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2026 MarsdenLR 507
HIGH COURT SABAH & SARAWAK KOTA KINABALU
RATANAH DEVI YUSOF PERUMAL, JC
SITI RAFIDAH AHMAD & ORS – Appellant
Versus
DERWI NASIP & ORS – Respondent
[Suit No: BKI-22NCVC-13-3/2025]
An Erinford injunction pending appeal is not a mechanism to re-litigate dismissed claims. Applicants must demonstrate that the appeal would be rendered nugatory, establish serious issues to be tried, and demonstrate 'clean hands' by complying with existing court orders to qualify for discretionary equitable relief.
Headnote:(A) Civil Procedure - Interlocutory Injunction - Principles for grant - Threshold requirements: Applicant must establish serious issue to be tried, balance of convenience, adequacy of damages, and provision of an undertaking as to damages - Remedy is discretionary and intended to maintain the status quo - Court must avoid determining merits at the interlocutory stage (Paras 29, 34, 38).
(B) Appeal - Erinford Injunction - Purpose is to preserve status quo pending appeal to prevent it from being rendered nugatory - Not a vehicle to re-litigate identical issues dismissed in original application - Requires proof that appeal would be rendered worthless without relief (Paras 67, 71, 74, 89).
(C) Equity - Clean Hands Doctrine - Applicant for equitable relief must approach court without misconduct - Breach of prior court orders constitutes fatal flaw to subsequent application for injunctive relief (Paras 60, 62).
Facts of the case:
The applicant sought an interlocutory injunction to restrain the removal of a director and shareholder from a company, following an earlier dismissal of an identical application. The applicant argued that protecting their position was necessary to prevent the potential dissipation of company funds and to preserve the status quo pending an appeal. The respondents contended that the application was a repeat attempt to litigate settled issues and that the applicant had failed to comply with prior court orders concerning financial disclosures.
Findings of Court:
The court found that the current application was an attempt to relitigate issues already dismissed under the guise of an appeal-pending injunction. It observed that the applicant remained the sole signatory of the relevant company bank account, thereby negating the claim of imminent irreparable harm or dissipation of funds. Furthermore, the court noted the applicant's failure to adhere to previous disclosure orders, violating the 'clean hands' principle required for equitable remedies.
Issues: Whether the applicant provided sufficient grounds to warrant an injunction pending appeal, whether the status quo was demonstrably at risk, and whether the applicant satisfied the 'clean hands' requirement for equitable relief.
Ratio Decidendi: An application for an injunction pending appeal must not be used to re-litigate dismissed matters. Absent evidence of irreparable harm or special circumstances, and given the applicant’s failure to comply with previous court orders, the court is not obliged to grant a discretionary equitable remedy, as doing so would render the initial judgment nugatory and reward non-compliance.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. an injunction application cannot be a 'second bite of the cherry' for identical relief. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. status quo is not altered by valid corporate board decisions unless evidence of wrongdoing exists. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. threshold requirements for interlocutory injunctions are strict: serious issues, balance of convenience, and inadequacy of damages. (Para 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38) |
| 4. absence of real risk of irreparable harm prevents the granting of an injunction. (Para 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56) |
| 5. the principle of clean hands bars equitable relief for parties in contempt of court orders. (Para 57 , 58 , 59 , 60 , 61 , 62) |
| 6. erinford injunction requires showing that an appeal would be rendered nugatory. (Para 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90) |
JUDGMENT
(Enclosure 239)
Application Before The Court
[1] This is an application under encl 239 for Erinford Injunction against the dismissal of encl 139 for an injunction to restrain the removal of the 2nd Plaintiff as director of the plaintiff company.
[2] The gist of the present application revolves around preservation of the status quo pending appeal.
[3] However, it should be noted that this application is a second application and or an identical application made based on the same facts and issues which was dismissed under encl 139.
[4] For the ease of reference, I will reproduce both prayers sought under encl 139 and encl 239 which are identical in nature.
[5] Prayers Sought Under encl 139 which was dismissed earlier:
(a) To restrain the 1st Defendant and 2nd Defendant from passing any resolution to remove, suspend or in any manner affect the 2nd Plaintiff as the director and shareholder of RENOWARISAN SDN BHD's [Co. No 200601030605 (750363-V)] ("said RENOWARISAN SDN BHD") until further order or final disposal of this suit;
(b) To restrain the 1st Defendant and 2nd Defendant from passing any resolution to remove, suspend or in any manner affect the 2nd Plaintiff as director and shareholder in the management of the said RENOWARISAN SDN BHD until further order or final disposal of this suit;
(c) To restrain CHEE OOI WEI [NRIC No 931029-01-6176], the alleged company secretary of the said RENOWARISAN SDN BHD from filing any resolution to remove, suspend or in any manner affect the 2nd Plaintiff as the director and shareholder of the said RENOWARISAN SDN BHD until further order or final disposal of this suit;
(d) In the event that any resolution as stated in paras 1(a) to (c) above have been passed or filed in any manner whatsoever, an interim order that such resolution shall be null and void until further order or final disposal of this suit;
(e) costs of this application be costs in the cause.
Main Prayers Sought Under Encl 239 (the Present Application)
[6] An Erinford injunction restraining the 1st and 2nd Defendants, whether by themselves, their servants or agents or otherwise howsoever, with immediate effect from the date of this order until after disposal of the Notice of Appeal to the Court of Appeal against the decision on 26 November 2025 dismissing the Notice of Application under encl 139, except by leave of this Honourable Court, including but not limited to:
a) to restrain the 1st Defendant and 2nd Defendant from passing any resolution to remove, suspend or in any manner affect the 2nd Plaintiff as the director and shareholder of Renowarisan Sdn Bhd until further order or final disposal of this suit;
b) To restrain the 1st and 2nd Defendants from passing any resolution to remove, suspend or in any manner affect the 2nd Plaintiff as director and shareholder in the management of the said RSB until further order or final disposal of this suit;
c) To restrain the company secretary of the Renowarisan Sdn Bhd
