PREVENTIVE

RELIEF
BY NORMAN ZAKIYY

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The jurisdiction to grant injunction in Malaysia can be found
in Chapter IX of the Specific Relief Act 1950 which states
that preventive relief may be granted at the discretion of
the court by injunction.
Section 50 - Preventive relief how granted

Preventive relief is granted at the discretion of the court by

injunction, temporary or perpetual.

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INJUNCTION
form of court order to:
oeither prohibit a party from doing, or
oto compel a party to do, a specific act, temporarily
or permanently.
In appropriate circumstances, a temporary or
interim injunction may be granted to maintain the
status quo prior to trial.
A breach of an injunction amounts to a contempt
of court and the party in breach may be subjected
to committal proceedings.
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INJUNCTION
An injunction which prohibits the doing of an
act is prohibitory while an injunction which
directs the defendant to do something to
repair an omission is mandatory – MBf
Holdings v East Asiatic Co (Malaysia) Bhd
[1995] 3 MLJ 49.

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INJUNCTION
Case: Niino & Co Ltd v Kow Lup Kai [1992] 1 MLJ 463
Syed Ahmad Idid – ‘What is an injunction? Stroud’s Judicial
Dictionary (4th Ed) Vol 3 p 1369 defines an injunction as a
judgment, or order, to do or to refrain from doing a
particular thing. It is either (1) interlocutory or interim, ie an
order until the hearing of the action or further order; or (2)
perpetual, ie a judgment determining or concluding the
right in litigation; it is also (a) restraining, ie when it inhibits
the doing of anything; or (b) mandatory, ie when it
commands the doing, or restoring, of anything’.

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CLASSIFICATION OF INJUNCTION
Perpetual injunction – a final judgment, granted after a trial
on the merits except by consent of the defendant;
Interlocutory injunction – granted at an earlier stage in the
proceedings, before the court has had an opportunity to
hear and weigh fully the evidence on both sides. It is
generally expressed to continue in force ‘until the trial of
this action or further order’;
Interim injunction – is still more temporary and remains in
force only until a named day eg Thursday 11.00 am on 26th
February ( or so soon thereafter as counsel may be heard);

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Cont.
Quia timet injunction –granted even before plaintiff’s
legal rights have not yet been infringed;
plaintiff obtains a quia timet injunction because he fears
that wrong will be done to him if the order is not made –
Redland Bricks Ltd v Morris [1970] AC 652, Lord Upjohn
stated that ‘to prevent the jurisdiction of the courts being
stultified equity has invented the quia timet action, that is
an action for an injunction to prevent an apprehended legal
wrong, though none has occurred at present’.

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MAREVA INJUNCTION
Purpose to freeze the assets of the
defendant prior to trial.
In Malaysia, the application for the Mareva injunction did
not get a good start, on the ground that the Malaysian court
had no jurisdiction to grant such relief.
The legal remedy under the Debtors Act 1957, by way of
attachment of property before judgement was also an
obstacle to the introduction of the Mareva injunction.

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MAREVA INJUNCTION
Purpose to freeze the assets of the
defendant prior to trial.
In Malaysia, the application for the Mareva injunction did
not get a good start, on the ground that the Malaysian court
had no jurisdiction to grant such relief.
The legal remedy under the Debtors Act 1957, by way of
attachment of property before judgement was also an
obstacle to the introduction of the Mareva injunction.

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MAREVA INJUNCTION
However, in 1984, in the case of Zainal Abidin v.
Century Hotel Sdn Bhd, that such an application
was granted when Raja Azlan CJ held that Mareva
injunction shoud be available in Malaysia to fulfill
modern commercial need.

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MAREVA INJUNCTION
Further reading:

Ali, Zuraidah (2009) Mareva injunction as a preventive relief:

the Malaysian experience. IIUM Law Journal, 17 (2). pp. 225-
245. ISSN 0128-2530
This paper examines the development of the Mareva
injunction and its implementation in Malaysia.

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PROCEDURE RELATING TO
MAREVA INJUNCTION
Ex parte
Urgency
Secrecy
Must have a good arguable case (Rasu Maritima v
Perusahaan etc)
Application in support must show full a

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PROCEDURE RELATING TO
MAREVA INJUNCTION
Application in support must show :

1. Full and frank disclosure by Plaintiff

2. Plaintiff must set out grounds of his claim with
particularity and fairly state the points made against
defendant
3. Plaintiff show grounds believing defendant’s assets
within jurisdiction
4. Plaintiff shows grounds believing there is a risk of assets
being removed from jurisdiction
Read
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PROCEDURE RELATING TO
MAREVA INJUNCTION
Read:

Bank Bumiputra v Lorrain Esme Osman

S&F International v Transcon Engineering

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PRINCIPLE IN GRANTING
INTERLOCUTORY INJUNCTION
In granting interlocutory injunctions, the Malaysian courts
have consistently applied the principles as decided in the
case of

American Cyanamid Co v Ethicon

[1975] 1 All ER 504; [1975] AC 396; [1975] 1 All ER 504;
[1975] 2 WLR 316

The case outlines certain criteria to be considered by the

courts prior to grant of an injunction.

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PRINCIPLE IN GRANTING
INTERLOCUTORY INJUNCTION
the test for a Plaintiff is to establish as follows:-
1) Serious case;
2) Refusal OF COURT to grant it could not be compensated
by damages if the Plaintiff were to succeed;
3) If damages would not afford an adequate remedy, the
defendant would be satisfied by the plaintiff’s
‘undertaking as to damages’ if the interlocutory
injunction were to be granted, but a permanent one to
be refused after the trial;
4) The measure must preserve the status quo, not change
it; and
5) The relative strength of the parties’ prima facia case has16
Court’s discretion in granting
Int. Injunction
(i)Ask himself whether the totality of the facts presented before him
disclosed a bona fide serious issue to be tried;
(ii) Having found that an issue has been disclosed that requires further
investigation, he must consider where the justice of the case lies; and
(iii) Have in the forefront of his mind that the remedy he is asked to
administer is discretionary, intended to produce a just result between
the date of the application and the trial proper and to maintain the
status quo.
See the Court of Appeal of Keet Gerald Francis Noel
John v. Mohd Noor @Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293
referring to the classic decision of the House of Lords in
American Cyanamid Co v. Ethicon Ltd

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Court’s consideration in
granting Int. Injunction
(1)Court will grant injunction
Situation: If opines that plaintiff will be successful in trial &
damages awarded to plaintiff is not adequate

(2) Court will not grant injunction

Situation: Court ponders if defendant succeeds in trial in a
situation where injunction is granted to plaintiff but opines
that damages awarded to defendant is not adequate ; and

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Court’s consideration in
granting Int. Injunction
(3)Balance of Convenience Test
If balance of convenience equals between plaintiff and
defendant, the court will:
(a)Maintain status quo
(b) consider the merits of the case

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Serious question to be tried

Firstly, the court needs to have regard to whether

there is a serious question to be tried.
Therefore, the test again asserts the need for
existence of an independent legal action.

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Adequacy of damages to the
claimant
Secondly, the court needs to consider the adequacy of
damages to the claimant.
Therefore, it is discussed if the claimant was successful at
trial, whether he would adequately be compensated in the
form of damages for potential loss he would have sustained
had the defendant carried out the wrongful action.
If it is considered that damages are an adequate remedy
and the defendant is in a position to pay such, then no
injunction should normally be granted.

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Adequacy of damages to the
defendant
The next thing to be taken into account is the
adequacy of the undertaking in damages as
protection to the defendant.
When injunction is granted, the claimant would be
required to give an undertaking in damages in the
event that defendant succeeds at trial

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Balance of Convenience & Merits
of Case
Wherever there is doubt as to the adequacy of the remedies
in damages available to either of the parties, the question of
balance of convenience arises.
The court considers which party the balance of convenience
favours taking into account the status quo immediately before
the application.
Of further importance are the merits of the case.
All of the above factors are to be determined on the basis
of the individual case. The relief is discretionary and that
discretion is exercised in light of all the circumstances of the
case

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Procedure under ROC 2012

Interim/Interlocutory Injunction
The law on civil procedure governing
temporary injunctions is provided in Order 29
Rules of Court 2012
.

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Distinction between interim injunction &
interlocutory injunction
Stated in Arab Malaysian Corp Builders Sdn Bhd v
ASM Development Sdn Bhd [1998] 2CLJ Supp 169:

(a) Interlocutory injunction: An order to preserve

a particular set of circumstances pending a full trial
of the matters in dispute.
(b) Interim injunction: An order in the nature of an
interlocutory injunction but restraining the
defendant only until after a named day or further
order.

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ANTON PILLAR ORDER

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What is Anton Pillar Order
1) A court order in aid of discovery

2) Anton Pillar KG v Manufacturing Process

Court need to balance between Plaintiff’s claim that
evidence may be destroyed and Defendant’s claim
that there should be no invasion of privacy

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Procedure for Anton Pillar Order
1) Ex parte application supported by affidavit

2) Show strong prima facie case

3) Damage (either potential or actual) must be very

serious

4) Clear evidence Defendant in possession of

incriminating documents and real possibility of
destroying them prior to inter parte application

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TUTORIAL ASSIGNMENTS
1) Analyse the article written by Zuraidah Ali (2009) -
Mareva injunction as a preventive relief: the
Malaysian experience. IIUM Law Journal, 17 (2).
pp. 225-245. ISSN 0128-2530 and prepare a
summary of the article.
2) Prepare the necessary cause papers for an
application for an interlocutory injunction under
the RC 2012. Explain the procedural steps involved
in making such application. You may use the facts
of a reported case relating to injunction as a
guide.

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