Mohamed Dzaiddin J:

On 29 September 1987 and 22 February 1988 I heard submissions of Counsel for the defendants on their application to dissolve the ex parte interim injunction which I granted against all the defendants on 3 April 1987 restraining them from disposing, selling, dealing etc. with the assets of the plaintiff's company through the 3rd, 4th, 5th and 6th defendants who were appointed receivers and managers under the debentures. On 15 April 1988 I delivered my judgment allowing the defendants' application with costs.

Immediately thereafter, Mr. Charles Ong, Counsel for the plaintiff, upon his undertaking to file the notice of appeal against my above decision to the Supreme Court, moved orally for a further limited interim injunction pending the hearing of the appeal. Counsel stated that he was making the application under the principles in Erinford Properties v. Cheshire County Council [1974] 1 Ch. 261; [1974] 2 All ER 448. Quite naturally, Encik Ghazi who appeared for the defendants opposed the application. On 30 April 1988, I heard the arguments of Counsel.

Mr. Balasundaram, who appeared with Mr. Charles Ong, submitted that I should exercise my discretion in allowing a further interim injunction pending an appeal for the following reasons. He stated that the concern of the plaintiff was to preserve the status quo pending the hearing of an appeal against my judgment, the notice of appeal had already been filed. Under the Erinford principle, when a party is appealing, exercising his undoubted right of appeal, the Court ought to see that the appeal if successful is not nugatory. Undoubtedly, Counsel was conscious of my strong reasons for dissolving the ex parte interim injunction. Nevertheless, he felt that the likelihood of a successful appeal being rendered nugatory was a sufficient ground for me to grant the plaintiff's application. Counsel further submitted that the receivers would not be prejudiced by the interim injunction and in addition, the 1st and 2nd defendants had a registered charge over the properties of the plaintiff. Lastly, he felt there would be no greater hardship rendered to the defendants if the present application was allowed.

Tunku Alina, Miss Solomon, and Encik Ghazi, in opposing the application, submitted mainly on the question of damages and balance of convenience i.e. graver hardship to the defendants. Tunku Alina submitted that Erinford was not a case in which damages seemed to be a suitable alternative unlike the present case. Miss Solomon submitted that since the appointment of the receivers and managers, the assets of the plaintiff company have depreciated considerably. The value of the plaintiff's factory and assets as a going concern as at 9 April 1985 was RM10 million. But on the day the receivers and managers were appointed i.e. 24 April 1986, it was valued at RM4.5 million. On the question of the balance of convenience, both Tunku Alina and Miss Solomon submitted that as the appeal may take about six months before it is heard, the prejudice to the 1st and 2nd defendants would far outweigh the convenience of the plaintiff. Lastly, Encik Ghazi submitted that the plaintiff had failed to show in what way, if the appeal is successful, it would render the judgment nugatory.

In Erinford, (reading from the headnote) on the plaintiffs' motion for an interlocutory injunction restraining the defendant from considering or determining the plaintiffs' planning application for certain land otherwise than concurrently with another planning application for adjoining land made by the other applicants, judgment was given refusing the injunction. Immediately after the judgment the plaintiffs moved the Court ex parte for, and were, granted, an injunction in a modified form restraining the defendant from considering the plaintiffs' planning application for some six days in order to enable the plaintiffs to consider an appeal. The defendant moved the Court ex parte to discharge the injunction. Me