The World Of Injunctions

No.

Type of Injunction

Objective and Nature of Injunction

1.  

Mandatory Injunction

Objective:

to compel a party to do an act.

Nature:

a) To compel a party to do a positive act[1].

b) Therefore, has the effect of altering the status quo[2].

c)  The discretionary power of the Court to grant mandatory injunctions is provided by section 53 of the Specific Relief Act  1950.

d) Threshold: the test to grant an interim mandatory injunction is to show the court that there is an “unusually strong and clear” case[3].

2.  

Prohibitory Injunction

Objective:

to restrain a party from doing an act.

Nature:

a)   typically aimed to stop continuing harm or to maintain the status quo until the final disposal of a case.

b)   Section 52 Specific Relief Act 1950 provides that a perpetual prohibitory injunction may be granted:

i) where Defendant is trustee of the property for the Plaintiff; 

ii) where there exist no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

iii) where the invasion is such that pecuniary compensation would not afford adequate relief;

iv) where it is probable that pecuniary compensation cannot be got for the invasion; and v) where the injunction is necessary to prevent a multiplicity of judicial proceedings

c)     Threshold: Threshold to satisfy a prohibitory interlocutory injunction is less stringent than when granting a mandatory injunction[4]. The test is whether “there is a serious question to be tried”[5]. 

3.  

Quia Timet Injunction

a)   Bears the definition of “since he fears”.

b)   It is a purely discretionary injunction under section 50 of the Specific Relief Act 1950.

c)   Discretion is exercised sparingly and only where there is significant risk of harm[6].

d)   Reasons for obtaining a Quia Timet injunction is “to prevent an apprehended legal wrong, though none has accrued at present[7].

e)   Serves to avoid multiplicity of legal proceedings.

f)     Can be both mandatory or prohibitory in nature.

4.  

Interim Injunction or also known as, Interlocutory Injunction

Objective:

a temporary injunction obtained for a specific period at any stage of the litigation matter.

Procedures under Order 29, Rules of Court 2012 must be followed].

Nature:

(i)            an interim injunction is valid for 21 days from the date it was granted unless sooner revoked or set aside.

(ii)          Application is made by notice of application supported by an affidavit. Where the case is one of urgency, it may be heard on an ex-parte basis. This means that the application can be made by a singular party only without the presence of the other opposing party and also without notifying the other opposing party[8].

(iii)         An interim injunction obtained on an ex-parte application shall automatically lapse twenty-one (21) days from the date it was granted[9].

(iv)         The principles in the case of American Cyanamid Co v Ethicon Ltd [1975] apply towards the granting of interim injunctions which are:

(v)          Whether there is a serious question to be tried;

(vi)         Whether damages are sufficient to compensate Plaintiff;

(vii)       Balance of hardships (If by not granting the injunction Plaintiff suffers more hardship than Defendant, then an injunction will be granted);

(viii)     Plaintiff must make a full and frank disclosure of all material facts;

(ix)         Plaintiff must undertake as to damages; and

(x)          Application must be made without any delay especially, when case is urgent.

5.  

Perpetual Injunction

Objective:

a final injunction where an order is made after hearing both sides (usually at the end of a trial) and binds the parties finally and perpetually (endlessly).

Nature:

a)     It is a preventive relief granted at the discretion of the Court[10].

b)     This injunction has indefinite duration or will at least last as long as it is necessary to settle the dispute between parties.

c)     a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication[11].

d)     Section 52 (3) of the Specific Relief Act 1950 provides that when the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:

i)              where the defendant is trustee of the property for the plaintiff;

ii)             where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

iii)           where the invasion is such that pecuniary compensation would not afford adequate relief;

iv)           where it is probable that pecuniary compensation cannot be got for the invasion; and

v)            where the injunction is necessary to prevent a multiplicity of judicial proceedings[12].

6.  

Erinford Injunction

Objective:

An injunction obtained pending an appeal against the decision of the judge who has set aside an injunction which had earlier been granted.

Nature:

a)   an Erinford Injunction is typically used to stop a party from acting on a judgment until the appellate court hears the case.

b)   “the principle is when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory”[13].

c)   An Erinford injunction will be granted only where (i) there is a likelihood of a successful appeal being rendered nugatory or (ii) if the plaintiff would not be adequately compensated in damages for temporary damage between the date of hearing and the date when its appeal is heard[14].

7.  

Mareva Injunctions

Objective:

an injunction to restrain a Defendant from disposing or concealing his assets in order to defeat an action brought against him.

Nature:

a)       it is a species of interlocutory injunction which restrains a defendant by himself or by his agents or servants or otherwise from removing from the jurisdiction or disposing of or dealing with them of his assets that will or may be necessary to meet a plaintiff’s pending claim[15].

b)       A Mareva Injunction may be applied before an action has been commenced or after a full trial[16].

c)       Threshold: The Mareva Plaintiff must show that there is “a good arguable case”[17].

d)       A Mareva Injunction has a worldwide effect[18].

8.  

Proprietary Injunction

Objective:

An injunction that restrains a defendant from dealing with, selling, or dissipating specific assets in which the plaintiff claims a proprietary interest (ownership or trust).

It is more targeted than a typical Mareva freezing injunction.

Nature:

a)   A proprietary injunction can be granted in parallel to a Mareva injunction.

b)   Often applied for in fraud cases particularly, cyber fraud cases. 

c)   when property is obtained by fraud, equity imposes a constructive trust on the fraudulent recipient[19].

d)   Threshold: The Malaysian Courts have followed an English Court decision in respect of establishing the requirements to be met for a proprietary injunction.

e)   The Three requirements are (i) the Plaintiff must show that there is a serious issue to be tried on the merits; (ii) the balance of convenience must be in favour of granting an injunction; and (iii) the Court must decide whether it is just and convenient to grant the injunction[20].

9.  

Anton Piller Injunction / Anton Piller Order

Objective:

An injunction granted for the Plaintiff to enter Defendant’s premises to search and seize incriminating materials which Defendant might  destroy or dispose of so as to defeat the ends of justice.

Nature:

a)              Plaintiff normally applies before filing a writ by ex-parte Notice Of Application supported by an affidavit and the requirements of Order 29 rule 1 (2A) (a) –(g) must be complied with.

b)              Threshold: Three (3) conditions must be satisfied before the court grants an Anton Piller Order and that is: (i) there must be a strong prima facie case; (ii) the damage must be very serious for Plaintiff; and (iii) there must be clear evidence that the Defendant has incriminating documents or things and there is a real possibility that Defendant may destroy such materials before any application inter partes can be made[21].

10.     

Fortuna Injunction

Objective:

It is a special kind of injunction sort to restrain a creditor from presenting a winding-up petition against a Company where, such winding-up petition could cause irreparable damage to the Company.

It is essentially sort to protect the Company from being wound-up by a Creditor on the grounds that the purported debt owing is in actual fact, bona fide disputed.

Nature:

a)   the Company’s dispute must go beyond a mere assertion and must raise a serious and substantial disagreement requiring a trial.

b)   Threshold: For the grant of a Fortuna Injunction, the Company must satisfy two limbs, that is (i) where the presentation of a winding up petition which has no chance of success as a matter of law and fact, might produce irreparable damage to the company (‘the first Fortuna principle’); and (ii) where the party seeking to present the winding up petition chooses to assert a disputed claim, by a procedure which might produce irreparable damage to the company, rather than by a suitable alternative procedure (‘the second Fortuna principle’)[22].

11.     

Statutory Injunction under Section 351 of the Companies Act

Objective:

In essence, section 351 of the Companies Act 2016 confers on the Court the power to grant an injunction to restrain or prevent a person from undertaking conduct that contravenes the Companies Act 2016.

Nature:

a)   Section 351 Companies Act 2016 allows the Court to make both prohibitive and mandatory injunctions.

b)   There are only two types of people who may make an application under section 351 of the Companies Act 2016 and that is, (1) the Registrar and (2) a person who’s interest is either affected or would be affected by such conduct that contravenes the Companies Act 2016 (for example: shareholders, creditors, directors of the company).

c)   There must be an express averment of how the petitioners’ interests were affected by the conduct of the appellant, after the particular conduct of the appellant had been identified[23].

d)   An injunction under section 351 of the Companies Act 2016 will not be granted where there are other reliefs which the applicant can seek redress from.

12.     

Non-Molestation Order

Objective:

Under the Law Reform (Mariage and Divorce) Act 1976, the family court is empowered to grant an injunction known as a “non-molestation order” to prohibit a spouse from being violently attacked or threatened to be violently attacked by the other spouse.

Nature:

a)   this “non-molestation” injunction / order is provided by section 103 of the Law Reform (Marriage and Divorce) Act 1976 which states that “The court shall have power during the pendency of any matrimonial proceedings or on or after the grant of a decree or divorce, judicial separation or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.”

b)   “Molestation” is defined as to meddle hostilely or injuriously, to cause trouble, vex, molest, assault, annoy or otherwise interfere with the applicant or to put to inconvenience[24].

c)   a spouse can only file for a non-molestation injunction against molestation when there is a pending matrimonial proceeding, a grant, decree or divorce, judicial separation or annulment[25].