a) Order 29 of the Rules of Court 2012; b) Mareva Injunction by Roger Tan Kor Mee [1989] 2 CLJ 764; SPECIFIC RELIEF ACT MANDATORY INJUNCTION INTERIM/ INTERLOCUTORY MANDATORY INJUNCTION INJUNCTION – FINAL AND INTERLOCUTORY INTERLOCUTORY INJUNCTION Undertaking as to Damages anton Piller Order Erinford Order

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1.0 Relief
Reference materials:
a) Order 29 of the Rules of Court 2012;
b) Mareva Injunction by Roger Tan Kor Mee [1989] 2 CLJ 764;
- Is a judicial order whereby a party is ordered to refrain from doing or to do a particular act or
thing.
- Mandatory injunction – to do certain act
- Prohibitory or negative injunction is an injunction restraining a party from doing a certain act.
- Final / perpetual injunction- injunction granted after trial
- Interlocutory – generally is granted to preserve status qou pending trial of matters in dispute.
1) SPECIFIC RELIEF ACT
- Section 51 – defines the scope of temporary and perpetual injunctions
- Section 52 – lays down the circumstances in which perpetual injunctions may be granted by the
court.
- Section 53 – lays down the circumstance in which the court will grant mandatory injunctions.
- Section 54 – the circumstances in which the granting of an injunction may be refused by the
court.
UBE Engineering Sdn Bhd v UBE Industries Sdn BHd & Anor, the pf applied for an injunction by way
of summary judgment. Learned judge on the facts of the case stated that it was not a fit and proper
case to summarily grant injunction.
2) MANDATORY INJUNCTION
- Orders of court which command the respondents to do some positive act or particular thing.
Westminster Brymbo Coal & Coke Co v Clayton
- Explain about the differences between prohibitory and mandatory injunction.
- By granting prohibitory injunction, the court does no more than prevent for the future the
continuance or repetition of the conduct of which the plaintiff complain. The injunction does not
attempt to deal with what has happened in the past, that is left for the trial, to be deal with the
damages or otherwise.

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- Mandatory injunction tend at least in part to look to the past, in that is often a means of undoing
what has already been done.
- Prohibitory injunction merely requires abstention from acting, a mandatory injunction requires the
taking of positive steps, and may require the dismantling or destruction of something already
erected or constructed.
Lumley v Wagner
- Court will not grant a mandatory injunction where it will require continuous supervision.
3) INTERIM/ INTERLOCUTORY MANDATORY INJUNCTION
Shamsudin binShaik Jamaludin v Kenwood Electronics Technologies (M) Sdn Bhd
- American Cyanamid guidelines are not applicable in an application for mandatory injunction.
- The conditions to be fulfilled before an interlocutory mandatory orders would be granted are:
o The applicant must proof by affidavit evidence that his application is an exceptional and
extremely rare case which merits the order prayed for.
o The applicant must show that his case is clear and one, which the court think ought to be
decided at once on his favour.
o The applicant must show a clear case for relief or a high degree of assurance that the
injunction, if granted, would rightly be granted.
An interim or interlocutory mandatory injunction is never granted before trial save in exceptional and
extremely rare cases. The test is much more rigid to obtain an ex – parte mandatory injunction.
4) Injunction
An application for injunction is not a separate cause of action. Please refer to IMPSA (Malaysia) Sdn
Bhd v Bank Maumalat Malaysia Berhad & Ors (2011) 1 LNS 729.
- [4] It is trite that an application for injunction is not a separate cause of action in itself, but merely
an ancillary claim, unable to exist by itself. In order for a party to obtain an injunction from the
court, the applicant must have a pre-existing cause of action against the defendants.
- [5] Support for the proposition is found in a number of cases. In the case of The Siskina (Owners
of Cargo Lately Laden On Board) & Ors (infra) at 256, Lord Diplock held as follows:-
- "A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It
is dependent upon there being a pre-existing cause of action against the defendant arising out of

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an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the
enforcement of which the defendant is amenable to the jurisdiction of the court. The right to
obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of
action. It is granted to preserve the status quo pending the ascertainment by the court of the
rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles
him, which may or may not include a final injunction."
- The above proposal has been adopted by the Court of Appeal in the case of Nishimatsu
Construction Co Ltd (infra).
Conditions
i) SERIOUS ISSUES TO BE TRIED
- Essential for an applicant seeking an injunction to at least show that prima facie he has a valid
cause of action.
- However, need not show that he will succeed at the end of the trial but he must convince the
court that there is a serious question to be tried.
RCA Sdn Bhd v Pekerja – pekerja RCA Sdn Bhd
o The supreme court rules that an injunction will not be granted if there is no cause of
action.
ii) DAMAGES
- Injunctions will not be granted if damages are an adequate remedy
Perbadanan Setiausaha Kerajaan Negeri Selangor v Mtroway Sdn Bhd
- Learned judge asserted that it is settled that where moneytary compensation is an
adequate remedy, a court of equity generally declines the grant of specific relief.
- Damages will not be adequate remedy if it will cause the applicant irreparable injury.
ii) BALANCE OF CONVENIENCE
- After establish the other 2 element, the court must proceed to considered the balance of
convenience.
- Balance of convenience was set out in the case of American Cynamide.
- To preserve the status qou here means to preserve the state of affairs existing prior to the
application of injunction.
- Exception to American Cynamide Principle
o Nanthakumar v Jaaffnese Co – operative Housing Society Ltd & Ors

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 Court could not grant an injunction against a government officer. The court on
the facts stated that it may only grant a declaratory order.
5) INJUNCTION – FINAL AND INTERLOCUTORY
 Intercolutory and final injunction can exist in the same suit.
 A suit B for damages & B cannot trespass at the end of the trial if A win the case (final
injunction) . but during the filing of the sue, B still trespassing, so A can apply for
(interlocutory injunction) even before the trial end.
6) FINAL INJUNCTION
It refers to an injunction order by the Court after a full trial.
7) INTERLOCUTORY INJUNCTION
- referred to injunctive orders of court issued at any time during the pendency of the full trial for the
purpose of preventing irreparable injury to the applicant, before the full merits of the case is tried,
and disposed of.
Caltex Oil Malaysia Ltd v Tee Than Song
- a court upon application for an interlocutory injunction in support of a legal right will dealt with the
injunction upon the affidavits and documents verified thereby and will confine itself directly with
the immediate object sought, in order to leave the ultimate question between the parties to be
decided on evidence adduced at the trial.
T.R. Hamzah & Yeang Sdn Bhd Lazar Sdn Bhd
- Application for the grant of an interlocutory injunction may be made by any party to a cause or
matter, whether or not a claim for the injunction was included in that party’s writ, originating
summons, counterclaim or third party notice as case may be.
-Where the applicant is the pf and the case is one of urgency, such application may be made ex parte by
notice of application supported by an affidavit but except as aforesaid, such application must be made by
inter party application.
- O29 – order for interim injunction must be in Form 53
- Mandatory requirement under Order 29 to satisfy the requirement set out in Order 29 r 1 (2A) in
the affidavit in support of the ex parte application must be fulfil.
- O29 r 1(3) – injunction can be granted even before the originating process filed.
- O 29 r1(2B) - states that an ex parte application is only valid for 21 days from the dates of the
order.

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- The injunction must be serve within 7 days and the court when granting the ex parte order must
fix the inter parte hearing within 14 days from the date of the order.
- O29 r 1 (2c) , an ex parte injunction cannot be granted to stop the holding or progress of a
meeting of a body corporate, a society, an association, a union, an organisation, a club or a body
of persons whatsoever named.
1. Please refer to the case of KEET GERALD FRANCIS NOEL JOHN v. MOHD NOOR & ORS. [1995] 1
CLJ 293 where the Court of Appeal held:-
[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the
following lines:
(a) firstly, he must ask himself whether the totality of the facts presented before him discloses a bona
fide serious issue to be tried; (cause of action or not?)
(b) having found that an issue has been disclosed that requires further investigation, he must consider
where the justice of the case lies. In making his assessment, he must take into account all relevant
matters, including the practical realities of the case; (not guaranteed to get injunction but. Court must look
at the justice. The effect of grant & not granting the injunction or looks at if there any worse scenario that
will happen if garnt or not grant the injunction)
(c) the Judge must have in the forefront of his mind that the remedy that he is asked to administer is
discretionary, intended to produce a just result for the period between the date of the application and the
trial proper and intended to maintain the status quo. ( court discreation to grant the injunction. If yes, the
court will do so in order to preserve the status quo. If beyond that, x grant the injunction)
2. Application for injunction (O. 29 r. 1)
(1) An application for the grant of an injunction may be made by any party to a cause or matter before or
after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's
originating process, counterclaim or third party notice, as the case may be.
 The party apply for injunction must come with a clean hand. Eg: applicant at first give a postdated
cheque. / has basis of the claim. Eg: owed rm100 but apply injunction to freeze rm100k in
account.
 029 r1 (f)

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 Before the case of American Cynamide v Ethicon, the general principle applied to obtain a
permanent injunction at the trial. However, the house of Lords in American Cynamide held that
this principle was overstated and they set out the test required to be satisfied before an
interlocutory injunction will be granted.
 Before granting the interlocutory injunction, the court must:
o Satisfy itself on the evidence before it that the plaintiff has a ‘real prospect’ of succeeding
his claim
o To stisfy itself, the court should then go on to considers:
 Whether if pf successful at the end of the trial, he could adequately compensated
by df? If adequate, and if df could affort to pay them, injunction should not be
granted.
 If damges is not adequate,, whether if the df is successful at the end of trial and
interlocutory injunction had been granted, he could be adequately compensated
by pf? If yes, the injunction could be granted.
o Where there are doubts as to the adequacy of the damages as a remedy, then court shall
look at all the circumstances of the case and decide whether the ‘the balance of
convenience’ is in favour of granting an injunction.
o Where the arguments based upon the balance of convenience appear to be evenly
balanced, the court should preserve the status qou.
3. O. 29 r. 2B
(2B) Unless earlier revoked or set aside, an interim injunction obtained on an ex parte application
shall automatically lapse twenty-one days from the date it was granted.
 Life spent for ex party application for injunction is just 21 days.
 O29 r 2BA- obtain ex parte 9/12/2015.15/12/2015, court is on holiday and will be open as
usual on 10/1/2015. So what you will do?
o Cannot do anything. No extension for ex parte application for injunction. But can
apply to the court to grant ad interim injunction that will be carry on until the inter
parte hearing.
4. Undertaking as to Damages
 029 R 2a (g) – undertaking to pay damages is a must for interlocutory injunction.
 If got zero money and give undertaking? Person contesting undertaking can raise the claims that
he not able to pay or the injunction cannot be granted.
 Example of exception for undertaking:

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o Lim Kit Siang v UEM – public interest litigation, court can dispense the undertaking to
pay the damages.
One of the reasons for the introduction of the practice of requiring an undertaking as to damages on the
grant of an interlocutory injunction was that stated in the case of Wakefield v. Duke of Buccleuch: 'it
aided the court in doing that which was its great object, viz abstaining from expressing any opinion upon
the merits of the case until the hearing' ( the reasons is the court still cares about the df as well by acting
natural)
- It is trite that undertaking as to damages upon the grant of an interlocutory injunction is granted.
Allen v Jambo Holding Ltd
- However, there are a number of exceptions. Among them are where a person is legally aided or
where the court takes the view that the financial standing of the applicant should not be the
criteria to obtain substantial justice.
8) EX – PARTE APPLICATION
- Only suitable for cases of real urgency. Further court will require strict compliance of O29 r 1
(2a) .
Motor Sports International Ltd v Delcon (M) Sdn Bhd
- learned judge stated that it was mandatory to comply with O29 r 1(2A) of the Rules of the High
Court.
Ex – parte application will not be granted if it is not promptly made. The affidafit in support must be
made in goodfaith and should not suppress material facts or mislead facts or mislead the court in a
manner to obtain the order. The affidavit must state the sources of the information and grounds of
belief, failing which that of the evidence will be inadmissible.
9) DELAY
- delay in making an application for an application for an interim relief may be fatal to the
application.

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Hj Wan Habib Syed Mohamed v Datuk Patinggi Haji Abdul Taib Mahmud & Anor
- discretionary remedies are exceptional in their nature and should not be available to those who
sleep on their right.
5. Contempt
 JASA KERAMAT SDN BHD v MONATECH (M) SDN BHD [2001] 4 CLJ 549
The existence of an injunction order is not a pre-requisite for a contempt of court. The test is not
the breach of the order but interference with the due administration of justice.
It was clear that the assets concerned were disposed of to defeat the application for mareva
injunction that was pending and the judgment that might have been given in favour of the
appellant. The disposal of the assets were clearly done in bad faith to defeat the appellant’s
claim. It was a very clear case of interference with the due administration of justice. It was
sufficiently serious and closely connected with the particular proceedings.
 Injunction application pending hearing
 Non of the parties can act to defeat the application.
 Once got the injunction order in your hand, when it become enforceable?
o 045 r 7 – u need to serve it
o Injunction – high fees. So need to serve by way of personal service to the said person.
 Can serve the order on the lawyer of the other party and go for enforcement?
o Need to serve on the defendant personally. Cannot be serve on the lawyer.
o O 45 r 7(6) is not covered for mandatory injunction but only covered prohibitory
injunction.
o O45 r 5 – must be serve personally. If want to serve on the lawyer of the party, the party
must be notify or serve it on the present of the party involve.
o O45 r 7 (6) (b) – otherwise? – can sent the draf order on lawyer. It was as good as being
serve on the client.
 Generally, order can only be serve after the seal copy had been serve personally.
 If prohibitory in nature, being present or notified by telephone, telegram was considered as a
good notice.
 Eg: mus taken an injunction against MH stating that MH cannot alter any defamatory words
against mus. Alif is MH lawyer write a letter to NST condemn Mus, which is defamatory in nature.
Is Alip action is considered as breach the injunction?

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o Lawyer is the client voice. Can a lawyer be charge for contempt? Cannot because the
lawyer is not the parties to the injunction. The breach is only bind to the parties involve.
So here only MH can be cited as contempt although the lawyer was abetting the breach.
 Injunction is not complete without endorsement under O45 r 7.
 Prohibitory - breach – damages
 Mandatory – breach – still required the df to do what had been compel to do so – masuk
committal proceedings in order to enforce them to do
o O52 – committal
MAREVA INJUNCTION
Mareva injunction was a creature of statutory interpretation by Lord Denning in the case of Mareva v.
International Bulkcarriers Ltd.2 It is an interim injunction which restrains the defendant from removing
assets from the jurisdiction or disposing of assets within jurisdiction so as to avoid the judgment obtained
by the plaintiff being frustrated.3
As urgency is of the essence, it is normal practice to apply for Mareva injunctionex parte, and the Court
may grant it until trial or further order.4 It may also be continued until execution, and may be granted for
the first time after judgment as an aid to execution if there is a risk that the defendant will dissipate or
dispose of assets with the effect of preventing execution of the judgment.
When the court grants a Mareva injunction, the court should ensure that the Mareva injunction is not
abused so as to oppress the defendant. As such, the court in giving a Mareva injunction, should consider
allowing the defendant to use its frozen assets for any one or more of the following three purposes: (a) if
the defendant is an individual, the defendant may apply for access to his or her frozen assets to pay
reasonable and ordinary living expenses; (b) the court should allow a party subject to a Mareva injunction,
to use the frozen assets for the party's reasonable and ordinary operational expense if the party has no
other assets except for the frozen assets; and (c) the court should also make provision in
a Mareva injunction for the defendant to utilise the frozen funds to pay for his or her legal advice and
representation in the suit and arbitration in question.
Ordinarily, an application for Mareva Injunction is heard ex parte and on an urgent basis because of the
nature of the reliefs claimed and where it is genuinely not possible and a great risk to give notice without
defeating or frustrating the purpose of the order. (SeePacific Centre Sdn Bhd v. United Engineers
(Malaysia) Bhd [1984] 2 CLJ 319 (Rep); [1984] 2 CLJ 56; [1984] 2 MLJ 143 at p.146). Nevertheless, each
case must of course be based on its own set of facts and surroundings circumstances and is dealt with on
a case to case basis. There have also been cases where an application for Mareva Injunction has been
ordered to be heard inter parte. (See Ang Chee Huat v. Engelbach Thomas Joseph [1995] 2 CLJ 893;

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[1995] 2 MLJ 83 atp.87). An order given for a Mareva Injunction which was heard ex parte may arguably
be considered as dragonian in nature but the present case however is not one of such a nature and
rightfully should be heard ex parte.
 Interlocutory injunction – 029 – prohibitory in nature
PROCEDURE
Orwell Steel Ltd v Asphalt and Tar Mac
- Mareva injunction can be obtained even before an action has been commenced or even after the
full trial
…
- The applicant usually made by ex parte application before a judge in chambers. The applicant in
his affidavit must set out the relevant fats showing that an injunction is necessary.
- He must set out such information as he has to the existence of the assets sought to be attached
and the grounds for his belief that a refusal to grant the injunction would involve a real risk that if
judgment is obtained in his favour, df will not in the position to pay it. Further, the applicant must
satisfy the court that he has a good arguable case.
Al Nahkel for Contracting and Trading Ltd v Lowe
- In exceptional cases, can be supported by further orders preventing the df himself from leaving
the country.
Before granting the Mareva Injunction, the plaintiff must not only given an undertaking as to indemnify any
third parties in respect of expense incurred by them in complying with the order.
Ninemia Maritime Crpn v Trave Schiffants Gmbh
- The injunction can be set aside by df if he can provide sufficient security for the pf claim or if the
judge is satisfied that there is no sufficient risk of default.
PCW Ltd v Dixon Management Ltd.
- In any event it is not the purpose for granting the Mareva Injunction to give the applicant priority
over other creditor or to provide means of exerting pressure on the other party to settle the claim.

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Cretanor Maritime & Co Ltd v Irish Marime
- Third party may apply to intervene and vary or set aside the injunction by showing that they are
directly prejudiced by the order.
Anton Piller Order
 Not covered in ROC
 21days notice is not apply in anton piller order
 Compel the Df to give permission for Pf to entered the Df premise in order to search the
document needed
 Mandatory in nature
 Must give undertaking for damages
 The provisions of O. 29 r. 1(2B) of the Rules of the High Court 1980 relates to interim injunctions
and it states that an ex parte interim injunction once obtained lasts for 21 days.
[18] However, case law authorities have shown that the provision of 21 days is not applicable to
Anton Piller Orders. This was succinctly ruled in the case of GMX Associates Pte Ltd & Anor v.
Lee Yew Pooi [1998] 5 CLJ 245 by Steve Shim Lip Kiong, J at p. 247 where he states thus:
... In my view, the provisions of O. 29 r. 1(2B) of the Rules of the High Court are clear enough.
They relate specifically to interiminjunctions. Nothing can be construed therein to include
Anton Piller orders... (emphasis added)
 An Anton Piller order is a very harsh and draconian order obtained against the defendant. It is a
heavy burden and the threshold for the applicant to satisfy the court in applying for an Anton Piller
order is very high. Because such an order is essentially unfair to the accused party, Anton Piller
orders are only issued exceptionally, (more difficult to obtain compared to mareva
injunction)when:
There is an extremely strong prima facie case against the Defendant,
The damage, potential or actual, must be very serious for the applicant, and
There must be clear evidence that the Defendants have in their possession incriminating
documents (some relavant documents cannot go for anton piller) or things and that

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there is a real possibility that they may destroy such material before the disposal of the
main trial
 Very2 sure that the document is in the premise & real possibility df can or will
disposed
 Ex parte application
 Will go to the premise with the police
 If the document cannot be find, there will be damages
 Cannot sue for trespass as it was court order. Only can go for damages.
Conditions to be fulfilled before Anton Piller Injunction can be granted:
- Applicant must show extremely strong prima facie against the respondent
- Clear evidence the respondent is in possession of the incriminating material and there are real
threat it will be removed, destroyed
- Whether the refusal to grant such an order will have a serious effect on the pf
- The court when granting the order must ensure the proper undertaking and detailed safeguards
are set out in the order which may include the appointment of independent supervising solicitor
and the manner in which the premises may be entered, search and inspected inclusive of the
incriminating material which need to be removed.
The order though it appear to be in the nature of a search warrant, it is not so.
- Thus, no forcible entry can be made against the wishes of the df.
- If df fails to comply with the order, he can be commit for contemp. O29 r 2 also provides for the
detention, custody or preservation of any property. However O29 r (2)(b) states that this order
generally envisages an application.
- If inter partes application is made, the element of surprise will be lost
PROCEDURE
- The application is made ex – parte, before a judge in chambers. ‘
- The applicant in his affidavit msut set out the relevant facts showing that an order is necessary.
He must set out the relevant documents or property showing strong evidence that serious harm
will be suffered if the order is not made.
- The applicant must also state the address of the relevant premises incriminating evidence will be
found.
- The applicant must also give an undertaking for damages. Normally the order will state that the
entry is to be effected by the applicant’s solicitor, with such assistance as may be necessary.

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- In practice, Anton Piller order is granted to secured incriminating evidence which may be destroy
or removed by the df.
Erinford Order
 Erinford Properties Ltd v Chesshire Country Council
o An Erinford injunction is an injunction granted pending the appeal against the dismissal of
the application for an injunction.
o The principles underlying in granting an erinford injunction is that the court has
jurisdiction to grant an unsuccessful party an injunction, pending an appeal against the
dismissal of the application for injunction.
o Such an injunction is rarely given. The strict test is that whether there is likelihood of a
successful appeal being rendered nugatory.
o The court in the exercise of its discretion must be convinced it was desirable that the
status quo of the parties be maintained one appeal.
Detention, Preservation or Inspection of Property
Sale of Perishable Property (mudah rosak)
Arrest and Attachment before Judgment
Interim Payments