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Civil Procedure : Injunction

As much as i wanted to posts Civil Procedure notes for CLP and/or law notes to help you guys i have been super busy lately, even on weekends! So, i am sorry for the lack of posts lately and postponing meet-ups with certain people. ;(  This month is going to be a busy month for me and a few days back got invitation news that one of my friend, a fellow pupil too is getting married soon! I feel like everyone around me is getting married already or so.   ._.

On another note, i’ve started my legal aid already and i got the National Consumer Complaints Centre. Not my first choice but the people there are really friendly and helpful. On the first day though you will start answering clients’ calls already.

Ok, moving on to Injunction.

So what is the difference between ex parte and inter parte?

You would have seen the words like “ex parte injunction” and “inter parte injunction”.

From my understanding, basically “ex parte” means “for one party”. Hence, it is for the benefit of one party only, without giving notice to the other party. It is a temporary order, pending the formal hearing of the case. In other words, it is an emergency request from one party to prevent from the other party from doing something etc. (depending on what type of injunction is being seek for).

Whereas, “inter-parte” requires the notice of the application to be served on the other party as it is “between parties”.

Injunctions is governed under Order 29 of the Rules of Court 2012. The court has the discretion whether to grant an interlocutory injunction.

The principles in granting interim/interlocutory injunctions are laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd and followed in Malaysian cases such as, Mohamed Zainuddin v Yap Chee Seng [1078] 1 MLJ 40 as follows :-

a) Whether there is a serious question to be tried. The court will look at it prima facie. If there is no serious question to be tried then no injunction will be granted.

b) Whether damages are sufficient to compensate the Plaintiff. If damages are sufficient to compensate the P, then no injunction will be granted.

c) Balance of hardships: If, by not granting the injunction, P suffers more hardship than D, then an injunction will be granted.

d) P must make a full and frank disclosure of all material facts.

e) P must give an undertaking as to damages.

For now, I am just going to randomly post some cases in regards to injunction.

Interlocutory injunction will not be given before a hearing except in special and exceptional cases:

Tinta Press Sdn Bhd v Bank Islam Malaysia Bhd [1987] 2 MLJ 192, at page 194, the Court decided that :-

“The case must be unusually strong and clear in that the Court must feel assured that a similar injunction would probably be granted at the trial on the ground that it would be just and equitable that the Plaintiff’s interest be protected by immediate issue of an injunction, otherwise irreparable injury and inconvenience would result”.

 

Larut Consolidated Sdn Bhd & Anor v Khoo Ee Bee & Ors [1997] 5 CLJ 307, where the Court held that :-

“The Plaintiff’s had made a material non-disclosure by not disclosing the existence of the Supplemental Agreement, and the fact that the sale of their stake in the lottery project had been agreed to prior to the grant of the injunction. The need for full and frank disclosure at the ex parte stage enshrined by O.29 r.2A must be strictly complied with. The Plaintiffs had thus breached the rule and the initial ex parte injunction was discharged and an enquiry as to damages was ordered to be heard after the trial.”

 

Goo Sing Kar v Dato’ Lim Ah Chap & Ors and Other Applications [2002] 2 CLJ 250, the Court held that :-

“A matter is regarded as material if it is a factor that the court will take into consideration in the exercise of its discretion. … Hence, if on an ex parte application, the plaintiff does not make full and frank sufficient disclosure, his application will, in the absence of special circumstances, be dismissed. If an injunction has been granted, it can be set aside.”

 

UBE Engineering Sdn Bhd v UBE Industry Sdn Bhd & Anor [2001] 1 CLJ, at page 304, the Court held that :-

“… In the present case, the plaintiff has not established all the elements of passing-off… There is sufficient evidence to indicate or suggest that the defendants had been in business for more than 2 1/2 years when this application was taken out and that their business was quite extensive. It would be unfair to prevent them from continuing with their business.

Taking everything into consideration and applying the relevant principles, I am of the view that the balance of convenience has to swing in favour of the defendants.”

 

 

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