Injunction

Note- just look for the speaker

symbol. No all slides are narrated. tq
• Preventive Relief” as defined in Part III of
Specific Relief Act 1950.
• Section 50: classify injunction as either
“temporary” or “perpetual” injunction.
• other classifications: such as interlocutory
injunction, quia timet injunction, Mareva
injunction and mandatory injunction.
• Any party to a law suit may apply for an
injunction at any stage of the proceeding,
regardless of whether or not a claim for an
injunction is included in that party’s writ and
statement of claim or counterclaim or third
party notice
 Types
• Prohibitory – restrains party from doing an act.
• Mandatory – compels party to do an act.
• Interim/Interlocutory – limited to last until a further
order, or until the final hearing of the case.
• Perpetual – a final injunction where the order is made at
the end of the hearing.
• Quia Timet – granted against a threatened or
apprehended wrong which has not been committed.
• Mareva – granted in certain cases where it is desired to
restrain the dissipation or disposal of assets.
• Erinford – a stay order until the appeal is heard.
• Anton Piller – order to enter premises and seize
documents.
• Prohibitory- orders prohibiting parties from breaching
their contractual undertakings
• orders a defendant not to do something in breach of
contract.
• they are granted to stop one party doing something he or
she has promised not to do
• Mostly granted in the case of a negative promise.
• Broome (Selangor) Rubber Plantations v R.H. Whitley
[1919] 1 FMSLR 365, an injunction was granted
restraining an employee from entering into employment
as a manager or assistant of any plantation in the States
of Selangor and Negeri Sembilan other than the estate of
his employers until the expiry of his contract of service.
• Mandatory injunctions - designed to compel
performance of some obligation arising under a
contract by prohibiting a defendant from acting
otherwise than as is required under the contract.
• requires a defendant to reverse the effects of an
existing breach.
• E.g: he may be compelled to demolish or modify a
building which he has erected or remove a road
which he has constructed if what he is done is not
in accordance with the terms of the contract.
• Neoh Siew Eng & Anor v Too Chee Kwang
[1963] MLJ 272 where an injunction was
granted requiring the landlord to keep all
communication pipes in proper repair so that
water supply to the premises would not be
disconnected.
• Perpetual injunction: directed towards the
final settlement and enforcement of the rights
of the parties which are in dispute.
• Section 51: “can only be granted by the decree
made at the hearing and upon the merits of
the suit; the defendant is thereby 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 ”
• Interim/temporary/ interlocutory injunction: used by a
party to maintain the status quo to the subject-matter in a
pending suit
• An order to preserve a particular set of circumstances
pending full trial of the matters in dispute.
• to regulate the position of the parties pending a hearing.
• seek to prevent threatened wrong, further injury, and
irreparable harm or injustice until such time as the rights of
the parties can be ultimately settled.
• ensures the ability of the court to render a meaningful
decision and serves to prevent a change of circumstances
that would hamper or block the granting of proper relief
following a trial on the merits of the case.

• See S 51(1) for exact definition.

Interlocutory injunction is a temporary and
discretionary remedy. The court is not
concerned with the chances of success or
failure of the appellants in proving their suit at
trial. The court is concerned with what it has
to do to protect the right of the parties so that
no irreparable injury would caused to either of
them.
Lian Keow Sdn Bhd v Overseas Credit
Finance Bhd [1982] 2 MLJ 162
• “quia timet” Injunction – (pronounced as kwia
timet) “since he fears”.
• to prevent the occurrence of the act of the
defendant which is alleged to involve an
interference with his rights.
• to restrain wrongful acts which are threatened or
imminent but have not yet commenced.
• E.g.: to prevent breaches of covenants or breaches
of patents, or to prevent an expected
misapplication of funds by an administrator, or to
prevent expected torts such as the wrongful
removal of the support to land
• an equitable remedy and therefore entirely in the
court’s discretion.
• It cannot be sought as of right and it will not be
granted where common law damages would be an
adequate remedy.
• Fletcher v. Bealey (1884): necessary conditions
i) proof of imminent danger;
ii) proof that the threatened
injury will be practically irreparable; and
iii) proof that whenever the injurious circumstances
ensue, it will be impossible to protect plaintiff’s
interests, if relief is denied.
• Mareva injunction - “is an interlocutory
injunction which restrains a debtor or the
debtor’s agents, servants or otherwise from
removing assets from the jurisdiction or
disposing of or dealing with those assets so as
to frustrate a creditor seeking to recover from
the debtor”.
• may be granted either before or after
judgment has been obtained
• Jackson v Sterling Industries Ltd [1987] 162
CLR 612
• a Mareva injunction can be granted if the
circumstances are such that there is danger of
the defendant absconding, or a danger of his
or her assets being removed from the
jurisdiction or
• disposed of within the jurisdiction, or
otherwise dealt with so that there is a real
danger that a successful plaintiff will not be
able to have his or her judgment satisfied
 Which court?
• S 50 SRA – High Court
• Subordinate Courts (Amendment) Act 2010 –
Sessions Ct
Note: Section 29 (2) of Government Proceeding
Act 1956, no injunction shall be granted
whether directly or indirectly against
Government. This provision clearly shows that
any application of injunction against the
Government shall fail. See also s 54(d) SRA
 When to grant Injunction?
In general, court must consider:-
If injunction not given to plaintiff and plaintiff
successful in trial – would damages awarded to
plaintiff at the end of trial be adequate? If not
adequate, the court would grant injunction to the
plaintiff.
– Parkway Properties Pte Ltd v Page One-The Book Shor
Pte Ltd [1986] 1 MLJ 291
– Puncak Niaga Holdings Bhd v NS Water Sdn Bhd
[2004] 5 MLJ 430
• Temporary/Interlocutory injunction:
• Test in American Cyanamid v Ethicon Ltd [1975]
AC 396- Lord Diplock:
i) there is a serious question to be tried (i.e. not
frivolous/vexatious);
ii) if the plaintiff applicant were to succeed at the
trial, damages would not be an adequate
compensation for its loss;
iii) the balance of convenience lies in favour of
the plaintiff applicant (if evenly balanced, yes!!);
• Hashim Yeop A Sani J in Mohamed Zainuddin Puteh v Yap Chee
Seng [1978] 1 MLJ 40.
• Firstly to discover whether the plaintiff’s case is frivolous or
vexatious. If it is not, then to decide in whose favour the balance
of convenience lies. If these factors are evenly balanced it may
not be improper for the court to take into account any tipping in
the balance as revealed by affidavits.
• .... Secondly, if the plaintiffs were to succeed at the trial, whether
they would be adequately compensated for the interim
continuance of the defendant’s activities. Conversely is the
question that if the defendants were to succeed at the trial,
whether they would be adequately compensated for the interim
restriction on their activities which the grant of an interlocutory
injunction would have imposed.
• The judge then considers the balance of convenience, and if the
relevant factors were evenly balanced the court should grant an
interlocutory injunction which would maintain the status quo.
• See also Sivaperuman v Heah Seok Yeong
Realty [1979]
• Si Rusa Beach Resort v Asia Pacific Hotels
Management [1985]
• La Kaffa International Co Ltd v Loob Holding
Sdn Bhd and another appeal [2018] MLJU 703
(chatime v tealive)
Qs: What is balance of convenience?
• an evaluation of the degree of harm either party might suffer
if the injunction is, or is not granted,
• + the extent to which such harm could be compensated by
damages

QS TO BE ASKED:

Whether it would cause greater inconvenience to the

plaintiff if the injunction is not granted than the
inconvenience which the defendant or persons
claiming through him would be put to if the
interlocutory injunction is granted.
Factors court are required to consider:

• i) essential justice of the case

– Syarikat Jeleta Bumi Sdn Bhd v Nadarajah a/l
Ramasamy [2003] 5 MLJ 542
– Defendants occupying the premises for several
generations, to ask them to vacate and cause the
premises to be demolished would cause great
hardship as they were poor and did not have
alternative place to stay

See also Chong Chooi Ying v Guan Soon Development

Pte Ltd [1991] 2 CLJ 2277
ii) The importance of preserving status quo of parties ( Garden
Cottage Foods Ltd v Milk Marketing Board (1983) 3 AC 130 )
The status quo refers to the situation prevailing before the
last change. If the factors (balance of convenience) are
evenly balanced, justice would demand that there should be
no alteration to the things as they were till the court has
finally determined the matter.
iii) Public interest (Zainal Abidin bin Omar v Tenaga Nasional
Berhad [1993] 4 CLJ 130)
iv)Relative strength of parties’ respective cases.
A prediction about which party will win. To be considered
only as a last resort. If the plaintiffs chances are good, the
court should grant the injunction. Conversely, if it is likely a
defense will be established, an interim injunction should
not be made
* 2 basic points to be remembered:
i) an interlocutory injunction cannot be obtained
unless there will be a permanent injunction. It is
implicit in the judgment of Lord Diplock in the
American Cyanamid case that if the material
available to the court fails to disclose that the
plaintiff has real prospect of succeeding in his
claim for a permanent injunction, then the
application must fail.
ii) Non-payment of a debt cannot be the subject
of an injunction because damages can constitute
an adequate remedy.
• Perpetual/permanent injunctions when granted?
May be granted
S 52(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 54: specifically for situations, in which injunctions
may not be granted.
(a) to stay a judicial proceeding pending at the
institution of the suit in which the injunction is sought,
unless such a restraint 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;
(c) to restrain persons from applying to any legislative
body;
(d) to interfere with the public duties of any
department of any Government in Malaysia, or with the
sovereign acts of a foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of
which would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which it
is not reasonably clear that it will be a nuisance;
(h) to prevent a continuing breach in which the applicant has
acquiesced;
(i) when equally efficacious relief can certainly be obtained
by any other usual mode of proceeding, except in case of
breach of trust;
(j) when the conduct of the applicant or his agents has been
such as to disentitle him to the assistance of the court; or
(k) where the applicant has no personal interest in the
matter.
• Injunction to perform negative agreement
Section 55. 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 circumstance 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.

Eg: A service contract may contain negative obligations which

can be enforced by injunction without compelling positive
performance of the whole contract.
• Pertama Cabaret Nite Club Sdn Bhd v Roman Tam
(1981)
A singer –signed a contract to appear and sing at the
appellant’s night club for a number of days. The
contract provided, inter alia that in the event of a
breach, the singer should not performed in KL during
the fixed period of the contract. Later, breach of
contract and attempted to sing in a rival club.
See also
Lumley v Wagner (1852)
Broome (Selangor) Rubber Plantations v R.H Whitley
[1919]