Chapter 21 - Ex-Parte Injunction Flashcards
EX-PARTE INJUNCTION
Overview
1) The jurisdiction
2) Procedures
3) The test
4) Issues on ex-parte application
5) Setting-aside ex-parte injunction
EX-PARTE INJUNCTION
The jurisdiction
1) O.29, r.1(2):
- In case of urgency, court has the jurisdiction to grant an ex parte injunction where an application is made for the purpose.
2) O.29, r.1(2C):
- Ex parte injunction shall not be granted to stop meetings of corporation.
EX-PARTE INJUNCTION
Procedures
O.29, r.1(2A):
- Mode:
- Certificate of urgency:
- Affidavit:
- Full & frank disclosure:
- Lifespan:
- Service of ex-parte injunction:
- Inter-partes hearing:
- Undertaking as to damages:
EX-PARTE INJUNCTION
The test
1) American Cynamide v Ethicon:
Is there a serious question to be tried:
- the claim must not be frivolous or vexatious;
- the claim must has some prospect of success, but not necessarily prima facie prospect of success.
Where does the balance of convenience lie:
- the harm that the injunction would produce by its grant is weighed against the harm that would result from its refusal.
- Will damages be adequate to compensate for P’s losses if injunction is refused:
- Damages will NOT be adequate if:
- P’s loss is not financial, i.e. nuisance.
- P’s loss cannot be quantified with precision.
- D has not assets to pay for the damages.
Where does the balance of hardship lie:
- As long as there is no obvious imbalance, Court will grant the injunction to preserve status quo.
2) Keet Gerald Francis v Mohd Noor:
Bona fide issue to be tried:
- No determination based on the merits of the claims or any defence to it;
- Suffice if he identifies with precision the issues raised on the joinder & decides whether it is serious enough to merit on trial.
Balance of justice:
- weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal.
- He is entitled to take into account, inter alia, the relative financial standing of the litigants before him.
- In appropriate cases, court may require P to provide an undertaking for damages and secure his undertaking by a bank guarantee.
Exercise of discretion of discretionary relief:
- He would be entitled to take into account all discretionary considerations & possible alternative discretionary remedy;
- i.e. delay in making the application, whether damages an adequate remedy etc.
ISSUES ON EX-PARTE INJUNCTION
Overview
1) Delay
2) Full & frank disclosure
3) Undertaking as to damages
4) Lifespan of ex parte injunction
ISSUES ON EX-PARTE INJUNCTION
Delay
1) Ware v Regent’s Canal Co, per Lord Chelmsford L.C:
- Delay amounts to considerable doubt upon the reality of his alleged injury or urgency.
2) Lim Hean Pin v Thean Seng Co Sdn Bhd:
- ex parte procedure will only be appropriate either where the delay occasioned by notifying the defendant may cause to the plaintiff irreparable damage, or where secrecy is essential.
- i.e. delay will defeat the purpose of applying ex parte.
ISSUES ON EX-PARTE INJUNCTION
Full & frank disclosure - the law & scope
1) the law:
- O.29, r.2A
2) Scope - Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd:
- It is trite law that in any ex parte application it is essential that there must be frank and fair disclosure of all relevant materials including points that may be unfavourable to an applicant.
ISSUES ON EX-PARTE INJUNCTION
Full & frank disclosure - duty of court
Mohammed Zainuddin v Yap Chee Seng:
- if it is shown that a plaintiff had omitted albeit innocently to state circumstances which turn out to have material bearing upon his rights, court should refuse the injunction application.
ISSUES ON EX-PARTE INJUNCTION
Full & frank disclosure - failure to make F&F disclosure
1) General - Motor Sports International Ltd v Delcont (M) Sdn Bhd:
- Non-compliance of r.2A will render the ex-parte injunction liable to be set-aside.
2) On subsequent inter-partes injunction application - Damayanti Kantilal Doshi & Anor v Jigarlal Kantilal Doshi:
- when the matter comes before the court inter partes, justice requires the grant of a fresh injunction, such an order can be made notwithstanding the earlier failure of the plaintiff to make such disclosure.
ISSUES ON EX-PARTE INJUNCTION
Undertaking as to damages - what & purpose
1) What is an undertaking - Goo Sing Kar v Dato’ Lim Ah Chap (CA, 2013):
- “the price which the person asking for an interlocutory injunction has to pay for it”;
- The undertaking to pay damages is one given by the plaintiff to the court and the provider of the undertaking puts himself under the power of the court.
2) Purpose of undertaking - Goo Sing Kar v Dato’ Lim Ah Chap:
- It enables a party enjoined to apply to court for compensation if it is subsequently established that the interlocutory injunction should not have been granted.
- If the interlocutory injunction has been obtained fraudulently or maliciously, the court will not confine itself to proximate damages, but can order exemplary damages
- Ref. American Cynamid v Ethicon:
- the ability of P to honour his undertaking is a material factor in the balance of convenience.
ISSUES ON EX-PARTE INJUNCTION
Undertaking as to damages - how much to be paid
Commodity Ocean Transport Corporation v Basford Unicorn Industries Ltd:
- The undertaking as to damages given by P must “be worth powder and shot”.
American Cynamid:
- Ability of P to honor the undertaking is a material factor to determine balance of convenience.
ISSUES ON EX-PARTE INJUNCTION
Undertaking as to damages - Absence of undertaking
Ramachandram Appalanaidu v Gasing Meridian Sdn Bhd (2018):
- Absence of an undertaking would not disentitle the aggrieved party to claim for damages.
- The court retained the power and the discretion to order damages to be assessed by the party affected by the order for interim relief.
ISSUES ON EX-PARTE INJUNCTION
Undertaking as to damages - Enforcing undertaking
1) Discretion of court - GS Gill Sdn Bhd:
- whether an inquiry of damages should be ordered or not lies within the discretion of the trial judge.
2) General rule - GS Gill Sdn Bhd v Descente Ltd:
- As a general rule, if an interlocutory injunction is wrongly granted, the trial judge should make an order for inquiry to damages on the undertaking given by the plaintiff for the interlocutory injunction.
3) Exception - GS Gill Sdn Bhd v Descente Ltd:
- However, if there are special circumstances, the trial judge can exercise his discretion to refuse ordering such inquiry.
- It is not for the defendant to insist that such inquiry should be made.
What constitutes special circumstances:
- Ref. AG of Ontario v Harry: inequitable conduct of the defendant;
- Ref. Ex Parte Hall: the plaintiff had delayed seeking an inquiry as to damages.
- Ref. Upper Canada College v City of Toronto: the court refused inquiry as to damages because of a number of circumstances which included the good faith of the plaintiff.
4) Application - Tony Phua Kiam Wee v Dato’ Sri Mohd Najib Tun Hj Abdul Razak (2020):
- When a plaintiff withdraws a suit after having obtained an interlocutory injunction, it cannot be on the basis of costs alone but there must also be an order to set aside the interlocutory orders as well as an order for assessment of Damages.
- OTF, when allowing the Plaintiff to withdraw the suit, the orders that ought to have been made by the High Court were: (i) dismissing the plaintiff’s/respondent’s action with costs; and (ii) setting aside the interlocutory injunction with an order for assessment of Damages.
ISSUES ON EX-PARTE INJUNCTION
Lifespan of ex-parte injunction
1) The law - O.29, r.1(2B):
- 21 days
2) Computation of time - RIH Services v Tanjung Tuan Hotel S/B:
- Both O.3, r .2(2) of the RHC and S.54(1)(a) of the Interpretation Acts 1948 and 1967 require that the day the order is made to be excluded in reckoning the 21 days.
- So, the ex parte injunction granted on 6 December 2001 expired on 27 December 2001.
3) Whether extension is possible - Cheah Cheng Lan v Heng Yea Lee:
- Court does NOT have the power to extend the injunction beyond 21 day period.
NOTE: Upon expiry: Ad interim injunction.
SETTING ASIDE EX-PARTE INJUNCTION
Overview
1) Setting-aside after expiry
2) Grounds to set aside
3) Procedures to set aside
