Mokkaya A/p Selembaram v THIEVEANTHIRAN A/L THURAISAMY

Case Significance

Instructive on the reassessment of an ex parte interim injunction at an inter partes hearing, and on the roles of the adequacy of damages and the balance of convenience in deciding whether to continue or discharge the order.

This High Court decision at Shah Alam concerns the setting aside of an interim injunction after an inter partes hearing, in a dispute over the ownership and running of a hotel business. The plaintiff, an elderly woman, had brought an action seeking a declaration that she was the lawful owner of the business and entitled to take over and operate hotel premises in Kuala Lumpur and units at a shopping complex in Bangi, a declaration cancelling the contract appointing the defendant as her nominee, an injunction, an account of the business takings and damages. Her case was that, wishing to start and finance a hotel business but being about 70 years of age, she had approached the defendant and engaged him as her employee, representative and trustee to run the business until she chose to take over herself or appoint another, exhibiting a statutory declaration signed by the defendant, a tenancy agreement, and a sale and purchase agreement for hotel licence assets and rights. The plaintiff had obtained an ex parte interim injunction restraining the defendant from entering and remaining at the premises, which was extended after an inter partes hearing. The court, per Rozi binti Bainon JC, set aside and discharged the interim injunction. Reassessing the affidavit evidence, as a court is entitled to do when the ex parte order is examined inter partes, it held that the plaintiff's application failed to meet the test established by the higher courts for an interim injunction: her interest did not need to be protected by an interim injunction, and justice also had to be done to the defendant. It found that damages would be an adequate remedy for any loss the plaintiff might suffer if the injunction did not continue, and that the balance of convenience favoured the defendant, whose company was operating the hotel business at the premises and to whom the injunction caused more serious harm. It held that the disputes between the parties over the whole claim were better resolved at a full trial. The judgment is instructive on the reassessment of an interim injunction at an inter partes hearing and on the adequacy of damages and the balance of convenience.