AMIN NORBIDIN BIN SAID & 244 ORS. V.
TANAH AMAN SDN. BHD.
HIGH COURT MALAYA, TAIPING (KUALA KANGSAR)
DATO' HJ. ABDUL MALIK BIN HJ. ISHAK J
[CIVIL SUIT NO. 22-4-92]
20 JANUARY 1995
INJUNCTION: Ex-parte injunction - Grant of - Propriety -
Whether proceedings ought to be inter-partes - Principles applicable -
Plaintiffs admitted having limited financial resources - Whether injunction
in plaintiffs' favour could be ordered - Consideration of American Cynamaid
Hj. Abdul Malik bin Hj. Ishak J:
The defendant, a housing developer and licensed under the
Housing Developers (Control and Licensing) Act,
1966 (Revised 1973) (Act 118) ("Act") , developed single storey low cost
terrace houses in a housing scheme known as Taman Damai located at Jalan
Kuala Kangsar, Simpang, Taiping, Perak. The defendant sold these houses at
Taman Damai to the plaintiffs at varying dates between 1985 and 1986 through
the standard sale and purchase agreements as set out in schedule E of the
Housing Developers (Control and Licensing)
Regulations, 1982(Exhibit 'A' in encl. 1B) ("standard S & P").
Only nine (9) out of the two hundred and fortyfive (245) purchasers
purchased corner lots. The rest were contented with and had no choice but to
take the intermediate lots. The lands were priced at RM64.50 sen per square
metre and all the purchasers had to pay the same amounts. By a device
hatched by the defendant, all the plaintiffs had to pay extra charges
thereby inflating the price of the lands at RM129 sen per square metre. This
works out to RM6,007.75 sen for each intermediate lot and making a grand
total of RM1,393,682 for plaintiffs number one (1) to plaintiffs number two
hundred and thirty-two (232) to pay. Likewise, purchasers/plaintiffs for
corner lots had to pay an additional grand total of RM96,190.88 sen
calculated at RM6,011.93 for each corner lot. In short, all these purchasers
had been overcharged by RM1,489,988.88 sen by the cunning defendant.
The plaintiffs introduced by affidavit evidence that they filed three (3)
originating summonses at Ipoh High Court vide S.P. No. 31-1475-87,
S.P. No. 31-826-88 and S.P. No. 24-465-90 against the same defendants and
all these three were eventually settled by way of consent judgments
involving late delivery of vacant possessions and payments of works which
were not done at all. originating summons No. 24-465-90 involved a claim
The plaintiffs also filed a civil suit No. 22-201-87 against the
defendant and it was settled by way of a consent judgment involving
RM1,116,930 (Exhibit 'E' of encl. 1B). It was averred that before the
consent judgments were recorded in regard to S.P. No. 31-1475-87, S.P. No.
31-826-88 and civil suit no. 22-201-87, the defendant through its director
one Saw Sing Keat had informed the Ipoh High Court that a balance of RM3
million was still due and payable from financial institutions like the
Government of Malaysia and Tenaga Nasional Berhad (formerly known as Lembaga
Letrik Negara) etc.
It was averred that the defendant had no other development projects in
Taiping, Perak and, being a Sendirian Berhad, it had no other assets. The
plaintiffs averred that they were poor and each earning between RM400 to
RM500 per month and, after the necessary housing instalments which they had
to service, they were left with barely enough to fend for themselves. The
plaintiffs feared that if the sums of RM1,489,988.88 sen were not
restrained, the defendants after paying the judgment sums in S.P. No.
31-1475-87, S.P. No. 31-826-88 and Civil suit No. 22-201-87 were left with
practically nothing and, at the end of the day, the plaintiffs would be left
with paper judgments only. The plaintiffs felt that secrecy was essential to
prevent the defendant from running away with RM1,489,988.88 sen and sought,
ex parte, for the following prayers (encl. 1A):
(a) Suatu injunksi melarang defendan daripada mengambil wang setakat
jumlah RM1,489,988.88 sen daripada Tetuan Choong Yik Son & Fiona Ghaus (dahulunya
dikenali sebagai Tetuan Choong Yik Son & Robiha) atau daripada
Perbendaharaan (Jabatan Pinjaman Perumahan Perbendaharaan) Kuala Lumpur atau
Tenaga Nasional Berhad (dahulunya dikenali sebagai Lembaga Letrik Negara)
atau daripada lain-lain institusi kewangan yang telah meminjamkan wang
berhubung dengan pinjaman perumahan yang diambil oleh semua pembeli-pembeli
rumah dalam skim yang dikenali sebagai Taman Damai setelah penghakiman
persetujuan dalam saman pemula No. 13-1475-87, saman pemula no. 31-826-88,
guaman sibil No. 22-201-87 dan melainkan wang yang diperintah ditahan oleh
Mahkamah ini dalam saman pemula No. 31-465- 90 sehingga tindakan ini
ditamatkan atau perintah lanjut Mahkamah ini.
(b) Bahawa defendan mencatatkan dalam tempoh 14 hari selepas penyampaian
perintah ini terhadap mereka, jumlah wang yang dihutang dan yang harus
dibayar (due owing and payable) oleh Kerajaan Malaysia, Tenaga Nasional
Berhad (dahulunya dikenali sebagai Lembaga Letrik Negera), Bank Standard
Chartered atau institusi - institusi kewangan yang lain pada masa perintah
persetujuan dalam saman pemula no. 1475/87, 826/88 dan guaman sibil No.
22-201- 87 dan 24-465-90 direkodkan.
(c) Kos permohonan ini dibayar oleh defendan.
(d) Relif-relif lanjutan atau relif-relif lain.
Looking at the facts as set out above, the plaintiffs as purchasers of
Taman Damai were overcharged by the defendant to the tune of RM1,489,988.88
sen and now sought to injunct those sums till the disposal of Civil Suit No.
22-4-92. The position was made acute by the various consent judgments
entered against the defendant involving substantial sums and the plaintiffs
feared that if their applications were made inter partes the
defendant might resort to underhand tactics and put the balance of RM3
million away and indirectly preventing the plaintiffs from getting back
their RM1,489,988.88 sen.
On 23 September 1994, when the ex-parte application was heard in
chambers, I granted the prayers sought for in encl. 1A, especially the
interim injunction, and gave the return date on 5 October 1994, though this
was not specifically provided for in O. 29 r. (2B) of the Rules of the High
Court, 1980 ("RHC") (Lim Nyook Yin v. Ultratech Sdn. Bhd. & Anor.  1
AMR 183 ). I felt that secrecy was paramount in this case as the plaintiffs'
fear could well become a reality. If the defendant was alerted in regard to
the ex-parte interim injunction schedule on 23 September 1994, and,
in view of the several consent judgments which the defendant must fulfil,
they might probably disappear with the balance of RM3 million (see Castle
Fitness Consultancy Pte. Ltd. v. Manz  1 MLJ 141 as applied in
Lim Nyook Yin v. Ultratech Sdn. Bhd. & Anor.(supra)).
It was argued before me that the plaintiffs borrowed from various
financial institutions including the Federal Treasury, and their ex-parte
application was not directed at these financial institutions from releasing
the monies but rather they were more interested in restraining the
solicitors from releasing the monies to the defendant. Mr. Gurbachan Singh,
Counsel for the plaintiffs, rightly pointed out that an injunction could not
be granted against the Government and it was for this reason that he did not
cite the Federal Treasury as a party (Government of Malaysia v. Lim Kit
Siang  2 MLJ 12 SC). Clearly from the facts, there was urgency on
the part of the plaintiffs to proceed ex-parte under O. 29 of the RHC
as envisaged in Bates v. Lord Hailsham of St. Marylebone  3 ALL
ER 1019. I may add that in the event there was no urgency and, it could be
shown as such, the ex-parte interim injunction obtained could be set
aside simply on that solitary ground (Png Siaw Luan v. Wong Tui San
 3 MLJ 340).
Be that as it may, on the return date - this was on 5 October 1994, the
defendant's Counsel appeared and mentioned on behalf of the plaintiffs'
Counsel and sought an adjournment presumably to enable him to file an
affidavit in reply to discharge that interim injunction. I took the liberty
to extend the ex-parte interim injunction on inter partes
basis as the defendant's Counsel has entered an appearance and, at that
juncture, O. 29 of the RHC no longer applies to the case. A short
adjournment was granted and this was on 6 October 1994, where both parties
were represented and Mr. Ravindran for the defendant argued that he was
served with the order of 23 September 1994, on 4 October 1994, quite late in
the day, according to him. It was argued further that the interim injunction
obtained on an ex-parte basis should automatically lapse at the end
of two weeks from 23 September 1994, and 6 October 1994 was said to be the
last day for its existence. Reliance was placed on O. 29 r. (2B) of the RHC.
Applying O. 29 r. (2B) of the RHC to the facts of the case would mean
this. That the defendant's Counsel had entered an appearance on the 13th day
(5 October 1994) and even on that day the interim ex-parte injunction
was still valid and in existence without this Court extending it on an
inter partes basis (though this was done). On the 14th day - this was on
6 October 1994, when both parties appeared and argued on the preliminary
point, I could and am empowered to extend the ex-parte interim
injunction inter partes for three main reasons. Firstly, to enable
the defendant's Counsel to file his affidavit in reply since on 6 October
1994, he has yet to file it. Secondly, O. 92 r. 4 of the RHC gave this Court
an inherent power to make such an order (Lim Nyook Yin v. Ultratech Sdn. Bhd.
& Anor. (supra)). Thirdly, at that juncture, the purpose and
purport of O. 29 r. (2B) of the RHC were no longer applicable.
19 October 1994 was fixed as the next date of hearing. By then the
defendant had filed an affidavit in reply (encl. 6) where they stated that
the price of each house was listed at RM25,000 at cl. 3 of the standard S &
P and subject to any increase in the situations as envisaged in cl. 11(1)
thereof. They denied totally that there were extra charges as alleged by the
plaintiffs. In regard to the various claims as filed in the Ipoh High Court,
they denied that these claims were related to late delivery of vacant
possessions and averred that the works were carried out according to the
agreements thereto. They admitted paragraphs 19 and 20 of the plaintiffs'
affidavit and amplified that after fulfilling their obligations under the
consent judgments, they would receive payments of RM3,116,353.20 - an amount
sufficient to satisfy the plaintiffs' claim. The defendant averred further
that they proposed to undertake a joint venture project with "Yayasan
Pembangunan Rakyat Miskin Perak" ("Yayasan") to develop sixty (60) acres of
land belonging to Yayasan into a housing scheme and in support thereof a
letter dated 26 September 1994 vide Exhibit "SSK2" was annexed
thereto. The defendant asserted that they have no outstanding debts with
other financial institutions except in regard to the scheme at Taman Damai.
In regard to the plaintiffs claim that they were poor and earning RM400 to
RM500 per month, the defendant averred that such an admission was fatal
because the plaintiffs were in no position to give an undertaking as to
damages and that the defendant stood to incur damages if the sums of
RM3,116,353 were restrained. It was averred that in the event this Court
grants an injunction, the plaintiffs should deposit certain sums into Court
as security for the costs and the damages that the defendant might incur.
Finally, it was averred that there was an alternative remedy available apart
from the equitable remedy of injunction and that the whole exercise
undertaken by the plaintiffs was misconceived, frivolous, vexatious and an
abuse of the process of the Court. Finally, the defendant prayed that the
plaintiffs' application be dismissed with costs.
Mr. Gurbachan Singh affirmed an affidavit in reply (encl. 7) on behalf of
the plaintiffs and he adverted to and adopted the plaintiffs' affidavit in
encl. 1B and challenged the defendant's affidavit in encl. 6. He denied the
allegations in paras. 5 and 6 of encl. 6 and alleged that the plaintiffs
were overcharged as set out in the statement of claim marked "A" and annexed
thereto. He averred that the plaintiffs were overcharged to the tune of
RM1,489,988.88 sen and that the defendant practised discrimination in regard
to the pricing of the land for an intermediate lot with that of a corner
lot. He averred that there was late delivery of vacant possession and Saw
Sing Kiat practised deception on this point because all the consent
judgments entered between the parties were in regard to late delivery of
vacant possessions. In regard to the other cases, there were extra charges
for non-existent extra works designed specifically to inflate the purchase
price of the houses. He averred further that the plaintiffs in the other
cases obtained injunctions to restrain the monies until disposal of the suit
and cited S.P. No. 31-1475-87 where Anuar J (as he then was and now the
Chief Judge (Malaya)) gave an injunction to restrain the defendants from
obtaining or attempting to obtain releases of the balance of the purchase
price or progressive payments directly from the relevant financial
institutions (Exhibit 'C' in encl. 7). He took exception to para. 10 of
encl. 6 and averred that the plaintiffs were only interested to restrain
RM1,489,988.99 sen and not RM3,116,353 sen as alleged. In regard to the
Yayasan project it was only a proposal by the defendant to Yayasan and there
was no concrete proof that the defendant had secured the project. Thus, it
was clear that the defendant had no other ongoing project except Taman Damai.
He averred that the plaintiffs, if directed, could afford to pay the damages
incurred by the defendant, if any. Finally, he averred that there were
triable issues which should be set down for hearing.
Though the defendant did not file an affidavit in reply to encl. 7, it is
obvious that there are conflicts of evidence as to the facts especially that
part where the defendant was said to have overcharged the plaintiffs and
these can only be ironed out at the trial proper. It is also obvious that an
interesting point of law exists, which calls for a decision. This is in
relation to the differentiation of the prices between the intermediate and
the corner lots which is said to be unlawful, improper, fraudulent and
discriminatory. A decision on the question of law can only be arrived at
after a full fledged trial. I am fortified, in my view, by a passage
appearing in the judgment of Lord Diplock in American Cyanamid Co. v.
Ethicon Ltd.  1 ALL ER 504, especially at p. 510 where his
Lordship said this:
It is no part of the Court's function at this stage of the litigation to
try to resolve conflicts of evidence on affidavit as to facts on which the
claims of either party may ultimately depend nor to decide difficult
questions of law which call for detailed argument and mature considerations.
These are matters to be dealt with at the trial.
However, I am not barred and I need to consider whether on the available
material before me, the plaintiffs have any real prospect of succeeding at
the trial proper. The various consent judgments involving the defendant and
where the defendant was obliged to fulfil were related to the same subject
(i.e., Taman Damai). At its lowest ebb, the plaintiffs have a good prospect
of succeeding at the trial. Next, I need to consider whether damages would
be an adequate remedy. Here, the amount that was sought to be restrained is
in the sum of RM1,489,988.88 sen, a huge amount and, unless the damages were
in the same price range, there cannot be said to be an adequacy of damages
for the plaintiffs in the event they succeed at the trial proper. A doubt
here exists as to the adequacy of damages and, I, need now go, on the
question of the balance of convenience as recommended by Lord Diplock in the
American Cyanamid case (supra): "It is where there is doubt as
to the adequacy of the respective remedies in damages available to either
party or to both, that the question of balance of convenience arises." In
construing the question of balance of convenience, the Court is not
precluded from taking into account all the relevant factors and give
appropriate weight to each of them. Thus, the defendant here could have
applied to strike out the statement of claim if they thought that it was
frivolous, vexatious and an abuse of the process of the Court. But, they saw
it fit not do any of those things and, instead, have since filed a statement
of defence. There was also the fear that the defendant might run away with
RM3,116,353 which forms part and parcel of RM1,489,988.88 sen and thereby
depriving the plaintiffs of their right to it. This aspect of the affidavit
evidence was not challenged nor adverted to by the defendant in their
affidavit in reply (encl. 6). It venture to say that the plaintiffs in their
affidavits (encl. 1B and encl. 7 through their Counsel) have affirmed clear
and concise statement of the facts. The plaintiffs' affidavits have stated
clearly the cause of action and the alleged right that has been infringed.
The various consent judgments against the defendant painted a bad picture
for the defendant and after this and those other factors and, in fact, after
taking the whole facts of the case in its correct perspective, the balance
of convenience tilted strongly in favour of the plaintiffs. An injunction
was the immediate answer to the plaintiffs' problems and damages, if the
amount was smaller than RM1,489,988.88 sen, could never be said to be
adequate. Thus, an injunction would certainly not prevent the defendant from
addressing their grievances at the trial proper. I have taken into account
the ability of the plaintiffs to honour their undertaking as to damages and
this was a crucial factor in deciding the balance of convenience (the
American Cyanamid case (supra)). I do not agree that just because
the plaintiffs are poor, they are barred from obtaining an injunction.
Limited financial resources should not be the sole barometer in deciding
whether an injunction should be given in favour of that particular aggrieved
individuals. Here, there are 245 plaintiffs going for a big loot of
RM1,489,988.88 sen. Together they could well afford to pay for the damages
(see for comparison Allen v. Jambo Holdings Ltd.  2 ALL ER
For these reasons, I granted prayers (a) and (b) of encl. 1A and I
further ordered that a sum of RM1,489,988.88 sen be deposited in the
client's account of the plaintiffs' solicitors M/s. Bachan & Kartar, Ipoh,
Perak with interest therein till the trial and judgment of civil suit No.
22-4-92 be completed. Costs should be costs in the cause.