The requirement for full disclosure in ex parte applications is critical; failure results in invalidation of injunctive relief.

GROUNDS OF DECISION

1. This is the plaintiffs application for a fresh injunction notwithstanding that the interim- injunction granted to the plaintiff, had already expired. The defendants opposed the application by the affidavits of Theresa Aw Lee Cheng @ Lee Chin dated 24th November, 1999, 30th November, 1999 and 8th December, 1999.

Brief facts

2. Tsang Kwang Toh @ Chuang Kwang Too and Wee Hua Boo on 28th May, 1975 entered into a Development Agreement with Datuk William Nais (1st Defendant) to develop a piece of land described as Lot 1397 Bukar Sadong Land District (the said land). By a Supplementary Agreement dated 12th August, 1975, the parties had agreed to postpone the development of the said land.

3. On 25th March, 1981 the plaintiff company was incorporated with Tsang and Wee as the only shareholders and directors, and they assigned the Development Agreements to the Plaintiff. On 24th August, 1984 the plaintiff lodged a caveat in the said land and changed its address to 2nd Floor, Padungan Road, Kuching. Both Wee and Tsang were adjudged bankrupts on 12th June, 1989 and 9th April, 1990 respectively. Subsequently Ngeaw Siew Hiong and Tan Eng Chiang were appointed directors of the plaintiff on 27th February, 1999 and 12th June, 1999 respectively.

4. The caveat lapsed and was removed by virtue of s. 178 Sarawak Land Code and on 1st October, 1999 the plaintiff filed the suit against the defendants.

5. The plaintiff had been dormant since 1985, and the plaintiff had not explained the long delay in bringing the suit. However the plaintiff in an ex parte application was granted an interim-injunction on 4th November, 1999 and this application was supported by the affidavit of Wee Hua Boo. In the affidavit Wee had failed to disclose the fact that he was a bankrupt.

6.Halsbury's Laws of England , 3rd Edition, page 247, paragraph 333, states:-

"On any application made ex parte the utmost good faith must be observed, and the applicant is under the duty to make full and fair disclosure of all the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the applicant has failed to make sufficient or candid disclosure, the ex parte order may be set aside on that very ground.

7. Section 38(1)(d) of the Bankruptcy Act 1967 states:-

"(d) the bankrupt shall not, except with the previous permission of the Official Assignee or of the court, enter into or carry on any business either alone or in partnership, or become a director of any company or otherwise directly or indirectly take part in the management of any company;"

8. It is clear from the provision in subsection (1)(d) of section 38 of the Bankruptcy Act 1967 which prohibits an undischarged bankrupt from doing business unless prior sanction of the Official Assignee or with the leave of the court. Here, Wee was an undischarged bankrupt when he made an ex parte application to the court for an interim-injunction . At the material time he had not obtained the sanction of the Official Assignee nor the leave of court before making the ex parte application.

9. In THE TOPPS CO. INC. v. MALLY JAVA SDN. BHD. , [1998] 5 MLJ 744 where the court held that the status of the deponent who is an undischarged bankrupt is a material fact which must be made known to the court in an ex parte application. It is trite law that frank and full disclosure of all material facts must be made in an ex parte application.

10. It is well settled that in an ex parte application, a frank and full disclosure of material facts must be observed. For failure to disclose in the affidavi