Chapter 23 - Erinford Injunction

Question 1

ERINFORD INJUNCTION

Overview

Answer 1

1) Definition & scope
2) Jurisdiction to grant
3) Which court
4) Whether perpetual injunction is necessary
5) Test to grant
6) Factors for consideration

Question 2

ERINFORD INJUNCTION

Definition & scope

Answer 2

1) Definition:
- A form of injunction is available to P who seeks to have the status quo maintained pending his appeal so as not to render his appeal nugatory.

Question 3

ERINFORD INJUNCTION

Jurisdiction to grant

Answer 3

1) Erinford Properties Ltd v Cheshire City Council:

• A judge who dismissed an application for an injunction may recognise that his decision might be reversed.
• Therefore, ‘when a party is appealing, Court ought to see that the appeal, if successful, is not nugatory’.
• The effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal.

2) Chellapa v Sime UEP Properties Bhd:

• Since an appellant must not be deprived of the results of an appeal, the court may grant an injunction pending appeal to restrain an act which will render the appeal nugatory;
• Such injunctions pending appeal have been called ‘Erinford injunctions’;
• The converse of an Erinford injunction is a stay of an injunction order granted pending appeal.
• The court has a discretion to grant an injunction and order a stay pending appeal if that is necessary

Question 4

ERINFORD INJUNCTION

Jurisdiction to grant - S.3 CLA

Answer 4

Subashini Rajasingam v Saravanan Thangathoray:

• S.3 is not forbidding a Malaysian Court from applying modern developments in English common law;
• But a Court of Equity also has jurisdiction to grant interim injunctive relief whenever it is just and convenient to do so.
• i.e. an injunction may be granted nonetheless at equity, to serve the ends of justice.
• In the normal case, where an interim injunction is refused or dissolved, the ends of justice may, in particular cases, demand that the successful litigant be restrained from enjoying the fruits of his success until the correctness of the decision in question has been tested through the appellate process.
• Erinford Properties is merely an illustration of the exercise of that jurisdiction by a court of first instance.

Question 5

ERINFORD INJUNCTION

Which court

Answer 5

Subashini Rajasingam v Saravanan Thangathoray (FC):

1) General rule:
- Ordinarily granted by the court which made the decision that forms the subject matter of the appeal.
2) High Court:
- The High Court was entitled to grant an Erinford injunction.
3) Court of Appeal:
- Certainly, the Court of Appeal has the jurisdiction to grant Erinford injunction pending an application for leave to appeal to the Federal Court.
4) Federal Court:
- The Federal Court too has the jurisdiction under s. 80(1) of the Courts of Judicature Act 1964 to grant an Erinford injunction pending an application for leave to appeal to the Federal Court.

Question 6

ERINFORD INJUNCTION

Whether perpetual injunction is necessary

Answer 6

1) Tan Suan Choo v Majlis Perbandaran Pulau Pinang

• By virtue of S.51 SRA, temporary injunctions may be granted at any period of the suit & it is regulated by the rules in civil procedure.
• Thus, temporary injunction may be granted regardless of perpetual injunction is sought.

2) Keet Gerald Francis v Mohd Noor:

• Vethanayagam is a bad law and should no longer be followed.
• i.e. no need to seek for perpetual injunction anymore.

Question 7

ERINFORD INJUNCTION

Test to grant

Answer 7

Erinford Properties Ltd v Cheshire City Council:

• Whether there is a likelihood of a successful appeal being rendered nugatory in the absence of such injunction.
• The court must be convinced that it is desirable to maintain the status quo pending appeal.

Question 8

ERINFORD INJUNCTION

Factors for consideration

Answer 8

1) Possibility judgment being reversed - Erinford Properties Ltd v Cheshire City Council:
- The possibility that the judgment may be reversed or varied is one of the factors to determine.
2) Availability of statutory remedy - Jawi Ak Landu v Sunny Inspiration Sdn Bhd:

• Erinford injunction is not necessary when the statutory remedy is available;
• Court’s inherent power to grant Erinford is on its own motion to protect the justice of the case.

3) Where damages are adequate - Cocoa Processors Sdn Bhd v United Malayan Banking Corp. Bhd:
- Erinford will not be granted if the P would be adequately compensated in damages for temporary suffering that will ensue between date of dismissal of application & date of appeal disposed of.