Angat Anum Lingoh v Nazihah binti Mat Saad (BA-23NCvC-30-05/2021)

The interlocutory application in Enclosure 4 relates to the Plaintiff’s prayer for an interim order of access to enter her previous house which has been sold by public auction to the Defendant to retrieve her movable assets (i.e. television sets, furniture, kitchen appliances, refrigerator, stove, bedroom furniture, bedroom accessories, gym equipment, carpets, mirrors, motor vehicle and others) (hereinafter referred to collectively as “the Movable Assets”) and for ancillary injunctive order to restrain the Defendant from 2 handling or disposing the Movable Assets said to be left by the Plaintiff in the subject house.

On 25th October 2021 this Court dismissed the Plaintiff’s application in Enclosure 4, and thereafter the Plaintiff has filed an appeal against the said decision.

About 10 years ago, the Plaintiff bought the subject house, and her purchase was financed by a loan from RHB Bank Berhad who also obtained a legal charge of the house title as security for the bank loan [paragraph 6 of the Plaintiff’s Affidavit-in-Support].

In December 2020 the Plaintiff went to Perth, Australia, and she has been there since then until after the date of the filing of the Enclosure 4 application [paragraph 7 of the Plaintiff’s Affidavit-in-Support].

According to the Plaintiff, she was unable to return to Malaysia during that period of time Covid-19 Movement Control Order [paragraph 6 of the Plaintiff’s Affidavit-in-Support].

In January 2021, the charge-bank auctioned off the subject house consequent upon the Plaintiff’s failure to pay the loan instalments [paragraph 9 of the Plaintiff’s Affidavit-in-Support].

In April 2021 the Plaintiff received an e-mail from the bank’s officer who told her that the subject house has been sold by auction and there was a balance of surplus to be refunded by the bank to her 3 [[paragraph 6 of the Plaintiff’s Affidavit-in-Support] and Exhibit “AAL- 1” thereto].

According to the Plaintiff, her solicitor on 28.4.2021 made a first attempt to arrange to retrieve the Movable Assets from the subject house [paragraph 12 of the Plaintiff’s Affidavit-in-Support and Exhibit “AAL-2” thereto].

The Plaintiff’s solicitor on 28.4.2021 made a second attempt to arrange to retrieve the Movable Assets from the subject house [paragraph 15 of the Plaintiff’s Affidavit-in-Support and Exhibit “AAL- 3” thereto].

By letter od demand dated 30.4.2021 the Plaintiff through her representative made a third attempt to arrange to retrieve the Movable Assets from the subject house [paragraph 17 of the Plaintiff’s Affidavit-in-Support and Exhibit “AAL-5” thereto].

The Defendant refused to allow any arrangement for the Plaintiff to retrieve her personal belongings from the subject house [paragraph 16 of the Plaintiff’s Affidavit-in-Support].

According to the Defendant, she successfully bade for the subject house on 27.1.2021 and paid the full purchase price on 16.4.2021, and thereafter on 30.4.2021 the Defendant began to move in to occupy the subject property [paragraph 8 of the Defendant’s Affidavit in Reply and Exhibit “NSH-1” thereto]. 4

The Defendant refused to allow the Plaintiff access to the subject because the Defendant has moved in to the subject house and is also worried about the risks of Covid infection [paragraphs 16, 26 to 28 of the Defendant’s Affidavit in Reply and Exhibit “NSH-1” thereto].

It is the Defendant’s contention that the Plaintiff had sufficient time to go to the subject house and to retrieve the alleged items of goods since the first auction date of 14.8.2020 advertised in the newspaper, and that by the long lapse of months since then, the Plaintiff is deemed to have abandoned whatever personal belongings or movable assets she left at the subject house [paragraph 29 of the Defendant’s Affidavit in Reply].

The Defendant also denies that the alleged items of goods remained at the subject house after the auction sale of the subject house, and the Defendant stated that her own things have been shifted into the subject house after she took physical possession consequent upon the auction [paragraph 25 of the Defendant’s Affidavit in Reply].

The nature of the order of compelling access prayed for in Enclosure 4 is similar to an interlocutory mandatory injunction.

As an exception to the general principles, a mandatory interlocutory injunction is granted in exceptional extremely rare cases, as explained by Eusoffe Abdoolcader J. in Sivaperuman v. Heah Seok Yeong Realty Sdn Bhd [1978] 1 LNS 184; [1979] 1 MLJ 150 in the following words: 5 "(1) The interlocutory injunction although couched in prohibitory terms was in effect a mandatory injunction in substance and effect;

An interim or interlocutory mandatory injunction would never be granted before trial save in exceptional and extremely rare cases;

The interlocutory injunction in this case virtually gives to the respondents the full relief sought to be secured at the trial, as the respondents could not be said to be really concerned about their claim for damages against a labourer;

In view of the case of the appellant's dismissal being pending before the Industrial Court which had jurisdiction to make an award inter alia for reinstatement or re-employment, the circumstances would be exceptional and a refusal of the interlocutory injunction would be justified on that ground alone;

It was necessary for any plaintiff seeking interlocutory relief to show that there was at least a serious question to be tried and to adduce sufficiently precise factual evidence to satisfy the court that he had a real prospect of succeeding in his claim at the trial. In this case the respondents had not met this test as there was no factual evidence to point to a real prospect of success at the trial in view of the pending determination by the Industrial Court in relation to the appellant's employment;

In this case damages would be an adequate remedy and the balance of convenience would be in favour of the appellant, as would be considerations of the maintenance of the status quo and greater hardship;

It could only be in the most extreme circumstances that the court should interfere by way of mandatory injunction in the 6 delicate mechanism of industrial disputes and industrial negotiations."

Similar caution is echoed by Salleh Abbas FCJ in Tam Kam Cheong v. Stephen Leong Kan Sing & Anor [1979] 1 LNS 108; [1980] 1 MLJ 36 who stated: "The grant of this injunction is entirely discretionary and it is certainly not issued as a matter of course. (Morris v. Redland Bricks Ltd.) In exercise of its jurisdiction on the issue of mandatory injunction, the court has to be extremely cautious and must act with moderation as the jurisdiction has to be exercised sparingly. (Wrotham Park Estate v. Parkside Home). It can be issued only in cases where the injury done for the prevention or rectification of which injunction is sought cannot be adequately compensated by pecuniary damages. ….. Every case has to depend upon its own circumstances, and it is a generally accepted view that the court will not interfere by way of mandatory injunction except in cases in which extreme, or at all events very serious, damage will ensure from its interference being withheld. (Durell v. Pritchard).”

The English Court of Appeal in Locabail International Finance Ltd v. Agroexport (The Seahawk) [1986] 1 WLR 657 at 664 approved the following passage of Megarry J's judgment in Shepherd Homes Ltd v. Sandham [1971] Ch 340 at 351: 'Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it would appear that the injunction was rightly granted; this is a higher 7 standard than is required for a prohibitory injunction.' [emphasis added].

This statement of principle was also accepted by Hoffman J in Films Rover International Ltd v. Cannon Film Sales Ltd [1987] 1 WLR 670 at 680 - 681; [1986] 3 All ER 772 at 781, as being another way of saying that the features which justify describing an injunction as 'mandatory' will usually also have the consequence of creating a greater risk of injustice if it is granted rather than withheld at the interlocutory stage unless the court feels a 'high degree of assurance' that the plaintiff would be able to establish his right at a trial.

At page 572 of Spry, Equitable Remedies, 5th Ed, the learned author emphasises the balance of convenience and what the justice of the case requires: ".... On all interlocutory applications the hardship or prejudice that may ensue if relief is granted or if conversely it is refused is weighed with other relevant considerations, including the strength of the plaintiff's case (see generally American Cynamid Co v. Ethicon Ltd [1975] AC 396....); and although the court acts with caution, a mandatory order is made if the balance of justice so requires. But when the plaintiff is seeking on an interlocutory application an order for the specific performance of part or all of the defendant's obligations under a contract, being relief that is ordinarily granted only at the final hearing, that relief is, at least in the absence of special circumstances, granted only if its refusal would give rise to disproportionate prejudice or hardship to the plaintiff, as against the prejudice or hardship 8 that its grant will cause the defendant (Films Rover International Ltd v. Cannon Film Sales Ltd [1987] 1 WLR 670). Since account is taken of the strength of the plaintiff's case, the more probable it appears that he will succeed at the final hearing or in other relevant proceedings, the less reluctance to intervene will be shown by the court (Locabail InternationalFinance Ltd v. Agroexport [1986] 1 WLR 657)."

In ESPL (M) Ltd v. Radio& General Engineering Sdn Bhd [2004] 4 CLJ 674 the Court of Appeal granted an interlocutory mandatory injunction to compel continued payment of monies into the trust account which was created for receiving monies for construction works. In ESPL, the Court of Appeal was "dealing with a mandatory injunction in terms in which it gives to the defendant at the interlocutory stage, the whole of the relief it claims under its counterclaim. So, once the mandatory injunction is granted, there is really no need for a trial on the issue of a trust.............Hence, following Cayne v. Global Natural Resources Plc [1984] 1 All ER 245 and NWL Ltd. v. Woods [1979] 3 All ER 614, at has become necessary to place a higher threshold in the defendant's path on merits before deciding whether the orders asked for should be granted. To sum up, it is our respectful opinion that the defendant has established a trust in its favour in which the plaintiff has constituted itself as trustee. Applying settled law, there is simply to reason why a mandatory injunction should not be granted". 9

The principles regarding the threshold for granting interlocutory injunctions which can be gleaned from the above-decided authorities can be summarized as follows:

where an applicant seeks and interlocutory prohibitory injunction before the trial, the threshold is a serious triable issue or arguable case: American Cynamid case; Keat Gerald case.

where an applicant seeks an interlocutory mandatory injunction before the trial for performance of obligation which is ordinarily granted only at the final hearing or trial, the threshold is a relatively higher one, i.e. the following requirements have to be fulfilled:

the Court has to assess the strength of the applicant's case on merits,

(ii) the Court feels a high degree of assurance that the applicant would be able to establish his right at the trial or it appears more probable that the applicant will succeed at the trial on the point at hand; and

(iii) if its refusal would give rise to disproportionate prejudice or hardship to the applicant, as against the prejudice or hardship its grant will cause the opposite party: ESPL Ltd case; Shepherd Homes Ltd v. Sandham (supra); Locabail Inernational Finance Ltd v. Agroexpert (The Seahawk) (supra); Films Rover 10 International Ltd v. Cannon Films Sales Ltd (supra); Spry, Equitable Remedies.

In our present case, the Plaintiff’s complaint relates to her personal belongings which are movable properties that are argued by the Plaintiff as not forming part of the land and the house. While it is a serious triable issue that the previous owner’s furniture and movable items may not form part of the land and house which was sold by auction, the circumstances of the present case including the alleged conduct of the Plaintiff prior to the Defendant’s payment of the full auction price do not constitute a case which fulfils the higher threshold for the grant of an interlocutory mandatory injunction or a mandatory order of access. In the circumstances of the present case, this Court does not find any special circumstance which warrants the grant of interlocutory mandatory order.

In our present case, the interlocutory order of access in Enclosure 4 in the same as the order of access prayed for in the main suit in the writ in Enclosure 1. According to the Court of Appeal in ESPL case, the applicant in such scenario has to fulfil the higher threshold of establishing the applicant’s case on the merits even at this interlocutory stage instead of merely shown the existence of a triable issue or arguable case. In the circumstances of the present case, this Court finds that at this interlocutory stage and with the conflicting affidavits by the parties the Plaintiff has not fulfilled the higher threshold which warrants the grant of interlocutory mandatory order that would have the effect of granting to the Plaintiff the very same reliefs she prays for in the main suit. 11

In view of the types of items of the Movable Assets, the ongoing worries about risks of Covid infection and the fact that these items of Movable Assets can properly be the subject matter of monetary compensation if the Plaintiff were to succeed at the full trial, this Court finds that a refusal of the interim reliefs prayed for in Enclosure 4 would not give rise to any disproportionate prejudice or hardship to the Plaintiff, as against the prejudice or hardship that its grant will cause the Defendant in our present case.

Moreover, the balance of convenience is not in favour of the grant of an interlocutory mandatory order of access because of the ongoing concerns regarding risks of Covid infection, and also because monetary compensation can be an adequate remedy if the Plaintiff succeeds in the full trial.

In the premises, this Court on 25th October 2021 dismissed the Plaintiff’s application in Enclosure 4 with costs of RM3,000, subject to allocator. Dated this : 25th November 2021. Signed .................................................................... TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) 12 To the parties’ solicitors:

For the Plaintiff : Tuw Min Ric Michelle Louis Messrs Ong, Ric & Partners

For the Defendant : Muhammad Amir bin Sharipuddin