Judicial Analysis Court Copy Headnote Facts Arguments Court observation

JUDGMENT

Mohamed Dzaiddin J:

[1] This is the defendants' application, made ex parte, to set aside the ex parte injunction which I granted to the plaintiff on 3 December 1990.

[2] The preliminary issue to be decided today is whether, in the exercise of my discretion, I should entertain this ex parte summons-in-chambers. Yesterday, I heard full submissions of counsel with respect to this ex parte application. Encik Balasundaram, for the defendants, submitted that due to the urgency of the matter, as explained by the third defendant in his supporting affidavit (lampiran 9), this court can hear the defendants' application ex parte. Counsel relied on my decision in ; [1988] 1 MLJ 42; [1988] 2 CLJ 441 and the Singapore High court decision in ; [1990] 1 MLJ 141 for the proposition that an interim injunction can be dissolved ex parte. Be it noted that in both cases we followed the decision of Megarry J in London City Agency (JCD) Ltd & Anor v. Lee & Ors [1970] Ch 597.

[3] The facts of the present application are these. On the morning of 6 December 1990, the defendants' solicitors, Messrs Balasundaram & Co, filed in the registry an ex parte summons-in-chambers together with an affidavit, memorandum of appearance and 'perakuan segera'.

[4] The entire file was then passed to me by my registrar for further direction. I was informed by my interpreter that counsel was outside my chambers in case I wanted to hear the application on the same day. However, after perusing the relevant documents I minuted on the file that it be heard on 10 December 1990 at 2.30pm. I had then in mind for the matter to be heard inter partes and it would be suitable for the plaintiffs counsel to travel to Penang on the morning of 10 December 1990. However, at the outset of the hearing yesterday, I was told by my interpreter that the matter would be heard ex parte. Throughout his submission, Encik Balasundaram did not indicate to me if he or his firm had informed the plaintiff's solicitors about the ex parte hearing. Thus, in the absence of any explanation by counsel, I formed the impression that the plaintiff's solicitors were unaware of the present application.

[5] Now, on the law, the court can dissolve an ex parte injunction made on an ex parte application provided:

(a) a case of sufficient cogency can be made out; and

(b) the plaintiffs are informed of the application.

(See 22 Atkin's court Forms (2nd Ed) (1986 re issue) at p 84.)

[6] In London City Agency v. Lee [1970] Ch 597, Meggary J held that the court has ample jurisdiction to make such an order in a proper case.

[7] Based on Encik Balasundaram's submission and after reading the affidavit of the third defendant, I accept the defendant's reasons for filing the application ex parte and in my view a case of sufficient cogency was made out. However, from the facts, I am satisfied that the plaintiff was not informed of the application. In my view, this is fatal to the defendants' application. It will be noted in both cases of ; [1988] 1 MLJ 42; [1988] 2 CLJ 441 and ; [1990] 1 MLJ 141 that the plaintiffs were aware of the application. In ; [1988] 1 MLJ 42; [1988] 2 CLJ 441, counsel for the plaintiff was aware that the defendants' counsel were in the corridor of my court armed with an ex parte summons. Despite the absence of the plaintiff's counsel before me, I heard the application ex parte because it was an urgent matter. In ; [1990] 1 MLJ 141, it appears that the plaintiffs were not before the judge although their solicitors had advance knowledge of the ex parte application.

[8] Therefore, in the circumstances of this application, I find that it is not proper for me to dissolve the ex parte injunction short of hearing the plaintiff or his solicitors. In my view, however compelling the reason was for the ex parte order to be dissolved immediately, the fact that the plaintiff or his solicitors were not informed of the application has persuaded me not to grant the order. In the result, I direct that thi

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