE RELATING TO MAREVA INJUNCTION Read: Bank Bumiputra v Lorrain Esme Osman S&F International v Transcon Engineering 14 .

[1975] 1 All ER 504.PRINCIPLE IN GRANTING INTERLOCUTORY INJUNCTION In granting interlocutory injunctions. the Malaysian courts have consistently applied the principles as decided in the case of American Cyanamid Co v Ethicon [1975] 1 All ER 504. [1975] 2 WLR 316 The case outlines certain criteria to be considered by the courts prior to grant of an injunction. 15 . [1975] AC 396.

the defendant would be satisfied by the plaintiff’s ‘undertaking as to damages’ if the interlocutory injunction were to be granted. 3) If damages would not afford an adequate remedy. not change it. 4) The measure must preserve the status quo. 2) Refusal OF COURT to grant it could not be compensated by damages if the Plaintiff were to succeed. but a permanent one to be refused after the trial.PRINCIPLE IN GRANTING INTERLOCUTORY INJUNCTION the test for a Plaintiff is to establish as follows:- 1) Serious case. and 5) The relative strength of the parties’ prima facia case has16 .

(ii) Having found that an issue has been disclosed that requires further investigation. intended to produce a just result between the date of the application and the trial proper and to maintain the status quo. he must consider where the justice of the case lies. Injunction (i)Ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried. Mohd Noor @Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293 referring to the classic decision of the House of Lords in American Cyanamid Co v. and (iii) Have in the forefront of his mind that the remedy he is asked to administer is discretionary. See the Court of Appeal of Keet Gerald Francis Noel John v.Court’s discretion in granting Int. Ethicon Ltd 17 .

Court’s consideration in granting Int. and 18 . Injunction (1)Court will grant injunction Situation: If opines that plaintiff will be successful in trial & damages awarded to plaintiff is not adequate (2) Court will not grant injunction Situation: Court ponders if defendant succeeds in trial in a situation where injunction is granted to plaintiff but opines that damages awarded to defendant is not adequate .

Court’s consideration in granting Int. Injunction (3)Balance of Convenience Test If balance of convenience equals between plaintiff and defendant. the court will: (a)Maintain status quo (b) consider the merits of the case 19 .

the court needs to have regard to whether there is a serious question to be tried.Serious question to be tried Firstly. 20 . the test again asserts the need for existence of an independent legal action. Therefore.

Adequacy of damages to the claimant Secondly. whether he would adequately be compensated in the form of damages for potential loss he would have sustained had the defendant carried out the wrongful action. the court needs to consider the adequacy of damages to the claimant. 21 . it is discussed if the claimant was successful at trial. Therefore. If it is considered that damages are an adequate remedy and the defendant is in a position to pay such. then no injunction should normally be granted.

the claimant would be required to give an undertaking in damages in the event that defendant succeeds at trial 22 .Adequacy of damages to the defendant The next thing to be taken into account is the adequacy of the undertaking in damages as protection to the defendant. When injunction is granted.

The relief is discretionary and that discretion is exercised in light of all the circumstances of the case 23 . the question of balance of convenience arises. All of the above factors are to be determined on the basis of the individual case.Balance of Convenience & Merits of Case Wherever there is doubt as to the adequacy of the remedies in damages available to either of the parties. Of further importance are the merits of the case. The court considers which party the balance of convenience favours taking into account the status quo immediately before the application.

Procedure under ROC 2012 Interim/Interlocutory Injunction The law on civil procedure governing temporary injunctions is provided in Order 29 Rules of Court 2012 . 24 .

Distinction between interim injunction & interlocutory injunction Stated in Arab Malaysian Corp Builders Sdn Bhd v ASM Development Sdn Bhd [1998] 2CLJ Supp 169: (a) Interlocutory injunction: An order to preserve a particular set of circumstances pending a full trial of the matters in dispute. 25 . (b) Interim injunction: An order in the nature of an interlocutory injunction but restraining the defendant only until after a named day or further order.

ANTON PILLAR ORDER 26 .

What is Anton Pillar Order 1) A court order in aid of discovery 2) Anton Pillar KG v Manufacturing Process Court need to balance between Plaintiff’s claim that evidence may be destroyed and Defendant’s claim that there should be no invasion of privacy 27 .

Procedure for Anton Pillar Order 1) Ex parte application supported by affidavit 2) Show strong prima facie case 3) Damage (either potential or actual) must be very serious 4) Clear evidence Defendant in possession of incriminating documents and real possibility of destroying them prior to inter parte application 28 .

TUTORIAL ASSIGNMENTS 1) Analyse the article written by Zuraidah Ali (2009) - Mareva injunction as a preventive relief: the Malaysian experience. 17 (2). pp. 2) Prepare the necessary cause papers for an application for an interlocutory injunction under the RC 2012. Explain the procedural steps involved in making such application. 225-245. 29 . You may use the facts of a reported case relating to injunction as a guide. ISSN 0128-2530 and prepare a summary of the article. IIUM Law Journal.