George Seah SCJ:

For the purpose of this appeal we would regard the writ taken out by the plaintiff, Dr. Mahendran a/l V. Markandoo (the respondent herein) as probate action albeit the procedure laid down in O. 72 of the Rules of the High Court 1980 has not been complied with. We would like to emphasize that probate actions whether contentious or non-contentious, should comply with O. 71 and 72 of the Rules of the High Court 1980.

After issuing the writ in December 1985 the respondent took out a summons in May 1986 applying for an interlocutory injunction against the administrator and administratrix of his deceased father's estate, appointment of a receiver and other ancillary relief. The learned Judge made the order in terms.

In granting the interlocutory injunction the learned Judge adopted the test propounded by Lord Diplock in the American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 that the pleadings have raised a number of serious questions to be tried. Whilst this test may be valid in ordinary civil proceedings it is submitted by learned Counsel for the administrator and administratrix (hereinafter referred to as the appellants) that it is not a proper test to be adopted in probate actions, in as much as the administrator and/or administratrix is appointed by the Court and subject to the control of the Court. He argues that a higher test ought to be used. Learned Counsel for the respondent seems to agree with this submission. In our judgment, a strong prima facie case is required to induce a Court to grant an interlocutory injunction against an administrator or administratrix and thereby displacing his/her authority. There must be some evidence of actual misconduct or fraud and immediate danger of loss. For the Court is reluctant to interfere with the work of an administrator or administratrix except in special circumstances.

Applying this higher standard of test to the facts of this case it is plain that the learned Judge had exercised her judicial discretion based on wrong principle. Learned Counsel for the respondent had contended that although the learned Judge had not applied the test correctly there was nevertheless ample affidavit evidence to support that a strong prima facie case had been made out against the appellants and that the learned Judge was quite justified in granting the interlocutory injunction and appointing a receiver to manage the estate of the deceased. This contention was disputed by learned Counsel for the appellants.

We have carefully read and considered the affidavits filed herein by the respective parties to these proceedings. We are unable to agree with the submission of learned Counsel for the respondent that a strong prima facie case had been made out against the appellants. True, there were a number of allegations of mismanagement and other acts of improprietary made by the respondent but they were strongly denied by the appellants. On the other hand, there was the claim of the appellants that the administration of the deceased's estate had already been completed some years ago in November 1979.

For the above reasons, we allow the appeal and set aside the interlocutory injunction and the appointment of a receiver made by the learned Judge on 29 September 1986, and order an early trial of this action instead. We would award to the appellants costs in this Court only to be taxed. The deposit shall be refunded to the appellants.

Also found at