JUDGMENTBY: SUFFIAN LP

(delivering the judgment of the Court): We allowed this appeal and now give our reasons.

The plaintiffs run a night club in Kuala Lumpur, the Pertama Cabaret Nite Club. According to their affidavit, on September 30, 1980, the well-known singer from Hongkong known as Roman Tam, defendant, through his agent in Malaysia, signed a contract agreeing to appear and sing at the plaintiffs night club for nine days from November 28, 1980 and ending on December 6, 1980. According to copy of the agreement exhibited, the plaintiffs agreed to pay the defendant US$ 2,400 a day, plus expenses and Government tax.

The plaintiffs made all the necessary arrangements to enable the defendant to come and sing in the plaintiffs night club, including the procurement of clearance by the Ministry of Youth, Culture and Sports, all immigration papers, a professional visa and the supply of air tickets.

Subsequently the plaintiffs entertainment manager Mr. K.S. Wong heard from the defendants agent that the defendant might not appear at the plaintiffs night club unless offered higher remuneration. So Mr. Wong telephoned the defendant in Kowloon, Hongkong, on November 26 to tell him that all arrangements had been finalized and his air tickets, visa, etc. were ready. On November 28 at about 7.30 p.m. Mr. Wong went to Subang airport to meet the defendant, but he was nowhere to be found.

It later transpired that the defendant had declined to honour his contract to sing at the plaintiffs night club and was, we were told from the Bar, singing at another night club in Kuala Lumpur, the Shangri-la.

Now, by clause 15 of the contract it was provided that misconduct by the defendant or breach of any of the terms of the agreement shall entitle the plaintiffs to terminate the contract; and that in the event of such termination the defendant shall not be entitled to perform in Kuala Lumpur during the period fixed in the contract or three months thereafter; and there are provisions for compensation to be paid by the defendant to the plaintiffs.

On December 5, the plaintiffs issued a writ against the defendant claiming an injunction and damages, and on the same day the plaintiffs took out a summons in chambers applying ex parte, for an interim injunction to restrain the defendant from appearing "at any opera house, theatre, concert hall or other public or private entertainment in Kuala Lumpur" until the hearing of the summons.

Events moved fast, for on December 8 the summons came up in chambers before the learned judge, who on the same day refused to grant the application, which refusal he confirmed in open court two days later.

In a brief oral judgment he gave his reason for refusing the application. He said that the main ground upon which the application was made was that irreparable harm and damage had been suffered by the plaintiffs through the loss of their reputation as a reputable night club, but that he was not satisfied that damages would not be an adequate remedy, if indeed the defendant had committed a breach of contract.

The plaintiffs appealed from the decision of the learned judge. On December 11 when the matter came up before us, we allowed the appeal, set aside the learned judges order, and, on the plaintiffs undertaking to pay damages should the case go against them, ordered the interim injunction to issue, restraining the defendant for a period of three months from date of breach of contract on November 28, 1980, plus nine days; but at the same time we gave the defendant liberty to apply within 14 days of the service on him of the interim injunction to have the interim injunction set aside; costs here and below to be costs in the cause.

It is to be emphasized that we were not at this stage concerned with the merits of the dispute between the plaintiffs and defendant; all we were concerned with was the ex parte application by the plaintiffs that an interim injunction should issue to restrain the defendant from singing

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