CIVIL PROCEDURE II

LAD 5083
BY NOOR DZUHAIDAH OSMAN
 Week 1 & 2:Preventive Relief
• Classification of injunctions
• Interlocutory injunction
• Mareva Injunction - Nature, origin and development
• Jurisdiction
• Procedure for application
• Foreign assets
• Worldwide injunction
• Dissolution of a Mareva injunction
• Anton Pillar Order - Nature
• Jurisdiction
• Procedure for application
• Condition for making the Order
• Setting aside an Anton Piller Order
Preventive Relief
• Specific Relief Act (SRA)1950

• Cases
• Gibb & Co v Malaysian Building Society Bhd [1982] 1 MLJ271
• Bank Islam Malaysia v Tinta Press [1986] 1 MLJ 256
• Woodward v Hutchins [1977] 2 All ER 751
• Mareva Compania Niviera AS v International Bulkcarriers SA (1972)
2 Lloyd Rep 509
• BBMB v Lorrain Osman [1985] 2 MLJ 236
• Anton Piller KG v Manufacturing Processes Ltd & Ors [1976] Ch 55
• Lian Keow Sdn Bhd v C Paramjothy [1982] 1 MLJ 217
Classification of injunctions

• Remedy in equity-to stop somebody from doing

something or compel a person to do something
• 1.Prohibitory injunction-S52 SRA 1950
• 2.Mandatory injunction-S53 SRA 1950
• 3.Perpetual injunction
• 4.interlocutory injunction
• 5.ex parte injunction
• 6.quia time injunction
Special type of injunction-by case
law
• 1.Mareva injunction
• 2.Ad interim injunction
• 3.Erinford injunction
• 4.Anton Piller injunction
Interlocutory injunction Order 29 of the ROC 2012

• Temporary or interim injunction

• Usually lasts pending trial
• After trial-need a perpetual injunction
• Maintain status quo until the trial is over
• Jakob Renner & Ors v. Scott King [2000] 3 CLJ 569 (HC)
• Sam Peng Thong &Ors v. Tetap Meriah Sdn Bhd [2002] I
CLJ 105 (HC)
• Cheah Cheng Lan v.Heng Yea Lee & Ors [2001]1 CLJ 727
• Undertaking as to damages-Elias Mooin & Anor v.Dato
Zainal Abidin Johari [1997] 3 CLJ 455 (HC) James Foong J
Principles in granting injunction
• Landmark case-American Cynamid v. Ethicon [1975] AC 396HL
• Serious questions to be tried?Yes?Injunction-No?Dismiss
• Damages adequate remedy for the plaintiff?Yes?No
injunction.No?Next
• If the defendant wins the case, can defendant be
compensated by damages?Yes?Injunction will be granted.No?
Next.
• Balance of convenience lies?Defendant suffer hardship?
Injunction will not be given.
• Keet Gerald Francis Noel John v.Mohd.Noor &Ors [1995]1 CLJ
293 (COA) Gopal Sri Ram
Mareva Injunction - Nature, origin and development

• Limited type of injunction

• Purpose-restrain the defendant from removing,
disposing or concealing his assets from the
jurisdiction
• Freeze the def’s assets and the operation of the
bank account
• Mareva Compania Naviera SA v International
Bulkcarriers SA
• The Mareva [1980] 1 All ER 213-Lord Denning-
The Mareva [1980] 1 All ER 213-Lord Denning-

• LORD DENNING MR. This raises a very important point of practice. It follows a recent case, Nippon
Yusen Kaisha v Karageorgis. The plaintiffs are shipowners who owned the vessel Mareva. They let it to
the defendants (“the charterers”) on a time charter for a trip out to the Far East and back. The vessel
was to be put at the disposal of the charterers at Rotterdam. Hire was payable half monthly in
advance and the rate was $US3,850 a day from the time of delivery. The vessel was duly delivered to
the charterers on 12 May 1975. The charterers sub-chartered it. They let it on a voyage charter to the
President of India. Freight was payable under that voyage charter: 90% was to be paid against the
documents and the 10% later.

• Under that voyage charter the vessel was loaded at Bordeaux on 29 May 1975 with a cargo of
fertiliser consigned to India. The Indian High Commission, in accordance with the obligations under
the voyage charter, paid 90% of the freight. But paid it to a bank in London. It was paid out to the
Bank of Bilbao in London to the credit of the [*214] charterers. The total sum which the Indian High
Commission paid into the bank was £174,000. Out of that the charterers paid to the shipowners, the
plaintiffs, the first two instalments of the half monthly hire. They paid those instalments by credit
transferred to the shipowners. The third was due on 12 June 1975, but the charterers failed to pay it.
They could easily have done it, of course, by making a credit transfer in favour of the shipowners. But
they did not do it. Telexes passed which make it quite plain that the charterers were unable to pay.
They said they were not able to fulfil any part of their obligations under the charter, and they had no
alternative but to stop trading. Their efforts to obtain further financial support had been fruitless.
The Mareva [1980] 1 All ER 213-Lord Denning-

• Whereupon the shipowners treated the charterers’ conduct as a repudiation of the

charter. They issued a writ on 20 June. They claimed the unpaid hire, which comes to
$US30,800, and damages for the repudiation. The total will be very large. They have
served the writ on agents here, and they have applied also for service out of the
jurisdiction. But meanwhile they believe that there is a grave danger that these
moneys in the bank in London will disappear. So they have applied for an injunction
to restrain the disposal of those moneys which are now in the bank. They rely on the
recent case of Nippon Yusen Kaisha v Karageorgis. Donaldson J felt some doubt
about that decision because we were not referred to Lister & Co v Stubbs. There are
observations in that case to the effect that the court has no jurisdiction to protect a
creditor before he gets judgment. Cotton LJ said (45 Ch D 1 at 13, [1886-90] All ER
Rep 797 at 799):

• “I know of no case where, because it was highly probable that if the action were
brought to a hearing the plaintiff could establish that a debt was due to him from
the defendant, the defendant has been ordered to give security until that has been
established by the judgment or decree.”
The Mareva [1980] 1 All ER 213-Lord Denning-

• And Lindley LJ said (45 Ch D 1 at 15, [18890] All ER Rep 797 at 800): “… we should be
doing what I conceive to be very great mischief if we were to stretch a sound principle
to the extent to which the Appellants ask us to stretch it … s”

• Donaldson J felt that he was bound by Lister & Co v Stubbs and that he had no power
to grant an injunction. But, in deference to the recent case, he did grant an injunction,
but only until 17.00 hours today (23 June 1975), on the understanding that by that
time this court would be able to reconsider the position.

• Now counsel for the charterers has been very helpful. He has drawn our attention not
only to Lister & Co v Stubbs but also to s 45 of the Supreme Court of Judicature
(Consolidation) Act 1925, which repeats s 25(8) of the Judicature Act 1873. It says:

• “A mandamus or an injunction may be granted or a receiver appointed by an

interlocutory Order of the Court in all cases in which it shall appear to the Court to be
just or convenient … ”
The Mareva [1980] 1 All ER 213-Lord Denning-

• In Beddow v Beddow ((1878) 9 Ch D 89 at 93) Jessel MR gave a very wide

interpretation to that section. He said: “I have unlimited power to grant an
injunction in any case where it would be right or just to do so … ”

• There is only one qualification to be made. The court will not grant an injunction to
protect a person who has no legal or equitable right whatever. That appears from
North London Railway Co v Great Northern Railway Co. But, subject to that
qualification, the statute gives a wide general power to the courts. It is well
summarised in Halsbury’s Laws of Englanda: [*215]

• FNa 21 Halsbury’s Laws (3rd Edn) 348, para 729; see now 24 Halsbury’s Laws (4th
Edn) para 918
• “… now, therefore, whenever a right, which can be asserted either at law or in
equity, does exist, then, whatever the previous practice may have been, the Court
is enabled by virtue of this provision, in a proper case, to grant an injunction to
protect that right.”
The Mareva [1980] 1 All ER 213-Lord Denning-

• In Beddow v Beddow ((1878) 9 Ch D 89 at 93) Jessel MR gave a very wide

interpretation to that section. He said: “I have unlimited power to grant an
injunction in any case where it would be right or just to do so … ”

• There is only one qualification to be made. The court will not grant an injunction to
protect a person who has no legal or equitable right whatever. That appears from
North London Railway Co v Great Northern Railway Co. But, subject to that
qualification, the statute gives a wide general power to the courts. It is well
summarised in Halsbury’s Laws of Englanda: [*215]

• FNa 21 Halsbury’s Laws (3rd Edn) 348, para 729; see now 24 Halsbury’s Laws (4th
Edn) para 918
• “… now, therefore, whenever a right, which can be asserted either at law or in
equity, does exist, then, whatever the previous practice may have been, the Court
is enabled by virtue of this provision, in a proper case, to grant an injunction to
protect that right.”
• Mareva injunction was applied in the Malaysian
case-S&F International Limited Trans Con
Engineering Sdn Bhd [1985] 1 MLJ 62 (FC) Lee Hun
Hoe
• Norihan bt Talib v.Mohd Nasir bin Hassan [2018] 3
MLJ 670 (COA)
• Zainal Abidin bin Haji Abdul Rahman v. Century
Hotel Sdn Bhd [1982]1 MLJ 260 (FC) Raja Azlan
Shah CJ S25 CJA 1964
Procedure for application

• Ex parte- or def might quickly dispose and conceal his asset

• Order 29rule 1(2A) NOA and affidavit
• Motor Sport International Ltd v.Delcont M) Sdn Bhd [1996]2
MLJ 605 (COA)-strictly comply terms
• Pacific Centre SB v.UEM Bhd [1984]2 MLJ 143 (OCJ Penang)-
pt shows-risk of disposal of assets
• Onus-prima facie case
• Third Chandris Shipping Corp v.Unimarine Sa Eggelikai Ptera
Compania Maritima SA (COA)[1979] QB 645-a)full and frank
disclosure b)real danger (risk) of the def c)def-foreigner not
good ground-reasonable ground d)not ambiguous
• Psons Ltd dll v. Chin Teck Kuan dll [2015] 10 MLJ
561 (HC)-same as Chandris
• 1)good arguable case 2)clear evidence def has
assets with the courts juris.3)clear evidence-
possibility that def will dispose of his assets
• Creative Furnishing SB v.Wong Koi [1989] 2 MLJ 153
(SC) Mohamed Azmi SCJ
• Regent Decorators SB & Anor v.Michael Chee
[1984] 2 MLJ 78 (OCJ Kuala Lumpur)
Foreign assets

• Asset outside Malaysia-worldwide Mareva

injunction
• Metrowangsa Asset Management SB v.Ahmad b.Hj
Hassan &Ors [2005]1 MLJ 654 (HC) Abdul Malik
Ishak J
Worldwide injunction

• Rosseel NV v.oriental Comercial Shipping UK Ltd &

Ors [1990]1 WLR 1387 Parker L.J-exceptional cases-
extra terroterial Mareva injunction
Dissolution of a Mareva
injunction
• 1Grounds For Discharge
• a) Not an appropriate case
• 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]