The application for Erinford injunctions is determined by balancing justice and convenience, not solely by the nugatoriness of appeals.

[1] The respondent applied for an Erinford injunction to stay an order of this court in allowing the appellant's appeals in respect of three suits commenced before the Sessions court. The heart of the dispute between the parties was a bank guarantee issued in favour of the appellant in the amount of USD70,000 to secure the delivery by the respondent of certain pressure vessels to be used in the oil and gas industry.

[2] The respondent, dissatisfied with the decision of this court in allowing the appeals, has sought leave of the court of Appeal to appeal against this decision.

[3] It was contended by the respondent that the Erinford injunction was necessary in order to preserve the subject matter of the appeal; that if the injunction was not granted, the appeal would be rendered nugatory. The call on the guarantee would have to be met by the issuing bank, causing it was contended irreparable harm to the respondent.

The Applicable Principles

[4] Mr Koshy, counsel for the appellants submitted, and I agree, that the nugatoriness of an appeal is not the only consideration in making a determination whether an Erinford injunction ought to be granted. The ordinary principles relating to the granting of interlocutory injunctions should apply with equal force in these circumstances.

[5] In the court of Appeal's decision of See Teow Guan & Ors v. Liqudators Of Kian Joo Holdings Sdn Bhd (In Liquidation) & Ors, , it was held by Suriyadi Halim Omar JCA that:

In matters governing an application for a stay, or any other form of interim order, the approach is that no successful appeal should be rendered nugatory at the end of the day. Despite this pragmatic approach, there is no blank cheque that demands automatic granting of a restraining order in order to avoid any appeal being rendered nugatory. Persuasive reasons must still be ventilated and established to ensure a successful motion.

...

[12] It is quite established that an injunction for the preservation of property and other mandatory orders may only be granted in accordance with the principles applicable to the granting of interlocutory injunctions. It may be granted where the court is satisfied that there is a substantial question to be tried, and a case has been made out for the preservation of that property (Nicholas & Ors v. Gan Realty Sdn Bhd & Ors, ). And as in the American Cyanamid v. Ethicon Ltd [1975] AC 396, smack on the issue of injunctions, there is the requirement that before a court exercises its discretion in favour of granting an injunction:

(1) there must be a serious question to be tried;

(2) there must not be any delay by the appellants in making the application;

(3) that if the appellant were to succeed at the appeal, damages would not be adequate compensation for its loss;

(4) that the balance of convenience lies in its favour;

(5) the appellant must demonstrate evidence that its financial undertaking given to court is solid and worth powder and shot; and

(6) there are special circumstances in its favour including the justice of the case.

[6] Ms Toh, counsel for the respondent contended that these requirements do not apply to Erinford injunction. I am afraid that I am unable to agree with her, for the simple reason that the decision of the court of Appeal in See Teow Guan v. Liquidators Of Kian Joo Holdings Sdn Bhd is binding on this court.

[7] This position was in fact consider