12 August 2022

Idza Hajar Ahmad Idzam, Nan Muhammad Ridhwan Rosnan, Nur Fatin Hafiza Hasham and Muhammad Hibri Nazim from Zul Rafique & Partners’ Litigation Practice Group representing Dato’ Zakri Afandi bin Ismail (“the Plaintiff”) successfully obtained Injunction Orders against the shareholders of Ivory Insights Sdn Bhd (“Ivory”) and Alpine Motion Sdn Bhd (“Alpine”).

The Court in delivering its decision in allowing the Plaintiff’s application for the Injunction Orders for the shares in Ivory and Alpine agreed with the Plaintiff that the balance of convenience tilts heavily in maintaining and preserving the status quo, i.e the shareholding of Ivory and Alpine, pending trial of the action which involves inter-alia the issue of ownership of the said shares.

The Plaintiff filed two suits against the Defendants, for among others, a declaration that the transfer of the Plaintiff’s shares in Ivory and Alpine to the Defendants sometime in 2017 was invalid and for the return of the said shares in Ivory and Alpine accordingly (“Present Suits”).

Sometime in 2018, a separate suit was filed by Aminah binti Abdullah (“Aminah”) claiming for, inter alia, a declaration that the same set of shares in Ivory and Alpine in dispute in this Present Suit to form part of her deceased son’s estate and to be distributed according to faraid law amongst the beneficiaries. In 2019, the High Court of Shah Alam delivered its judgment (“2019 Judgment”) and held that Aminah had not satisfied on the balance of probabilities that the shares in Ivory and Alpine belonged to the deceased at the time of his death. Aminah’s prayers for the shares in Ivory and Alpine to be declared to form part of deceased’s estate were therefore dismissed. The matter is now pending appeal in the Court of Appeal.  

In resisting the Injunction Application by the Plaintiff in the present suit, the Defendants’ solicitors argued that in light of the 2019 Judgment, the Plaintiff’s claim is barred by res judicata, is an abuse of process and as such, there are no serious triable issues warranting the granting of an injunction.

The Plaintiff’s solicitors argued that the principle of res judicata is not a consideration in granting or dismissing an application for injunctive relief. The argument of res judicata which goes to the merits of the case should be argued and ventilated in full during the trial of the Present Suits. What is relevant for the purposes of the injunctive relief sought is inter-alia whether, on the facts pleaded in the Statement of Claim there are serious issues to be tried, which the Plaintiff’s solicitors argued were present.

The High Court allowed the Plaintiff’s applications and granted Injunction Orders against the Defendants in respect of the shares in Ivory and Alpine. The High Court found that the Plaintiff has fulfilled the pre-requisites for the granting of injunctive relief.

For more insight into this area of law, please contact our Partners in the Litigation Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Idza Hajar Ahmad Idzam
Farah Shuhadah Razali
Bailey Leong Pui Yee

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