Professional Documents
Culture Documents
PART I
INJUNCTIONS
BLOG.ATVIEW.COM
Let the first act of every morning be to make the following resolve for the day:
- I shall not fear anyone on Earth.
- I shall fear only God.
- I shall not bear ill will toward anyone.
- I shall not submit to injustice from anyone.
- I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering.
Mahatma Gandhi
Page 1
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Introduction
Meaning of an injunction
Nature of injunctions
Characteristics of injunctions
Legal principles
Types of injunctions
No grant of injunctions
Injunction to perform negative agreement
Powers of the court to grant damages
Case law Analysis
Comparative Studies
Syariah Perspective
Critical Comments
Conclusion
Page 2
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Introduction
An
Page 3
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Meaning of an injunction/Nature of injunctions:
An
Page 4
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
General characteristics of an injunction
The
Injunction
Page 5
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
General characteristics of an injunction
Refusal to obey an injunction may result in the criminal penalty of
contempt of court, with the risk of fine and/or imprisonment
Non-compliance
granting an injunction the court acts in personam and will not suffer
anyone within its reach to do what is contrary to the notions of equity.
Page 6
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Legal principles that govern the granting of injunctions:
legal
The
Law
Page 7
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
First
injunctions
Page 8
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Perpetual injunctions
Page 9
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Perpetual
injunctions
52(2) states that when such an obligation arises from contract, the
court shall be guided by rules and provisions contained in Chapter II
(which deals with specific performance). In other words, in granting an
injunction by the court in the context of a breach of contract, reference
must be made to Chapter II of the Act as part of the procedure.
Page 10
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Perpetual injunctions
sec
(b)
Page 11
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Perpetual injunctions
The directors of a fire and life insurance company are about to engage
in marine insurances. Any of the shareholders may sue for an injunction
to restrain them.
Page 12
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Note: These are not the only illustrations and thus reference must be
made to Sec 52 of the Specific Relief Act 1950 for further illustrations.
Page 13
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Perpetual injunctions
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
1963. It was held that a perpetual injunction would issue against the
defendant requiring her to keep the water supply open and for that
purpose to comply with all regulations of the Waterworks Department.
The plaintiffs were awarded damages for such damage as they had
suffered as a result of the lack of water from the date by which the
defendant could reasonably have had the corroded pipe replaced to
the date of restoration of the water supply.
Page 15
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Mandatory injunctions
restrains
Page 16
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Mandatory injunctions
illustrations
A builds a house with caves projecting over Bs land. B may sue for an
injunction to pull down so much of the caves as so project.
In the case put as illustrations (i) to sec 52, the court may also order all
written communications made by B, as patient, to A, as medical
advisor, to be destroyed.
In the case put as illustration (v) to sec 52 the court may also order As
letter to be destroyed.
Note: These are not the illustrations to sec 53 and thus reference must
be made to the other illustrations as well under the sec.
Page 17
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Mandatory injunctions
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 19
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Mandatory
injunctions
Page 20
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions: (.)
Mandatory injunctions
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Relief Act 1950 did not arise at as the agreement was not valid in the
first place being contrary to the Act and the Order.
INJUNCTIONS
Types of injunctions
Prohibitory injunctions
Page 22
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
Page 23
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
Page 24
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
Page 25
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
before the court was whether the court has an inherent power to
extend an ex parte injunction order from time to time until the disposal
of the main suit. The court held that by virtue of O 29 r 1(2BA) of the
Rules of the High Court, the life of ex parte injunction cannot go beyond
the period of 21 days. The court has no power to extend the life of an
ex parte injunction beyond 21 days because of the words shall
automatically lapse.
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The principle purpose of the remedy is to protect the plaintiff against
injury by violation of his or her right for which he or she could not be
adequately compensated in damages recoverable in an action if the
uncertainty were resolved in his favour at the trial.
Case Law Analysis
American Cyanmid Co v Ethicon Ltd [1975] AC 396, per Lord Diplock).
Case Law Analysis
Lord
Hope in the case of AG v Punch Ltd [2003] 2 WLR 49, he said that
the purpose of interlocutory injunction is to regulate, and where
possible to preserve, the rights of the parties pending the final
determination of the matter which is in issue by the court. That
purpose should not be confused with courts reason for deciding that it
would be appropriate to grant interlocutory injunction.
Page 26
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
It
Page 27
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
d)
(ii)
The court must be satisfied that the applicants case is not frivolous or
vexatious and that there is a serious question to be tried. Once this is
satisfied, the crucial element would then be the balance of convenience
i.e. the claimant need establish only a real possibility of success not a
probability.
Page 28
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Herbage v Pressdram Ltd [1984] 1 WLR 1160- where the court stated
that the American Cyanamid has not affected this principle, which
might, therefore, be regarded as a special factor.)
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
Page 29
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
had not stated the facts fully and accurately to the court and that he
had not disclosed all material facts. Applying the principles in American
Cyanamid Co v Ethicon, the court held that the motion to dissolve the
injunction should be dismissed, as there was a serious question to be
tried and therefore measures should be taken to preserve the status
quo.
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
sole ground of the application that the injunction be set aside was that
the plaintiff had not stated the facts fully and accurately to the court
and that he had not disclosed all material facts. The could held that
applying the principles in American Cyanamid Co. v Ethicon, the motion
to dissolve the injunction should be dismissed, as there was a serious
question to be tried and therefore measures should be taken to
preserve the status quo.
Page 31
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
Page 32
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
d)
(ii)
Another issue to address while dealing with this test is that of the
factors which may be relevant in determining balance of convenience.
Case Law Analysis
American Cyanamid, Lord Diplock mentioned three considerations and
they are: (i) the preservation of the status quo; (ii) strength of the case
in relation to the opponent; & (iii) other special factors (i.e. public
interest argument etc).
Page 33
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
run and the sound of the music was under control. There was no
objection from the authorities which controlled the operation of the
business. The defendant claimed that the plaintiff acted with mala fide.
Allowing the plaintiffs application for an injunction after scrutinising all
the facts, the court held the defendant be restrained by an injunction
from causing nuisance to the plaintiff until the disposal of the trial of
the plaintiffs claim against the defendant.
Page 34
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The test in American Cyanamid
Case Law Analysis
UMAS
Sdn Bhd v RHB Bank Bhd [2001] 1 AMR 1024- where the
plaintiff brought an action against the first and second defendants,
alleging trespass of a certain site, and conversion of its equipment and
machines and an injunction was granted in their favour preventing the
defendants from entering the site or, among others, removing the
machines.
_
Page 35
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Interlocutory (or interim) injunctions
The
It
Page 36
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types of injunctions
Page 37
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
then appealed to dissolve and set aside the mandatory injunction. This
was refused and the appellants appealed. The learned judge on the
facts and circumstances of the case rightly concluded that this was an
exceptional case where the court was justified in granting a mandatory
injunction on an ex parte application before trial.
Page 38
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Types
of injunctions
Interim
mandatory injunction
Probably
Page 39
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
When injunctions cannot be granted
It
is important to note that there are instances where the court may
refuse to grant an injunction based on some reasons or arguments. For
example, sec 54 of the Specific Relief Act 1950 provides that injunctions
cannot be granted in the following cases:
(a) To stay a judicial proceeding at the institution of the suit in which
the injunction is sought, unless such restrain is necessary to prevent a
multiplicity of proceedings;
(b) To stay proceedings in a court not subordinate to that from which
the injunction is sought;
To
To
Note: These are not the only cases where an injunction cannot be
granted by the court. There are other cases as well under the sec.
Page 40
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
When injunctions cannot be granted
In order to understand the provision of sec 54 better, reference must
be made to some of the illustrations given under the sec. The following
are some of the illustrations:
Page 41
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunction to perform negative agreement
The
Page 42
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
Pertama
Cabaret Nite Club Sdn Bhd v Roman Tam [1981] 1 MLJ 149where the appellants were the owners of a night club in Kuala Lumpur.
The respondent was a well known singer from Hong Kong. The
respondent had signed a contract agreeing to appear and sing at the
appellants night club for a number of days. Clause 15 of the contract
provided that if the respondent breached any of its terms, the
appellant could terminate the contract; and that in the event of such
termination, the respondent was not to perform in Kuala Lumpur for a
fixed period of three months thereafter. The respondent declined to
honour his contract and began performing to another night club. The
appellant sued and applied for an ex parte interim injunction to restrain
the defendant from appearing at any opera house, theatre, concert hall
or other public or private entertainment in Kuala Lumpur until the
hearing of the summons. The SC granted an interim injunction
restraining the defendant from singing in any place in Kuala Lumpur
given that in the contract with the plaintiffs, the defendant had
covenanted not to perform in the stipulated area during the validity of
the contract or three months thereafter.
Page 43
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
It is important to note that under English law, an injunction may be
granted as to restrain breaches of negative covenants. See the case of
Doherty v Allman (1978)-where the court stated that: If parties for
valuable consideration, with their eyes open, contract that a particular
thing shall not be done, all the court of equity has to do is to say, by
way of injunction, that which the parties have already said by way of
covenant, that the thing shall not be done; and in such case the
injunction does nothing more than give the sanction of the process of
the court to that which already is the contract between the parties
Case Law Analysis
Lumley v Wagner (1852)- where Miss Wagner, an opera star, had
agreed with Lumley that she would sing at Her Majestys Theatre during
a certain period, and would not sing anywhere else without his written
permission. She made another engagement with Gye to sing at Covent
Garden and abandoned her previous commitment to Lumley, who
sought an injunction to restrain her from singing for Gye. Lord St.
Leonards held that an injunction should be granted to restrain the
Page 44
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunction to perform negative agreement
Case Law Analysis
an injunction to perform a negative agreement. Common law position
or approach is, the court will not normally grant an injunction to
restrain a defendant from acting in breach of a negative undertaking if
to do so would compel performance of an agreement otherwise
unenforceable in equity.
Case Law Analysis
Dayang Nurfaizah bte Awang Dowty v Bintang Seni Sdn Bhd [2004] 2
AMR 555, [2004] 2 MLJ 39- where Muhamed Hishamudin J found that
the management agreement entered into by the parties was in essence
a contract for personal services and was thus unenforceable (see sec
20(1(b) of the Specific Relief Act 1950).
In Dayang Nurfaizah, the first defendant applied for an interlocutory
injunction against the plaintiff to restrain the plaintiff from appointing
or engaging any person, other than the first defendant , as her personal
manager and to restrain the plaintiff from making any public
performance without the consent of the first defendant. The court held
Page 45
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 46
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunction to perform negative agreement
In order to understand the provision of sec 55 of the Specific Relief Act
1950 better, it would be vital to make reference to some few
illustrations given under the sec. The following are the illustrations:
Note: These are not the only illustrations to sec 55 of the Specific Relief
Act 1950. Thus, reference could be made to other illustrations under
the sec as well.
Page 47
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Powers of the court to grant damages in lieu of injunction
It
Page 48
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conclusion
overriding
55 of the Specific Relief Act 1950 does not take away the
fundamental that a grant of an injunction remains a matter a of judicial
discretion.
Page 49
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Q & A Session
Source: attorneys-sc.com
A democracy is nothing more than mob rule, where fifty-one percent of the people may
Page 50
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
TUTORIAL QUESTIONS
Discuss, explain and analyse the following with good case support :1.
2.
3.
4.
5.
6.
7.
8.
Meaning of an injunction
Nature of injunctions
Characteristics of injunctions
Legal principles
Types of injunctions
No grant of injunctions
Injunction to perform negative agreement
Powers of the court to grant damages
Page 51
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
PART II
INJUNCTIONS
Page 52
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
As my sufferings mounted I soon realized that there were two ways in which I could respond
to my situation -- either to react with bitterness or seek to transform the suffering into a
creative force. I decided to follow the latter course.
Martin Luther King Jr.
Introduction
Injunctions in public law
Mareva injunction
Conditions for the grant of Mareva injunctions
Activities of third parties
Anton Piller order
Conditions for Anton Piller order
Case law Analysis
Comparative Studies
Syariah Perspective
Critical Comments
Page 53
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Conclusion
INJUNCTIONS
Introduction
Injunctions
Page 54
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Injunctions in public law
Therefore, injunctions in public law play an important role by
acting as a remedy in protecting people from arbitrary and an
affair actions and decisions of these public bodies.
Page 55
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Mareva injunctions
The Mareva injunction is a specialised form of injunction. It is a
judicially crafted remedy.
Page 56
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Mareva injunctions
It is important to note that the restraint is not restricted to
prevent the removal of assets from jurisdiction but extends to
their dissipation within jurisdiction as well.
Page 57
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conditions for the grant of Mareva injunctions
The legal basis for the grant of a Mareva injunction is the risk
that the defendant may deal with its property in such a way as
not to satisfy judgment in favour of the plaintiff, and for the
purpose, the order or injunction may be granted whenever it is
just and convenient to do so.
Zainal Abidin bin Haji Abdul Rahman v Century Hotels Sdn Bhd
[1982] 1 MLJ 260- This was an appeal from the decision of
Hashim Yeop A. Sani J. The respondent had let the third floor of
a nine-storey building belonging to them to the appellant for
Page 58
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis
Poly Electronic & Electrical (M) Sdn Bhd v Daewoo Corp (No.1)
[2003] 2 MLJ 310- where the plaintiff had obtained a Mareva
injunction. By the Mareva injunction, the defendant was
restrained until further order of the court, whether by
themselves, their servants, agents or howsoever, from
disposing of or dealing with its assets within the jurisdiction, in
so far as the same does not exceed the sum of RM5,263,475
save such sums as are reasonably necessary for the defendants
Page 60
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
The applicant must have a good arguable case- See the case of
Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213where Gopal Sri Ram stated that in the present case there was
an added consideration in that the appellants were applying for
a Mareva injunction. As such, the relative strength or weakness
of the defence filed during the early stages of action was
Page 61
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
The following are the guidelines governing the grant of the
injunction or order:
Ang Chee Huat v Engelbech Thomas Joseph [1995] 2 MLJ 83where in dismissing the appeal the court held that the three
essential requirements for granting a Mareva injunction had
been considered by the judicial commissioner. With regard to
Page 62
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis
The applicant must make full and frank discloser of all the
material matters.
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 64
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
learned judge was satisfied on the evidence before him that the
respondents had shown that they had a good arguable case,
that the defendant had assets within the jurisdiction and that
there was a risk of the assets being removed before judgment
could be satisfied. In the circumstances the learned judge not
only had jurisdiction to grant the Mareva injunction prayed for
but he had also granted the injunctive remedy on correct
principles. In this case, the respondent had brought an action
against Lorrain Osman, who was a director of the respondent
and the chairman of the second respondent, for the total sum
of $27,625,853.06 which they claimed to be secret profits made
by Lorrain without their knowledge and approval. The
respondents also made an ex parte application for a Mareva
injunction to restrain Lorrain from transferring his assets out of
jurisdiction and also for an order of discovery for Lorrain to
disclose the value, nature and whereabouts of all his assets.
The orders which were made on January 10, 1985 could not be
served on Lorrain and the learned trial judge, on the application
of the respondents, extended the Mareva injunction to
Lorrains assets in 32 other banks in addition to the 6 banks
cited in the earlier order and also to his shares in 104 other
companies apart from Aspatra Sdn Bhd and the 4 companies
mentioned in the original order.
INJUNCTIONS
Page 65
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis
Page 67
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Debtors Act 1957. The targets of the said application were two
parcels of land belonging to the defendants, or the proceeds of
sale thereof, insofar as the same did not exceed M$16,823,443
until the hearing of the action or until further order. The two
properties were the Sungei Besi property and the Petaling
Jaya property.
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
The applicant should provide some grounds of believing that
there is some risk of the assets being removed before
satisfaction.
Case Law Analysis
Page 68
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Ang Chee Huat v Engelbech Thomas Joseph [1995] 2 MLJ 83where in dismissing the appeal the court held that there was a
clear inconsistencies between the declaration of trust and the
title to the land, and between the appellants statement of
defence and his affidavit in reply. Having considered the
evidence, the conduct of the appellant was lacking in probity
and honesty. In the circumstances, there was a real risk that the
assets of the appellant would be dissipated should the
respondent succeed at the trial.
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Case Law Analysis
Page 69
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 70
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
The applicant must give undertaking in damages.
It is important to note that in deciding to grant a Mareva
injunction given the possible drastic effect of the grant,
considerable caution should be exercised.
Page 71
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Guidelines for the grant of Mareva injunctions
Page 72
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
The fact that the application is made inter partes may indicate
that the fear of the defendant disposing of the property may
not always be justified.
Page 73
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 74
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Activities of third parties
Case Law Analysis
Cardile v LED Builders Pty Ltd (1999) 162 ALR 294- the
Australian High Court stressed that the expression that there
ought to be a flexibility in the grant of Mareva orders ought not
to be understood as to allow it to cloak a lack of analytical
rigour and to escape the need to find a doctrinal and principled
basis for orders that are made. In so far as the substantive law
is concerned, a distinction is to be maintained between its
grant so as not to defeat satisfaction of the plaintiffs claims
and orders which extend to third parties who cannot be shown
to have frustrated, actually or prospectively, the administration
of justice.
Page 75
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 76
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Anton Piller order
The Anton Piller Order, an exceptional and powerful prelitigation mechanism, can be resorted to by a plaintiff to
preserve evidence against infringers.
Page 77
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
All in all, such orders are rarely made, and will only be
considered by the courts if there is no suitable alternative
method of securing justice for the plaintiff.
Page 78
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conditions for granting an Anton Piller order
Page 79
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conditions for granting an Anton Piller order
Clear evidence that the defendant is in possession of
incriminating materials.
Given that the strategic advantage and the uniqueness
presented by the execution of Anton Piller orders is the
preservation of evidence for the purpose of trial, the plaintiff is
correspondingly required to establish that, should the infringer
be given advance notice of the remedy sought, there is a real
danger that important evidence will be destroyed, concealed or
taken out of the jurisdiction.
Page 80
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conditions for granting an Anton Piller order
Real possibility that they may, unless restrained, destroy such
material before the marking of inter partes application.
Abuses associated with the execution of this order are real, it
becomes vital that certain requirements be fulfilled from the
very beginning.
Page 81
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Except where there are good reasons for doing otherwise, the
order should not be executed at business premises save in the
presence of a responsible officer or representative of the
company or trader in question.
Page 82
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 83
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conditions for granting an Anton Piller order
Arthur Anderson & Co v Interfood Sdn Bhd [2005] 6 MLJ 239the respondent had applied and on 9 March 1999 was granted
several interim reliefs against the appellant, mainly a Anton
Piller order (the Order). The appellant then applied to set
aside the Order while the respondent sought an order to
continue to retain the documents seized pursuant to the Order.
The same High Court judge who granted the Order (1) allowed
the respondents application to retain the documents; but (2)
dismissed the appellants application to set aside the order. The
appellant appealed against both orders. In allowing both
appeals, the court held that even with the absence of any
Practice Direction, the application and execution of an Anton
Page 84
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Privilege from self-incrimination
In respect of the local law as to the applicability of the privilege
from self incrimination and the application for an Anton Piller
order in the context of interlocutory proceedings, there are two
conflicting views.
Position 1
Page 85
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 86
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Page 87
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Privilege from self-incrimination
Page 88
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Privilege from self-incrimination
Position 2
Page 89
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
INJUNCTIONS
Conclusion
Both types of injunctions do play vital roles in helping the
plaintiff in his or her journey or quest for justice. For example,
Mareva injunction would restrain a defendant from disposing
or otherwise dealing with any of their assets within the
jurisdiction of the court, in such a way as not to satisfy
judgment in favour of the plaintiff. On the other hand, an Anton
Piller order would prevent the defendant from concealing,
removing or destroying vital evidence such as documents, or
other moveable property, prior to an inter partes hearing of the
pending action.
Page 90
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
Q & A Session
Source: attorneys-sc.com
Page 91
A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other
forty-nine. Thomas Jefferson--
TUTORIAL QUESTIONS
Discuss, explain and analyse the following with good case support :1.
2.
3.
4.
5.
6.
Page 92