Ftc Holding Sdn Bhd v Isarb Media Sdn Bhd (BA-22NCvC-500-10/2025)

2.ISA BIN BATHARUL ZAMAN … DEFENDANTS

These Grounds of Judgment concern two interlocutory applications, namely Enclosure 4 and Enclosure 14, arising from the same dispute between the Plaintiff and the Defendants.

As both parties appeared before this Court and had filed their affidavits and written submissions respectively, this Court ruled that the applications be treated as inter-parte applications. 10/03/2026 11:56:58

Enclosure 4 concerns the Plaintiff’s application for interim injunctive relief, which was initially granted on an ex-parte basis. Enclosure 14 is the Defendants’ application seeking, inter alia, the setting aside or suspension of the said injunction.

Given the overlapping factual matrix and legal issues, this Court directed that Enclosure 4 and Enclosure 14 be heard together, and the hearing date previously fixed on 30.12.2025 was accordingly vacated.

The Plaintiff and the First Defendant entered into a written agreement governing promotional and advertising services. The Second Defendant is the directing mind and controlling officer of the First Defendant.

It is not disputed that pursuant to the agreement, the Plaintiff paid the Defendants a sum of RM3,359,005.86, which constitutes the subject matter of this dispute.

The Plaintiff contends that following the issuance of revised regulatory guidelines by the Securities Commission Malaysia, the agreement became illegal or frustrated, giving rise to restitutionary claims.

The Defendants dispute the Plaintiff’s position and maintain that the agreement remains valid and enforceable.

The issues before this Court are:

whether the interim injunction should be set aside, maintained, or varied after an inter-parte hearing;

whether the scope of the freezing order granted is proportionate;

the effect of the arbitration clause in the agreement; and

whether the dispute should be referred to arbitration with interim relief preserved.

The principles governing the grant of interim injunctions are well-established and were not seriously disputed.

The Plaintiff relied on American Cyanamid Co v Ethicon Ltd [1975] AC 396, which laid down the threshold requirement of a serious question to be tried, followed by consideration of adequacy of damages and balance of convenience.

Malaysian courts have consistently applied these principles, including in Keet Gerald Francis Noel John v Mohd Noor Abdullah & Ors [1995] 1 MLJ 193, where the Supreme Court emphasised that interlocutory proceedings are not the stage for determining the merits of the dispute.

The Defendants, while accepting the applicable test, emphasised that a freezing injunction is a draconian remedy and relied on The Siskina [1979] AC 210, where the House of Lords cautioned against granting injunctive relief beyond what is strictly necessary.

At this stage, the Court is satisfied that there exists a serious question to be tried.

The Plaintiff’s claim raises arguable issues concerning the legal effect of regulatory intervention and the doctrine of illegality or frustration.

In line with Keet Gerald, this Court refrains from making any findings that may prejudge the merits, which are best left for final determination.

The Defendants submitted that even if an injunction were to be maintained, the scope of the freezing order was excessive and oppressive.

Reliance was placed on Zainal Abidin bin Mohd Hassan v Century Engineering Sdn Bhd [1996] 3 MLJ 560, where the Court of Appeal stressed that interim relief must be proportionate and tailored to the claim.

This Court agrees. A freezing order should not operate as a punitive measure or exert undue commercial pressure.

The Plaintiff’s pleaded claim is confined to RM3,359,005.86. There is no legal basis to justify a freezing order beyond that sum.

Accordingly, consistent with the principles in The Siskina and Zainal Abidin, the interim injunction is maintained but varied, such that the freezing order is limited strictly to

It is common ground that the agreement between the parties contains an arbitration clause.

The Defendants relied on Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (FC), where the Federal Court affirmed the mandatory nature of arbitration clauses and the policy of minimal court intervention.

The Plaintiff did not dispute the existence of the arbitration clause but submitted that the Court retains jurisdiction to grant interim measures.

This position is supported by Utra Holdings Bhd v ICB Islamic Bank Bhd [2016] 1 MLJ 257, where the Federal Court confirmed that courts may grant interim relief in aid of arbitration.

Applying these authorities, this Court is satisfied that while the substantive dispute should be referred to arbitration, the Court is empowered to preserve interim injunctive relief to prevent the arbitral process from being rendered nugatory.

The balance of convenience lies in favour of maintaining interim protection, albeit in a limited form.

Without interim relief, there is a real risk that the disputed sum may not be available pending arbitration.

Conversely, an over-broad freezing order would unfairly prejudice the Defendants’ business operations.

The variation ordered strikes a fair balance between these competing interests, consistent with American Cyanamid and subsequent Malaysian authorities.

For the avoidance of doubt, this Court makes no findings on:

illegality or frustration;

restitution or unjust enrichment; or

liability of any party.

These matters fall squarely within the jurisdiction of the arbitral tribunal.

The Court therefore orders:

Enclosure 4 and Enclosure 14 are heard and disposed of together on an inter-parte basis;

The interim injunction previously granted is maintained but varied, limiting the freezing order strictly to RM3,359,005.86;

The substantive dispute is referred to arbitration pursuant to the arbitration clause;

The varied interim injunction shall remain in force as a protective measure pending arbitration;

Costs are reserved. Conclusion

These orders give effect to the parties’ contractual intention to arbitrate while ensuring that the arbitral proceedings are not rendered nugatory.

Enclosure 4 and Enclosure 14 are accordingly disposed of. Dated this 3rd March 2026 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Ms. Nur Izzati Hafieza binti Ismail (Ms. Puteri Aiunaa and Ms. Nur Aminatul Mardiah with her) Messrs. Chambers of Aminahtul Mardiah Counsel for Defendant : Mr. Calvin Khoo (Mr. Adrian Ng Chen Huat with him) Messrs. ISARB Media Sdn Bhd