Remedies: Injunction

INTRODUCTION

• An injunction is not a cause of action on its own, but

dependent on a pre-existing cause of action against the
defendant arising out of an invasion, actual or threatened, by
him of a legal or equitable right of the plaintiff.
• Injunction is a relief in the form of a court order addressed
to a specified person forbidding or commanding him to do a
certain act.
• It performs a preventive function, used to complement other
remedies sought.
• S.4 of the Specific Relief Act provides that specific relief is
given, inter alia, "(c) by preventing a party from doing that
which he is under an obligation not to do".
• S 5 states that “specific relief granted under s.4 (c) is called
preventive relief”.
• The law on injunctions is provided in s 50-55 of the Specific
Relief Act (SRA). It is based on equitable principles.
• S.50 provides that it is granted at the discretion of the court.
The court's discretion to grant injunction is not arbitrary but is
guided by judicial principles.
• See Majlis Perbandaran Pulau Pinang v Boey Siew Than &
Ors [1979] 2 MLJ 127, FC per Raja Azlan Shah CJ (Malaya) at
130: “… It is not to be arbitrarily exercised but must be done
judicially in accordance with principles".
• See also Aspatra Sdn Bhd & Ors v Bank Bumiputra Malaysia
Bhd & Anor [1988]1 MLJ 97, SC per George Seah SCJ at 110:
“… the discretion [under ss 50 and 51(1) of the Specific Relief
Act] … established that the exercise of this equitable
jurisdiction is to be governed by well-recognised judicial
principles".
• S51(1) and (2) SRA provides for temporary and perpetual
injunctions.
• Injunctions obtained ex parte are normally temporary, granted
against a defendant who has not been served and given the
opportunity to contest it.
• S51(2) SRA provides that perpetual injunction must be made
inter partes, it can only be granted by the decree made at the
hearing and upon the merits of the suit.
• S 52(1) SRA provides for prohibitory injunctions which may be
granted to prevent the breach of obligations.
• S 53 SRA provides for mandatory injunction which is to prevent
the breach of obligations, necessary to compel the performance
of certain acts which the court is capable of enforcing.
• S54 SRA provides 6 instances when injunctions cannot be
granted.
• S55 SRA provides for an injunction to perform a negative
agreement.
The different types of injunctions available:
(i) temporary & perpetual injunctions;
(ii) prohibitory & mandatory injunctions;
(iii) injunction to perform a negative agreement; and
(iv) special injunctions and orders not provided in the Specific
Relief Act:
1. Mareva Injunction,
2. Attachment Order Under the Debtors Act 1957 (Revised
1981, Act 256),
3. Erinford Injunction,
4. Anton Piller Order ,
5. Norwich Pharmacal Order
 TEMPORARY INJUNCTION
• Section 51(1) SRA provides that temporary injunctions are to continue
until a specified time, or until the further order of the court. They may
be granted at any period of a suit, and are regulated by the law
relating to civil procedure. (Order 29 of the Rules of the High Court
1980).
• The temporary injunction or the interlocutory injunction has been
referred to in English law.
• In Nicholas & Ors v Gan Realty Sdn Bhd [1970] 12 MLJ 89, FC., In this
case Azmi LP opined:
• “… a temporary injunction under s.50 of the Specific Relief (Malay
States) Ordinance is the same thing as an interlocutory injunction
mentioned in the English textbooks. Temporary injunctions are such as
to continue until a specific time or hearing of the case upon the merits
or generally until further order.”
 
• The purpose of an interlocutory injunction is to preserve the
status quo of the parties pending a trial. An interlocutory
injunction is seldom granted if its effect is to grant the plaintiff a
final relief.
• In RCA Sdn Bhd v Pekerja-Pekerja RCA Sdn Bhd [1991] 1 CLJ 19;
1 MLJ 309, SC, the plaintiffs were a trade union and employees
of the defendant, which was a semi-conductor manufacturing
company. The plaintiffs had obtained an injunction to restrain
the defendant from interfering with the union's activities
including the distribution of application forms (for membership
in the trade union) while in the defendant's premises.
• S7 Industrial Relations Act 1967 (Act 177) prohibits workmen
from persuading others to join a trade union during working
hours without the consent of the employer. The defendant's
application to dissolve the injunction was dismissed by the High
Court. On appeal, the Supreme Court held that there was no
status quo to be preserved; thus, the SC allowed the appeal and
dissolved the injunction.
• In granting interlocutory injunctions, the Malaysian courts
have consistently applied the principles as decided in the
case of American Cyanamid Co v Ethicon Ltd [1975] 1 All ER
504; [1975] 2 WLR 316; [1975] AC 396, HL.
• In this case, the House of Lords stated that the court will
determine whether there is a serious question to be tried,
whether the claim is not frivolous and vexatious. If there is a
serious question to be tried, the court will consider whether,
based on the balance of convenience, an interlocutory
injunction should be granted or not.
• This approach was affirmed by the Supreme Court in Alor
Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd
& Ors [1995] 1 MLJ 241, SC & Lian Keow Sdn Bhd v Overseas
Credit Finance Bhd [1982] 2 MLJ 162).
• In the Court of Appeal decision of Keet Gerald Francis Noel
John v Mohd Noor bin Abdullah & Ors [1995] 1 AMR 373;
[1995] 1 NILJ 193, CA., Gopal Sri Ram JCA reviewed the
authorities on interlocutory injunction…that a judge hearing
an application for an interlocutory injunction should
undertake:
whether on the totality of the facts presented, discloses a
bona fide serious question to be tried ... If he finds, upon a
consideration of all the relevant material before him ... that
no serious question is disclosed, that is the end of the matter
and the relief is refused. On the other hand if he finds that
there are serious questions to be tried, he should move on to
the next step of his inquiry;
 ... he must take into account all relevant matters, including the
practical realities of the case before him. He must weigh the
harm that the injunction would produce by its grant and from
its refusal. He is entitled to take into account, inter alia, the
relative financial standing of the litigants before him the
plaintiff's ability to meet his undertaking in damages should the
suit fail, and, in appropriate cases, may require the plaintiff to
secure his undertaking, for example, by providing a bank
guarantee; and…
… that the remedy is discretionary, intended to produce a just
result for the period between the date of the application and
the trial proper and to maintain the status quo ... to take into
account all discretionary considerations, such as, delay in the
making of the application or any adequate alternative remedy
that would satisfy the plaintiff's equity, such as an award of
monetary compensation … Any question going to the public
interest may, and in appropriate cases should, be taken into
account (p. 206-207).
• The guidelines in Keet Gerald Francis have been followed in a
number of cases.
• See Tahan Steel Corp Sdn Bhd v Bank Islam Malaysia Bhd
25[2004] 3 AMR 43; [2004] 6 MLJ 1; [2004] 6 CLJ & Yukilon
Manufacturing Sdn Bhd & Anor v Dato' Wong Gek Meng &
Ors (No 4) [1998] 7 MLJ 551).
• Abdul Malik Ishak J classified the guidelines in Keet Gerald
Francis above into the 3 tests respectively: (i) the "serious
issues to be tried" test; (ii) the "balance of convenience"
test; and (iii) the "discretionary test".
• An injunction applied for at the interlocutory stage is
normally granted upon an undertaking in damages given by
the plaintiff.
• In cases where the strength of the undertaking is doubted,
the court may also require some sort of security..
• The purpose of the undertaking was explained by in TSC
Education Sdn Bhd v Kolej Yayasan Pelajaran MARA & Anor
[2002] 5 MLJ 577, by Abdul Malik Ishak J as follows:
• What is the real purpose of an undertaking as to damages?
It is simply to vest the court with the jurisdiction to make an
appropriate order to recompense the loss suffered by the
party who was restrained when it is subsequently
established that the plaintiff was not entitled, in the first
place, to the injunction. It is always possible that a wrong
decision would be made at the interlocutory stage.
 PERPETUAL INJUNCTION
• S 51(2) SRA provides that a perpetual injunction 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.
• There are very few cases where it has been successfully
obtained. A successful instance is in Neoh Siew Eng & Anor v
Too Chee Kwong [1963] MLJ 272. In this case, the plaintiff had
rented a rent-controlled premise from the defendant. One of
the terms of the tenancy was that the defendant would pay $2
towards the water charges and the plaintiff would pay the
amount in excess of that sum. In the month of December 1962,
the water supply stopped owing to the corroded state of the
pipe. The defendant did nothing to repair the pipe until the
month of February 1963 following a court interim order
requiring the defendant to restore the water supply.
• HC held that the plaintiff has the right to obtain damages
and a perpetual injunction to direct the defendant to ensure
the continuity of water supply to the said premises. This is
because the defendant as the owner of the premises was
under an obligation not only to see that the supply of water
was not deliberately cut off but also to use her best
endeavours to keep all communication pipes in proper repair
and generally to comply with all regulations of the
Waterworks Department so that the water supply was not
cut off. 
PROHIBITORY INJUNCTION
• A prohibitory injunction is an order that prohibits a
defendant from doing or continuing an action.
• S.52(1) SRA provides that a perpetual injunction may be
granted to prevent the breach of an obligation existing in
favour of the applicant, whether expressly or by implication.
• S 52(2) provides that for an obligation arising from contract,
the court shall be guided by the rules and provisions
contained in Chapter II which deals with specific
performance of contracts.
• Illustrations (a) and (k) of S52(3) SRA are examples of
breaches of obligations which arise from contract including
implied contract.
• Illustration (a): "A lets certain land to B, and B contracts not
to dig sand or gravel thereout. A may sue for an injunction to
restrain B from digging in violation of his contract".
• Illustration (k): "A lets certain arable land to B for purposes of
husbandry, but without any express contract as to the mode
of cultivation. Contrary to the mode of cultivation customary
in the district, B threatens to sow the lands with seed
injurious thereto and requiring many years to eradicate. A
may sue for an injunction to restrain B from sowing the lands
in contravention of his implied contract to use them in a
husbandlike manner“.
• S 52(3) provides for five circumstances where the court may grant a
perpetual injunction when the defendant invades or threatens to
invade the plaintiff's right to, or enjoyment of, property :
• (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 (See Petronas
Dagangan Sdn Bhd v Omar bin Abdul Samad [199614 MLJ 391;
Azmen bin Mohd Yussof & Ors v Vasaga Sdn Bhd [2001] 2 AMR 2040;
[2001] 6 MLJ 217);
• (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 (See BSNC Leasing Sdn Bhd v Sabah Shipyard Sdn
Bhd & Ors [2000] 1 AMR 1141, CA.
• An instance of an injunction granted to prevent the
infringement of intellectual property rights can be seen in
Yukilon Manufacturing Sdn Bhd & Anor v Dato' Wong Gek
Meng & Ors (No 4) [1998] 7 MLJ 551. In this case, the
defendants are two brothers who had started a joint venture
manufacturing business with the plaintiff. Some years later,
the defendants set up another company for the purpose of
manufacturing a similar product to be sold to the plaintiff's
customers. The defendants had also disclosed the plaintiff's
trade secret. An ex parte injunction order was granted to
prevent the defendants from continuing with the
manufacturing of the said products. The defendants
attempted to set aside the said injunction. The High Court
held that the award of damages was not an adequate
remedy and the justice of the case in favour of the plaintiff
required the grant of an injunction.
MANDATORY INJUNCTION
• S53 SRA gives the power to the court to award mandatory
injunctions.
• A mandatory injunction is an order directing a defendant to
do an act.
• (See Ladang Tai Tak (KT) Sdn Bhd v Suppiah all Andy Thavar
& Ors [1999] 5 MLJ 257.
• Also see Illustrations (a)-(g) in this section of examples of
mandatory orders).
• S53 provides: 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.
• An important case on mandatory injunction is Redland Bricks
Ltd v Morris & Anor [1970] AC 652, HL., where the House of
Lords set out the principles in the granting of mandatory
injunctions:
(1) a mandatory injunction can only be granted when the
plaintiff shows a very strong probability upon the present
facts that grave damage will accrue to him in the future.
(2) damages will not be a sufficient or adequate remedy if such
damage does happen.
(3) the question of the cost to the defendant to do work to
prevent or lessen the likelihood of a future apprehended
wrong is an element which must be taken into account. This
will also depend on whether the defendant has acted
reasonably. Fourth, the defendant must know exactly in fact
what he has to do.
•  A perpetual mandatory injunction can be seen in Neoh Siew
Eng & Anor v Too Chee Kwong [1963] MLJ 272.
• Applications for mandatory injunctions have been made at
the interlocutory stage.
• While the courts have the discretion to grant mandatory
injunctions before trial, the courts have been careful that it is
granted only in exceptional cases.
• In Gibb & Co v Malaysia Building Society Bhd [1982]1 MLJ
271, FC. (see also Shamsudin bin Sheik Jamaludin v Kenwood
Electronics Technologies (M) Sdn Bhd [1999] 3 MLJ 438).
• The Federal Court held that although an interim or
interlocutory injunction is never granted before trial save in
exceptional and extremely rare cases, there is no reason why
it cannot be granted in proper and appropriate cases.
• Abdoolcader J stated:
• The case however must be "unusually sharp and clear"
(Shepherd Homes Ltd v Sandham [1971] 1 Ch 340), …
consider how the interests of the parties may best be
protected.. and also questions of hardship and
inconvenience in the meantime, and will take into account
any other relevant discretionary considerations which may
arise. One of the most important circumstances is the degree
of probability with which it appears to be established that
the applicant will ultimately succeed at the final hearing.
• In Sivaperuman v Heah Seok Yeong Realty Sdn Bhd [1979] 1
MLJ 150, the interlocutory mandatory injunction sought for
was not granted as it would virtually give to the respondents
the full relief sought to be secured at the trial. Damages
would be an adequate remedy. Further, the appellant's
dismissal was pending before the Industrial Court which had
jurisdiction to make the relevant award.
 WHEN INJUNCTION REFUSED
• S. 54 SRA provides that an injunction cannot 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;" (See BSNC
Leasing Sdn Bhd v Sabah Shipyard Sdn Bhd & Ors [2000] 1 AMR
1141; [2000] 2 MLJ 70);
(b) to stay proceedings in a court not subordinate to that from
which the injunction is sought (See Bina Satu Sdn Bhd v Tan
Construction [1988] 1 MLJ 533, PPES Resorts Sdn Bhd v
Keruntum Sdn Bhd [1990] 1 MLJ 436);
(c) to restrain persons from applying to 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. (See Government of Malaysia v Lim Kit Siang;
United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MU 12, SC
(e) to stay proceedings in any criminal matter (See Datuk Yong
Teck Lee & Ors v Public Prosecutor [1996] 2 MLJ 68;
Shashitharan Pillay a/l Baskaran Pillay v Salleh bin Hussin &
Anor [1995] 4 CLJ 265);
(f) to prevent the breach of a contract the performance of which
would not be specifically enforced (See Penang Han Chiang
Associated Chinese School Association v National Union of
Teachers in Independent Schools, West Malaysia [1988] 1 MLJ
302, SC.
(g) to prevent, on the ground of nuisance, an act of which it is not
reasonably clear that it will be a nuisance (See Lim Kar Bee &
Anor a Lim Poh Bin [1987] 2 MLJ 247; Robert Chin Kick Chong &
Anor v Pernas Otis Elevator Co Sdn Bhd & Ors [1992] 3 CU (Rep)
486);
(h) to prevent a continuing breach in which the applicant has
acquiesced (See Senator Kee Yong Wee & Anor v Low Tat
Construction Co Sdn Bhd & Anor [1986] CU (Rep) 669; Zaidin
Abd Ghani v Raja Raman Nair & Ors [2001] 6 CLJ 558);
(i) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach
of trust (See Majlis Perbandaran Pulau Pinang v Boey Siew
Than & Ors [1979] 2 MLJ 127, FC; Mans Housing Sdn Bhd &
Anor v Lee Seng Wai [2004] 5 MLJ 279);
(j) when the conduct of the applicant or his agent has been
such as to disentitle him to the assistance of the court (See
Shashitharan Pillay a/l Baskaran Pillay v Salleh bin Hussin &
Anor [1995] 4 CLJ 265; Cheah Theam Swee & Anor v
Overseas Union Bank Ltd & Ors [1989]1 CLJ (Rep) 386);
(k) where the applicant has no personal interest in the matter
(See Government of Malaysia v Lim Kit Siang; United
Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12, SC;
Rajamanikam a/l Adaikalam v Bolton Finance Bhd [1997[ 1
LNS 265.
 INJUNCTION TO PERFORM NEGATIVE AGREEMENT
• S.55 SRA states:
• Notwithstanding section 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.
• A classic case on s55 is Pertama Cabaret Nite Club Sdn Bhd v Roman
Tam [1981]1 MLJ 149, FC, where the facts are quite similar to
Illustration (c): "A contracts with B to sing -for twelve months at B's
theatre and not to sing in public elsewhere. B cannot obtain specific
performance of the contract to sing, but he is entitled to an injunction
restraining A from singing at any other place of public entertainment".
• In this case, the respondent, a well-known singer from Hong
Kong had signed a contract to sing at the appellants' night
club for a number of days. It was a term of the agreement
that in the event of breach, the respondent would not
perform in Kuala Lumpur during the period fixed in the
contract or three months thereafter.
• The respondent declined to honour his contract with the
appellant and sang at another night club. The appellants
applied for an injunction to restrain the respondent from
appearing at any opera, theatre, concert hall or other public
or private entertainment in Kuala Lumpur. The High Court
dismissed the appellants' application, and the appellants
appealed to the Federal Court.
• The Federal Court held that specific performance cannot be
granted in relation to the agreement that the respondent was
to appear and sing in the appellants' night club as this
agreement relied on the personal volition of the respondent.
But, together with this agreement, there was a negative
undertaking by the respondent not to sing anywhere else in
Kuala Lumpur for a certain period. Thus, an injunction can be
granted to prevent the respondent from doing so. The
Federal Court referred to Illustration (c) of s 55, Lumley v
Wagner [1843-601 All ER 368 and The Broome (Selangor)
Rubber Plantations v RH Whitley (1919) 1 FMSLR 365.
• An attempt to imply a negative agreement was unsuccessful
in Dato' HM Shah & Ors v Dato' Abdullah bin Ahmad [1991]1
MLJ 91, SC.
• In this case, the respondent was appointed as the executive
chairman and managing director of a company for a period of
3 years from January 1, 1989 to December 31, 1991. The
company later removed the respondent as chairman and
appointed the first appellant in his place and also suspended
the respondent of his executive powers and duties as
managing director of the company. The respondent sought
injunctive relief and the High Court held that there was an
implied negative agreement that the company would not
employ another person as its chairman and managing
director until the expiry of the plaintiff's period of
employment.
• SC allowed the appellant's appeal and held that the provision in s 55
does not state that every affirmative agreement includes, by
necessary implication, a negative agreement to refrain from doing
certain things. This is a question of interpretation in each case
whether a particular contract can be said to have a negative covenant,
express or implied. The Court also noted that the agreement between
the respondent and the company was not the same as any ordinary
employer/employee agreement and that in each of the authorities
cited to the court, the implied stipulation was against the employee,
not the employer.
• In practice it may perhaps be much more difficult to find in a service
contract an implied undertaking operating against an employer.
• Further, s 128 of the Companies Act 1965 provides for the removal of
a director of a public company by ordinary resolution
notwithstanding anything in the company's memorandum or in any
agreement between the company and the director.
• The Supreme Court concluded that an implied stipulation cannot
properly be read into the agreement between the company and the
respondent.
• There are some situations where the court cannot grant an
injunction to perform a negative agreement.
• One circumstance is where the defendant has no other
option but to perform the contract or to be unemployed. In
Ehrman v Bartholomew [1898] 1 Ch 671, the defendant
agreed to devote all his attention and time to the business of
the plaintiff and agreed not to directly or indirectly employ
himself in any other business, or transact any business with
any other person other than the plaintiff for a term of 10
years. The plaintiff applied for an injunction to enforce the
negative agreement.
• The Court held that granting the injunction was not
appropriate because the effect would be that the defendant
had to work with the plaintiff or remain unemployed.
• The above case maybe contrasted with Warner Brothers v
Nelson [1937]1KB 209 where the defendant was an artist and
had agreed to provide his service as an artist to the plaintiffs
for a period of 52 weeks. The defendant also agreed not to
provide such similar service to any other parties during the
said period. When the defendant breached the agreement,
the plaintiffs obtained an injunction to prevent the defendant
from working for another person.
• The Court allowed the injunction as the effect of the
injunction did not force the defendant to work with the
plaintiff or become unemployed. In this case, the defendant
can still find a job with other persons other than being an
artist. 
SPECIAL INJUNCTIONS AND ORDERS

• These special injunctions and orders are not provided in the

Specific Relief Act.
• They are :
(i) Mareva Injunction;
(ii) Attachment order under the Debtors Act 1957;
(iii) Anton Piller Order;
(iv) Erinford Injunction; and
(v) Norwich Pharmacal Injunction.
Mareva Injunction
• The purpose of a Mareva injunction is to prevent a defendant
from defeating a judgment obtained against him by
dissipating his assets from the court's jurisdiction.
• Based on the urgent nature of this injunction, a Mareva
injunction is usually applied for ex parte.
• This injunction was first allowed by the English Court of Appeal
in Nippon Yusen Kaisha v Karageorgis [197513 All ER 282, CA.
on May 22, 1975. It was named Mareva injunction based on the
second decided case on it, i.e, Mareva Corn pania Naviera SA v
International Bulk Carriers SAP [1975] 2 Lloyd's Rep 509;
[198011 All ER 213, CA.
• The Federal Court in S & F International Ltd v Trans-Con
Engineering Sdn Bhd 62 [1985] 1 MLJ 62, FC. had occasion to
explain the origin and purpose of a Mareva injunction.
Abdoolcader FJ said:
• The order known as a Mareva injunction - so named after the
case of Mareva Compania Naviera SA v International Bulk
Carriers SA [1980] 1 All ER 213 was decided in June 1975 and
the second case in which the English Court of Appeal granted
this form of relief - is a species of interlocutory injunction
which restrains a defendant by himself or by his agents or
servants or otherwise from removing from the jurisdiction or
disposing of or dealing with those of his assets that will or
may be necessary to meet a plaintiff's pending claim.
• … the sole purpose of a Mareva injunction was to prevent a
plaintiff being cheated out of the proceeds of an action,
should he be successful, by a defendant transferring his
assets abroad or dissipating his assets within the
jurisdiction, ... the remedy was not intended to give a
plaintiff priority over those assets, or to prevent a defendant
from paying his debts as they fell due, or to punish him for
his alleged misdeeds, or to enable a plaintiff to exert
pressure on him to settle an action. ... a Mareva injunction
was never intended to put a plaintiff in the position of a
secured creditor and every case had to be dealt with on its
own merits...
• In Ninemia Maritime Corp v Trave Schzffahrts GmbH & Co KG
[1984] 1 All ER 398, Mustill J laid down two conditions that
must be fulfilled before a Mareva injunction can be granted:
1. The plaintiff must show that he has a good arguable case to
be tried.
2. There must be a real risk that the defendant's asset will be
moved out from the jurisdiction before judgment.
• These principles have been applied in Malaysian cases.
• In Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ
153, SC; & Seema Development Sdn Bhd v Mah Kim Chye &
Anor [1998], the Supreme Court held that on the facts there
was no real risk of the dissipation of assets by the defendant's
due to the dishonour of its cheque.
• In Third Chandris Shipping Corporation and Others v
Unimarine SA [1979] 2 All ER 972, CA. (See for e.g. some
Malaysian cases that have applied these guidelines: Creative
Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153, SC; Ace King
Pte Ltd v Circus Americano Ltd & Ors [1985] 2 MLJ 75).
• In this Court of Appeal decision, Lord Denning MR stated that
applicants for a Mareva injunction should be required to
observe the following:
• (a) the plaintiff should make a full and frank disclosure of all
matters in his knowledge which are material for the judge to
know;
• (b) the plaintiff should give particulars of his claim against the
defendant, stating the ground of his claim and the amount
thereof, and fairly stating the points made against it by the
defendant;
• (c) the plaintiff should give some grounds for believing that
the defendant has assets in the jurisdiction;
(d) the plaintiff should give some grounds for believing that
there is a risk of the assets being removed before the
judgment or award is satisfied; the mere fact that the
defendant is abroad is not by itself sufficient;
(e) the plaintiff must give an undertaking in damages, which in
a suitable case should be supported by a bond or security,
and the injunction should only be granted on it being given
or on an undertaking that it is to be given .
• The Supreme Court in Aspatra Sdn Bhd & 21 Ors v Bank
Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97, SC. has
held that the Malaysian courts have the jurisdiction to grant
Mareva injunctions as provided under paragraph 6 of the
Schedule to the Courts of Judicature Act 1964 (Revised 1972)
• (Note: Para 6 provides for "the interim preservation of
property . . . by sale or by injunction or in any other manner
whatsoever"), read with Order 29 Rules of the High Court
1980 (Order 29) provides for the procedure for applying
injunctions) and s 50 of the Specific Relief Act.
Attachment Order Under Debtors Act 1957
• A form of relief that is similar to a Mareva injunction is the remedy
for seizure and attachment of property before judgment provided
in ss 19-23 of the Debtors Act 1957 (Revised 1981).
• Section 19 of the Debtors Act provides for the procedure for the
attachment of property before judgment.
• According to s 19(1), the plaintiff must satisfy the court on sworn
evidence, at any time after the writ of summons is issued, that he
has a good cause of action against the defendant and:
• (a) that the defendant is absent from the State and that his place
of abode cannot be discovered;
• (b) that the service of a writ of summons cannot without great
delay or difficulty be effected; or
• (c) that the defendant, with intent to obstruct or delay the
execution of any judgment which has been or may be made
against him, has removed, or is about to remove, or has concealed,
or is concealing, or making away with, or handing over to others,
any of his movable or immovable property.
• (c) that the defendant, with intent to obstruct or delay the
execution of any judgment which has been or may be made
against him, has removed, or is about to remove, or has
concealed, or is concealing, or making away with, or
handing over to others, any of his movable or immovable
property.
• (Also see Ipoh Garden Sdn Bhd v Ismail Mahyuddin
Enterprise Sdn Bhd [1975] 2 MLJ 241 where the plaintiff
succeeded in obtaining the attachment order, compared with
the Federal Court case in Datuk Abu Mansor v Bank
Kerjasama Rakyat [1982] 1 ML] 258 where the plaintiff failed
to obtain the attachment order).
• If the plaintiff has fulfilled the above conditions, the court
may order that the defendant's property or any part thereof
be attached forthwith by an appropriate officer as a pledge
to answer the just demand of the plaintiff, until the hearing
of the trial of the action and satisfaction of any judgment
that may be made against the defendant.
• An exception stated in the proviso to s 19(1) is that the
written consent from the Minister of Finance (in the case of
the Government of Malaysia or Federal officer) or the Chief
Minister (in the case of a State Government or State officer)
must be obtained in cases where the defendant's property
or the accrued debt to the defendant is property under the
control of or is indebted by any government or public officer
in his official capacity.
• The two requirements an applicant must satisfy under s
19(1) were set out by the Court of Appeal in Kepong
Prospecting Ltd v Schmidt [1962] 1 MLJ 375 and also in
Emperee Wood Products Sdn Bhd v Business Flair Sdn Bhd
[1998] 2 CLJ 139 , where Faiza Tamby Chik J stated:
• The requirements of s 19(1)(c) of Debtors Act 1957 are
stringent and must be strictly complied with. In order to
succeed under such an application the plaintiff must satisfy
the court two things by evidence on oath that:
• (i) it (i.e. plaintiff) has a good cause of action; and
• (ii) the defendant with intent to obstruct or delay the
execution of any judgment which has been or may be made
against him has removed, or is about to remove, or has
concealed, or is concealing, or making away with, or
handing over to others, any of his movable or immovable
property.
• In proving a good cause of action under s 19(1) of the Debtors
Act, like the Mareva injunction, an applicant for an attachment
order must make full and frank disclosure in his application (see
Hari Singh v Sundrammai [1965] 2 MLJ 174).
• As regards the second element, it is necessary to show that any
dealing, removal or concealment of property by the defendant is
with the intent to obstruct or delay the execution of any
judgment which has been or may be made against the
defendant. In Datuk Abu Mansor bin Mohamed Nasir v Bank
Kerjasama Rakyat Malaysia Bhd & Anor [1998] 2 CLJ 139..
• Mohamed Azmi J stated:
• In this appeal, we agree with the legal proposition that s
19(1)(c) of the Debtors Ordinance 1957 does not debar a
man from dealing with his property merely because a suit
has been filed against him. Otherwise, in every case in which
a suit is brought against a man, if during the pendency of the
proceedings, he sells some of his property, that would be at
once a sufficient ground to satisfy the court that he is
disposing of his property with intent to defraud the plaintiff.
There must be additional circumstances before the court can
be satisfied that such an intention exists.
Erin Ford Injunction
• An Erinford injunction is granted to an applicant for interim
postponement, pending the hearing of an appeal which
brings the effect that there is an injunction preventing the
proceedings, for execution of the judgment.
• The purpose of the order is to prevent the Court of Appeal's
decision from being rendered nugatory (irrelevant) should
that court reverse the judge's decision.
• This injunction was named after the case of Erinford
Properties Ltd v Cheshire County Council [1974] 2 All ER 448.
• The Erinford case has been followed in the local cases of
Celcom (Malaysia) Bhd v Inmiss Communication Sdn Bhd
[2003] 3 CLI 85; Tahan Steel Corporation Sdn Bhd v Bank
Islam Malaysia Bhd (No 2) [2004] 3 AMR 507; [2004] 6 CLJ
131.
• In this case, the facts were that in the earlier case of Tahan
Steel Corporation Sdn Bhd v Bank Islam Malaysia Bhd [2004] 3
AMR 43; [2004] 6 CLJ 25, the plaintiffs had applied by way of an
interim injunction to prevent the defendants from exercising
their lawful rights under some security documents executed by
the plaintiffs in favour of the defendants, pending the outcome
of the writ action.
• This application was dismissed by Abdul Malik Ishak J which
then led to the application by the plaintiffs for an Erinford
injunction restraining the defendants from enforcing the
security documents against the plaintiffs until the hearing and
final disposal of the plaintiffs' appeal to the Court of Appeal.
• The High Court held that with regard to the first question, the
plaintiffs' application should be dismissed as the plaintiffs'
claim was founded on damages.
• Damages would be an appropriate remedy in this case as
the plaintiffs company's sole objective was to gain profit.
With regard to the second question, the balance of
convenience laid in favour of the defendants.
• An Erinford injunction would impede the defendants' ability
to recover monies from the plaintiffs pending the appeal to
the Court of Appeal. The defendants would suffer the loss of
use of its money and this financial loss could not be
compensated by the courts as the defendants were
prevented by its adherence to Islamic banking principles
from taking any penalty interest which would be in the
nature of usury.
Anton Piller Order

• An Anton Piller Order is a special mandatory order granted

by the court on an ex parte application ordering a defendant
to allow a plaintiff (or future plaintiff) to enter the
defendant's premises to search and inspect articles and/or
documents kept in the said premises and where necessary
to remove the articles and/or documents to be kept in safe
custody by the plaintiff's solicitors or the court.
• In the United Kingdom, the Anton Piller Order is also known
as a "search order".
• The Anton Piller order was named after the English Court of
Appeal case of Anton Piller KG v Manufacturing Process Ltd & Ors
[1976] 1 All ER 779, CA. The Court emphasised that the Anton
Piller order is not a search warrant authorising a plaintiff to
enter a defendant's premises against his will, but an order on the
defendant in personam to permit the plaintiff's entry or be in
peril of proceedings for contempt of court. The main purpose of
an Anton Piller order is to prevent any relevant and material
evidence in an action or in a future civil action from being
destroyed or concealed.
• The preconditions for making an Anton Piller order were stated by
Ormond LJ as follows:
• (a) there must be an extremely strong prima facie case against
the defendants;
• (b) the damage, potential or actual, must be very serious for the
applicants (iii this case the plaintiffs) if the order is not granted;
• (c) there must be clear evidence that the defendants have in
their possession incriminating documents or things; and
• (d) there is a real possibility that the defendants may destroy
such incriminating material before any application inter
partes can be made.
• In Malaysia, the courts have relied on its inherent jurisdiction
to grant the Anton Piller order.
• (See Lion Keow Sdn Bhd v C Paramjothy [1982] 1 MLJ 217,
Arjunan & Ors v Kesatuan Kebangsaan Pekerja-Pekerja
Ladang & Ors [1993] 1 MLJ 326, where the Anton Piller order
granted previously was discharged).
• In an application for an Anton Piller order, the applicant
must disclose fully and frankly all the material facts.
• The duty to make full and frank disclosure is strictly applied
as the Anton Piller order is a very harsh remedy which gives
the power to the plaintiff to force the defendant to allow the
plaintiff to enter the defendant's premises in order to inspect
and remove documents and materials which are relevant to
the litigation.
• (See also Apparatech (M) Sdn Bhd v Ng Hock Chong & Anor
[2006] 2 MLJ 61. See Justrite Sdn Bhd v Shapadu Energy and
Engineering Sdn Bhd & Ors [2002] 3 MQ 501 where the
application for an Anton Piller order was rejected as the
plaintiffs had not only failed to make a full and frank
disclosure of the important facts known to them, but had also
failed to make a complete investigation on other related
relevant fact).
• The Anton Piller order also needs to be expressed in clear
and unambiguous terms since, like the injunction, the failure
to comply will constitute a contempt of court.
• It should be framed so as to be plain to those to whom it is
directed and to those who may be affected by it, the nature
of the obligation arising from the order, so that they may
know precisely what they are required to do or to abstain
from doing.
• (See Apparatech (M) Sdn Bhd v Ng Hock Chong & Anor
[2006] 2 MLJ 61; Ultratech Sdn Phd v Nuruddin @ Zainuddin
bin Tauhid & 2 Ors [1995] 2 CLJ 457).
• The principles governing the assessment of damages
consequent to the setting aside of an Anton Piller order are
stated in Solid Gold Publishers Sdn Bhd v Chan Wee Ho & Ors
[2002]3 MLJ 310.
• Another type of order for discovery besides the Anton Piller
order is the Norwich Pharmacal Order, named after the case
of Norwich Pharmacal Co & Ors v Commissioners of Customs
and Excise [1972]3 All ER 813, CA; [1973] 3 WLR 164, HL 89.
• In this case, the House of Lords held that where a person
albeit innocently and without incurring any personal liability
became involved in the tortious acts of others, he came under
a duty to assist one injured by those acts, by giving him full
information by way of discovery and disclosing the identity of
the wrongdoers.
• For this purpose, it mattered not that such involvement was
the result of voluntary action or the consequence of the
performance of a duty statutory or otherwise.
 Norwich Pharmarcal Order

• The Norwich Pharmarcal order was applied in Malaysia by the

Supreme Court in First Malaysia Finance Bhd v Dato Mohd Fathi
bin Haji Ahmad [1993] 2 AMR 1293; [199312 MLJ 497, SC. But SC
held that the present case did not fall within the exception in
Norwich Pharmacal.
• Edgar Joseph Jr SCJ stated:
• Unlike the Norwich Pharmacal case, the present case was one
where the identity of those who were alleged by the plaintiff to
have committed the wrongful acts vis-à-vis the plaintiff were
known to the plaintiff and, indeed further, they were cited as the
first to the fourth defendants in the action. Again, the cause of
action pleaded against the first to the fourth defendants was
grounded in contract so there was no question of the plaintiff
being able to invoke the exception defined by the House of Lords
in the Norwich Pharmacal case.