ABU HANZALAH BIN ABU BAKAR v NA BON TIAM

Case Significance

Illustrates the strict, non-negotiable duty of bona fide full and frank disclosure that governs an application for an ex parte injunction — the applicant must disclose all material facts, including unfavourable ones, and come with clean hands — failing which the injunction will be refused.

This High Court decision at Shah Alam concerns an application for an ex parte injunction to restrain the enforcement of an eviction order. The plaintiff, the former owner of a property in Petaling Jaya, applied under Order 29 rule 1(2) and Order 92 rule 4 of the Rules of Court 2012 for an ex parte injunction, an ad interim injunction and an interlocutory injunction to stop the defendant from executing a writ of possession over the property, which was due to be enforced within days. The plaintiff's account was that he had been surprised to find the court bailiff and the defendant's representatives at the property, and had then discovered that the property had already been transferred to the defendant in 2022; that his signature on a sale and purchase agreement to sell the property to the defendant for RM1,500,000 had been forged; that his wife had taken a loan from the defendant; and that his wife had entered into a tenancy of the property with the defendant at a monthly rent of RM30,000, the writ of possession having issued against the wife in a separate suit.

The court refused the application. It emphasised that a bona fide full and frank disclosure of all material facts, including those unfavourable to the applicant, is an absolute and non-negotiable duty on any party seeking an ex parte injunction, because the absent defendant cannot present its side, and that an applicant for the equitable remedy must come with clean hands. On inquiry it emerged that the plaintiff's counsel had acted for the wife in the writ of possession proceedings while denying prior knowledge of the plaintiff, and although the pleadings hinted at unlicensed moneylending and illegality, the court was not satisfied that the plaintiff had made his application bona fide with full and frank disclosure.

The court dismissed the application. The judgment illustrates the strict full-and-frank-disclosure duty governing ex parte injunctions.