Credits go to respective group members.

1. 1
UUUK3073: EQUITY & TRUST I
SEMESTER 1 2019/2020
PBL – GROUP 7
NO. NAME MATRIC NUMBER
1 KISANTINY N SUTHAGAR A155159
2 NG CHIEN CHERN A164797
3 JAYASRI A/P NADARAJAN A164863
4 NUR ALIAH BT AMRAN A166840
5 KANIMOLI AMMAAL A/P SUBRAMANIAM A166832
6 YEO SUAN FAN A162750
7 KOR WEIZHEN A166249
8 WOK LI YAN A163617
9 KOMATHI A/P K. RAMAN A163611
10 THENESH A/L ANBALAGAN A166831
11 WONG SHUN YONG A166833
LECTURER’S NAME:
PROF. MADYA DR. SAFINAZ BT MOHD HUSSEIN
DR. NUR KHALIDAH BINTI DAHLAN

2. 2
TABLE OF CONTENTS
TABLE OF CONTENTS...................................................................................................2
STATEMENT OF FACTS ................................................................................................3
QUESTION 1...................................................................................................................4
1.1 Issues...........................................................................................................................4
1.2 Introduction .................................................................................................................4
1.3 Pleadings .....................................................................................................................4
(a) Whether Shark Ltd can plead specific performance to enforce the employment contract.
................................................................................................................................4
(b) Whether Shark Ltd can plead injunction to enforce the negative agreement for Mary to
not work with other company. .................................................................................6
1.4 Conclusion...................................................................................................................8
QUESTION 2...................................................................................................................9
2.1 Issues...........................................................................................................................9
2.2 Pleadings .....................................................................................................................9
(a) Whether Stark Ltd can apply for an injunction to prevent Mary from taking the newly
developed materials................................................................................................9
(b) Whether an Anton Piller Order can be granted to Stark Ltd to enter Mary’s house to
search for the new materials worked on by Mary during her employment at Stark Ltd.
..............................................................................................................................9
2.3 Conclusion...................................................................................................................14
QUESTION 3...................................................................................................................15
3.1 Issues...........................................................................................................................15
3.2 Pleadings .....................................................................................................................15
(a) Whether quia timet injunction can be granted to prevent the strike. ..................... ...15
(b) Whether interlocutory injunction can be granted to enjoin picketing.......................16
3.3 Conclusion...................................................................................................................18

3. 3
STATEMENT OF FACTS
Stark Ltd produces compact disc for the purpose of teaching Malay Language to overseas
students by distance learning. 20 staff are employed on a full-time basis. Mary, a senior member
of staff, and author of a leading textbook on Malay’s Literature, is employed on a 5-year
contract to develop new materials within her field. Her contract requires her not to work for
any other company during the period of her contract and for one year thereafter. Mary is a
member of Persatuan Guru-Guru Bahasa Malaysia (PGBM).
Negotiations over conditions of service between Stark Ltd and its staff have now broken down.
The following circumstances have occurred:
QUESTION 1: Mary, who has three years left to run on her contract, has written a letter of
resignation to Stark Ltd. She has accepted an offer of employment at another
company, Wonderful Ltd, which has its headquarters in Brunei.
QUESTION 2: All the materials that Mary had been working on have disappeared from the
office, and Stark Ltd fears that they may now be in the possession of
Wonderful Ltd. The company has also discovered that its current students have
received advertisement material from Wonderful Ltd, and believes that Mary
took a list of clients with her. It also believes that Mary has received payments
by Wonderful Ltd and that payment received are transferred on a regular basis
to thru her bank accounts.
QUESTION 3: PGBM has called a strike at Stark Ltd’s premises as a result of the breakdown
in negotiations. Picketing is taking place on a daily basis.
Advise Stark Ltd of any equitable remedies it may have in these circumstances.

4. 4
QUESTION 1
1.1 ISSUES
1. Whether Shark Ltd can plead specific performance to enforce the employment contract?
2. Whether Shark Ltd can plead injunction to enforce the negative agreement for Mary to
not work with other company?
1.2 INTRODUCTION
Mary breached 2 condition under the contract: (1) Performance of employment contract for a
term of 5 years for Shark Ltd; and (2) Not working for another company for one year after
termination of contract. With regards to the first breach, when she sent the resignation letter.
She was on her second year of her employment contract and thus resigning earlier makes her
performance of 5 years term incomplete. With regards to the second breach, when she accepted
employment in another company (Wonderful Ltd) despite a year has not passed after the
resignation. There are two equitable remedies available for the plaintiff which are:
(1) Specific performance to enforce the employment contract; or
(2) Injunction to enforce the negative agreement.
1.3 PLEADINGS
(a) Whether Shark Ltd can plead specific performance to enforce the employment
contract?
Specific performance is a court order governed by the Specific Relief Act1
that directs
a party to a contract to perform his or her part of the bargain according to its terms.2
Section
11 of the Specific Relief Act 1950 provides circumstances where an award of specific
performance may be made.
In the above situation, Mary who has three years left to run on her contract, has written
a letter of resignation to Stark Ltd, breaching the contract between her and Stark Ltd. Since the
contract between Stark Ltd and Mary is an employment contract which is also known as
1
Specific Relief Act 1950 (Malaysia) (Act 137).
2
Mohsin Hingun & Wan Azlan Ahmad.2013. Equity And Trusts In Malaysia. 2nd
Ed. Sweet & Maxwell Asia.

5. 5
personal services contract, the issue that arises here is whether Stark Ltd can plead specific
performance to enforce the personal service contract?
Although Specific Relief Act does not specifically preclude the relief of specific
performance of personal service contracts, illustration (a) of Section 20(1)(b) applies to
personal service contracts. The illustrations provided are:
“(a) A contracts to render personal service to B;
A contracts to employ B on personal service;
A, an author, contracts with B, a publisher, to complete a literary work;
B cannot enforce specific performance of these contracts.”
A relevant aspect here is the principle that has been outlined above, that contracts for
personal services will not normally be specifically enforced. The courts have therefore viewed
it as a general principle and followed it to the full.3
In the English case of Johnson v Shrewsbury
and Birmingham Rly Co,4
reason for such non-application of relief in employment contracts
was laid down by the court. Firstly, the delivery of service is closely linked to an employee's
personal credentials, rendering it very arbitrary and thus requiring constant oversight by the
courts. Secondly, because parties should not be forced to be in a relationship they have chosen
to opt-out of. The second reason has been illustrated in GH Giles & Co Ltd v Morris,5
where
the singer was contracted to sing. Meggary, J had rightly noted that "for whom may it be said
that the quality imperfection is normal or caused by itself?"
Federal Court’s decision of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol
Negeri Sembilan,6
is the authority in Malaysia for non-application of specific performance to
contracts for personal service. The court in this case held that: “[a] that the court will not
order specific performance of a contract of service between master and servant ...”. Applying
3
Tan Poh Yee. 2018. Specific performance for breach of employment contracts -vs- reinstatement: An analysis.
https://hhq.com.my/new/article/specific-performance-for-breach-of-employment-contracts-vs-reinstatement-an-
analysis/. Retrieved 10 December 2019.
4
[1853] De GM & G 914, 43 ER 358.
5
[1972] 1 ALL ER 960.
6
[1997] 3 CLJ 135.

6. 6
above cases to given situation and in virtue of illustration (a) of Section 20(1)(b), Stark Ltd
cannot plead specific performance to enforce the contract between Stark Ltd and Mary as it
is a personal service contract.
(b) Whether Shark Ltd can plead injunction to enforce the negative agreement for
Mary to not work with other company?
The general rule is that an injunction and specific performance will not be granted to
enforce contracts for personal service. There are two reasons for this. First, such enforcement
needs constant supervision and secondly it is difficult to enforce such contract since it involves
the loss of mutual trust and confidence. In Chappell v Times Newspaper Ltd 7
, Megarry J said:
“The general rule is that an injunction will not be granted to restrain an employer from
terminating a contract of employment. The basic reason for refusing and injunction is that the
relationship between employer and employee is one confidence and the courts ought not to
seek to prolong the relationship by an injunction or a decree of specific performance when that
confidence no longer exists. If the employer does not want to employ the employee or the
employee does not want to work for the employer, you cannot by order of the court
satisfactorily make them do what one of them does not want to do.”
However, injunction can be applied in cases relating to breach of a negative undertaking
in contracts of employment. Injunction will be sought by the employer in order to prevent the
employee from leaving the employment and vice versa, if in the agreement exists a negative
undertaking, such as not to work elsewhere within specific period of time or not to engage
anyone else. In the case of Lumley v Wagne 8
, owner of Her Majesty’s Theatre. In the written
agreement it was agreed that she would not sing elsewhere without his written permission.
Wagner made an arrangement to sing at Covent Garden and abandoned her previous
commitment. Lumley sued Wagner and applied for an injunction to restrain her from singing
at the Covent Garden and Gye, the owner of the Covent Garden, for inducing Wagner to break
her contract. It was held by the court that the injunction should be granted to restrain the breach
of a negative stipulation and it was not possible to obtain specific performance.
7
[1975] ICR 145.CA.
8
[1852] 1 De Gm & G 604.

7. 7
In Malaysia, there is a need to refer to two provisions under the Specific Relief Act
1950 namely:
1. Section 54 that deals with several circumstances where an injunction cannot be
granted
2. Section 20(1) deals with types of contract which are not specifically enforceable
This provision reflects the working of the general rule namely injunction and specific
performance will not be granted in contracts of employment. In Malaysia, the grant of
injunction regarding breach of negative undertaking can be further strengthened by section 55
which reads as follows:
“Notwithstanding paragraph 54(f), where a contract comprises an affirmative agreement to
do a certain act, coupled with a negative agreement, express or implied, not to do a certain
act, the circumstance that the court is unable to compel specific performance of the affirmative
agreement shall not preclude it from granting an injunction to perform the negative agreement:
Provided that the applicant has not failed to perform the contract so far as it is binding on
him9
.”
The earlier case that deals with this subject matter was Pertama Cabaret Nite Club Sdn
Bhd v Roman Tan10
, where the court in this case while adopting the principles in Lumley v
Wagner, emphasized on the existence of section 55 of Specific Relief Act 1950. What can be
seen here is the scope of section 55 is wider than English law where the issuance of an
injunction covers both an express or implied negative stipulation in a contract.
Applying the above principle and cases in the current situation the negative agreement
in question is the clause where Mary cannot work for another company “during the period of
contract and one year thereafter.” This clause is within the employment contract which she
agreed to when she initially worked for Stark Ltd. When she resigned, the clause is still in
effect for the latter part of the clause, “and one year thereafter,” as to mean, it is binding upon
her to not work with another company a year after her employment ends, whether it be through
the means of termination of contract or by her own resignation. The fact she accepted
9
Specific Relief Act 1950.
10
[1981] 1 MLJ 149.

8. 8
employment at Wonderful Ltd goes to say that she breached the aforementioned negative
agreement.
1.4 CONCLUSION
In regards to the first breach, Stark Ltd is advised to not to proceed with specific
performance as it is more often than not that contract for personal services are not awarded
with specific performance. In regards to the second breach, Stark Ltd is advised to to proceed
to plead injunction to enforce the negative agreement. While Mary cannot be made to work
under plaintiff, she can be prohibited to work with Wonderful Ltd for a year.

9. 9
QUESTION 2
2.1 ISSUES
(a) Whether Stark Ltd can apply for an injunction to prevent Mary from taking the newly
developed materials?
(b) Whether an Anton Piller Order can be granted to Stark Ltd to enter Mary’s house to
search for the new materials worked on by Mary during her employment at Stark Ltd?
2.2 PLEADINGS
(a) Whether Stark Ltd can apply for an injunction to prevent Mary from taking the
newly developed materials?
In Robb v Green11
, the list of clients was held to be confidential information where
injunction can be applied to prevent its dissemination. In our present case, Stark Ltd can apply
for an injunction to prevent Mary from taking the new developed materials. The list of clients
of Stark Ltd is an essential commercial information which can be considered as a confidential
information. But if Wonderful Ltd had already made use of Stark’s list of clients, then damages
would be an appropriate remedy instead of an injunction.
(b) Whether an Anton Piller Order can be granted to Stark Ltd to enter Mary’s house
and/or Wonderful Ltd to search for the new materials worked on by Mary during
her employment at Stark Ltd?
The case of Anton Piller KG v Manufacturing Processes Ltd and others12
provides that
three essential pre-conditions which are: (a) An extremely strong prima facie case; (b) Very
serious potential or actual damage to the plaintiff; (c) Clear evidence that the defendant is in
possession of incriminating materials and that there is a real possibility that they may, unless
restrained, destroy such material before making of inter partes application.
As Starks’ solicitor, we may apply for an Anton Piller order on behalf of Stark Ltd. The
purpose of an Anton Piller order is to prevent the removal or destruction of evidence before an
inter partes application. Assuming that Wonderful Ltd has its premises within the court’s
jurisdiction, Stark’s solicitors may ask for permission to enter Mary’s house to inspect some of
11
[1985] 2 QB 315.
12
[1982] 1 MLJ 217.

10. 10
the documents and chattels which are vital for Stark’s case. In this case, three documents which
are vital for Stark are (1) the materials that Mary had been working on before she resigned, as
Mary was employed and commissioned by Stark to work on it, it belongs to Stark Ltd; (2) the
list of clients of Stark Ltd and (3) the bank statements of Mary. Anton Piller order will be
applied ex-parte in order to prove that Mary had done serious damage to our client, Stark Ltd.
From the landmark case of Anton Piller, Ormrod LJ held that there are three essential pre-
conditions which needs to be proved, as mentioned above, in order to be granted an Anton
Piller order.
Firstly, Stark Ltd has an extremely strong prima facie case because the materials that
Mary had been working on during the course of employment at Stark Ltd have disappeared
right after the resignation of Mary. Moreover, the current students of Stark Ltd have received
advertisement materials from Wonderful Ltd. Such coincidence indicates a high probability
that this could not have been done without the assistance of Marry. Thus, it is reasonable to
believe that Stark’s client’s list has fallen into the hands of Mary who is misusing it for the
benefit of its competitor, Wonderful Ltd. Hence, Mary is believed to have possession of the list
of clients or has evidence of her sending the client’s list to Wonderful Ltd which rightfully
belongs to Stark.
This can be seen in the case of Penerbit Fajar Bakti Sdn Bhd v Cahaya Surya Buku dan
Alat Tulis13
where the plaintiff contended that the defendant had infringed their copyright in
two books and obtained an Anton Piller order against the defendant. The court then held that
in a copyright infringement complaint, prima facie evidence of ownership in the copyright is
sufficient to justify asking for and being given an Anton Piller order. In our present case, Mary
is an author of a leading textbook on Malay Literature and she was employed by Stark Ltd for
the purpose of developing new material within that field. Hence, all the materials that was done
during her course of employment belongs to Stark Ltd.
Secondly, the materials plays an important role for Stark Ltd’s business as it is
considered as the assets of the company in producing compact disc in teaching Malay Language
to overseas students to ensure that the business of Stark Ltd will continue to flourish. This could
13
[1989] 1 MLJ 386.

11. 11
be illustrated in the case of Anton Piller where the appellants learned that information would
be supplied to their competitors to allow the competitors to produce a similar product as the
appellants. This would cause serious damage to the appellant’s business. Similar to our present
case, Mary has the material in possession and provided it to Wonderful Ltd, this would be
detrimental to the business of Stark Ltd. When Wonderful Ltd possesses the materials worked
on by Mary during her course of employment at Stark Ltd, this would cause unfair competition
towards the business of Stark Ltd. Furthermore, the access provided to Wonderful Ltd of the
client list of Stark Ltd would cause potential losses of clients to be suffered by Stark Ltd. Thus,
if Mary continues to provide the materials to Wonderful Ltd, this could potentially cause very
serious damage to the business of Stark Ltd.
Lastly, there is a clear evidence that are in possession of incriminating materials, i.e.
the material she was working on. The possibility of Wonderful Ltd’s advertisement reaching
to the exact students who are also Stark Ltd’s students is very low as they are all overseas.
Unless the advertisement is being distributed in targets where they have a list of Stark Ltd’s
current students, and this could only be done with the assistance of Mary. Also, there is a real
possibility that Mary and Wonderful Ltd may destroy such materials if she finds out that Stark
Ltd is applying for an Anton Piller order because those materials will prove that Mary and
Wonderful Ltd did infringe the new materials belonging to Stark Ltd and current students’ list
of Stark Ltd. This will not bring justice to Stark Ltd when the evidence is destroyed by Mary.
This can be seen in the case of Lian Keow Sdn Bhd v C Paramjothy & Anor14
, which is
a case concerning a claim for land held in trust for the Plaintiff, where the Court granted an
Anton Piller order to prevent the first defendant from destroying the trust deed and files relating
to the said land. The court held that in the most exceptional circumstances, the court has
jurisdiction to order the defendant to permit the plaintiff’s representatives to enter his premises
to inspect and remove vital material which the defendant might destroy or dispose of so as to
defeat the ends of justice before an inter parties application for an injunction could be made.
Furthermore, in the case of Yukilon Manufacturing Sdn Bhd & Anor v Dato' Wong
Gek Meng & Ors15
, the court held that an Anton Piller order is mandatory in nature and it may
be granted ex-parte to authorise the plaintiffs to enter the premises of the fourth defendant to
14
[1982] 1 MLJ 217.
15
[1998] MLJU 60.

12. 12
search for all the account books, bank statements, ledgers, cash books, and other financial
documents of the defendant kept in the premises and to inspect them and remove them to the
safekeeping of the plaintiffs’ solicitors. The main object of an Anton Piller order is to prevent
the destruction or concealment of evidential material which may be relevant in a pending or
intended litigation. Similarly in the present case, my clients intended to prove that Mary has
breached her employment contract wherein she is prohibited to work for any company during
the period of her contract and for one year thereafter. Hence, bank statements of Mary can
prove that she has been receiving money from Wonderful Ltd during her employment with
Stark Ltd as the negotiations over conditions of service between Stark Ltd and Mary have just
broken down recently.
A recent case of Apparatech Sdn Bhd v Ng Hock Chong16
is quite similar to the facts in
our present case. In this case, the defendant who was once the managing director in the business
of plaintiff has now become a competitor to the plaintiff. This made plaintiff suspicious and he
sought for an order of Anton Piller to check whether defendant had obtained confidential
information that belongs to the plaintiff. The court granted the order for the plaintiff to enter
the defendant’s premises to obtain those documents that may help the plaintiff’s case. However,
in the high court, the order was discharged on the grounds that the order is too wide, imprecise
and vague. However, this case can be differentiated from our case as our client has addressed
the documents that they specifically want, which are the list of clients, the material that Mary
worked on and her bank statements. Clearly, Mary is in possession of these three documents
and her exploitation on two of those documents will cause severe damages to my client’s
business.
On the other side, in order to apply for an Anton Piller order, Stark Ltd must specify
the confidential information that belongs to Stark Ltd which is now in the possession of Mary.
This can be seen in Federal Court case of Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn
Bhd & Anor17
following the decision in the English High Court in Coco v AN Clark (Engineers)
Ltd18
where it was held that the tort of breach of confidence has the following three elements:
16
[2006] 1 CLJ 60.
17
[2016] 3 MLJ 417.
18
[1969] RPC 41.

13. 13
(a) the information in question must have the necessary quality of confidence;
(b) the information must have been imparted in circumstances importing an obligation
of confidence; and
(c) there must be an unauthorized use of the confidential information to the detriment
of the party communicating it.
From the case above, in order for plaintiff to prove a tort of breach of confidence, he
must specify the confidential information in question so that the defendants can prepare their
defence against this action. This is because the plaintiffs’ causes of action against defendants
depend on the contents of the said confidential information. Similarly, one of Stark Ltd’s causes
of action is to establish that there is a breach of confidentiality done by Mary in supplying the
two documents to Wonderful Ltd and that Mary has breached her employment contract. Thus,
Stark Ltd needs to specify the three documents in application for Anton Piller order which are
the list of clients of Stark Ltd, the materials belonging to Stark Ltd and the bank statement of
Mary as the content of these three documents is to support my Stark’s causes of action.
In conclusion, according to Justice Corbett in Ridgewood Electric Ltd v Robbie19
,the
order does not authorize entry but rather it commands the defendant to permit entry. Anton
Piller orders play an increasingly important role in protecting businesses from disgruntled or
departing employees. These orders protect important property interests and the values
underlying the relationship between employer and employee. Therefore, by granting the Anton
Piller order, it would definitely protect Stark Ltd’s business and its property interests. We
would suggest Stark Ltd to apply for an Anton Piller order to search for the said documents in
Mary’s house and Wonderful Ltd’s premises since all of the elements are fulfilled.
19
(2005), 74 OR (3d) 51.

14. 14
2.3 CONCLUSION
Stark Ltd is advised to apply for an Anton Piller order to search for the said documents
in Mary’s house since all of the elements are fulfilled.

15. 15
QUESTION 3
3.1 ISSUES
(a) Whether quia timet injunction can be granted to prevent the strike?
(b) Whether interlocutory injunction can be granted to enjoin picketing ?
3.2 PLEADINGS
(a) Whether quia timet injunction can be granted to prevent the strike?
As a preliminary, quia timet injunction is an injunction to restrain wrongful acts which
are threatened or imminent but have not yet commenced. The position of law in both Malaysia
and UK is clear, application of quia timet injunction will only be granted, if the Plaintiff can
show that the defendant will do something that will cause irreparable harm to him or her. This
is evident from the words of Zabariah Mohd Yusof J in Vivamall Sdn Bhd & Ors v. TDC
Constructions Sdn Bhd & Ors.20
In addition, under common law this rule has been extended to
include two prerequisite elements which are (i) imminent danger of substantial damage being
suffered and (ii) that it will be impossible for the applicant to protect himself if the injunction
is not granted.21
Here, it is evident that the calling of strike by the workers poses the risk of
substantial damage on the business of plaintiff. This considering, that business where strikes
occurs would often lead to obstruction in production and subsequently to financial losses.
Additionally, such harm or damage is impossible to avoid as it obstructs the functioning of the
business.
However, the defendant may raise the argument that the required threshold for this quia
timet injunction is higher than as understood. As elucidated in London Borough Islington v
Margaret Elliot,22
it requires the court to be satisfied that the risk of actual damage occurring
is both imminent and real. This case can be distinguished on grounds of law. As established by
the Court of Appeal in Meidi (M) Sdn Bhd v Meidi-ya Co. Ltd Japan & Anor, the test to
determine whether the threat or risk posed by the defendant would lead to irreparable harm is
the test of real risk. In this instance, so as long as there is a risk that the damage of irreparable
nature may occur is sufficient to establish the plaintiff’s application. The court may take
20
[2013] 8 MLJ 1.
21
Ppes Resorts Sdn Bhd v. Keruntum Sdn Bhd [1990] 1 MLJ 436; Fletcher v. Bealey (1885) 28 Ch D 688
22
[2012] EWCA Civ 56.

16. 16
cognizance of the recent General Motors (GM) strike in America which has resulted in the
company suffering 1 billion USD in tangible and intangible losses. Another more ancient
example would be the 1919 Steel Strike. Since, there is a risk of irreparable damage towards
the plaintiff’s businesses if the strike happens hence, the court may grant a quia timet
injunction.
(b) Whether interlocutory injunction can be granted to enjoin picketing ?
Injunction is enshrined in Section 4 of the Specific Relief Act 1950 whereby a party
could be prevented from doing an act which he is under an obligation not to do. Meanwhile in
Section 51, temporary injunctions could be granted pending the further order of the court or
until a specified time. In English law, temporary injunction is known as interlocutory injunction
or interim injunction.
Lord Diplock expounded a new rule pertaining to the grant of interlocutory injunction
in the watershed case of American Cyanamid. This new rule is a step-by-step process23
, as
reflected in the dicta of Lord Diplock. The Cyanamid guidelines consists of (a) there is a serious
question to be tried; (b) balance of convenience or (c) special factor.
Firstly, the applicant’s case must not be frivolous or vexatious. The question to be asked
is, whether there is a bona fide serious question to be tried.24
Hence, the plaintiff must adduce
sufficient evidence to satisfy the court that his claim has a real prospect of success, but he need
not to prove a prima facie case. As Snell’s Equity puts it, “the claimant need establish only a
real possibility of success, and not a probability’. Since American Cyanamid case, it is no
longer necessary to establish a prima facie case as was the law prior to American Cyanamid.
In this case, PGBM had called for a strike in Stark’s premise and picketing thereby
takes place every day. The picketing is unlawful based on two grounds which are, (a) happens
in the premise of Stark Ltd; (b) it amounts to intimidation. Section 40 of Industrial Relation
Act 1967 did not sanction picket to take place in private property such as employer’s property
as they would be liable for trespass. The court in Gleneagles Hotel Ltd v. Wong Jue Whee &
23
Pekeliling Triangle Sdn Bhd v. Chase Perdana Bhd [2003] 1 MLJ 130
24
Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah [1995] 1 MLJ 193

17. 17
38 Ors25
held that the phrase ‘’at or near’’ in s 40 Industrial Relation Act did not mean ‘’in’ the
premises of the hotel property but involved some external operation. Employees only have the
right to enter and remain upon their employer’s premises only for the purpose of their work.26
Furthermore, the court in Bumiputra Commerce Bank Berhad v. Encik Harianto Effendy bin
Zakaria dan Lain-lain27
found that the act of picketing in the bank interrupted the business
activity of the employer and tarnished the good name of company constitute an intimidation.
If the court had ascertained that there is a serious question to be tried, the second
element that needs to be fulfilled is the balance of convenience. Lord Diplock used this term in
the wide sense to include the question of adequacy of damages as well as other factors which
vary from case to case. In order to obtain an interlocutory injunction, an applicant must show
a threat of irreparable injury as a prerequisite, in the sense that there is a threat of injury which,
if not prevented by injunction, cannot be afterwards compensated by damages. The governing
principle is that the court should not grant injunction where there is an adequate remedy in
damages.
Lord Diplock propounded that the court needs to look at the position of each of the
party and balance who will suffer greater if the injunction is granted. The court must weigh the
harm that the injunction would produce by its grant against the harm that would result from its
refusal. No interlocutory injunction should be granted against the defendant where damages
would be an adequate remedy and the defendant is capable to make the compensation.
Secondly, the court also needs to consider from the defendant’s perspective whereby
interlocutory injunction should be granted if the defendant is successful at the trial proper, he
would receive monetary compensation from the plaintiff and the plaintiff is in the position to
pay him.
Meanwhile, special factors could affect the granting of injunction as well. In Hubbard
v. Pitt,28
it was held that the special factors only pertain to the balance of convenience and
would not take a case out of the general rule of the American Cyanamid case.
25
[1955] 1 LNS 24
26
Citrine, Norman Arthur,Trade Union Law (London: Stevens & Son, 1960), p 458.
27
[2011] 5 CLJ 188
28
[1976] QB 122

18. 18
The balance of convenience is in favour of the grant of injunction because the
defendants would not be able to pay the compensation should the plaintiff succeed in the trial.
This is because the identity of the defendants in a collective movement would be hard to
identify. To distinguish from the case of Morning Star Co-operative Society Ltd v. Express
Newspaper Ltd,29
the court in that case refused an injunction because it was found that the
plaintiff financial standing was not secure enough to compensate the potential loss of the
defendant if the injunction was granted. In this case, Injunction could be granted as the position
of the Stark Ltd as a company allows them to meet their undertaking in damage even if the
defendant succeed in the trial. On the other hand, the continuance of the picketing in the Stark’s
premises would also seriously interfere with the business and damage would be an inadequate
remedy. Having the balance of convenience already resolved, there is no need to refer to any
of the special factors as there was also none in this present dispute.
3.3 CONCLUSION
In reference on the above two arguments submitted, it would be advisable for the plaintiff to
seek both quie timet injunction to prevent the striking and the interlocutory injunction to stop
the picketing. Both application are needed to safeguard Stark Ltd’s interest.
29
[1979] FSR 113.