An Erinford injunction can be granted to preserve the status quo pending appeal, especially when without it the appeal would be rendered nugatory, despite previous jurisdictional dismissals.

[1] The Plaintiff/Applicant applied in encl 57 for:-

1.1 the operation and/or the enforcement and/or the execution of the Order of this Court dated 8 March 2013 ("the said Order"), in particular:-

(a) "protection or release of the 10 containers (namely containing "MALIMBO" branded cigarettes ("MALIMBO containers")) which the Royal Malaysian Customs ("RMC") held as a result of the injunction Orders dated 2 October 2012 and 16 October 2012";

(b) "the Ex-Parte Injunction Order dated 2 October 2012 and Ad Interim Injunction Order dated 16 October 2012 against the First Defendant made to prevent any dealing with the 10 MALIMBO containers be discharged";

(c) "Costs of RM4,000.00", be stayed and/or suspended pending the disposal of the Plaintiff's appeal to the Court of Appeal;

1.2 an Erinford Injunction pending the Plaintiff's appeal restraining the First Defendant, whether by itself, its directors or servants or agents or otherwise howsoever, from whether acting by themselves, their directors, officers, servants or agents or any of them or otherwise, their employees, servants, principals or agents, whether jointly or severally or any of them or otherwise howsoever until the full and final disposal of the Plaintiff's appeal to the Court of Appeal against the said Order from claiming and/or seeking for the release of and/or taking possession and/or custody and/or control and/or accepting delivery and/or dealing and/or disposing in any way whatsoever of the MALIMBO containers and/or MALIMBO cigarettes;

1.3 an interim order as per prayers (1) and (2) therein pending the full and final disposal and decision of the application made by the Plaintiff in this Notice of Application; and

1.4 costs to be reserved.

[2] The grounds of the Plaintiff's application are, amongst others:-

2.1 the Plaintiff had filed an appeal to the Court of Appeal against the said Order;

2.2 the operation and/or the enforcement and/or the execution of the said Order ought to be stayed or suspended to preserve the status quo of the subject matter in this action pending the disposal of the Plaintiff's appeal;

2.3 in the event that the operation and/or the enforcement and/or the execution of the said Order is not stayed or suspended, there is an imminent danger that the First Defendant can at any time between now and the Plaintiff's appeal remove out and/or deal with the MALIMBO cigarettes in such manner which will infringe the intellectual property right of the Plaintiff and/or which will render the Plaintiff's appeal to the Court of Appeal nugatory and academic;

2.4 there are merits in the Plaintiff's appeal and the Plaintiff's appeal is not frivolous or vexatious. It is grounded on a bona fide belief that there is a chance of success;

2.5 damages is not an adequate remedy for the Plaintiff;

2.6 the balance of convenience and justice of the case demand that the status quo be preserved pending the disposal of the Plaintiff's appeal.

B. Chronology Of Events

[3] The Plaintiff had filed a Writ and Statement of Claim against the First Defendant for, amongst others, a permanent injunction restraining the First Defendant from dealing with the MALIMBO containers and/or cigarettes. The Plaintiff had further filed an Injunction Application seeking for an order, amongst others, to restrain the First Defendant from dealing with the MALIMBO containers and/or cigarettes pending full and final disposal of the matter.

[4] The First Defendant then filed an application for, amongst others, to set aside the Writ and Statement of Claim against the First Defendant on the grounds mainly that this Court has no jurisdiction over the First Defendant in respect of the subject matter, which are the MALIMBO containers and/or cigarettes.

[5] This Court had on 8 March 2013 issued the said Order and had allowed the First Defendant's application as follows:

5.1 the Writ against the First Defendant be set aside;

5.2 protection and release of the 10 containers which the RMC held as a result of the Injunctions dated 2 Oc