Tutorial 10 (Injunctions)
1. Mr. Tani is a 3rd generation farmer near Lubok China. His farm is along the
banks of Sungai Rembau. His crops have been suffering from a weird disease for
the past 6 months. Most of them are deformed and die, the remaining ones are
stunted.
The other villagers near Lubok China have complained that the Sungai Rembau
river has been a peculiar reddish colour and smells like rotten eggs for the past 6
months. One villager claims that he has seen a drain from the clay quarry
upstream pouring out a wine coloured liquid. The quarry is managed by
Halfbaked Clay Suppliers Sdn Bhd.
Advise Mr. Tani as to his possible actions in seeking legal redress in equity.
Introduction: Halsbury Laws of Malaysia o Purpose of an injunction is to protect and
preserve the plaintiff’s legal right and also the legal interest in order to prevent a legal
wrong that would violate the legal right and interest
Whether Mr Tani can seek a perpetual injunction against Halfbaked Clay Suppliers
Sdn Bhd.
S.50 Specific Relief Act 1950
o Preventive relief is granted at the discretion of the court by injunction, temporary or
perpetual.
S51 of SRA - once perpetual injunction is granted, a person cannot interfere in the
right of the plaintiff.
S.52(3)(SRA)
(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:(c) damages inadequate remedy
High Mark (M) Sdn Bhd v Pacto Malaysia Sdn Bhd
o Principle: Where injunction is applied for in support of a legal right, it must be
shown that damages are inadequate remedy.
Pride of Derby and Derbyshire Angling Assoc Ltd v British Celanese Ltd
o River in UK, 2 plaintiffs: Angling Association, owned part of the river, the other
plaintiff owned the other part, appointed as caretaker, but not really owner
o 2 defendants: electricity company & sewage company, up stream of plaintiff.
o The Plaintiffs found out that the river was polluted. Where due to this, Angling
Assoc had issues with the def as the 1st P needs fish to be alive, but the river is
polluted in 2 ways:
effluent discharged to water; electricity discharged effluent, heated effluent had
suspended organic matter
o I: Whether the damage and the danger resulted from this pollution can be taken
action by injunction?
o H: Injunction is granted as otherwise the 1st P would have irreparable damage.
o The def appealed and claimed that they were kind of statutory body which allow the
company to create electricity, dealing with sewage, recognize the facts that they are
discharging sewage but it,s something they need to do, and it’s allowed by law
o H: court look at legislation and said even it’s allowed by law, the court needs to
look at the quality of river and there’s no allowance to release the sewage to water and
where it will make lost. The court needs to refer to other laws. Hence, injunction is
given to manage the sewage sufficiently well before discharging to the river…..
prohibitory injunction
interlocutory injunction
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 – there are areas in damage that cannot be
adequately be remedied by pecuniary means like loss of goodwill and trade
reputation. Key determinant factor is whether damages alone are sufficient to provide
justice to the applicant.
Cooperative Insurance Soc Ltd v Argyll Stores (H) Ltd – carrying out a business, it is
settled rule that mandatory injunction will not be normally granted , as damages are
adequate remedy
Hodgson v Duce – injunction ought to be made available to the plaintiff where it is
probable that pecuniary compensation is not available for the invasion
Angelides v James Stedman Henderson’s Sweets Ltd; Pride of Derby and Derbyshire
Angling Assoc Ltd British Celanese Ltd – injunction ought to be made available to
prevent a multiplicity of judicial proceedings involving the commission of repeated
acts which may require the claimant to pursue consecutive actions..
Prohibitory injunction
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.
Interlocutory injunction
o 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
o Principle:
Not to establish prima facie case;
To show that there is a serious question to be tried;
American Cyanamid Co v Ethicon Ltd
Dora Phua Siaw Yen v Shaw Brothers (Kuching) Sdn Bhd; Maxis Sdn Bhd v
Suruhanjaya Syarikat Malaysia – there must be a serious question to be tried
Lim Chong Construction Co Sdn Bhd v Silam Quarry Sdn Bhd; Sarkawi b
Sadijo v BMG (M) Sdn Bhd – there must be a valid cause of action, otherwise the
application will be denied
Sivaperuman v Heah Seok Yeong Realty Sdn Bhd – the applicant must present
to the court a sufficient and convincing case that there is a real prospect of succeeding
in securing a permanent injunction at trial
House of Lords in AG v Punch Ltd; Eshwara Engineering Sdn Bhd v Delta
Structure Sdn Bhd; Mohamed Zainuddin b Puteh v Yap Chee Seng – the court should
not weigh or evaluate the matter as it would upon standards in a trial
• Balance of convenience
The balance of convenience is considered in the following sequence:
• If the applicant could be adequately compensated if he wins at trial and the
defendant would be in the position to compensate, application will be denied even if
the claim appears to be strong – Perbadanan Setiausaha Selangor v Metroway Sdn
Bhd
• If the injunction is granted but the defendant wins at trial, the defendant would
be entitled to monetary compensation and the plaintiff can compensate – injunction
can be granted
• If there is doubt as to the sufficiency of the respective remedies available to
either party or to both – injunction can be considered
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
Application:
• Mr. Tani can claim for prohibitory perpetual injunction against Halfbaked
Clay Suppliers Sdn Bhd. Must prove that it is expelling toxic substance or pollution
into the river. Must prove that the wine coloured liquid is a toxic substance / pollution
that is causing the river to turn red, smell and destroy Mr. Tani’s crops.
• Mr. Tani can claim for an interlocutory injuction against Halfbaked Clay
Suppliers Sdn Bhd to stop it from continuing to expel the wine coloured liquid into th
• Mr. Tani can claim for an interlocutory injuction against Halfbaked Clay
Suppliers Sdn Bhd to stop it from continuing to expel the wine coloured liquid into
the river.
• Must prove that this suit is not frivolous – causing great damage to his farm /
livelihood. It is also likely poisoning the water supply.
• Must prove balance of convenience favours Mr. Tani. He has already suffered
damage and loss for the past 6 months, if this is not stopped, he will continue to suffer
damage and loss and the land may be permanently poisoned.
Conclusion.
2.“The general rule that one must establish a probability, or a strong probability,
is not correct. One must look at the whole case to see whether there is a question
to be tried and, if there is, then look at the balance of convenience between the
parties, bearing in mind that there is good reason why the status quo should be
preserved.”
As per Lord Diplock in American Cyanamid Co. Appellants v Ethicon Ltd.
Respondents [1975] A.C. 396.
With reference to relevant authorities (if any), discuss the above statement with
regards to question to be tried and balance of convenience.
American Cyanamid Co v Ethicon Ltd***
F: The appellant was a company that held a patent for artificial absorbable surgical
sutures. The respondent was a company that intended to launch a suture to the British
market which the appellant claimed was in breach of its patent. At first instance, the
appellant was granted an injunction preventing the respondent’s use of the type of
suture at issue until the trial of the patent infringement. On appeal, the Court of
Appeal discharged the injunction on the basis that the case for patent infringement
was not made out. The appellant appealed to the House of Lords.
o I: The issue on these facts was primarily the extent of any substantive claim
necessary for the grant of an interim injunction. The House of Lords however, set out
detailed guidelines with regards to how the courts should deal with the grant of
interim injunctions in general.
o H: It was held that
(a) it was not the courts’ role to consider conflicting evidence in respect of an interim
application. This was a matter for trial.
(b) All that was necessary at this stage was that the claimant should show that there
was a real issue to be tried.
(c) The court should consider whether damages were an adequate remedy for a
claimant if an injunction was not granted. If so, an injunction would not be available.
(d) If damages were not an adequate remedy, the court should then ask whether the
claimant would be able to give an undertaking in damages to the defendant.
(e) If it was considered that there was any difficulty regarding the availability of
damages on either side, the court should consider the balance of convenience
between the parties.
(f) If these factors were evenly balanced, the court should consider maintaining the
status quo.
o On the facts of this case, the balance of convenience lay with the appellant and the
appeal was allowed.
Test to determine if interlocutory injunction may be granted:
1. Applicant’s case must not be frivolous or vexatious and that there is a serious
question to be tried.
Whether there is a valid cause of action?
Real prospect of succeeding in securing a permanent one at the trial?
2. Balance of convenience
Could the applicant be adequately compensated if he had succeeded at the trial?
If they can, the injunction is rejected.
If cannot be rejected therefore granted, but D succeeded in trial, would D
receive adequate compensation from P and P can pay them? If can,
injunction granted.
If there is doubt on the sufficiency of the remedies, question of balance of
convenience becomes relevant.
Include preservation of the status quo, strength of case in relation to the
opponent and other special factors.
Pg 9 & 10 of notes…
Intro: • Explain about interlocutory injunction
Law: • Specific Relief Act s. 50 & s.51 (temporary injunction); • American Cyanamid: o Pre:
strong prima facie case damages would be an adequate remedy balance convenience
favoured the grant
o Post: serious question to be tried balance of convenience (p.281 of Wan Azlan Book)
3 factors need to be considered: • Preservation of status quo • Strength of case • Other
special factors o Keet Gerald’s case
Conclusion:
based on student’s argument .. interlocutory better protect parties as soonest .. some
sort of flexibilities in applying interlocutory injection … however, it’s the court’s
discretion ..
3.Ron has been appointed as a trustee. The instrument provides Ron with an
absolute discretion in terms of the amount of distribution among the
beneficiaries. Ron’s daughter falls within the class of beneficiaries. In exercising
his discretion Ron has decided to distribute 65% of the trust value to his
daughter while the remainder of 35% was to be shared among the other
beneficiaries. The other 2 beneficiaries, Ninie and Nanoe, have initiated an action
in breach of trust against Ron. They inform you that Ron and his daughter have
made plans to migrate to Melbourne; they fear that the trust fund, which is the
subject matter of this action, will be transferred out of this jurisdiction.
Advise Ninie and Nanoe.
Issue:
1. Whether Ninie and Nanoe can injuct Ron from transferring the trust fund out
of jurisdiction?
Law:
• Mareva injunction
o S45 of Supreme Court of Judicature Act 1925
o S25(2) of Court of Judicature Act
o O29 of Rules of Court 2012
• S51 temporary injunction – interlocutory injunction – apply before the trial;
• Discuss the element of applying Mareva Injunction in Malaysia
o Cases: Lister & Co. v Stubbs
o Nippon’s case
o Mareva Compania Naviera’s case
o Zainal Abidin’s case
Application:
• Students need to explain whether the elements has been fulfilled or not in
order to apply Mareva injunction
Conclusion:
• Based on student’s argument
Can also apply on quia timet but main answer is mareva injunction.
