Types of Injunctions

Written by Darren Lai and Tai Sher Lynn

In a previous article, we have written a few points on injunctions and its procedures. To recap and summarise, an injunction is described as an Order to stop, empowered by Section 52 of the Specific Relief Act 1950. 

In this article, we write about the various types of injunction and what kind of ‘stop order’ each entails. In general, an interlocutory injunction is usually sought for and granted when there is an urgency to the matter. This can be obtained ex parte which means ‘by one party’. This injunction is valid only for 21 days, where the court is compelled by the Rules of Court 2012 to set a hearing for both the applicant and respondent to argue their respective case whether the injunction ought to be continued or stopped. If allowed to continue, the interlocutory injunction will become a permanent injunction and would usually continue until the disposal of the trial of that matter.  

The rest of this article discusses the various types of injunction granted.

Prohibitory Injunction

A ‘prohibitory injunction’ stops a defendant from continuing to do a wrongful act which would be an infringement of some right of the plaintiff, legal or equitable. These are usually to stop the continuing harm to the applicant.

Mareva Injunction

Mareva injunction is a type of prohibitory injunction, and in particular for the freezing of assets of a party pending the disposal of a legal action. In order to qualify for the injunction, the applicant must show: (1) A good arguable case, (2) that the assets are within the jurisdiction, (3) a real risk of dissipation of assets before the judgement.

In the case of Pelorus Holding Sdn Bhd v Jaffa Roger Dawkins [2020] 12 MLJ 545, the diversion of company funds was quantified as evidence of risk of dissipation.

Anton Piller

An Anton Piller order is an extraordinary form of injunctive relief which compels a defendant to permit a complainant to enter its property to search for and seize evidence and records, including electronic data and equipment Founded in the case of Anton Piller KG v Manufacturing Processes Limited (1975), as such an order does not give the other party the ability to defend themselves, Anton Piller orders are only issued exceptionally and according to the three-step test set out by Ormrod LJ in Anton Piller:

1. There is an extremely strong prima facie case against the respondent.
2. The damage, potential or actual, must be very serious for the applicant.
3. There must be clear evidence that the respondents have in their possession relevant documents or things and that there is a real possibility that they may destroy such material before an inter-parte application can be made.

Erinford Injunction

An Erinford Injunction is an injunction granted to an applicant to preserve the status quo pending the conclusion of an appeal, founded in the case of Erinford Properties Ltd v Cheshire County Council. In the case of See Teow Guan v Kian Joo Holdings Sdn Bhd & Ors, the court held that:

1. The court will adopt equitable principles in determining whether status quo should be preserved pending the disposal of the appeal.
2. Which party would lie in favour of the balance of convenience.
3. Whether the appeal would be nugatory if successful.
4. And whether damages would be an adequate remedy for the plaintiff.

Fortuna Injunction

A Fortuna Injunction is used to prevent creditors from winding-up the company (by applying for winding-up petition against the company) under section 466 of the Companies Act without any valid justification to do so. The name was founded from the case of Fortuna Holdings Pty Ltd v The Deputy Commissioner of Taxation in Australia. The injunction will arise when the presentation of a winding-up order amounts to an abuse of the process of the court, of first where the presentation of the petition may produce irreparable damage to the company and where the proposed petition has no chance of success, and secondly where a petitioner proposing to present a petition has chosen to assert a disputed claim, used a procedure that will cause irreparable damage to the company, rather than a suitable alternative procedure.

See our previous write up on Fortuna Injunction here.

In summary, injunctions are deemed as a harsh and extreme measure and as such, the courts are very careful in exercising its discretion to grant. 

The above is a brief write up about injunctions. If you require any assistance in obtaining or resisting an injunction, do contact us at [email protected]. 

Published on 24 January 2024