ANI ISHAAH BINTI ASLAM v 1. ) Datin Marshitah Binti Mohammad (Sebagai Wakil Kepada Estet Dato’ Md Sani Bin Ahmad 2. ) MUHAMMAD ADAM MUIZZUDDIN BIN SALPUDIN 3. ) PREMIER SAVEGUARD SDN BHD

Case Significance

Applies the American Cyanamid test in a disputed share-transfer case and confirms that the absence of an immediate undertaking as to damages in the founding affidavit is not necessarily fatal to an interlocutory injunction, particularly in an inter partes application, being a matter for the court's discretion.

This High Court decision at Kuala Lumpur concerns an application for an interlocutory injunction to preserve the status quo in a dispute over shares in a security-services company, and addresses whether the absence of an immediate undertaking as to damages is fatal. The plaintiff sought orders restraining the defendants from dealing with 180,000 shares in the third defendant, Premier Saveguard Sdn Bhd, which she alleged had been transferred to her by a shareholder who had since died, and restraining interference with her management of the company pending trial. The shareholding was disputed between the plaintiff, who held 240,000 shares, the estate of the deceased shareholder — represented by the first defendant, his widow — which held the disputed 180,000 shares, and the second defendant, who had inherited a further 180,000 shares through a Syariah High Court order. The company held a licence under the Private Agencies Act 1971 requiring annual renewal to bid for government security tenders, and the plaintiff claimed she had been entrusted with obtaining that licence and managing the company. Applying the American Cyanamid requirements, the court considered whether there was a serious issue to be tried — the alleged fraudulent transfer of shares — whether damages would be an adequate remedy, and where the balance of convenience lay. On the undertaking point, it accepted, on a review of the authorities, that while providing an undertaking as to damages is the general practice, it is not mandatory and its omission from the founding affidavit is not necessarily fatal, particularly in an inter partes application, and remains a matter for the court's discretion; the plaintiff had indicated her willingness to give such an undertaking. Satisfied that the requirements were met, the court allowed the first and second prayers to preserve the status quo pending the disposal of a full trial, with costs of RM5,000.