JUDGMENT

Abdul Wahab Patail J:

[1] On 20 July 1998, the plaintiffs obtained an ex parte injunction order against the 1st and 2nd defendants. The 1st and 2nd defendants were restrained from issuing "false" warranty certificates and selling Kenwood equipment without serial numbers issued by the 1st plaintiff until the hearing and disposal of the above action. The injunction order dated 20 July 1998 was extended pursuant to the order of the High Court dated 3 August 1998. On 12 March 1999, the plaintiffs obtained an injunction restraining the 1st and 2nd defendants from selling Kenwood audio-video equipment without Kenwood Warranty Certificates unless the 1st and 2nd defendants expressly stated in writing to the purchasers that they were not the authorised dealers of Kenwood audio-video equipment and that the original serial numbers were not obliterated or removed.

[2] The said injunction orders granted to the plaintiffs were subject to the plaintiffs' undertaking to comply with any order made by the court or the judge relating to damages, which may be made by the court or judge after the trial of the action.

[3] On 14 June 2005, the learned judge dismissed the plaintiffs' action with costs.

[4] On that date, no pronouncement was made with regard to the issue of the undertaking as to damages given by the plaintiffs pursuant to the said injunction orders. The 1st and 2nd defendants' application herein is for the following orders:

(a) The said injunction orders be set aside forthwith;

(b) An assessment of damages be conducted by the learned senior assistant registrar pursuant to the undertaking as to damages given by the plaintiffs in the said injunction orders; and

(c) That the costs of this application be borne by the plaintiffs.

[5] The plaintiffs contended the defendants' application in encl. 93 is an abuse of process:-

(a) That the said injunction orders lapsed upon the disposal of the trial;

(b) That the undertaking pursuant to the injunction orders dated 20 July 1998, 3 August 1998, 7 November 1998 and 12 March 1999 obtained by the plaintiffs is not enforceable upon the conclusion of the trial.

[6] Issues of law.

(a) Whether the court is now functus officio hear the application by the 1st and 2nd defendants in relation to the enforcement of the plaintiffs' undertaking as to damages pursuant to the injunction orders dated 20 July 1998, 3 Augut 1998, 7 November 1998 and 12 March 1999 obtained by the plaintiffs.

(b) Whether the defendants ought to be allowed to enforce the undertaking as to damages given by the plaintiffs in the injunction orders dated 20 July 1998, 3 August 1998, 7 November 1998, 12 March 1999.

[7] The injunctions were sought and obtained by the plaintiffs on the basis of undertakings as to damages in the event the plaintiffs fail to obtain judgment. The submission for the plaintiffs that this issue has already been submitted on and decided by the learned trial judge is founded solely upon the argument that:

(a) this was one of the issues formulated by the parties on the learned judge's direction as an issue for final submission;

(b) the defendants dealt extensively with whether or not any order ought to be made on the plaintiffs' cross undertaking as to damages if the plaintiffs' claim was dismissed;

(c) counsel for the defendants specifically asked for such an order;

(d) yet despite this no such order was made by the court for an inquiry as to damages on 14 June 2005 when judgment was pronounced in open court; and

(e) even at the time judgment was pronounced on 14 June 2005 no application was made orally in open court for an inquiry as to damages.

[8] It was submitted that this High Court is therefore functus officio having discharged all its duties in respect of this matter. It is also noted for the plaintiffs that the defendants have previously applied to set aside the injunction orders. This was dismissed by Yang Arif Datuk Yaakob J. The defendants' application for security for costs and for fortification