Interlocutory

Injunction
Shuhada Amin
Definition
• The most important injunction in practice.
• Application normally made ex-parte. (sometimes this
injunction may be granted without notice to the defendant if
the matter is one such urgency that irreparable damage would
be caused if the plaintiff had to go through the normal
procedure).
• May be prohibitory, mandatory or quia timet.
• Principles can be found in the leading case of American
Cynamid Co. Ethicon Ltd [1975] AC 396.
• Before the principles in American Cynamid were established,
the principle adopted by the court was that the plaintiff
seeking an interlocutory injunction was required to establish
a prima facie case (J.T Stratford & Son v Lindley [1965] QB
2
269 ).
American Cynamid’s case
• Facts: Plaintiffs owned a patent covering certain absorbable
surgical sutures. The defendants were about to launch their
sutures which the plaintiffs claimed would infringe their
patent rights. At first instance the judge granted the plaintiffs
an interlocutory injunction however the decision was reversed
by the Court of Appeal.
• House of Lords: Plaintiff does not need to establish a prima
facie case as required previously. He is only required to show
that there is a serious question to be tried. There was no
reason for interfering with the grant of the injunction in the
exercise of the discretion of the judge and allowed plaintiff’s
appeal by restoring the interlocutory injunction.
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Guidelines in Cynamid’s case
• Rules laid down by Lord Diplock were designed to circumvent the
necessity of deciding disputed facts or determining points of law
without hearing sufficient argument.
• 1. Applicant must show a good arguable case in the sense that it is
not frivolous or vexatious. Must show that there is a serious issue to
be determined.
• 2. An injunction would not be granted unless the plaintiff could
show that it was more likely than not he would succeed in obtaining
final injunction at the trial.
• 3. if so, the leading consideration is the balance of convenience,
where court determines adequacy of damages to both parties.
• The question of balance of convenience ought to be considered in
the following sequence:
• a) if the applicant could be adequately compensated by the
defendant if he succeed at the trial, then the application for an
interlocutory injunction should be rejected, even if his claim appears
to be strong. Must show that he would suffer irreparable damage 4
that could not be compensated if he succeeded at the trial.
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• b) if the application could not be rejected on account of (i), the court
must go on to consider whether, if the injunction is granted but the
defendant is successful at the trial, the defendant would receive
adequate monetary compensation from the plaintiff and the plaintiff is
in the position to pay them. if the answers to both are in the affirmative,
interlocutory injunction may properly be granted.
• c) The question of the balance of convenience becomes relevant if there
is doubt as to the sufficiency of the respective remedies in damages
available to either party or both.
• 4. If balance of convenience favours neither party, it is a counsel of
prudence “to preserve the status quo.”
• Refers to the circumstances prevailing when the defendant began the
activity which the plaintiff seeks to restrain.
• 5. Relative strength of each party’s case to be considered as a last resort,
when the strength of one party’s case is disproportionate to that of the
other. E.g: if there is only little difference in the uncompensatable 5
disadvantages to both sides, the court would not grant injunction.
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• 6. other “special factors.”
• To be considered in individual cases.
• Whether “special factors” is merely an aspect of the balance
of convenience as laid down in American Cynamid or a
departure form the principles in the case.
• In Fellowes & Son v Fisher [1976] QB 122, the court refused to
grant injunction and did not feel bound by the rules in
American Cynamid.
• Instead, the court followed the rules in the case of J.T
Stratford & Son v Lindley [1965] QB 269 where injunction
should be refused because there was no prima facie case. In
this case, prima facie case was required and for there, relative 6
strength of each party could be considered.
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• The better view?
• It is submitted that “special factors” are merely an aspect of
the balance of convenience.
• E.g. of special factor is when the defendant is a public body.
• In the case of Smith v Inner London Education Authority
[1978] 1 AER, court held that where the defendant is a public
body, the balance of convenience must be looked at more
widely and the interest of the general public to whom the
defendant’s duties are owed, must be considered. This was
treated as “special factor.”

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• Test in Cynamid was applied in - Azman bin Mohd Yusoff v
Vasaga S.B
• P had applied for interim injunction to restrain D from
continuing the operation of the business of pub and disco on
the ground that the business had disturbed their peace,
tranquility and safety resulting from the vibration of the loud
music and etc. The D had argued that the claim brought by P
was frivolous, baseless & vexatious. The D only operate his
business during trial run & the sound was all under control. D
had also claimed that there was male fide in the application of
the P.
• The court held that D be restrained by an injunction from
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causing nuisance to P until the disposal of the case.
Cases – serious question to be
tried
• Sivaperuman v Heah Seok Yeong Realty [1979] 1 MLJ 150
• In this case the appellant's services as a mandore in an estate
had been terminated by the respondents. The appellant took
up the question of his dismissal and the matter was referred
by the Minister to the Industrial Court as a trade dispute and
the matter was still pending. In the meantime the respondents
applied for, and obtained an interlocutory injunction to
restrain the appellant until the trial of the action from
remaining in the quarters occupied by him. The appellant
appealed.

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• Court: Allowed the appeal by appellant (employer). An interim
or interlocutory mandatory injunction would never be granted
before trial save in exceptional and extremely rare cases (must
show a serious question to be tried). The interlocutory
injunction in this case virtually gave to the respondents the full
relief sought to be secured at the trial, as the respondents
could not be said to be really concerned about their claim for
damages against a labourer.

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Cases
• Gibb and Co v Malaysia Building Society Bhd [1982] 1 MLJ 271
• Respondent was a company providing finance for housing development. The
developers applied to the respondent for end-finance for its housing project, and
the respondent approved the application for 85 units in a total loan commitment
of $1,457,100. The individual purchasers of the several units applied to the
respondent for loans. The appellant acted as solicitors for all parties, that is, the
respondent, the developer and the appellants. The respondents paid the amount
due to the chargees of the land to enable the separate titles to be issued to the
purchasers to be free from incumbrances. On obtaining the issue documents of
title for the 85 units and other relevant documents the respondent handed them
to the appellant for the requisite documentation. However, developer appointed
new solicitors to act for them and dispute arose. The purchasers alleged that the
developer had collected money for extras from them and as a result the price of
the units had been increased. The appellant had caused the transfers in favour of
the purchasers to be registered but in spite of repeated requests by the
respondent failed to register the charges in favour of the respondent in respect
of 82 units and later lodged caveats against the land. Respondent applied for an
interlocutory order for the appellant to forthwith deliver to it the issue
documents of title and the instruments of charge.
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• Court: Allowed interlocutory injunction.
• The respondent had expended a very large sum of money to
provide finance for the purchasers in the housing project and
must necessarily have security by way of charges over the
several units in questions. Considering all the circumstances of
the case, the right of the parties and the balance of
convenience, this was a case where the court was not
precluded from granting the order sought although in effect
the respondent would as a result secure the basic relief sought
in the action

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Cases – adequacy of
compensation
• Esso Petroleum Malaysia Inc. v Kago Petroleum [1995] 1 MLJ 149
• The appellant, Esso Petroleum Malaysia Inc ('Esso'), agreed with the
respondent, Kago Petroliam Sdn Bhd ('Kago'), for the latter to sell and
deliver certain construction materials ('the goods') to Esso, from time to
time on specified dates which were regarded as being of the essence. It
was agreed that Esso would be entitled to deduct a maximum of 10% of
the purchase price in respect of any delays in delivery by Kago. However,
at Kago's request, Esso paid the full price in exchange for two letters of
guarantee ('the performance bonds'), issued by Bank Bumiputra
Malaysia Bhd which was equivalent to the deductions Esso would have
been entitled to make. Subsequently, Esso claimed for damages against
Kago due to delay. Kago wrote to Esso for particulars justifying the claim.
Without replying, Esso made a written demand on the performance
bonds addressed to Bank Bumiputra Malaysia Bhd. Kago, however,
obtained an ex parte injunction restraining Esso from receiving any part
of the moneys under the performance bonds and alleged that:
• (a) the delays were caused by Esso's refusal to accept the goods; and
• (b) Esso had not, at the time of acceptance of the delayed goods, 13
indicated its intention to claim damages.
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• Esso's application to the High Court to set aside the
injunctions was dismissed and it has appealed.
• Court: Allowed the appeal to set aside the injunction.
Although no injunction could have been granted against Bank
Bumiputra, Kago was not prevented from applying for an
interlocutory injunction against Esso despite the fact that the
effect of that was to restrain Bank Bumiputra. However, the
balance of convenience lay with Esso as, inter alia, Kago's
remedy was in damages and Esso would undoubtedly be able
to pay.
• Because no injunction would be granted if Plaintiff (Kago)
could be adequately compensated if he succeeded at the trial.
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Cases – irreparable damage
• Caltex Oil Malaysia v Tee Than (1969) 2 MLJ 184
• The plaintiffs applied for interlocutory injunction to restrain the
defendant, from remaining on or upon the service station of the
plaintiffs and from removing any or all of the equipment on the said
premises. The plaintiffs were the owners of the premises and had
given a licence to the defendants to carry on the retail sale of the
plaintiffs' products at the service station on the condition that the
licence may be terminated by either party on giving to the other
party thirty days previous notice in writing. The plaintiff by notice in
writing cancelled the licence. The defendant received the said notice
but refused to comply with the terms. The plaintiffs claimed that
they have suffered irreparable damage in that they have been
deprived of the use of the said premises and service station and
they will continue to suffer damage both financially and in
reputation. The defendant alleged the plaintiffs will not suffer
irreparable damage and gave reasons for his allegations. 15
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• Court (Raja Azlan Shah): As irreparable damage both in terms
of money and reputation would be occasioned to the plaintiffs
if the defendant were allowed to remain on the premises, the
interlocutory injunction would be granted.
• To allow the defendant to stay would be useless because his
supply had been stopped by the plaintiffs. The only course for
him to do is to await the final outcome of the trial. The
plaintiffs have given an undertaking in damages, if any, if it is
proved at the trial that the injunction was wrongly granted. On
the other hand irreparable damage both in terms of money
and reputation would be occasioned to the plaintiffs by
refusing the injunction than is likely to be caused to the
defendant if the injunction is granted. 16
Cases - nuisance
• Hotel Continental S/B v Cheong Fatt Tze Mansion S/B [2002] 3MLJ 529
• The respondents is the registered proprietor and occupier of the
property on which stands the premises commonly known as the
‘Mansion'. The appellants were the registered proprietor of an adjacent
land on which the Hotel Continental ('the Hotel') is situated. At the
material time, the appellants were in the process of building an
extension to the Hotel which involved some piling works. The
respondents claim that severe cracks have appeared on the walls of the
Mansion due directly to the excessive vibrations created by such
method of piling employed. The respondents obtained an ex parte order
of injunction to restrain the appellants from causing or permitting piling
and/or related building works to continue on the appellants' site and/or
causing or permitting to continue any vibration or nuisance of a like kind
pending the determination of an alternative system of piling. The
appellants filed an application to set aside the ex parte injunction. The
learned judge granted an order for an injunction as prayed for by the
respondents and dismissed the appellants' application. The appellants
appealed. 17
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• Court: Dismissed the appeal by appellant to set aside the
injunction. Based on all evidence available before him, the
learned judge was more than justified in coming to the
conclusion that not only that there were serious questions to
be tried but also that the respondents had in fact made out a
prima facie case for an actionable nuisance against the
appellants. Although the piling works were of a temporary
duration, it did not exclude the respondents' right to an
injunction if the interference was an actionable nuisance
causing physical damage to the respondents' property.

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Cases – government authority
• Saonah bte Bedul v Pentadbir Tanah dan Daerah Melaka Tengah
[1994] 3 MLJ 758
• The plaintiff's land together with other neighbouring land, was acquired
by the Melaka State Government under the Land Acquisition Act 1960
for the creation of a buffer zone for a nearby Petronas oil refinery
project. The award of compensation by the Collector of Land Revenue
was rejected by the plaintiff and has been referred to court. The
collector served Form K, dated 1 April 1993, on the plaintiff on 9 May
1994 but the plaintiff refused to accept it. Later, the plaintiff was served
with notice to move out of the land. When the plaintiff failed to comply
with the notice, the land administrator issued a second notice requiring
the plaintiff to move out failing which the supply of electricity, water
and other basic amenities would be stopped. The plaintiff applied for an
interim injunction to restrain the defendant from interfering with the
plaintiff's peaceful occupation of the land and for an order directing the
relevant authorities to reconnect the electricity and water supplies to
her house situated on the land and to restore all other basic amenities
of which she had been deprived since 18 August 1994. 19
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• Court: Dismissed the application. No evidence was adduced by
the plaintiff to show that the land was unique or different
from the acquired neighbouring land. As such, damages were
an adequate remedy should she succeed in her claims and
there was no necessity for the court to consider the question
of the balance of convenience. The plaintiff's application for
an interlocutory injunction and reconnection of amenities
pending appeal was also dismissed as, inter alia, damages
would be an adequate remedy and which cannot be granted.
The balance of convenience would have favoured the
defendant rather than the plaintiff because the land was
acquired for a public purpose, ie the creation of a safety zone
was more important than the plaintiff's interest that she be 20
adequately compensated.
Cases - delay
• Lim Hean Pin v Thean Seng Co. [1992] 2 MLJ 10
• The plaintiff was the registered shareholder of ordinary shares in the
first defendant. The second to seventh defendants were directors
and shareholders of the first defendant. The plaintiff had obtained
three ex parte interlocutory injunctions ('the injunctions') to restrain
the first defendant from proceeding with or holding its extraordinary
general meeting scheduled for 31 January 1991 or any adjournment
thereof which had been called for the purpose of altering art 56 of
its articles of association so as to impose a shareholding
qualification on directors and to restrain the first to seventh
defendants from implementing and/or exercising their powers to
effect certain resolutions passed in the previous meetings.
Defendant applied to discharge the injunctions. It was argue that
there had been unreasonable delay on the plaintiff's part in applying 21
for the injunctions.
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• Court: Dismissed the application by defendant. Delay on the
part of the plaintiff in seeking an interlocutory injunction may
be of importance when the balance of convenience is being
determined. Although such delay may give rise to an inference
that he has not suffered hardship or prejudice, such inference
is easily open to rebuttal by direct evidence of the particular
circumstances. In the present case, such delay as there was
had been satisfactorily explained.

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Application for injunction (O. 29, r. 1)
Rules of High Court 1980

Circumstances when ex parte application may be made

• (2) Where the applicant is the plaintiff and the case is one of
urgency such application may be made ex parte on affidavit
but, except as aforesaid, such application must be made by
summons.

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• Procedural aspects are all governed in the ROHC, Order 29.
• Cheah Cheng Lan v Heng Yea Lee - The issue before the court
whether the court has the power to extend ex parte injunction
order from time to time until the disposal of the main suit.
Court held that by virtue of Order 29 ROHC, the life of ex parte
inj can’t go beyond the period of 21 days. Court has no power
to extend the life of ex parte injunction because of the word
‘shall automatically lapse’.

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Discharge of Interlocutory
Injunction
• The court has an inherent jurisdiction to discharge an
interlocutory injunction even when the defendant has not
applied for its discharge.
• Court’s discretionary power is absolute.
• Haji Wan Habib v Datuk Patinggi [1986] 1 MLJ 198
• Per Abdul Hamid LP on behalf of the Supreme Court.
• “The principle governing the exercise of discretion to grant or
with hold an interlocutory injunction are well established.
Injunction is pre-eminently a discretionary remedy. The
discretion is to be exercised judicially.”

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Principles for discharge of an
Injunction (Limitation)
• a) Delay
• Delay defeats Equity.
• Court shall not assist a claimant who sleeps on his right.
• Lee Mun Tuck v Tan Chin Kah [1991] 2 MLJ 324
• Court: He who comes to court to complain that the other
party is guilty of delay and seeks the discretion of the court
should not himself be guilty of non-compliance of the rules.

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• Haji Wan Habib v Datuk Patinggi [1986] 1 MLJ 198
• Facts: Defendant suspended plaintiff’s membership as the VP
of Parti Pesaka Bumiputra Bersatu through the party’s
resolution. The applicant applied for interlocutory injunction
to restrain the resolution from being enforced.
• Court: Dismissed the application. The suspension was only for
6 months but it took the defendant 3 months to complain
from the date of suspension.
• Appeal: the grant of interlocutory injunction was a matter of
discretion by the learned judge and his discretion should not
be interfered with.
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• b) Suppression or misrepresentation of facts
• Must have do a full and frank disclosure with the material fact.
• Plaintiff must not disclose or suppress any evidence before the
court.
• Maxim: “He who comes to Equity must come with clean
hands”
• M.R.K Nayar v Ponnusamy & Ors [1982] 2 MLJ 174
• Facts: The appellant obtained an interlocutory injunction to
restrain the defendant from disposing a piece of land. The
respondent applied for the injunction to be dissolved and
contended that the appellants had misled the court by not
disclosing all the material facts when obtaining injunction.
Court: Appeal was dismissed. The plaintiff in suppressing facts 28
had not come to court with clean hands .
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• c) Based on wrong idea of law
• Regent Oil Co Ltd v J.T Leavestley [1966] 1 WLR 1210.
• Facts: An interlocutory injunction was granted in a lower
court. However, when it became apparent that the
• law was otherwise (the law was amended), the higher court’s
judge discharge an injunction given earlier on the ground that
the first judge had committed a jurisdictional error although
the injunction was rightly granted in the first place had not for
the change of law.

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• d) Someone not a party to the action is affected
• Iraqi Ministry of Defence v A. Shipping [1981] QB 65
• Facts: Interveners lent money to the defendant. The ships belong to
the defendant sank with the plaintiff’s cargo. Plaintiff brought an
action against the defendant for damages and Mareva injunction to
freeze the assets of the defendant.
• The court considered whether a defendant should be allowed to pay
his debts as they fell due despite an asset freezing order.
• Held: The Mareva jurisdiction should not ‘improve the position of
claimants’. Rather, it should prevent the injustice of a defendant
removing his assets from the jurisdiction which may have otherwise
been available to satisfy a judgment.
• e) Damages is adequate remedy
• Damages is an adequate remedy and defendant is in a financial
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position to repay them.