JUDGMENT

Richard Malanjum JCA:

Introduction

On 11 June, 2003 we allowed the appeal by the appellants with costs to be taxed thereby granting them the following orders:

(a) that the order to set aside the ex parte order dated 17 October 2000 pursuant to encl. 24 was set aside;

(b) that injunction as prayed for in encl. 14 was granted;

(c) that costs to be awarded to the appellants here and in the court below; and

(d) deposit to be refunded to the appellants.

We now state our reasons for coming to such decision.

Background Facts

The parties before us are all members of one family. The 1st appellant is the mother of the 2nd appellant and of the respondent.

The subject of the dispute between the appellants and the respondent revolves around the estate of the late Kantilal Prabhulal Doshi ('Doshi'), who was the husband of the 1st appellant and the father of the 2nd appellant and the respondent. All the parties are beneficiaries to the estate of Doshi on equal share with the respondent sharing with his wife.

Specifically in relation to the matter before us it was on the issue of whether the Respondent should be restrained from demanding for the release of a sum of money last estimated amounting to US$3 million ('the fund') now held in an interest bearing account under the name of Towry Law Asset Management Sdn. Bhd. ('Towry Law') pursuant to the Consent Order ('the 3863 Consent Order') in relation to Suit No. D4-22-3863-1998 ('Suit 3863') filed by the respondent against Towry Law for negligence.

Prior to the death of Doshi the fund was placed with Towry Law as the Fund Manager under the name of a company, Overseas Industries Sdn. Bhd. ('OISB').

The majority of the shares in OISB were registered in the name of the respondent. And when Doshi died the respondent commenced a legal action for a declaration that he was the beneficial owner of the majority of the shares in OISB. In turn the 1st appellant and her younger son Jogesh who was her co-executors of the estate of Doshi filed an action for a declaration that the shares held by the respondent in OISB were held in trust for the benefit of the estate of Doshi.

The respondent by virtue of his shareholding in OISB also sought by an Originating Summons No. 1141 filed in Johor Baru High Court in 1997 ('OS 1141') to have the fund released to him after having taken step to remove the 1st and 2nd appellants as directors of OISB and replacing them by himself and his wife. That move was opposed by the appellants with application for an injunction being made under OS No. 24-985-1991 ('OS 985').

There were also other actions and counter-actions commenced by the parties. And these cases were initially consolidated videConsent Order ('the 195 Consent Order') recorded in connection with Johor Bahru High Court Civil Suit No. 22-195-1991 ('Suit 195') wherein it was agreed that Suit 195 was to be set down for trial and the decision made thereof would bind the other suits pending between the parties. And on 8 May 2002 all the parties agreed to transfer all actions to be heard with OS 1141 in Johor Baru High Court 2. Anyway for this appeal we are only concerned with the application for an injunction by the appellants for the same purpose of restraining the respondent from having possession of the fund. It was filed when the respondent demanded Towry Law to release the fund to OISB after the 1st appellant and Jogesh failed before the Court of Appeal in their move to intervene in OS 1141.

The Decision Of The High Court

At the ex-stage the learned Judicial Commissioner by an order given on 25 October 2000 allowed the application of the appellants for an ex parteorder to restrain the respondent in his demand for the release of the fund from Towry Law.

However upon hearing the matter on inter partethe earlier ex parteorder was set aside and the application for injunction was refused. An application for Erinford Order was also denied.

In coming to his decision the learned Judicial Commissioner found the follo