The court established that an ex parte application, once set aside, may still serve as a basis for inter partes proceedings, negating claims of it being jurisdictionally spent.

RK Nathan J:

Facts

On 29 June 1999 by way of encl. 9 the plaintiff applied ex parte for various orders against the defendants in the nature of a Mareva injunction, Anton Piller Orders and Disclosure Orders. These ex parte orders were made by this court pursuant to O. 29 r. 1(2) of the Rules of the High Court 1980 (the RHC).

The plaintiff then served the order dated 29 June 1999 (encl. 14) upon the defendants on 30 June 1999. On 2 July 1999 the defendants made an oral application inter partes to vary encl. 14 to enable the 1st defendant to carry out his daily business transactions. Whilst disputing the service of the papers the 1st defendant argued that the ex parte orders granted were too wide as to completely bring the daily business of the defendants to a halt. After hearing submissions I varied my ex parte orders (encl. 14) by my order dated 2 July 1999 (encl. 19). On 7 July 1999 the defendants applied (encl. 25) to set aside the ex parte injunction before the expiry of the 14- day requirement. Pending the disposal of encl. 25 I granted a holding over order on an inter partes basis.

The plaintiff did not file a separate application for an inter partes injunction upon the lapse of the ex parte injunction at the end of the 14 days. On 28 September 1999 after hearing extensive arguments I set aside the ex parte orders and gave an order in terms of encl. 25. The plaintiff, seeking a fresh injunction, relied on encl. 9 which was the ex parte application already disposed of.

Case For The Plaintiff

The plaintiff contended that it was still open to it to have encl. 9 heard inter partes this time, for an injunction on the same terms as encl. 14. The defendants' case was that encl. 9 is jurisdictionally spent. They also argued that as a matter of procedural law and as a construction of O. 29 rr. 1 and 2 of the RHC, there must be a separate application made inter partes by the plaintiff for any further injunction in the same proceedings.

Issue Before The Court

The issue before the court was whether it is open to the plaintiff to rely on encl. 9 to obtain an injunction on an inter partes basis after the ex parte order given, based on encl. 9 had been set aside.

The defendants raised a preliminary objection which I heard on 2 November 1999 and dismissed with costs on 3 November 1999. The defendants have since appealed against the said dismissal.

Findings Of The Court

Is Enclosure 9 Jurisdictionally Spent?

It is the defence case that as a matter of procedural law and pursuant to O. 29 rr. 1 and 2 of the RHC there must be a separate application made inter partes by the plaintiff for any further injunction in the same proceedings. It is necessary to therefore reproduce O. 29 rr. 1 and 2 which read as follows:

1. Application for injunction (O. 29 r. 1)

(1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be.

(2) Where the applicant is the plaintiff and the case is one of urgency such application may be made ex parte by summons supported by an affidavit but, except as aforesaid, such application must be made by summons.

2. Detention, preservation, etc of subject-matter of cause or matter (O. 29 r. 2).

(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.

The defendants pointed out that at all material times the only pending application before the court was encl. 25 which was the defendants' application to se