injunctions

INJUNCTIONSEQUITY, TRUST & PROBATE

DEFINITION & GENERAL PRINCIPLESINJUNCTIONS

• An order form court to restrain a person who it is directed/requiring to perform a specified act.

• The power lies under Para 6 of the schedule to CJA (Preservation of the property) & Section 50-51 SRA.

• General principle of Injunctions include - 1. Injunction is discretionary in nature; It is discretionary remedy based on the

inadequacy of the common law. Granted only when Plaintiff has an interest to protect and has sufficient legal reasons/on settled legal principles.

2. Injunction be refused if damages are considered to be adequate remedy; Must show that damages is not an adequate remedy where P will suffer harm if injunction is not granted. Damages in lieu of an injunction will not be awarded where it would deprive an individual’s specific right.

3. Refusal to obey the injunction will result in criminal penalty of contempt of court; Lead to an punishment of imprisonment/ fine thus the injunction must be explained precisely and clear.

4. Injunction is remedy in personam; The court will acts in personam & does not suffer anyone to do what is contrary to the notions of equity.

+ Has temporary (interlocutory/interim); perpetual (final); Mandatory/Prohibitory Injunction.

TYPES OF INJUNCTIONS - PERPETUALINJUNCTIONS

• Sec 51(2) SRA - Final injunction that restrain a person from ascertaining his/her rights; from doing the commission of an act which would be contrary to the rights of the plaintiff.

• Be granted to prevent the breach of obligation in a contract. • +ve Agreement : Inj will not be granted• -ve Agreement : Inj be granted

• Muniandy Subramaniam & Ors v Majlis Perbandaran Langkawi Bandaraya Pelancongan & Anor - P, the committee of the said temple had applied for an interim injunction, restraining the defendants from continuing to demolish the temple. Court held; since the plaintiff had accepted an offer from the defendants for an alternative site for the temple thus injunction will not be granted.

• Sect 52(1) SRA - Stated that Inj may be granted to prevent breach of an obligation existing in favour of the applicant, whether expressly/by implication.

• Sect 52(3) SRA - Whenever D invades/ threatens to invade P’s right/enjoyment of property, the court may grant perpetual injunction in cases such;1. Where d is the trustee of the property for P2. Where exists no standard for ascertaining the actual damage caused/likely to be cause

by invasion. 3. Where pecuniary compensation is not an adequate relief4. Inj is necessary to prevent multiplicity of judicial proceedings.

TYPES OF INJUNCTIONS - MANDATORYINJUNCTIONS

• Sect 53 SRA - Mandatory injunction restraining the continuation of an act/omission by directing a person to perform positive act. In other words, to direct defendants to do something.

• Tr Hamzah & Yeang S.B v Lazar S.B - Granting of mandatory inj is entirely discretionary which must be based on the circumstances of the case that be done with cautious but in proper case unhesitatingly.

• TSC Education S.B v Koley Yayasan Pelajaran Mara & Anor - P was appointed by 1st D as independent advisers to recruit students from China to pursue courses with 1st D. subsequently, P had stop taking 2nd batch of students which were scheduled to arrive in the country. P then had to transfer the 1st Batch with the 1st D to anor colleges. P applied to court for D to compel with the terms of the agreement. Court held that since 2nd D is a corporation established under the MARA Act & pursuant to Majlis (Yayasan Pelajaran MARA) Oder. Thus the 2nd D’s act is confined to the provisions. And that the 2nd D had the power to recruit and provide training to non-bumiputras. The question as to whether D had to compelled to carry on with the agreement under Sect 55 of SRA did not arise at all as the agreement was not valid in the first place being contrary to the Act.

TYPES OF INJUNCTIONS - PROHIBITORYINJUNCTIONS

• An order to direct a person to refrain from the commission, continuation/repetition of a wrongful act. (Eg; harassing ex wife)• Mandatory - Order the performance of an act.• Prohibitory - Order to prohibit certain act.

• Court will only listen to one side of the party because it is a serious case.

• However, a court will apply the balance of convenience test, the inj will be refused if it caused hardship to the D by compliance with the order.v

TYPES OF INJUNCTIONS - INTERLOCUTORY/INTERIM INJUNCTIONS

INJUNCTIONS

• Referred as temporary/interim inj.• To continue until a specified time/ until further oder of the court & may

be granted at any period of the suit.• To be given in a pending hearing.• Dr. David Vannisingham Ramanadhan v Subang Jaya Medical Centre S.B -

Surgeon sought an interlocutory inj which bring to the effect of preventing the resp employer from dismissing him until his claim was finally decided.• Correctly relied on Penang Han Chiang - That granting inj would enable

a workman to remain in his job until the case is finally decided.• Procedural aspects are all governed in the ROHC, Order 29.

• Cheah Cheng Lan v Heng Yea Lee - The issue before the court whether the court has the power to extend ex parte injunction order from time to time until the disposal of the main suit. Court held that by virtue of Order 29 ROHC, the life of ex parte inj can’t go beyond the period of 21 days. Court has no power to extend the life of ex parte inj bcs of the word ‘shall automatically lapse’.

TYPES OF INJUNCTIONS - INTERLOCUTORY INJINJUNCTIONS

• Principle - To protect the P against injury by violation of his/her rights for which he/she could not be adequately compensated in damages recoverable in action if uncertainty were at to be resolved in trial.

• AG v Punch Ltd - Thus, the P will have the burden to prove that he/she will suffer damages if only the injunction is not granted by the courts.

• Test applicable since it is considered only temporary/interim inj that plaintiff is seeking;• Prior to American Cyanamid• Often cited test - there was a strong prima facie case that the

applicant’s rights had been infringed.• Had to show that damages would be inadequate remedy and thus

he/she is more likely to succeed in the final trial.• Hubbard v Vasper - The court would have to look at the case as a

whole in deciding. He must have regards all the strengths in the claim & defence, & then decide what is best to be done…

TYPES OF INJUNCTIONS - THE TEST IN AMERICAN CYANAMID

INJUNCTIONS

• The court must satisfied that the case is not frivolous/vexatious & there is a serious question to be tried. When this satisfies, it would be a balance of convenience. (Claimant need to show the real possibility of success not just a probability)

• American Cyanamid Co v Ethicon Ltd - The house of lord decided that there is no need to establish a prima facie case. The court need to address whether there is an important issue to be tried on, & if there is balance of convenience. If no, then the court will have to look at the strengths of the parties. • This rule is not applicable in granting interim inj in a defamation

case.• Mohamed Zainuddin bin Puteh v Yap Chee Seng - There was notice of

motion of granting inj to be set aside & the only ground this happens was that the P had not fully stated all facts & apparently the court had not disclosed all material facts. Applying to the case of Cyanamid, the court had dismissed the claim, as there was serious question to be tried on & thus measures should be taken to prevent status quo.


INJUNCTIONS

• Factors to be taken into account;1. If the claimant had an adequate compensation at the final trial, thus

no inj be granted.• Perbadanan Setiausaha Kj. Selangor v Metroway S.B

2. If applicant can;t be rejected in ground stated above, the court must consider that if the D succeed in the trial proper, D would receive adequate compensation & that the P has duty to pay them. If answer is yes, then the court can grant interim inj.

3. If theres doubt in the sufficiency of remedies in damages available to either parties/both, Then question of balance of convenience be relevant.

• The relevance of determining the balance of convenience. • In American Cyanamid case; court had ruled out 3 considerations.

• Preservation of status quo• Strength of the case in relation to the opponent• Other special factors (Eg; public interest argument)


INJUNCTIONS

• Test was applied in - Azman bin Mohd Yusoff v Vasaga S.B • P had applied for interim inj to restrain D from continuing

the operation of the business of pub and disco on the ground that the business had disturbed their peace, tranquility and safety resulting from the vibration of the loud music and etc. The D had argued that the claim brought by P was frivolous, baseless & vexatious. The D only operate his business during trial run & the sound was all under control. D had also claimed that there was male fide in the application of the P. The court held that D be restrained by an inj from causing nuisance to P until the disposal of the case.

• It is a step by step test which stated in the case of Pekeliling Triangle S.B v Chase Perdana Bhd.

TYPES OF INJUNCTIONS - INTERIM MANDATORY INJINJUNCTIONS

• General Rule : Tinta Press S.B v BIMB - Court has the power to grant interim mandatory inj. Stated in Sect 53 of SRA. By judicial process the power is extended to the granting of an i.m.i before trial. Such discretion must be properly exercise. Can only be granted on cases that is exceptional & extreme cases.• Resp had leased certain printing equipments to the Appellants.

However, App had defaulted in paying the rentals, Resp bought an action to recover the possession of the equipment & the arrears of the rent. Resp also made an ex parte application & obtained mandatory inj to enable resp to recover the possession of the equipment. App appealed to dissolve the application. This was refused & appellants appealed. The judge concluded that this was an exceptional case whether the court was justified in granting the mandatory inj on ex parte application before trial.

• Timber Complex (Sabah) S.B v Top Origin S.B - That to show ‘an unusually strong and clear case & that there are special circumstances before the court’

INJUNCTION TO PERFORM NEGATIVE AGREEMENTINJUNCTIONS

• Dealt in Sect 55 of SRA (Can grant inj) ; Medlux Overseas (Guernsey) Ltd v Faber Medi-Serve S.B - Where there is breach of a negative covenant, court in his jurisdiction ought to treat it no differently from any other application of interim inj.

• Pertama Carbaret Nite S.B v Roman Tam - Resp, a singer had singed a contract with appellant (owners of a night club), to sing for them for a number of days. Clause 15 stated that if app breach any terms the resp may terminate the contract & the resp was not to perform in KL for a fixed period of 3 months. The resp had breach the contract and app brought an action suing the resp & filed for an ex parte interim inj to restrain d from appearing at any events in Kl until the case is over. The SC had granted the application.

• Dayang Nurfaizah bte Awang Dowty v Bintang Seni S.B. - The 1st D had applied inj for restraining the plaintiff from appointing other than the 1st D as her personal manager & make any public performance without the consent of 1st D. Court had rejected the application as this concerns with a personal services and thus it was unenforceable.

DEFENCESINJUNCTIONS

• Delay - Laches is a defence to an inj even though P’s right have not yet become statute-barred. Delay for interlocutory may be of smaller than the perpetual inj as this to allow the p not to be unduly prejudiced.• Shepherd Homes Ltc v Sandham - An unexplained delay of 5 months prevented

the grant of interlocutory inj.• Haji Wan Habib v Datuk Pathingi - P was a member of Majlis Kerja Tertinggi. HE

was suspended by Majlis for 6 months. He moves to the court for interlocutory inj after 2 months, court treated the delay as fatal of the case.

• Mortimer v Bailey - If there was a delay that is unexplained with justifications, thus the inj may be refused.

• Acquiescence - An assent to an infringement of rights, either expressed/ implied from conduct to which the equitable relief is normally lost. A greater of acquiescence is needed to defeat a claim for final inj than an interlocutory inj. • Sayers v Collyer - P had known of the breach for 3 years and futher had bought

beer there. This conduct was treated sufficient to bar any remedy & P could nt gain any inj.

• Shaw v Applegate - Court held P was not guilty on the degree of acquiescence, the real test being whether on the facts of the particular case, it would be dishonest/unconscionable for P to seek rights.

DAMAGESINJUNCTIONS

• Hardship - Relevant to defendant. Has > weight in cases of interlocutory inj where the P’s right has been established. Hardship carry > weight in mandatory inj where the benefit to p in granting inj must be balance against the detriment of D.

• Defence based on P’s conduct as this will influenced the court not to issue inj in favour of the p. P must come to court with clean hands.

injunctions

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