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2026 MarsdenLR 112549
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
NIXON ANAK KENNEDY KUMBONG, JC
ZAINUDDIN BIN OTHMAN – Appellant
Versus
ARIE ZAHARIE PRODUCTION SDN BHD – Respondent
CIVIL SUIT NO. WA-22NCvC-218-04/2026
For the Plaintiff:
Solicitor: Nor Hazirah / Sofiyyah Hannani
Messrs Hafarizam Wan & Aisha Mubarak
For the Second Defendant:
Solicitor: Azhana Mohd Khairuddin
Messrs Siow Kim Leong & Co
Where a defendant's liability hinges on a disputed signature and forgery allegation, an interlocutory injunction against that defendant risks pre-judging the core trial issue and should be refused, while relief may be granted against a silent defendant who acknowledged receipt of funds.
Headnote:(A) Specific Relief Act 1950 - Sections 50-51 - Interim injunction - Discretion of court - Preventive relief - Temporary or perpetual injunction. Rules of Court 2012 - Order 29 rules 1 and 2, Order 92 rule 4 - Application for interim injunctive relief. Specific Relief Act 1950 - Section 51(1) - Recognition of temporary injunctions.
(B) Injunction - Interlocutory - Principles governing - The court should first ask whether the totality of the facts discloses a bona fide serious issue to be tried, without deciding the merits - If so, consider where the justice of the case lies, weighing the harm from granting versus refusing the injunction, including the parties' financial standing and the plaintiff's ability to meet an undertaking as to damages - The remedy is discretionary, intended to produce a just result between application and trial and to maintain an appropriate status quo. (Paras 19, 20)
(C) Injunction - Interlocutory - Adequacy of damages - If damages would be an adequate remedy and the defendant is likely able to pay, an interlocutory injunction should normally not be granted. (Paras 20, 21)
(D) Injunction - Interlocutory - Undertaking as to damages - Described as 'the price which the person asking for an interlocutory injunction has to pay for it' - Being an absolute undertaking to compensate the defendant if the injunction is later found to have been wrongly granted. (Para 25) (E) Injunction - Interlocutory - Serious question to be tried - Where affidavit evidence is squarely in conflict on material facts (e.g., forgery allegations), the court at the interlocutory stage must be slow to make definitive findings, as this risks pre-judging trial issues. (Paras 38-39)
Facts of the case:
The Plaintiff, an individual investor, invested RM1,000,000.00 under a Film Development Partnership Agreement dated 21.10.2019 with both Defendants for the production of a film. The film was completed and released. The Plaintiff alleged the Defendants failed to refund his investment, pay his share of profits, or render accounts. The First Defendant acknowledged receipt of the funds but remained silent in the proceedings. The Second Defendant denied being a party to the agreement, alleging forgery of its signature on the contract and lodging a police report. The Plaintiff applied for an interim injunction to restrain both Defendants from dealing with funds related to the film.
Findings of Court:
As against the First Defendant, a limited interlocutory injunction was granted to preserve film-related funds pending trial, subject to conditions including the Plaintiff filing a formal undertaking as to damages. As against the Second Defendant, the injunction application was dismissed. The court found a serious question to be tried against both defendants, but the forgery allegation and the fact that the Second Defendant's liability was sharply contested meant that granting an injunction against it would risk pre-judging the core trial issue. The balance of convenience favoured a narrow, targeted injunction only against the First Defendant. Costs of the application as against the Second Defendant were awarded to the Second Defendant, fixed at RM5,000.00.
Issues: The main issues were (1) whether there was a serious question to be tried as between the Plaintiff and each Defendant; (2) whether damages would be an adequate remedy; (3) whether the Plaintiff had given and could honour a meaningful undertaking as to damages; and (4) where the balance of convenience or justice lay, considering the need to preserve a fair status quo pending trial without pre-determining the merits.
Ratio Decidendi: The court applied the principles from Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 and American Cyanamid Co v Ethicon Ltd [1975] AC 396. The threshold for a serious question to be tried is modest; the plaintiff need only show the claim is more than 'barely capable of serious argument'. Where a defendant's liability depends entirely on the authenticity of a disputed signature, an interlocutory order restraining that defendant's use of funds risks crossing the line into substantive victory. The adequacy of damages is assessed practically: if no injunction is granted and there is a real risk the defendant will deal with funds so as to render any judgment nugatory, damages may be inadequate. The undertaking as to damages is a condition that can be imposed, and its absence is not invariably fatal. Result : As against the First Defendant, a limited interlocutory injunction granted with conditions; as against the Second Defendant, the injunction application dismissed with costs of RM5,000.00 awarded to the Second Defendant.
JUDGMENT
(Plaintiff’s application for interim injunction – Encl. 3)
Introduction
1. This is my decision on the Plaintiff’s application by Notice of Application dated 24.4.2026 (Encl. 3) for interim injunctive relief under Order 29 rules 1 and 2 and Order 92 rule 4 of the Rules of Court 2012, and sections 50–51 of the Specific Relief Act 1950, to restrain the Defendants from dealing with monies said to be referred to a Film Development Partnership Agreement dated 21.10.2019 (“the 21.10.2019 Agreement”).
2. The Plaintiff seeks, in substance, to restrain the Defendants, “from withdrawing and/or transferring and/or utilising any funds, grants, income or monies received in relation to the Film Development Partnership Agreement dated 21.10.2019 until the disposal of this action”.
3. The Second Defendant (“D2”) has filed detailed written submissions (Encl. 12) opposing the application. The Plaintiff has filed written submissions in support (Encl. 14). The 1st Defendant (“D1”) has, on the present record, remained notably silent despite being the primary recipient of the Plaintiff’s RM1,000,000.00 investment. Having considered the affidavits, the parties’ submissions and the applicable authorities, my reasons as follows:
Factual background
4. D1 is a film production company; D2 is in advertising and event management. The Plaintiff is an individual investor. On 26.09.2019, D1 and D2 entered into a Film Development Partnership Agreement between themselves (“the Inter-Defendant Agreement”) to produce a film initially titled “Helang Laut”, later “Coast Guard”.
5. The Plaintiff’s case is that, on 21.10.2019, the Plaintiff and both Defendants entered into the 21.10.2019 Agreement, under which the Plaintiff would inject RM1,000,000.00 as investment capital and, in return, receive (i) priority repayment of his capital, and (ii) a 20% share of the film’s net proceeds, with a minimum 8% return if the film failed to recoup its full budget. The Plaintiff says he fully paid the RM1,000,000.00, which D1 acknowledged by letter dated 16.09.2019.
6. The film was completed and released in Malaysia, Singapore and Brunei on 2.2.2023. The Plaintiff asserts that commercial revenues were generated and that the Defendants have continued to receive and control monies and grants related to the film, including a FINAS grant of RM800,000.00 and proceeds managed under a consent judgment dated 23.5.2025 in WA-22NCvC-657-11/2023 involving D1, D2 and Mangkin Prestij Sdn Bhd.
7. The Plaintiff further emphasises that the consent judgment sum of RM2,762,598.11 represents the net proceeds of the film after deduction of production expenses and therefore constitutes the very pool of funds from which his contractual entitlements are said to arise.
8. On the Plaintiff’s case, this sum is not a speculative future earning, but an existing, identifiable fund already adjudicated upon between D1, D2 and the distributor. The Plaintiff contends that dissipation of this fund before trial would risk rendering any eventual judgment hollow, particularly given that his RM1,000,000.00 investment has already been fully expended in the production of the film.
9. The Plaintiff complains that, despite his full investment and the film’s exploitation, the Defendants have failed to: (i) refund his RM1,000,000.00; (ii) pay his share of profits or the 8% guaranteed return; and (iii) render transparent accounts. He issued a letter of demand dated 11.11.2025, but no payment was made.
10. D2’s position is fundamentally different. D2 accepts the Inter-Defendant Agreement of 26.09.2019 but denies ever signing or authorising the 21.10.2019 Agreement with the Plaintiff. D2 says that the signature appearing on page 58 of the Plaintiff’s exhibit is not the genuine signature of its representative, Pn. Rozita binti Mat Isa, and that no officer of D2 had knowledge of the 21.10.2019 Agreement at the material time.
11. D2 points out that there is no D2 signature on pages 39–57 of the Plaintiff’s exhibit, and that comparison
