Civil Procedure II

A. PREVENTIVE RELIEF

• The Specific Relief Act 1950 lays down some established principles of equity
upon which injunction are founded.

• The principle that an injunction cannot be granted when the conduct of the
applicant or his agent has been such as to disentitle him to the assistance of the
Courts. This clause is based upon two well-known principles “he who seeks equity
must do equity” and “he who comes into equity must come with clean hands”.

• Equitable remedy will not be granted unless the conduct of applicant is fair and
honest and free from any taint or fraud or illegality.

• Basic concept – to preserve the status quo between the parties as before the
action is filed.

• The powers of the Court – Para 6 of the Schedule to the Courts of Judicature
Act 

‘Preservation of property
6. Power to provide for the interim preservation of property the subject matter
of any cause or matter by sale or by injunction or the appointment of a receiver
or the registration of a caveat or a lis pendens or in any other manner
whatsoever

1. INJUNCTIONS (O. 29 RHC 2012)

1.1 Introduction

1. If a defendant’s alleged wrongdoing will cause the Plaintiff irreparable

continuing damage pending trial, or if the damage may have already been
done by the time the case comes on for trial, it is appropriate for the courts to
have power to make orders to avoid the potential injustice that would
otherwise arise.

2. To meet this need- the courts have jurisdiction to grant interlocutory injunctions
to regulate the position between the parties pending the trial.

3. A number of special terms are used in this area, and the following definitions
may be of assistance :

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Temporary Injunction Interim Injunction Interlocutory Injunction

Granted for a specified • Granted in urgent cases • Granted before or

period at any stage of • Valid for 21 days during the trial where
the proceedings • Ex-parte application the case is not urgent
• Application supported • Valid until the end of the
by affidavit trial where a perpetual
/final injunction may
then be given
• Inter-partes application
• Application supported
by affidavit

4. Injunctions can be classified as:

i. Order to refrain from doing specific acts.

Prohibitory Injunction ii. S. 52 SRA 1952 provides that a perpetual prohibitory
injunction may be granted :
a. To prevent a breach of an obligation which arises
from contract
b. When D invades P’s rights. For example, where:
• D is the trustee of property for P and
misappropriates it;
• there is no standard to assess damage
caused by the invasion;
• the pecuniary compensation is inadequate or
cannot be obtained;and
• it is necessary to prevent multiple proceedings

1. Order requiring specific acts to be done.

Mandatory Injunction 2. S. 53 SRA 1950 provides that a court may grant a
mandatory injunction to prevent the breach of an
obligation and compel the performance of the required
act.

Perpetual Injunction 1. Final judgment for an injunction where an order is made

after hearing both sides-usually at the end of a trial- and
binds the parties finally and perpetually.
2. The court will consider whether to grant this injunction as
part of the relief and damages claimed by Plaintiff.

1.2 Quia Timet Injunction

• Order to prevent an apprehended legal wrong, where none has been

committed at the date of the application

• May be granted where Plaintiff’s right is threatened but not yet infringed

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• PPES Resorts Sdn Bhd v Keruntum Sdn Bhd [1990] 1 MLJ 436:

Court : to obtain a quia timent injunction, the applicant must show that
i. there is an immediate danger of substantial damage; and
ii. it is impossible for the applicant to protect himself if the injunction is not
granted

• Plaintiff must show that a substantial damage will be suffered and must apply
promptly

1.3. Erinford Injunction

• An injunction granted pending appeal against the decision of the judge who
has set aside an injunction which had earlier been granted

• The power of the court is discretionary.

• It is an order granted to a plaintiff who had failed, at first instance, either in his
main action or in his application for an interlocutory injunction, and had
appealed against the said decision.

• In other words, the court has jurisdiction on dismissal of an application for an

interlocutory injunction to grant the unsuccessful applicant an injunction
pending an appeal against the dismissal.

• This type of injunction is a prohibitory order granted to restrain the other party
from interfering with the subject matter of the dispute pending the appeal or
restraining the successful party from acting on their success pending appeal.

• An application for an Erinford Injunction is made ex parte

• Also referred to as “the Erinford stay”.

• The principle applicable was set out by Megarry J in Erinford Properties Ltd v
Cheshire Country Council [1974] 2 ALL ER 448

“…when a party is appealing, exercising his undoubted right of appeal, this

court ought to see that the appeal, if successful, is not nugatory.”

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• It is basically to preserve status quo until the appeal is heard or to prevent an

appeal from being rendered nugatory.

• The court is discharging an injunction previously granted, it may order that the
restraint on the defendant be continued pending appeal against the order to
discharge.

• Injunction will be granted only where there is a likelihood of a successful appeal

being rendered nugatory or if the plaintiff would not be adequately
compensated in damages for the temporary damage between the date of
hearing and the date when its appeal is heard (Cocoa Processors Sdn Bhd v
United Malayan Banking Corp Bhd (No.2

• Principles in Ooi Meng Sua v Aetna Universal Insurance Sdn Bhd [1995] :

where factors for the courts to consider in its discretion to grant an Erinford
injunction:

i. Whether the applicant for stay had shown in his grounds special
circumstances peculiar to his case;

ii. Probability based on facts/law that the judgment or order may be

reversed/varied;

iii. Whether the successful party ought to be free to act (i.e party who has
successfully set aside the injunction) despite the pendency of an appeal;

iv. Comparative effects of granting or refusing a stay pending an appeal are such
that it would be right to preserve the status quo pending appeal;

v. Subject matter of the case and whether damages would appear to be a

suitable alternative.

1.4 Interlocutory Injunction- Principles

1.4.1 The American Cynamide Guidelines

1. Interlocutory injunctive relief is both temporary and discretionary.

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2. Guidelines on how that discretion should be exercised were laid down by the
House of Lords in the leading case of American Cynamid Co v Ethicon Ltd
[1975] AC 396

3. Facts: - Ethicon (Defendants), manufactured absorbable catgut sutures.

- Cynamid patented a synthetic absorbable suture, and started
eating into Ethicon’s market.
- Ethicon then produced its own synthetic suture with a slightly
different chemical composition from Cynamid’s.
- Cynamid issued proceedings, and applied for an interlocutory
injunction to restrain Ethicon’s sales.
- Ethicon claimed that their suture was different from that patented by
Cynamid, or alternatively the patent was invalid.
-
4. Lord Diplock set out the famous principles:

i. There is a serious question to be tried

-the Court must be satisfied that the claim is not frivolous or vexatious

Keet Gerald Francis John v Mohd Noor @ Harun b Abdullah [1995] 1 AMR 373,
COA, (Gopal Sri Ram JCA)- the court looks at the totality of facts presented
and decides whether there are bona fide issues in the affidavit which are
serious enough to merit a trial.

ii. Adequacy of damages to the Plaintiff

-the court should first consider whether, if the P were to succeed at the
trial in establishing his right to a permanent injunction, he would be
adequately compensated by an award of damages for the loss he
would have sustained as a result of the D’s continuing to do the act from
the time of the application to the trial.

- If damages in the measure recoverable at common law would be

an adequate remedy and the D would be in a financial position to
pay them, no interlocutory injunction should normally be granted,
however strong the P’s claim appeared to be at that stage

iii. P’s undertaking as to damages

- This is on the contrary hypothesis- if the D were to succeed at the trial
in establishing his right to do that which was sought to be enjoined,
D would adequately be compensated under the P’s undertaking as
to damages for the loss he would have sustained by being
prevented from doing so between the time of the application and
the trial.

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iv. Balance of Convenience

- American Cynamid-the balance of convenience tended to favour
the Plaintiffs. Ethicon’s new sutures were not at that time on the
market.
- Granting the injunction would not close factories or cause
unemployment.
- If injunction is refused- Cynamid may have failed to increase its
growing market and effectively lost the benefit of its patent.

v. P must make full and frank disclosure of all material facts.

vi. Special factors

-there may be other special factors to be considered
-a special factor identified in American Cynamid was that, once doctors
and patients had got used to Ethicon’s suture in the period prior to trial,
it might well have become commercially impracticable for Cynamid to
insist after trial that it be withdrawn. Therefore the interlocutory injunction
was granted.

vii. Not rigid rules

-the principles stated by Lord Diplock above must not be read as if they
were statutory provisions.
-the remedy is always discretionary and the American Cynamid
principles are applied with some degree of flexibility.

5. Application must be prompt

- Delay may be calculated to throw considerable doubt upon the
reality of his alleged injury

- Evercrisp Snack Products v Sweeties Food Industries [1980] 2 MLJ 297-

no interlocutory injunction granted because P had delayed in his
application and gave no satisfactory explanation.

- Haji Wan Habib v Datuk Patinggi Haji Abdul Taib Mahmud [1986] 2
MLJ 198- The SC held that an injunction is only a discretionary remedy
and should not be available to those who slept on their rights.

6. Form of order and duration

a) Form 58: O29 r 1 (4)

b) Duration of an interim injunction obtained ex parte:

- 21 days from the date on which it is granted (O29 r. 1(2B)

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- Issues: whether ex parte injunction could be continued or extended:

Cheah Cheng Lan (p) v Heng Yea Lee [2001]-the Court has no power
to extend the life of an ex parte injunction beyond 21 days because
of the words “ shall automatically lapse” in O29 r 1 (2B) RHC

7. Failure to comply
- If D fails to comply with the interlocutory injunction, then it amounts
to contempt of court.
- When the injunction is drawn up it will contain a penal notice warning
the defendant of this fact.

8. Grounds for Discharge

-D can apply to set aside the injunction on the grounds that include :
a. No serious issues to be tried , or
b. Balance of convenience in D’s favour, or
c. Damages can be assessed or P cant pay damages if D wins, or
d. Suppression of material fact; or
e. The oppressive effect of the injunction
f. A material change in the circumstances of the parties or in law since the
injunction was granted,
g. That the inunction interferes with the rights of innocent third parties.

1.5 MAREVA INJUNCTION

A. Introduction

1. In certain circumstances, a P, who has a very strong case against a D, may feel
that there is a serious risk that the D will dispose of his or her assets before the
case proceeds to trial – thereby, preventing the P, if successful at the trial, from
being able to execute the judgment- as there may no longer be any assets
available which would realise the value of the judgment.

2. The Mareva Injunction is a form of interlocutory injunction designed to guard

against this.

3. It has the effect of restraining D from disposing of, or dissipating their assets so as
to frustrate any judgment which the P may obtain against them.

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4. The order takes its name from the decision of the COA in Mareva Compania
Naviera SA v International Bulk Carriers SA [1980] 1 All ER 213

5. Facts - P were the ship owners, D voyage charterers.

- D failed to pay the hire charges due to the P.
- D had sub-chartered the ship to the President of India and while the
President of India was paying the defendant into a London bank
account, the defendant was not making its payments to the plaintiff.
- The plaintiff brought an application ex parte for an injunction
restraining the defendant from removing or disposing of money in
the London bank account and the injunction was granted at first
instance but only for a specified time until the case could be heard
by the Court of Appeal. In the Court of Appeal the case was heard
by Lord Denning and he concluded that:

‘If it appears that the debt is due and owing, and there is a danger
that the debtor may dispose of his assets so as to defeat it before
judgment, the court has jurisdiction in a proper case to grant an
interlocutory judgment so as to prevent him disposing of those assets.
It seems to me that this is a proper case for the exercise of this
jurisdiction. ‘(at p.215)

Procedure

6. As it would defeat the purpose of the order if the D were to be warned of the
application, applications for Mareva injunctions are made ex-parte.

7. P may apply before an action has been commenced or after full trial.

1.5.1 Principles

a. A good arguable case

8. The P’s affidavit must disclose a good arguable case as regards the merits of the
substantive claim against the D.

9. In Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi

Negara [1977] 3 All E.R. 324 (C.A.) Lord Denning addressed the issues of the test
that the applicant had to meet in terms of the strength of the case and what
assets the injunction could be issued against. With respect to the strength of the

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case that the applicant had to advance Lord Denning indicated that the case
did not have to be so strong as to justify the court in issuing summary judgment.
Rather, it was sufficient that the applicant be able to demonstrate that he had
a good arguable case.

b. Assets within jurisdiction

10. In general, the P has to show that the D has some assets within the jurisdiction.

11. ‘Assets’ for this purpose is given a wide meaning, and includes chattels such as
motor vehicles, jewellery, choses in action, and money.

12. Bank account – if the order is to be made against a bank account, P must give
the best possible particulars of that account ( eg branch, acc number if known).

c. Risk of disposal

13. In order to obtain a Mareva injunction, P must show that there is a risk that the
D will remove assets from the jurisdiction, or dispose them, or dissipate them, or
hide them.

d. P to give undertaking as to damages

14. Third Chandris Shipping Corp v Unimarine Sa [1979] 2 All ER 972, Lord Denning
gave guidelines in the granting of Mareva Injunction :

i. P must make full and frank disclosure of all matters;

ii. P must specifically give reasons for the amount of his claim;
iii. P must show that D has assets within the jurisdiction;
iv. P must give grounds for believing that there is a risk of D disposing of his
assets; and
v. P must give undertaking as to damages.

15. Bank Bumiputra v Lorraine Osman [1985]- the Court granted Mareva injunction
to restrain D from transferring his assets out of the jurisdiction and held that the
requirements for a Mareva injunction are:

i. P must show good arguable case;

ii. P must give evidence that D has assets within the jurisdiction;
iii. P must show there is a risk that D may dispose his assets before judgment.

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1.5.2 Purpose of the Order

16. (i) The object of Mareva is not to give the P priority over the D’s other creditors.

(ii) The effect of Mareva should not be such as to place undue pressure on the
D to settle the action on terms unduly favourable to the P.

Therefore  to ensure the just operation of the Mareva Injunction, certain

provisos must be incorporated into each Mareva Order.

1.5.3 Provisos

17. Banks – to safeguard the bank, the order will expressly state that it does not
prevent the bank from exercising any right of set-off it may have in respect of
facilities afforded by it to the D before the date of the Order.

18. Living Expenses – the order should make a provision for the D’s ordinary living
expenses and payment of ordinary debt by the D.
- The court may make a blanket order where usually about 70% is for
Mareva injunction and 30% for living expenses and ordinary debts.
- Larut Consolidated Bhd v Khoo EE Bee [1997] 5 MLJ 77 – must not be
oppressive and should provide for living expenses and legal costs..

1.5.4 Effect of the Order

19. The order is addressed to the D, but, it also binds 3rd arties with knowledge of it.

20. A person who assists in the disposal of assets with knowledge of the order is
therefore in contempt of court.

21. If an order is made against a bank account, it operates to freeze the account
as soon as the bank has notice of the order.

22. The bank would be in contempt of court if it subsequently honoured cheques

drawn on the account.

23. The order should therefore be served on the bank and the D.

1.5.5 Grounds For Discharge

a) Not an appropriate case

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• An application to discharge the order may be made where the D can show
that the P does not have a good arguable case on the merits or by showing
that there is insufficient risk that the assets will be dissipated.

b) D providing security

• The D may also obtain discharge of the order by offering security for the P’s
claim instead. E.g. – creating a charge over D’s property, paying money into
bank account in the joint names of the solicitors acting for the P & D, or paying
the sum claimed into court.

c) P guilty of material non-disclosure

• The P is under a strict duty to make full and frank disclosure in the affidavit.
• This means- P is also under a duty to make reasonable inquiries.
• Material facts must appear in the affidavit in support itself. It is not sufficient if
they appear in exhibited documents.
• Motor Sports Int Ltd v Delcont (M) Sdn Bhd [1996]

1.5.6 Discretion
The court has a power to grant Mareva injunctions where it is ‘just and
convenient’.

In deciding whether or not to grant a Mareva, the court will consider the value
of the D’s assets from the P’s point of view, namely their resale value in the light
of the amount which the P is claiming.

In other words – would these assets in fact assist the P in a material way to satisfy
any judgment that may be obtained?

E.g.- in Rasu Maritima v Perusahaan Pertambangan [1978] QB 644, CA

-Facts-
- P a Liberian company and the D an Indonesian state-owned company.
- The claim was for very substantial damages for a breach of charterparty.
- The assets in respect of which the P sought a Mareva injunction comprised
part of a fertiliser plant to be built in Indonesia.
-Its value as such was some $12 million; but its scrap value was only about
$350,000.
-Lord Denning MR described that (pg 663) as a ‘drop in the ocean’ compared
to the immense claim which was being made.

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-His Lordship said that ‘this amount is so trifling in the circumstances that it does
not seem proper to interfere with the construction work on this fertiliser plant to
secure it’.

1.6 ANTON PILLER ORDERS

1.6.1 Introduction

1. Derives its name from Anton Piller KG v Manufacturing Processes [1976] Ch. 55,
CA.

2. Facts - P- German manufacturers of electric motors and generators.

- One of their products was a frequency converter for use in
computers.
- D were the P’s UK agents.
- 2 ‘defectors’ employed by the D flew to Germany and informed the
P that the D had been secretly negotiating with the P’s competitors
with the object of supplying the competitors with manuals, drawings
and other confidential information which would allow the
competitors to copy the P’s product and ruin their market.
- The ‘defectors’ had documentary evidence in support of their
claims.
- The P were worried if the D were given notice of court proceedings
they would destroy or remove any incriminating evidence.
- So, before they had time to even issue the writ in the contemplated
proceedings, the P’s solicitors applied ex-parte and obtained an
order requiring the D to permit the P to enter their premises for the
purposes of inspecting and removing relevant documents and other
evidence.

1.6.2 Procedure

3. Secrecy is essential if the order is to be effective. The application is therefore

made ex-parte , supported by an Affidavit.

4. Normally, P applies this before the issuance of writ.

1.6.3 Principles

5. In Anton Piller KG v Manufacturing, Ormrod LJ identified 3 basic requirements

that must be satisfied before the court may grant an Anton Piller order.

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6. Each of the requirement must be substantiated in the Affidavit in Support.

7. The 3 requirements are :

I. There must be an extremely strong prima facie case.

II. The D’s activities must cause very serious potential or actual harm to P’s
interests,
III. There must be clear evidence that incriminating documents or things are
in the D’s possession and there is a real possibility that such material may
be destroyed before any application inter partes can be made.

8. Malaysian case - Lian Keow Sdn Bhd v Paramjothy [1982] 1 MLJ 217.

1.6.4 Enforcing an Anton Piller Order

9. Makonka Electronic Sdn Bhd v Electrical Industry Workers' Union & Ors [1997]
MLJU 93 which sets out the requirements and safeguards pertaining to the
application, grant and execution of Anton Piller Orders in the following terms:

The Anton Piller order is a valuable procedure and ought to be preserved. The
efficacy, however, of the Anton Piller procedure depends very much on all the
parties seeking a fine balance to protect their respective interests and rights. A
solicitor acting for an applicant must remember at all times that he is an officer
of the court, and to ensure that the application he is putting forward contains
adequate safeguards of the basic rights of the other party. It is not that he is
obliged to act for the other party, but that he is bound to ensure the procedure
is not abused. He must put forward a reasonable application if it is to be
entertained. He should for example ensure:

A. That there is full and frank disclosure of all relevant information and
evidence to justify the issue of the order.

B. The order must be drawn such that it extends no further than the
minimum necessary to achieve the preservation of evidence which may
be otherwise removed or destroyed.

C. The application includes first alternative prayers for orders to produce

and deliver specific evidence. Only upon the respondents' failure to
produce and deliver such evidence would the other orders of the Anton

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Piller order (sic) are to come into effect. This would offer a "less draconian
unless necessary" approach, and by specifying the evidence to be
produced avoid fishing expeditions and unnecessary invasion into
unrelated information.

D. That the application contains clear and specific undertakings that the
order will be served by a solicitor who will at the same time supply a copy
of the application and all affidavits and documents put before the
judge in making the application; explain its exact terms to the
respondent; advise him to seek immediate legal advice and that he has
a reasonable time to do so.

E. That the application contains clear undertakings for damages, and that
the evidence obtained will not be used in any other proceedings
without the consent of the court.

F. As a further safeguard, to have a separate solicitor to supervise the

execution by the applicants' solicitors, and persons who are to
accompany him are to be named in the order so that they may be
identified by the respondent (see Vapormatic Co Ltd v Sparex Ltd [1976]
1 WLR 939).

10. In Bhimji v Chatwani [1991] 1 All ER 705- when an Anton Piller order is served on
the D, D has the right to refuse entry for 2 hours to contact his lawyers.

1.6.5 Privilege against Self-Incrimination

11. Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 HOL – where
a criminal charge was more than a contrived, fanciful or remote possibility the
D could refuse to provide the information, relying on the privilege against self-
incrimination.

12. In Malaysia- the courts are at variance as seen in these cases :-

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 Television Broadcasts Ltd & Ors v Mandarin Video Holdings Sdn Bhd [1983] 2 MLJ
346, the court held that a person is not entitled to claim such privilege. In this
case, the Court held that in this country the privilege against self-incrimination
had been withdrawn by section 132 of the Evidence Act, 1950

 However the case of PMK Rajah v. Worldwide Commodities Sdn Bhd & Ors
(supra) [1985] 1 MLJ 86 held that the case of Television Broadcasts Ltd had
wrongly interpreted the application of Section 132 of the Evidence Act.

 It was held in PMK Rajah a person served with an Anton Piller order, is not
subject to cross-examination or re-examination hence they do not fall within
the meaning of the word "witness" in section 132 of the Evidence Act. In other
words, section 132 does not apply at all to discovery in respect of an Anton
Piller order.

1.6.6 Setting Aside the Anton Piller Order

1. Grounds – no cause of action

- damage is not serious

- suppression of material fact

- non- compliance with the rules

1.7 INTERIM AND PERMANENT INJUNCTIONS AGAINST GOVERNMENT

Tengku Haji Jaafar & Anor v Government of the State of Pahang [1978] 2 MLJ
105

Distinguish with:

Nanthakumaran v Jafanese Co-operative Housing Society Ltd [1980] 1

MLJ114

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Sabil Mulia (m) Sdn Bhd v Pengarah Hospital Tengku Rahimah & Ors [2005] 3
MLJ 325

The courts have jurisdiction to grant interim and permanent injunctions against
any servant of the Government. Since a Government servant or a member of
the Cabinet may be restrained by injunction, it is strictly unnecessary from a
practical point of view to decide whether the Government itself may be
restrained in appropriate circumstances.

**TIDALMARINE ENGINEERING SDN BHD v. KERAJAAN MALAYSIA [2012] 3 CLJ 385

( where relevant cases are all discussed )

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