Group work. Credits go to respective members.

1. Sub-question 1.
“Mary, who has three years left to run on her contract, has written a
letter of resignation to Stark Ltd. She has accepted an offer of
employment at another company, Wonderful Ltd, which has its
headquarters in Brunei.”
1

2. INTRODUCTION
2
Brief Facts • Mary is the leading author and senior member of staff for stark Ltd. She is required to develop
educational Malay Language materials for stark Ltd.
• An employment contract exists between Mary and stark Ltd with a term of 5 years.
• Another condition entailed is that Mary cannot work for any other company during the period
of the contract (5 years) and one year thereafter.
Breach Mary breached two conditions.:
a) Performance of employment contract for a term of 5 years for stark Ltd – When she sent the
resignation letter. She was on her second year of her employment contract and thus resigning
earlier makes her performance of 5 years term incomplete.
b) “Not working for another company ... for one year thereafter.” - When she accepted employment
in another company (Wonderful Ltd) despite a year has not passed after the resignation.
Parties • stark Ltd – Potential plaintiff.
• Mary – Potential defendant.
Equitable
Remedies
• Specific performance to enforce the employment contract; or
• Injunction to enforce the negative agreement.

3. IDENTIFIED ISSUES
3
I. Whether stark Ltd can plead specific performance to enforce the employment
contract?
II. Whether stark Ltd can plead injunction to enforce the negative agreement for
Mary to not work with other company?

4. About this templateISSUE (I)
4
Whether stark Ltd can plead specific performance to enforce the employment contract?
Introduction
• Specific performance is a court order governed by the Specific Relief Act that directs a party to a
contract to perform his or her part of the bargain according to its terms.
• Section 11 of the Specific Relief Act 1950 provides circumstances where an award of specific
performance may be made.
• Mary who has three years left to run on her contract, has written a letter of resignation to Stark Ltd,
breaching the contract between her and Stark Ltd. Since the contract between Stark Ltd and Mary
is an employment contract which is also known as personal services contract, the issue that arises
here is whether Stark Ltd can plead specific performance to enforce the personal service
contract?

5. About this templateCONT.
5
Whether stark Ltd can plead specific performance to enforce the employment contract?
Rules
• Contracts for personal services will not normally be specifically enforced.
• Section 20(1)(a)-(h) provides contracts that are not specifically enforceable.
• Illustration (a) of Section 20(1)(b) applies to personal service contracts:
(a) A contracts to render personal service to B;
A contracts to employ B on personal service;
A, an author, contracts with B, a publisher, to complete a literary work;
B cannot enforce specific performance of these contracts.

6. Cases
Johnson v Shrewsbury and Birmingham Rly Co
Reason for non application of specific performance:
• The delivery of service is closely linked to an employee's personal credentials, rendering it very
arbitrary and thus requiring constant oversight by the courts.
• Parties should not be forced to be in a relationship they have chosen to opt-out of.
GH Giles & Co Ltd v Morris
In regards to the second reasoning for non-application, Meggary, J had rightly noted that, “ ... for whom
may it be said that the quality imperfection is normal or caused by itself?“
About this templateCONT.
6
Whether stark Ltd can plead specific performance to enforce the employment contract?

7. Cases cont.
Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol Negeri Sembilan
• “ ... that the court will not order specific performance of a contract of service between master and
servant ...”
Application
Applying above cases to given situation and in virtue of illustration (a) of Section 20(1)(b), Stark Ltd
cannot plead specific performance to enforce the contract between Stark Ltd and Mary as it is a
personal service contract.
About this templateCONT.
7
Whether stark Ltd can plead specific performance to enforce the employment contract?

8. About this templateISSUE (II)
8
Whether stark Ltd can plead injunction to enforce the negative agreement for Mary to not work with other company?
Introduction
General rule: Injunction and specific performance will not be granted to enforce contracts for
personal service.
Reasons:
• Such enforcement needs constant supervision.
• It is difficult to enforce such contract since it involves the loss of mutual trust and confidence.
Chappell v Times Newspaper Ltd, Megarry J: “The general rule is that an injunction will not be granted
to restrain an employer from terminating a contract of employment ...”
However, injunction can be applied in cases relating to breach of a negative undertaking in contracts
of employment.

9. Rules
Section 55 of Specific Relief Act 1950:
About this templateCONT.
9
Whether stark Ltd can plead injunction to enforce the negative agreement for Mary to not work with other company?
“Notwithstanding paragraph 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.”
Injunction can be granted to enforce a negative agreement.

10. About this templateCONT.
10
Whether stark Ltd can plead injunction to enforce the negative agreement for Mary to not work with other company?
Application
• The negative agreement in question is the clause where Mary cannot work for another company
“during the period of contract and one year thereafter.”
• This clause is within the employment contract which she agreed to when she initially worked for
Stark Ltd.
• When she resigned, the clause is still in effect for the latter part of the clause, “and one year
thereafter,” as to mean, it is binding upon her to not work with another company a year after her
employment ends, whether it be through the means of termination of contract or by her own
resignation.
• The fact she accepted employment at Wonderful Ltd goes to say that she breached the
aforementioned negative agreement.

11. About this templateCONT.
11
Whether stark Ltd can plead injunction to enforce the negative agreement for Mary to not work with other company?
Cases
Lumley v Wagner
• Facts: In the written agreement it was agreed that she would not sing elsewhere without his
written permission. Wagner made an arrangement to sing at Covent Garden and abandoned her
previous commitment. Lumley sued Wagner and applied for an injunction to restrain her from
singing at the Covent Garden and Gye, the owner of the Covent Garden, for inducing Wagner to
break her contract.
• Held: Injunction should be granted to restrain the breach of a negative stipulation and it was not
possible to obtain specific performance.
Pertama Cabaret Nite Club Sdn Bhd v Roman Tan
The scope of section 55 is wider than English law where the issuance of an injunction covers both an
express or implied negative stipulation in a contract.

12. About this templateCONCLUSION
12
In regards to the first breach, we would advise Stark Ltd not to proceed
with specific performance as it is more often than not that contract for
personal services are not awarded with specific performance.
In regards to the second breach, we would advise Stark Ltd to proceed
to plead injunction to enforce the negative agreement. While Mary
cannot be made to work under plaintiff, she can be prohibited to work
with Wonderful Ltd for a year.

13. “All the materials that Mary had been working on have disappeared from
the office, and Stark Ltd fear that they may now be in the possession of
Wonderful Ltd. The company has also discovered that its current
students have received advertisement material from Wonderful Ltd, and
believes that Mary took a list of clients with her. It also believes that
Mary have received payments by Wonderful Ltd and that payment
received are transferred on a regular basis to her bank accounts.” 13
Sub-question 2.
Wonderful LtdStark Ltd

14. INTRODUCTION
14
Brief Facts • Stark Ltd produces compact disc for the purpose of teaching Malay Language to overseas students
by distance learning. Mary was employed to develop new develop new materials within the Malay
literature field. Stark Ltd could play an important part in the new distance learning industry.
• Mary resigned from Stark Ltd and accepted an offer of employment from its competitor,
Wonderful.
• The materials that Mary had been working on disappeared from Stark Ltd. and its current students
have received advertisement material from Wonderful Ltd (who is in the same business as Stark
Ltd.), Stark Ltd. is extremely worried.
• This is because Wonderful Ltd. could be about to produce a new compact disc with the new
materials that Mary was working on with Stark Ltd. This could possibly ruin Stark Ltd’s market.
Breach • Breach of confidence.
Parties • Stark Ltd – Potential plaintiff.
• Mary – Potential defendant. Not Wonderful Ltd because its headquarter is in Brunei.
Equitable
Remedies
• Anton Piller Order

15. IDENTIFIED ISSUE
15
I. Whether Stark Ltd can apply for an injunction to
prevent Mary from taking the newly developed
materials?

16. ◉ Stark Ltd can apply for an
injunction to prevent Mary
from taking the new
developed materials.
◉ The list of clients of Stark
Ltd is an essential
commercial information
which can be considered as
a confidential information.
◉ Robb v Green [1985] 2 QB
315
The list of clients is a confidential
information where injunction can be
applied to prevent its dissemination.
◉ But if Wonderful Ltd had
already made use of Stark’s
list of clients, then damages
would be an appropriate
remedy instead of an
injunction.
Legal Rule + Application
16

17. IDENTIFIED ISSUES
17
II. Whether an Anton Piller Order can be granted to Stark
Ltd to enter Mary’s house and/or Wonderful Ltd to
search for the new materials worked on by Mary
during her employment at Stark Ltd?

18. About this templateLegal Rule
18
3 essential pre-conditions:
Anton Piller KG v Manufacturing Processes Ltd and others [1982] 1 MLJ 217
(a) An extremely strong prima facie case;
(b) Very serious potential or actual damage to the plaintiff;
(c) Clear evidence that the defendant is in possession of incriminating
materials and that there is a real possibility that they may, unless restrained,
destroy such material before making of inter parties application
Anton Piller Order is an order from the court which allows the Plaintiff’s
solicitor to enter the Defendant’s premise for inspecting documents and
chattels which are vital for Plaintiff’s case.

19. Cases
Penerbit Fajar Bakti Sdn Bhd v Cahaya Surya Buku dan Alat Tulis
• .Facts: Plaintiff contended that the defendant had infringed their copyright in two books and
obtained an Anton Piller order against the defendant.
• Held: In a copyright infringement complaint, prima facie evidence of ownership in the copyright is
sufficient to justify asking for and being given an Anton Piller order.
Application
The material developed by Mary belongs to Stark Ltd because it was done during her course of
employment with Stark Ltd. However, the materials disappeared right after the resignation of Mary
and advertisement materials was then found distributed by Wonderful Ltd. Hence, it is a strong prima
facie case that the list of clients and materials belongs to Stark Ltd is now in possession of Mary.
About this templateAn extremely strong prima facie case
19
Legal Application

20. Very serious potential or actual damage to Stark Ltd
20
Legal Application
Cases
Anton Piller KG v Manufacturing Processes Ltd
• .Facts: Appellant learned that information would be supplied to their competitors to allow the
competitors to produce a similar product as the appellants and this would cause serious damage
to the appellant’s business.
• Held: Hence, Anton Piller order is granted.
Application
Wonderful Ltd have access to the materials done by Mary during her course of employment at Start
Ltd, this would cause unfair competition towards the business of Stark Ltd..

21. Clear evidence that Mary has been receiving monies from
Wonderful Ltd in exchange for confidential information
21
Legal Application
Cases
Lian Keow Sdn Bhd v C Paramjothy & Anor [1982] 1 MLJ 217
• .Facts: Plaintiff apply Anton Piller order to prevent the first defendant from destroying the trust
deed and file relating to the said land.
• Held: Anton Piller is granted to order the defendant to permit the plaintiff’s representatives to
enter his premises to inspect and remove vital material which the defendant might destroy or
dispose of so as to defeat the ends of justice before an inter parte application for an injunction
could be made.
Application
Mary may destroy such material before making of inter partes application because those materials
prove that Mary did infringed the new material belonged to Stark Ltd and current students’ list of
Stark Ltd.

22. Clear evidence that Mary is in breach of her employment
contract with Stark Ltd
22
Legal Application
Cases
Yukilon Manufacturing Sdn Bhd & Anor v Dato' Wong Gek Meng & Ors [1998] MLJU 60
• .Facts: Defendants were misappropriating monies and diverting business from the Plaintiff to one
of the Defendants
• Held: Anton Piller order was granted to authorise the plaintiffs to enter the premises of defendant
to search for all the account books, bank statements, ledgers, cash books, and other financial
documents of the defendant kept in the premises and to inspect them and remove them to the
safekeeping of the plaintiffs’ solicitors.
Application
The bank statements of Mary can prove that she has been receiving money from Wonderful Ltd for
misappropriating the confidential information of Stark Ltd during her employment with Stark Ltd as
the negotiations over conditions of service between Stark Ltd and Mary have just broken down
recently.

23. Recent Development
23
Legal Application
Cases
Apparatech Sdn Bhd v Ng Hock Chong 2006.
Facts: The defendant who was once the managing director in the business of plaintiff has now
become a competitor to plaintiff. This has made plaintiff suspicious and sought an order of Anton
Piller to check whether defendant has obtained the confidential information that belongs to the
plaintiff and the court has granted the order for the plaintiff to enter the defendant premises to obtain
those documents that may help the plaintiff. However in high court, the order is discharged on the
grounds that the order is too wide, imprecise and vague.
Held: Anton Piller order was granted to authorise the plaintiffs to enter the premises of defendant to
search for all the account books, bank statements, ledgers, cash books, and other financial
documents of the defendant kept in the premises and to inspect them and remove them to the
safekeeping of the plaintiffs’ solicitors.
Application
Differentiated from the presence case as Stark Ltd has addressed the documents that they
specifically want, which are the list of clients, the material that Mary worked on and her bank
statements.

24. ◉ An application of APO can be made when all three elements
are fulfilled.
◉ The APO is an order on the defendant in personam to permit
inspection (i.e. on Mary and Wonderful Ltd).
◉ Since Mary is a woman, and there is a high probability of Mary
being alone in her house, the APO must be served by, or in
the presence of another woman.
Application
24

25. IDENTIFIED ISSUE
25
III. Whether a Mareva Injunction can be sought against
Wonderful Ltd?

26. Legal Rule
◉ Mareva Compania Naviera S.A. v. International Bulk
Carriers S.A [1975] 2 Llyod’s Rep 509:
◉ Ex-parte injunction to prevent the defendant from removing/disposing
assets out of jurisdiction.
◉ Zainal Abidin b. Haji Abdul Rahman v Century Hotel
Sdn Bhd (1982) MLJ 260: (FC)
◉ HC in Malaysia has jurisdiction to grant Mareva Injunction in
appropriate and proper circumstances by virtue of Paragraph 6
of the Schedule to the CJA 1964.
26

27. Legal Rule
◉ Elements of Mareva Injunction: (Bumi Armada
Navigation Sdn Bhd v Mirza Marine Sdn Bhd [2015]
MLJU 953)
1. Plaintiff must have a good arguable case;
2. Defendant’s assets are within the jurisdiction;
3. Real risk of Defendant dissipating its assets;
4. BOC in favor of granting Mareva Injunction.
27

28. Legal Rule
◉ THIRD CHANDRIS SHIPPING CORPORATION & ORS
V UNIMARINE SA(1979) 2 ALL ER 972
◉ The P should make a full and frank disclosure of all matters in his knowledge which are material for the Judge to
know;
◉ P should give particulars of his claim against the D, stating the grounds of his claim and the amount thereof, and fairly
stating the points made against it by the D;
◉ P should give some grounds for believing that the D has assets within the jurisdiction; and
◉ P should give some grounds for believing that there is a risk of the assets being removed before the judgment.
◉ P must give an undertaking as to damages, in case he fails in his claim or the injunction turns out to be unjustified –
bond/security.
28

29. Application
◉ Wonderful Ltd has its HQ in Brunei, therefore there is
a real risk of its assets being transferred abroad when
Stark Ltd seeks for damages against it.
◉ Mareva Injunction may be granted to prevent the
defendant from removing/dissipating its assets out of
the jurisdiction of the court so as to frustrate the
judgement.
29

30. Legal Rule
◉ Babanaft International Co. v. Bassatne (1989) 1 All ER
433
◉ This case extended Mareva Injunction out of the court’s
jurisdiction/worldwide extension of MV injunction.
◉ Babanaft Proviso: This injunction is an order directed on to the
Defendant himself as Mareva injunction is an order made in
personam and had no effect on third parties.
30

31. Legal Rule
◉ Metrowangsa Asset Management Sdn Bhd & Anor v
Ahmad B. Hj. Hassan & Ors(2005) 1 MLJ 654
◉ Abdul Malek Ishak, J :
“There was nothing to prevent this court from granting a worldwide
Mareva in favour of the Plaintiffs. The assets of the Defendants...are abroad”.
31

32. About this templateCONCLUSION
32
We would advise Stark Ltd to:
1. Seek damages against Wonderful Ltd;
2. Apply for Anton Piller order to search for incriminating
documents in Mary’s house & Wonderful Ltd;
3. Apply for Mareva Injunction, to freeze Wonderful’s
assets to ensure they are not disposed before the
judgement;

33. “PGBM has called a strike at Stark Ltd’s premises as a result of the
breakdown in negotiations. Picketing is taking place on a daily basis.”
33
Sub-question 3.
Stark Ltd

34. IDENTIFIED ISSUES
34
I. Whether quia timet injunction could be granted to
Stark Ltd to stop the strike called by PGBM?
II. Whether interlocutory injunction could be granted
to enjoin the picketing?

35. About this templateISSUE (I)
35
Whether quia timet injunction could be granted to Stark Ltd to stop the strike called by PGBM?
Quia Timet Injunction can only be granted In specified circumstances
Rules
Vivamall Sdn Bhd & Ors v. TDC Constructions Sdn Bhd & Ors
Held: it is trite law that a quia timet injunction will only be granted if the Plaintiff can show that the
defendant will do something that will cause irreparable harm to the Plaintiffs..

36. About this templateCont.
36
Whether quia timet injunction could be granted to Stark Ltd to stop the strike called by PGBM?
Cases
London Borough Islington v Elliot [2012] EWCA Civ 56
Held: Quia Timet injunction is to restrain the defendants in threatening or intending to do something that
will cause the plaintiff irreparable harm. However, this injunction should not ordinarily be granted unless the
plaintiff can show a strong probability that irreparable harm can be resulted from defendant act. The
irreparable harm was defined as a harm which if occurs, cannot be reversed or restrained by an immediate
interlocutory injunction and cannot be adequately compensated by an award for damages.
Meidi (M) Sdn Bhd v Meidi-Ya Co Ltd, Japan & Anor [2008] 6 MLJ 433
Held: The “real risk” test to determine whether the defendant will do something which will cause the
plaintiff irreparable harm, not 'strong possibility'.

37. About this templateCont.
37
Whether quia timet injunction could be granted to Stark Ltd to stop the strike called by PGBM?
Application
In this case, the fact that PGBM has called a strike at plaintiff’s premises has shown that there is a real risk
that the strike will be conducted and it is a kind of imminent danger for the plaintiff. Besides, the strike will
also cause an irreparable or substantial harm to Stark Ltd as it will caused plaintiff unable to carry on his
business where they might lost their customer due to the failure to produces the compact disc to the
overseas students. The strike will also cause damage to Stark Ltd reputation as an education centre where
education related union like PGBM called for a strike against them indicates a denial of profession of Stark
in education field. Hence, the strike if conducted will surely cause irreparable harm to Stark Ltd.

38. About this templateISSUE (II)
38
Whether interlocutory injunction can be granted to enjoin the picketing?
Rules
American Cyanamid case
1. There is a serious question to be tried
2. Balance of convenience
3. Special factors

39. About this templateThere exists a serious question
39
Whether interlocutory injunction can be granted to enjoin the picketing?
Authorities
Hong Kong Vegetable Oil Co. Ltd v. Malin Sirinaga Wickers & Ors
No need to show a prima facie case. The plaintiffs must show some right or interest in the subject
matter of the complaint. The equitable remedy of an injunction is only available "where there is an
invasion of a legal or equitable right
Snell’s Equity
The claimant need establish only a real possibility of success and not a probability
Application
It can be adduced that the picketing that happened everyday entails from the call by PBGM for a
strike. Hence, the picketing which happens in the premise of Start is unlawful because
(a) disrupts the business – s39 Industrial Relation Act 1967
(b) Picket cannot take place in the employer’s property – s40 Industrial Relation Act 1967

40. About this templateBalance of convenience
40
Whether interlocutory injunction can be granted to enjoin the picketing?
General rule
• There must be a threat of irreparable injury which cannot be afterwards compensated by
damages
• Interlocutory injunction should be granted if the damage would not be an adequate remedy and
defendant is not able to make the compensation
• Court will also look at the circumstances if the defendant succeed in the trial, plaintiff will be able
to make the compensation upon the injunction.
Application
• The defendants in this case is hard to be identified and hence not able to pay the compensation to
the Stark Ltd.
• Distinguish from Morning Star Co-operative Society Ltd case, Stark Ltd in their capacity as a
company is able to compensate the defendants.
• Referring to Hubbard v. Pitt, the continuance of picketing would interfere with Stark Ltd’s business
and damage would be an inadequate remedy.

41. About this templateCONCLUSION
41
Stark Ltd could apply for quia timet order as there is an
imminent danger and real risk entailing the strike.
Having fulfilled the principles in American Cyanamid, we
would suggest Stark Ltd to seek for interlocutory
injunction to enjoin the picketing.

42. THANK YOU
42