The court established that ex parte injunctions should only be granted in genuine emergencies, emphasizing procedural fairness and the necessity for adequate remedies through damages if ex parte orders are set aside.

JUDGMENT

A. Introduction

[1]I have been directed by the learned President of the Court of Appeal (PCA) to sit alone pursuant to s 44(1) Courts of Judicature Act 1964 CJA) and hear an ex parte Notice of Motion for an Erinford injunction pending the disposal of an appeal to the Court of Appeal.

B. Background

[2]The appellant company (Appellant) entered into a “Carpark Operator Cum Licence Agreement” dated 1.10.2019 (Agreement), with Bukit Damansara Development Sdn. Bhd. (BDD). According to the Agreement, among others, BDD granted the Appellant a license to operate car park services, including valet services (Car Park Services), at VSquare @ PJ City Centre, Jalan Utara, 46200 Petaling Jaya, Selangor (Building). The Agreement was for a period of five years, commencing on 1.10.2019 and concluding on the 30.9.2024 (Expiry Date).

[3]Around December 2020, the second respondent (2^nd Respondent) entered into a separate arrangement with BDD wherein the 2^nd Respondent acquired ownership of the Building from BDD for a consideration of RM147 million.

[4]By a “Notice of Assignment” dated 2.11.2021 from BDD to the Appellant (copied to the 2^nd Respondent), BDD informed the Appellant that, among others, BDD had assigned, novated and transferred absolutely all of BDD’s rights, interest, benefits, liabilities and obligations under the Agreement to the 2^nd Respondent.

[5]The first respondent company (1^st Respondent) is a subsidiary of TH Properties Sdn. Bhd. (which is part of the 2^nd Respondent’s group of companies).

[6]The Appellant alleged as follows, among others:

(1)on 19.4.2024, the Appellant submitted a revised proposal to the 1^st Respondent for an extension of the Agreement for an additional three-year term commencing from 1.10.2024 until 30.9.2027 (Appellant’s Revised Proposal); and

(2)on 26.04.2024, the 2^nd Respondent had accepted the Appellant’s Revised Proposal. Hence, there was a valid extension of the Agreement from 1.10.2024 until 30.9.2027 [Alleged Extension (Agreement)].

[7]By a letter dated 28.8.2024 (issued under the cover of an email dated 2.9.2024), the 2^nd Respondent notified the Appellant that the Agreement would expire on 30.9.2024 and gave the Plaintiff a two months’ period (until 31.10.2024) for the smooth handover of the Car Park Services to the new car park operator [2^nd Respondent’s Notice (28.8.2024)]. The 2^nd Respondent’s Notice (28.8.2024) was copied to the 1^st Respondent.

[8]According to the Appellant -

(1)the Appellant had relied on the expectation of the Alleged Extension (Agreement) and had therefore incurred expenditure in a sum of RM690,000.00; and

(2)due to the 2^nd Respondent’s Notice (28.8.2024), the Appellant now face a potential loss of profit as the Agreement would not be extended.

[9]The Appellant had recently discovered that the 2^nd Respondent intended to award the operation of the Car Park Services to NES Solutions Sdn Bhd (NESS).

[10]A director and shareholder of NESS is Mr. Eugene Berchman Netto (Mr. Eugene), a former employee of the Appellant. With regard to Mr. Eugene, the Appellant averred as follows:

(1)there were serious concerns regarding Mr. Eugene’s possession of proprietary and confidential information about the operational and contractual aspects of the Agreement;

(2)Mr. Eugene had been entrusted by the Appellant to manage and handle the Appellant’s account, including the Car Park Services; and

(3)when NESS was incorporated on 24.2.2020, Mr. Eugene was still employed by the Appellant.

[11]The Appellant’s solicitors sent a letter dated 18.10.2024 to the 1^st Respondent [Appellant’s Demand (18.10.2024)] which -

(1)demanded the 1^st Respondent to honour the Alleged Extension (Agreement); and

(2)gave the 1^st Respondent seven days to respond in writing to the Appellant’s Demand (18.10.2024).

[12]There was no response by the 1^st Respondent to the Appellant’s Demand (18.10.2024).

[13]The Appellant’s solicitors sent a letter dated 21.10.2024 to NESS and Mr. Eugene [Appellant’s Demand (21.10.2024)]. According to the Appellan