GROUNDS OF JUDGMENT

This is an appeal against my decision dismissing the plaintiffs' application (enc. 4) for an, interim injunction to restrain the defendant from executing a consent judgment dated 22.6.2000 which was entered into in respect of Writ Action No. 22-136-2000, until the trial of this Writ Action No. 22-28-2001.

Miss Sheanna, the learned counsel for the defendant, has submitted that the effect of the injunction as prayed for in this application, if granted, is more of an order to stay the execution of the consent judgment (hereinafter-referred to as "the said consent judgment") in Writ Action No. 22-136-2000 which was filed on 1.6.2000 (hereinafter referred to as "the first action") pending the outcome of this Writ Action No. 22-28-2001 which was filed on 20.2.2001 (hereinafter referred to as "the second action").

After hearing arguments from both parties, I had dismissed the plaintiffs' application with costs. The plaintiffs have appealed against my decision. I now give my reasons.

The court is in agreement with the submissions of Mr. Gurbachan Singh, the plaintiffs' counsel, that the principles to be applied to this case have been laid down in the decided cases, in particular, American Cyanamid Co v. Ethicon [1975] AC 396 and Keet Gerald Francis Noel John v. Mohd Noor @ Harun bin Abdullah, [1995] 1 CLJ 293 , [1995] 1 MLJ 193. In my view, in the light of these two cases the questions to be asked by the court when considering whether to grant an interlocutory injunction and the approach to be adopted by the court are as follows:

(a) first the court has to consider the question whether there is a bona fide serious question to be tried;

(b) if the answer to the question in (a) above is in the affirmative, the court should next ask the question whether damages would be an adequate remedy to the plaintiffs;

(c) if the answer to the question in (b) above is in the affirmative, the court should next consider whether the defendants are in a financial position to pay them. This is because no interlocutory injunction should be granted however strong the plaintiffs' claim may appear to be if damages would be an adequate remedy;

(d) if the answer to the question in (c) above is in the negative, the court has to go further and consider whether the defendant would be sufficiently compensated under the plaintiffs' undertaking as to damages for the loss he would have suffered by being prevented from executing the said consent judgment;

(e) if the answer to the question in (d) above is in the affirmative, and the court is satisfied that the plaintiffs are in a financial position to pay them then the court, can proceed to grant the interlocutory injunction to the plaintiffs; and

(f) if the answer to the question in (e) above is in the negative, and the court is in doubt whether damages would be an adequate remedy to the plaintiffs or the defendant, or to both the plaintiffs and the defendant, then the court must consider the final question which is where does the balance of convenience lie?

(g) if the answer to the question in (f) above is that the balance of convenience lies in favour of the grant of the interim injunction then the court should proceed and grant it; and

(h) if the answer to the question in (g) above is in the negative, then the application should be dismissed.

Mr. Gurbachan Singh has argued that there is a serious question to be tried since it is trite law that non parties cannot be bound by an order of court. He has also informed, the court that he is unable to find a similar case where a consent order was entered in the absence of non parties and binding them. He has also submitted that the said consent. judgment is a nullity. In response, Miss Sheanna, has submitted that non parties can be bound by an order of court if they have agreed to be so bound. Nevertheless, she has conceded that there is a serious question to be tried, ie, whether the 1st and 2nd plaintiffs in the second action had given instructions to Mr. S. Vik