the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo, an expression explained by Lord Diplock in Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; [1983] 2 All ER 770; [1983] 3 WLR 143 and applied in Cheng Hang Guan. It is a judicial discretion capable of correction on appeal. Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the Page 16 of 26 event that he succeeds in establishing his claim at the trial. Any question going to the public interest may, and in appropriate cases should, be taken into account. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion. It is with these matters in mind that we now return to the case at hand and examine the reasons given by the learned judge for setting aside the injunction.” Finding [10] I have duly considered the grounds of both L. 2 & L. 12, the affidavit evidence as a whole and the submissions made by counsel as well as the established principles applicable to interim injunctions and the setting aside of an ex-parte purportedly obtained improperly. [11] To first address the issue of whether the ex-parte interim injunction order should be set aside, inter-alia, on the ground that the Plaintiff (‘P’) should not have moved the Court on an ex-parte basis, I uphold the contention of the Defendant that under the circumstances of this case and considering the express requirements of Order 29 rule 1 ROC 2012, P has Page 17 of 26 not shown sufficient cause or justification for bringing the application ex-parte without any notice to D. Both parties and their solicitors were at the material time in communication and negotiation with each other in respect of resolving the dispute over the subject area meant for Highway Linkage for both developments. Moreover, D’s solicitors had put their counterparts to notice in the event that P wished to approach the Court for an injunction. Hence, under the circumstances then prevailing, P have not shown that they had acted bona fide in moving the Court to grant an ex-parte injunction when works were progressing. P, thus, appeared to have breached principles of equity in acting in a surreptitious manner. It is settled law that the Court retains the power to set aside any ex-parte order that it has previously granted, including an ex-parte injunction order where appropriate. [12] In my considered view, having reviewed the admitted and undisputed facts, the Defendant correctly brought to the Court’s attention the following grounds to set aside the ex-parte order herein: “There is no legitimate urgency that justifies the Plaintiff to move this Honorable Court on an ex-parte basis; Page 18 of 26 The Plaintiff had failed to disclose material facts or has misrepresented/misled material facts to the court in obtaining the Ex-Parte Order. Nikkomann Co Pte Ltd & Ors. v Yulean Trading Pte Ltd, Singapore Court of Appeal; Brink’s Mat Ltd. v Elcombe & Ors; English Court of Appeal, Pentamaster Instrumentation Sdn. Bhd. v QAV Technologies Sdn. Bhd. & Ors; The Vasiliy Golovnin, the Singapore Court of Appeal.” [13] More importantly, the Plaintiff and/or its solicitors had deliberately disregarded the Defendant’s solicitors’ notice vide letter dated 23.11.2011 making it clear that the former is not entitled to obtain any interim injunctive relief without due notice to Defendant’s present solicitors who had instructions and authority to accept service of the process. In the course of obtaining the ex parte order the Plaintiff disclosed neither of these facts to the Court. Several other material facts, such as that the subject area was state land, were also not disclosed to the Court. Hence, on the whole, the Plaintiff by its omission and conduct as elaborated had manifestly failed to make full and frank disclosure in breach of O. 29, r. 1(2A)(e), ROC. Page 19 of 26 [14] A mere undertaking as to damages would likely not be able to restitute the Defendant for the irreparable loss and damage that would ensue by the granting of the ex-parte Order. [15] Under the foregoing circumstances, there could be no other conclusion except that the Ex-Parte Order had been wrongly obtained as it had wrongfully prevented the Defendant from carrying out the works for the construction and commissioning of the Setia Ecohill Link 2 with the Highway Linkage for the benefit of the public as directed and approved by the state authorities. [16] In the light of the undisputed facts discussed above, particularly that the Plaintiff was not the registered proprietor and in lawful possession of the subject area/Highway Linkage, there can be no serious or bona fide issue to be tried raised by the Plaintiff. Thus, the threshold requirement for the grant of an interlocutory injunction under established principles cannot be considered to have been met. [American Cyanamid Co (supra)]. For the same reasons the Plaintiff would not in law be entitled to a claim for loss or damage for the Defendant’s entry into the subject area for a lawful public purpose. In any case, in the event of loss or damage that is claimable by the Plaintiff, damages would be an adequate remedy, which means that the Page 20 of 26 Court should not exercise its discretion to grant injunctive relief. [See Associated Tractors Sdn. Bhd. v Chan Boon Heng & Anor S/C [1990] 2 MLJ 408.] [17] Proceeding to the merits of L. 2 for an inter-partes interim injunction order, the crucial determining factor is that the subject area is located within state or public land upon surrender to the State Authority (‘SA’) for purposes of re-alienation pursuant to S. 204 (b) of the National Land Code (‘NLC’). The SA exercises its authority and powers over state land via the local authority and the Land Office (‘PTD’) having jurisdiction in that locality. Hence, the subject area could be considered to be in law under the custody and control of the SA or the said authorities vested with jurisdiction. The Plaintiff was at the material time no longer the registered proprietor or had rightful possession of the subject area. [18] Therefore, whatever interest P has over the subject land, cannot, in the Court’s view confer on P custody and possession over the subject area. In the event, P’s contention of having possessory and occupational rights over the subject area, despite the same having become state land, is clearly misconceived and wrong in law. P had, thus, taken a flawed position to have caused obstruction of movement on the impugned stretch of land. Page 21 of 26 [19] The Plaintiff’s instant action primarily hinges on the premise that it had custody and possession over the subject area. As correctly contended by the Defendant as follows, this position is flawed: “Quite clearly, the Plaintiff is blowing hot and cold as the Plaintiff had admitted that the road network forming part of the provision for public infrastructure and utilities approved for its Eco Majestic development, which includes the Subject Area, had been surrendered to the relevant authorities since 24.3.2014 pursuant to the approval for surrender and re-alienation application.” [20] On the Plaintiff’s own admission that it is no longer the registered proprietor of the subject area having surrendered the same to the relevant authorities, the Plaintiff cannot be considered to have the necessary locus standi to bring this action found on the tort of trespass. [21] The Court of Appeal decision in GK Land Sdn. Bhd. v Mega 3 Housing Sdn. Bhd. & Anor Rayuan Sivil No. C-01(NCVC)(W)-184-06-2014 & C-01(NCVC)(W)-185-06-2014 wherein it was held as follows is relevant and instructive: “As rightly pointed out by learned counsel for the respondents, pursuant to the State ExCo’s two approvals made pursuant to s. Page 22 of 26 124A, only 682 units of residential and shop-houses were approved for the development by PTSB. PTSB was fully aware that upon sub-division of the master land, it was only entitled to the 682 sub-divisional lots and all other public utility lands designated on the approved layout plan had to be surrendered to the State Government as State land to be used for such purposes. … Further, PTSB was fully aware that based on the terms of the two approvals of the State ExCo, public utility lands designated on the approved layout plan had to be surrendered to the State for such purposes, in accordance with the procedure set out in the NLC for surrender of land. … This was evidenced by the conduct of PTSB in surrendering two lots earmarked for LLN sub-stations directly to TNB and the other seven lots to the Jabatan Daerah dan Tanah Bera. PTSB should not be allowed to blow and cold or, as commonly said, approbate or reprobate on this matter.” Page 23 of 26 [22] On a consideration of the undisputed facts alluded to, the Plaintiff’s claim of ownership and/or rights over land that have been surrendered to the State for proposed public road construction has to be regarded as baseless and misconceived. [23] Lastly, there is the issue of in whose favour the balance of convenience lies which should only be considered if adequacy of damages to compensate the Plaintiff for the purported loss or damage should the injunction be refused is in doubt, which is not the case here. The approach that the Court should take in determining this issue was discussed by the Court of Appeal in Keet Gerald Francis Noel John (supra) where it was held: “… In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the Page 24 of 26 injunction especially I he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief…” [24] Among the vital factors that merit consideration in regard to the present question was that the Defendant was directed by the state authorities to carry out the works that they approved for construction and commissioning of the Setia Ecohill Link 2 with the Highway Linkage for the benefit of the public. [25] Having taken into account all material facts and relevant considerations pertaining to where the balance of convenience lies, I was in agreement with the Defendant’s contention and found accordingly that the Defendant would suffer greater harm to reputation and injustice should the injunction be granted to the Plaintiff and the Defendant be restrained from proceeding with the state sanctioned work that was in the public interest and for a public purpose. This was shown to be an instance where the grant of the injunction would result in more irreparable loss and damage, inconvenience and mischief to the Defendant than if the Court were to decline to do so. Page 25 of 26 [26] To conclude on the issue at hand, having weighed the possible harm and consequences that would result to the parties by the grant or refusal of the injunction, in my finding, the balance of convenience clearly tilts in favour of rejecting the application for the interim injunctive order. [27] On the foregoing grounds, I found L. 2 for an interim injunction on an inter-partes basis to be without basis and that the ex-parte order was wrongfully obtained contrary to the explicit terms of O. 29, r. 1 ROC. I, accordingly dismissed L2 and granted an order in terms of L. 12 with costs to be assessed in due course at the conclusion of the trial. [28] D’s entry into the subject area is for the express purpose of constructing a highway or public road which is, thus, prima-facie for a purpose that is in the public interest. As the relevant local authority had approved the construction, it can therefore, be considered to be with the approval of the SA. In the circumstances, the balance of justice or convenience plainly favours D not being restrained by an injunction from carrying out work on the land in the public interest unless otherwise directed or decided by the authorities vested with jurisdiction over these matters. [29] L. 12 - OIT of prayers 1), 4) and 5). Costs to be fixed by the Court. Page 26 of 26 [30] L. 2 dismissed with costs. Dated : 30 January 2018 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam COUNSEL: For the Plaintiff : En. Rosli bin Dahlan together with Mr. Bahari Yeow Tien Hong and Miss Ho Ai Ting Messrs Lee Hishamuddin Allen & Gledhill Kuala Lumpur For the Defendant : Mr. Arvind Kumarr a/l Muniandy together with Ms. Gillian Looh Messrs Izral Partnership Kuala Lumpur