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COURT OF APPEAL PUTRAJAYA
MIDDY INDUSTRIES SDN BHD & ORS – Appellant
Versus
ARENSI-MARLEY (M) SDN BHD – Respondent
Key Points: - The undertaking as to damages is not automatically enforceable after the ex parte injunction is dismissed; judicial discretion and procedural compliance are required. (!) - Enforcement of an undertaking as to damages requires prior discharge of the ex parte injunction and appropriate steps; otherwise the appellants have no right to enforce. (!) - The court emphasized that automatic post-dismissal enforcement of an undertaking is not permitted; it depends on proper legal steps and discretion to prevent abuse of process. (!) - The appeal was dismissed with costs awarded to the respondent. (!) - The case concerns copyright infringement and an ex parte injunction with an undertaking as to damages in a dispute over design originality. (!) - Factual timeline: respondent obtained ex parte injunction for a copyright matter; injunction later dismissed at inter parte hearing; implications for damages undertaking. (!) - The court's ratio focuses on procedural compliance and avoidance of frivolous or abusive claims in enforcing undertakings post-dismissal. (!)
| Table of Content |
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| 1. background of the appeal and factual context. (Para 1 , 1 , 2) |
[1] This is an appeal against the decision of the learned High Court Judge dated 22 April 2010 in allowing the respondents application to strike out the appellants Notice of Appointment for Hearing of Assessment of Damages, pursuant to an undertaking given by the respondent (plaintiff in the Court below) in respect of an ex parte interlocutory injunction which was ultimately dismissed at an inter parte hearing.
Factual Background
[2] The respondent commenced an action on 2 May 2002 against the appellants for copyright infringement and passing off in relation to the use of the respondents designs for the rain water gutter system by the appellants. On 14 May 2002 the respondent obtained an ex parte injunction order against the appellants with the usual undertaking as to damages pending the hearing of the inter parte interlocutory injunction application. The appellants defence is that the respondent does not have the copyright in the design of the gutter system and that the design of the gutter system is not original.
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