Zulkefli Ahmad Makinudin J:

This is the plaintiff's application (encl. 22) for an Erinford injunction to restrain the defendant from taking further steps in Winding Up Petition No. D3-28-1134-2002 ("the petition") pending the hearing of the plaintiff's appeal to the Court of Appeal against the decision made by this court on 15 November 2002 in dismissing the plaintiff's application for an injunction to restrain the defendant from filing a winding-up petition against the plaintiff (encl. 3).

Although I had earlier dismissed ,the plaintiff's application under encl. (3), it is my view that I would still have the jurisdiction to hear this application for an erinford injunction and to grant the same. The consideration for the granting of the erinford injunction is different from the consideration under application in encl. (3) and there is nothing inconsistent for me to grant the prayers under encl. (22) notwithstanding the decision dismissing encl. (3). For this proposition I would like to refer to the case of Erinford Properties Ltd v. Cheshire County Council[1974] 2 All ER 448 wherein his lordship Megarry J had stated most succinctly the basis for such jurisdiction to grant an injunction pending appeal at p. 454 as follows:

I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quopending the appeal. I cannot see that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction or that by refusing an injunction pending the trial the judge becomesfunctus officioquoad granting any injunction at all.

Based on the aforesaid principles applicable for an erinford injunction, it is my view that the plaintiff's application herein should be allowed for the following reasons:

1. The defendant's purported claim is for a sum of RM17,702,019.79 allegedly being the balance outstanding amount for services rendered pursuant to a Service Provider Agreement dated 30 May 1997. The claim is nothing more than a monetary claim which is being disputed by the plaintiff. There is no evidence that the plaintiff is not financially able to pay if indeed it is subsequently found that the said amount is due;

2. The plaintiff is a public listed company with the Kuala Lumpur Stock Exchange ("KLSE"). It is currently undergoing a merger exercise with TM Cellular Sdn Bhd and upon completion of the same, the plaintiff will have the largest number of subscribers for mobile phones in the country. The filing of the petition will have an adverse impact on its shares and the public perception of the company. The plaintif