Lb Land Sdn Bhd v Ho Nyet Foong (CA-23E-1-08/2023)

I had allowed the Plaintiff’s application for an ex parte injunction to restraint the Defendant from carrying out spraying of insecticide, fertiliser and chemicals at the Defendant’s durian orchard within the area neighbouring the Plaintiff’s land. The ex parte injunction was sustained after hearing both parties at the inter parte stage.

In allowing the interlocutory injunction, this Court made further modification to its earlier ex parte order. The Defendant was restrained from carrying out spraying of insecticide, fertiliser and chemicals at her durian orchard but the area subjected to the injunction was confined to 20 meters corridor between the Plaintiff’s land and the Defendant’s land.

The 20 meters is ordered to be calculated from the beginning of the Defendant’s land neighbouring the Plaintiff’s land and from there 20 meters inwards into the Defendant’s land. The Court also added another condition that the Plaintiff shall deposit an amount of RM50,000 as fortification of its earlier undertaking and that if the Plaintiff fails to do so the injunction shall lapse immediately.

The Defendant appealed against that decision and below are my grounds.

The Defendant is the registered proprietor of two pieces of agriculture land in Mukim Gali, Raub, Pahang - Lot 11042 and Lot 10931, marked as A and B respectively in the diagram below. The Plaintiff’s three pieces of lands are situated opposite the Defendant’s lands – Lot 10938, Lot 10939 and Lot 10940, marked as C, D and E respectively in the diagram below.

The Defendant have been using her lands for durian plantation for over 40 years. The Plaintiff had developed its lands for a housing project known as Kallang Heights where eight semi-d 2 ½ storey houses were built (“Plaintiff’s Housing Project”). The Plaintiff’s Housing Project had completed and the Certificate of Completion and Compliance was issued on 27.7.2023. A B C D E

Plaintiff’s cause of action against the Defendant is based on tort of nuisance. The Plaintiff alleged that despite the Defendant’s legally carrying out the durian plantation on the Defendant’s lands, the Defendant had caused physical damage to the Plaintiff’s property and the Plaintiff’s Housing Project triggered by noxious fumes or vapours which escaped from the Defendant’s lands onto the Plaintiff’s land when the Defendant sprayed poisonous insecticide and fertilisers and chemicals using motorised pumps for the durian trees on the Defendant’s land.

In the affidavit supporting its ex parte injunction application, the Plaintiff had shown to this Court the following :

A letter dated 24.2.2023 from Majlis Daerah Raub which indicated that on 31.1.2023 the Majlis had investigated the Plaintiff’s director’s complaint against the Defendant’s acts of nuisance through the Defendant’s use of insecticide and fertilisers which the Plaintiff alleged was causing danger to the workers at the Plaintiff’s Housing Project. The Majlis stated that it did not find any such activities on the day of its investigation but had issued oral warning to the Defendant to terminate usages of insecticides and fertilisers;

(ii) The Plaintiff’s solicitor’s letter dated 25.7.2023 giving notice to the Defendant that despite the Plaintiff’s earlier complaint and the Majlis’s oral warning, the Plaintiff discovered that the Defendant had continued to spray the insecticide and fertiliser on 20.7.2023. The letter was to notify the Defendant to stop such activities within 3 days from that date. [9] This action was filed when the Defendant failed to comply with the notice issued on 25.7.2023. FINDING [10] Having considered the evidence and the submission of the counsels of both parties at the inter parte stage, this Court had decided to sustain the ex parte injunction as this Court was satisfied that the Plaintiff had fulfilled the legal threshold required of the Plaintiff for this Court to grant an interlocutory injunction based on the reasons as set out in the subsequent paragraphs. The law on interlocutory injunction [11] O.29 r.1 of the Rules of Court 2012 conferred this Court with the powers to grant an interlocutory injunction. The said provision only allows this Court to grant interlocutory or interim injunctions and not permanent injunction: Binariang Communications Sdn Bhd v I & P Inderawasih Jaya Sdn Bhd [2000] 3 MLJ 321. [12] The trite principle in granting an interlocutory injunction was laid down by Raja Azlan Shah J. (as His Majesty then was) in Vethanayagam v Karuppiah & Ors [1968] 1 MLJ 283: “ .. An order for a temporary injunction can be sought only in aid for a prospective order for a perpetual injunction. If therefore, in the event of the plaintiff’s success, he cannot obtain a decree for a perpetual injunction, it is not competent for him to ask for a temporary injunction ... In other words, a temporary injunction will not be granted in cases where a permanent injunction is not available under ss. 52 to 54 of the Specific Relief (Malay States) Ordinance 1950.”, [13] Gopal Sri Ram JCA (as His Lordship then was) in Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 CLJ 293; [1995] 1 MLJ 193 held that the approach to be adopted in determining an interlocutory injunctive relief is as follows: “We begin by respectfully accepting that the correct approach to be adopted and the stages of reasoning involved in the process of arriving at the conclusion as to whether interlocutory injunctive relief should be granted or withheld are those that have been neatly summarised by Hashim Yeop A. Sani J., (as he then was) in Mohamed Zainuddin v. Yap Chai Seng [1976] 1 LNS 76;[1978] 1 MLJ 40. This is what that very eminent Judge said in that case (at page 42): Firstly to discover whether the plaintiffs case is frivolous or vexatious. If it is not, then to decide in whose favour the balance of convenience lies. If these factors are evenly balanced it may not be improper for the Court to take into account any tipping in the balance as revealed by affidavits... Secondly, if the plaintiffs were to succeed at the trial, whether they would be adequately compensated for the interim restriction on their activities which the grant of an interlocutory injunction would have imposed. The Judge then considers the balance of convenience, and if the relevant factors were evenly balanced the Court should grant an interlocutory injunction which would maintain the status quo. It is said that at that stage the Court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits. (The emphasis is ours.)” ... having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. He must take into account all relevant matters, including the practical realities of the case before him and weigh the harm the injunction would produce by its grant, against the harm that would result from its refusal; and 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 to maintain the status quo. It is a judicial discretion capable of correction on appeal. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion.” [14] Keet Gerald was decided about the same time with the decision of Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241 where the Supreme Court, in adopting Lord Diplock’s guidelines as set out in the seminal case of American Cynamide Co v Ethicon Ltd [1975] AC 386; [1975] 1 All ER 504, held that the first test to be fulfilled by the applicant is the existence of serious issues to be tried and that the applicant shall show to the Court of his seriousness to proceed with the trial of the matter and the injunction he is seeking is to hold the status quo pending the trial. Upon fulfilling that test, the Court will then consider whether damages are adequate remedy, where the balance of convenience lie, and the existence of any special factors. The principles laid down in both cases were clearly consistent. [15] In essence, for the Plaintiff’s application to be allowed, this Court must be satisfied that-

the Plaintiff showed there exist serious issues and questions to be tried;

(ii) in the event that the Plaintiff were to succeed at the trial, damages would not be an adequate compensation for their losses, if the interlocutory injunction was not granted;

(iii) the balance of convenience and justice of the case lies in the Plaintiff’s favour, taking into account all relevant matters, including the practical realities of the case before this Court, and by weighing the harm the injunction would produce by its grant, against the harm that would result from its refusal; and

(iv) this remedy that this Court 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 to maintain the status quo. [16] This Court is minded that Gopal Sri Ram JCA in Keet Gerald had reminded judges that the powers to grant injunction is a judicial discretion, capable of correction on appeal. Thus, His Lordship advised judges to briefly set out in the judgment the several factors that weighed in the judge’s mind when arriving at his conclusion. [17] I set out below briefly the factors that I had taken into account in allowing the Plaintiff’s application. Full and frank disclosure [18] To sustain the injunction at this interlocutory phase, this Court must at the outset be satisfied that the Plaintiff had made a “full and frank disclosure” when this Court granted the injunction at the ex parte stage. If, having considered the evidence of both parties at this interlocutory stage, this Court found that the Plaintiff failed to make a “full and frank disclosure” at that ex parte stage, the current application shall be dismissed: Tien Ik Sdn Bhd v Kuok Khoon Hwong Peter [1992] 2 MLJ 689, [1992] 1 AMR 445; Pacific & Orient Insurance Co Bhd v Paul Rozario [2010] MLJU 1197, [2011] 6 CLJ 674. [19] The test in determining whether the Plaintiff had provided this Court with a “full and frank disclosure” is by this Court asking itself whether the Plaintiff had disclosed material information, the non-disclosure of which would have resulted in this Court not granting the injunction at that ex parte phase: Superintendent of Lands and Surveys, Kuching Division v Kuching Waterfront Development Sdn Bhd [2009] 5 MLJ 607, [2010] 1 AMR 737; Malaysian International Tuna Port Sdn Bhd v OSK Trustee Bhd [2011] 2 MLJ 689. [20] Having appraised myself with the affidavit evidence of the parties at the interpartes stage, this Court is satisfied that the Plaintiff did not fail to disclose any material information the non-disclosure of which would have resulted in this Court not granting the injunction at that ex parte phase. Serious questions to be tried [21] In Keet Gerald (supra), Gopal Sri Ram JCA held: “The entry by the learned Judge upon a question that was exclusively within the province of the trial Judge was clearly wrong. Further, the inquiry as to whether there was a serious question to be tried is one that ought to have been addressed at the outset and not by-the-way as a secondary issue. It appears that the correct approach as laid down by several leading authorities was not followed in this case.” [22] Two fundamental propositions laid down by the Court of Appeal in that paragraph were:

the Court dealing with the interlocutory injunction application shall conduct an inquiry, based on the affidavit evidence, whether there was a serious issues to be tried. That inquiry must be done at the outset, a priority matter to be determined; and

(ii) having done the inquiry and found there exist questions or issues to be tried, the Court cannot proceed to deal with those questions substantively. Instead escalate them for determination at the full trial. [23] This principle was clearly decided in Si Rusa Beach Resort Sdn. Bhd. v. Asia Pacific Hotels Management Pte. Ltd.[1984] 1 CLJ 346 where the Federal Court held: “While we agree that there are serious questions of law we are also of the view that these questions are relevant for consideration in determining the grant or otherwise of an interim injunction but the question is should it be the Court's business to resolve these serious and difficult questions of law at that stage of the litigation? We think not.” [24] This Court had perused the affidavit evidence of all parties with regards to the core issues being disputed, as I had enumerated in the earlier paragraphs. These, to this Court’s findings, are serious issues to be tried involving questions of facts and law that warrant a full trial. This Court is satisfied that the Plaintiff had fulfilled the threshold of the existence of serious questions to be tried. Damages would not be an adequate compensation [25] The principle adopted by this Court in assessing whether damages would not be an adequate compensation if the Plaintiff’s injunction application is denied is as laid down by RK Nathan JC (as he then was) in Compagnie Generale Des Eaux v Compagnie Generale Des Eaux Sdn Bhd [1996] 3 AMR 4015 where His Lordship held: “... a plaintiff does not have to prove actual damage in order to succeed. Likelihood of damage is sufficient. One of the ways in which business reputation may be injured is by the appropriation of that reputation or part of it by a third party. Such appropriation may be brought about by the adoption of a name which suggests that the person or company adopting it is in some way connected or associated with the person or company enjoying the reputation.” [26] This Court concluded from the facts deduced from the affidavits before this Court that there is likelihood of damage caused to the Plaintiff if this Court refuse the injunction as prayed against the Defendant to restrain her from carrying out the allegedly harmful insecticide and fertilisers. The potential buyers would refrain from purchasing the completed houses when they realise that the houses are situated within close proximity of areas where harmful and potentially dangerous fertilisers and insecticides are sprayed. Whether or not the fertilisers and insecticides are dangerous and harmful would be determined at the full trial. If evidence showed otherwise, the Defendant would definitely be adequately compensated by this Court. But if this Court found that the evidence at the trial shows the Plaintiff’s allegation as truthful, and this Court does not maintain the status quo pending the outcome after the trial by granting the interlocutory injunction, it is unlikely that any amount of damages would be sufficient to compensate the losses caused in many forms to the Plaintiff and numerous parties. Balance of convenience lies in favour of the Defendant and the need to maintain status quo [27] Having satisfied with that the prerequisites as set out above had been fulfilled by the Plaintiff, and based on the reasons as I had set out in the preceding paragraphs, this Court further found that the balance of convenience lies in favour of the Plaintiff for this Court to grant the injunction. The Defendant’s business and activities would not in any manner be virtually shut down by this injunction as she could continue to conduct her business and activities at the durian orchard for so long as they comply with the terms of the injunction. I am satisfied that the balance of convenience tilted in favour of the Plaintiff in that the Defendant would not suffer irreparable damage which could not be compensated by costs: Intel Corp v Intelcard Systems Sdn Bhd & Ors [2004] 1 MLJ 595. CONCLUSION [28] This Court found that if the status quo is to be maintained until the final disposal of the Main Suit, it is most appropriate that the Plaintiff’s application to be allowed within the terms as set out by this Court. [29] Having satisfied that the Plaintiff had fulfilled the legal threshold for the issuance of an interlocutory injunction as set out in O. 29 and the applicable principles as I had set out in the preceding paragraphs, I decided to allow the Plaintiff’s application in the following terms:

Paragraph 1 of the ex parte injunction retains;

Paragraph 2(a) of the ex parte injunction retains;

A new paragraph 3 is added which has the effect of inserting a condition to the operations of the Injunction as follows: “(3) Bagi maksud meleraikan segala kekaburan, Injunksi ini adalah untuk dilaksanakan dengan syarat seperti dinyatakan dalam perenggan 2(a) dengan syarat larangan tersebut hanya terpakai bagi maksud 20 meter antara sempadan tanah Plaintif dengan sempadan tanah milik Defendan.”

a new paragraph 4 is inserted to state that this injunction shall be subject to fortification of undertaking in the amount of RM50,000.00 to be deposited by the Plaintiff to the Court. If this condition is not complied with, the injunction shall immediately lapse. Dated : 16 April 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya PARTIES: Solicitor for the Plaintiff: R. Sarengapani Messrs. RS Pani & Associates No. A25-1, First Floor, Jalan Tun Ismail 2 Sri Dagangan II, 25200 Kuantan, Pahang Ref : SR/L/4211/23/SHA Email : saranghaphaani@gmail.com Solicitors for the Defendant: Yeoh Tze Hwa together with Kum Hui Min Messrs. Yeoh Shim Siow & Lay Kuan 13A, Tower 1, Faber Tower Jalan Desa Bahagia, Taman Desa 58100 Kuala Lumpur Ref : 230429/EK Email : finance@yslklegal.com