In brief
- Judges in Malaysia do not grant Injunctions freely as a result of its draconian effect against the party to whom injunction was granted. Usually it would require strong evidence in support of the Plaintiff to bring the Judge to the Plaintiff’s side. An injunction is a legal term for a court order to stop someone from doing anything. There are several sorts of injunctions available, but the interim/interlocutory injunction is the most common. Moreover, the court’s jurisdiction to grant an injunction is provided in Section 50 and 51 of the Specific Relief Act 1950.
How does an interlocutory/interim injunction be granted?
- Interlocutory injunctions are normally given to maintain the status quo between the parties until the main action is resolved or until the Court issues another order. Besides that, Order 29 Rule 1 of the Rules of Court 2012 will be read together with S.51 of the SRA 1950 in granting interlocutory injunction as it held that an application for an injunction can be brought at any time, and it is not required for the relief to be part of a claim for a party to make one.
- On the other hand, in an emergency, an application for an interim injunction can be submitted ex parte. This ex parte injunction will automatically expire 21 days after it is granted, and the Court will not be able to prolong it. As a result, under Order 29 Rule 1(2BA) ROC 2012, the Court must schedule an inter partes hearing within 14 days of the order’s date.
- As can be seen in the case of Poke Food (M) Sdn Bhd & Anor v Fooditive Holdings Sdn Bhd & Ors [2021] 12 MLJ 644 the plaintiff has been granted ex parte interim injunction from the court to prohibit the defendant from having a identical or similar to the ‘The Fish Bowl’ business and preventing them to operate their business. The question right now would be based on whether the plaintiff needs to be granted an interlocutory injunction pending the trial of the case?
Can the defendant file an application to set aside an ex parte interim injunction?
- Within 21 days of the ex parte injunction being obtained, a respondent might file a motion to set aside the injunction order (Order 29, ROC). Despite the fact that an ex parte injunction order will automatically expire after 21 days, an application to set aside the injunction will be necessary and important in assessing the expenses and damages incurred as a result of the ex parte injunction order.
- Furthermore, in American Cyanamid v Ethicon [1975] AC 396, the English Court provided a guide for granting an injunction, and Malaysia has adopted the English legal principles as follows: a) there must be a serious question to be tried, and b) the court must consider the balance of convenience of both parties, c) it must has some prospect of success and d) applicant seeking an injunction to at least show that prima facie he has a valid cause of action.
- Based on the case of Poke Food (M) Sdn Bhd & Anor v Fooditive Holdings Sdn Bhd & Ors [2021] 12 MLJ 644 when the issue came on December 5, 2019, the plaintiffs had made no application to the court for an ad interim injunction. The rulings according to encls 7 and 22 were not given by this court for six months, from November 2019 to April 2020. The court then concluded that this matter no longer had an urgency to the plaintiffs. As a result of this court’s finding that the balance of convenience favors the defendants, there is no need for an injunction to be given. In addition, the plaintiff does not show any hardship regarding this matter. Finally, this court was more concerned with what it needed to do in the interim to preserve the rights of the parties who came before it than with the parties’ odds of success or failure in proving their civil complaint at the upcoming trial.
- After the court has proved that none of the plaintiff’s filing actually fulfils the elements in requesting for ad interim injunction, it is clear to say the court view that there is no pressing need for the plaintiffs to be granted an interlocutory injunction pending the trial of the case and penalty has been given to the plaintiff. In addition, the defendants are allowed to set aside an ex parte interim injunction in encl 22 with costs included.
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