Abdul Malik Ishak JCA:

Introduction

[1] The appellant was the defendant in the High Court below. Their appeal before us was against the decision of the High Court judge at Malacca who issued an interlocutory injunction restraining the appellant from entering the respondent's (the plaintiff in the High Court below) land until further order.

[2] The judgment of the High Court judge has since been reported in the local law journal videTeobros Development Sdn Bhd v. Tenaga Nasional Berhad, [2007] 9 CLJ 775.

[3] Now, as the subject matter of the appeal centred on the interlocutory injunction, we need only apply the guidelines of this Court in Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors, [1995] 1 CLJ 293 (hereinafter referred to as "Keet Gerald") in order to decide whether the High Court judge had exercised his discretion judiciously.

Legal semantics

[5] The delay which is considered fatal is the delay after knowing the infringement. An ignorant applicant is excused from the consequences of delay (Crosley v. The Derby Gas-Light Company (January, November 7, 1838) English Reports 40, 3 Mylne & Craig 429, 436; 4 LJ (NS) Ch 25; 41 Rr 198). Of course, it is not possible to stipulate the exact amount of the delay that may be considered as fatal. It must surely depend upon the circumstances of each case. Thus, nine months (Bovill v. Crate Lr 1 Eq 388), six months (The Edison Bell Phonograph Corporation, Ld v. Hough [1894] vol XI RPC (Reports of Patent, Design, And Trade Mark Cases) 594), three months (The Dunlop Pneumatic Tyre Company, Ld and The Pneumatic Tyre Company, Ld. v. TH Stone and H Corser [1897] vol XIV RPC (Reports of Patent, Design, And Trade Mark Cases) 962), and even three weeks (Greer v. The Bristol Tanning Company [1885] vol II - Nos 1 to 20 RPC (Reports of Patent Cases) 268) have been held by the courts to be sufficient to disentitle the applicants to interlocutory reliefs. But, if the delays are explained (United Telephone Co v. Equitable Telephone Association [1888] vol v Nos 1 to 23 RPC (Reports of Patent, Design, And Trade Mark Cases) 233; Welsbach Incandescent Gas Light Company, Ld v. General Incandescent Company, Ld [1901] vol XVIII RPC (Reports of Patent, Design, Trade Mark, And Other Cases) 533; and Gillette Safety Razor Company and Another v. Diamond Edge Ld [1926] XLIII RPC (Reports of Patent, Design, Trade Mark, And Other Cases) 310), the applicant would be entitled to the relief. At the end of the day, the justice of the case is of paramount importance. Here, there was no delay on the part of the respondent in applying for an interlocutory injunction before the High Court judge at Malacca.