Edisijuta Parking Sdn Bhd v TH Universal Builders Sdn Bhd & Anor [2025] 5 MLJ 524

Court of Appeal (Putrajaya)

Erinford Injunction

1. The dispute arose from an agreement between the Appellant and the Respondents, pursuant to which the Appellant was granted a licence to operate car park services in a building owned by the Respondents. As the agreement approached its expiry, the Appellant submitted a revised proposal to the First Respondent seeking an extension of the agreement for a further period of three years. The Appellant contended that the Second Respondent had accepted this revised proposal, thereby giving rise to a valid extension of the agreement.
2. Notwithstanding the Appellant’s position that the agreement had been extended, the Second Respondent subsequently notified the Appellant that the agreement had expired and instructed the Appellant to hand over the car park operations to a new operator, NES Solutions Sdn Bhd (“NESS”). The Appellant disputed the Respondents’ position and maintained that it remained the lawful operator of the car park services under the extended agreement.
3. Consequently, the Appellant commenced proceedings in the High Court seeking various declaratory and injunctive reliefs.  Among the remedies sought were a declaration that the agreement had been validly extended, a declaration that any contract awarded by the Respondents to a third party for the car park services was null and void, and injunctions to restrain the Respondents from implementing any such third-party contract.  The Appellant also claimed general damages for loss of profits and exemplary damages.
4. At an early stage of the proceedings, the High Court granted the Appellant an ex parte interlocutory injunction.  However, upon conclusion of the trial, the High Court dismissed the Appellant’s interlocutory injunction application, set aside the earlier ex parte injunction, and struck out the suit in its entirety.
5. Pending the Appellant’s appeal to the Court of Appeal, the Appellant applied to the High Court for an Erinford injunction to restrain the Respondents from performing any contract entered into with a third party, including NESS, in relation to the car park services, and from evicting the Appellant from the building.  The High Court dismissed this application and ordered the Appellant to vacate the premises by 29 April 2025.
6. The Appellant subsequently filed an ex parte application before the Court of Appeal seeking an Erinford injunction.  Pursuant to subsection 44(1) of the Courts of Judicature Act 1964 (“CJA”), the President of the Court of Appeal directed that the application be heard by a single judge.

1. Whether ex parte application should be heard inter partes pursuant to rule 50 of the Rules of the Court of Appeal 1994 (“RCA”).
2. Whether the Court of Appeal’s judge sitting alone should grant a conditional interim Erinford injunction.

1. The Court of Appeal affirmed that, under rule 27(3), 49 and 50 of the RCA, the Court retains discretion in how it deals with an ex parte notice of motion.  In such an ex parte application, the Court may either (i) proceed to hear it ex parte, (ii) hear it as an “opposed ex parte” matter, or (iii) direct that it be heard inter partes pursuant to rule 50 of RCA.  The Court stressed that, as a general approach, the inter partes option should be preferred because it best accords with procedural fairness unless the case is one where notice genuinely cannot be given without defeating the purpose of the order sought.
2. The Court explained that ex parte applications should be exceptional. The governing principle is that an injunction should not be sought without notice unless it is genuinely impossible to give notice without defeating the purpose of the order.  This reflects the approach in Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 MLJ 143, and is reinforced by the broader observations that inter partes hearings are the rule while ex parte injunctions are the exception as stated in Permodalan MBF Sdn Bhd v Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors [1988] 1 MLJ 178, as well as the reminder in Million Group Credit Sdn Bhd v Lee Shoo Khoon & Ors [1986] 1 MLJ 315 that modern conditions of swift communication make ex parte applications the exception rather than the norm.
3. Applying those principles, the Court of Appeal held there was no proper basis for an ex parte Erinford injunction application in the Court of Appeal.  An Erinford injunction is ordinarily pursued on an inter partes basis, and its purpose (preserving the status quo pending appeal) is not defeated by giving notice.  The Court of Appeal also reasoned that once the High Court has dismissed both the interlocutory injunction application and the Erinford injunction application, the successful party is entitled to conduct its business and affairs based on those dismissals.  Granting an ex parte Erinford injunction at the appellate stage could unfairly surprise and prejudice that party.  Additionally, section 43 of CJA requires that where an application may be made either to the High Court or the Court of Appeal, it must first be made in the High Court, reinforcing that appellate interim relief should not be pursued in a manner that bypasses the ordinary inter partes process.
4. The Court of Appeal then clarified the distinction between a stay pending appeal and an interim Erinford injunction pending appeal.  A stay of execution or stay of proceedings pending appeal is governed by section 73  of CJA and rule 13 of RCA and it is generally not granted unless the “special circumstances” test is satisfied.  This framework is discussed in Aspen Glove Sdn Bhd v Tialoc Malaysia Sdn Bhd [2024] 4 MLJ 825, and the general approach to stays is reflected in Universal Trustee (M) Bhd v Lambang Pertama Sdn Bhd & Anor [2015] 7 MLJ 307. The Court emphasised that a stay pending appeal is conceptually and legally distinct from an Erinford injunction.
5. An interim Erinford injunction pending appeal does not stay execution of the High Court’s dismissal order, nor does it stay High Court proceedings. Rather, it only restrains the successful party from taking steps pending the disposal of the appeal.  Because it is not a stay, section 73 of CJA and rule 13 of RCA do not apply to such relief. Instead, the Court of Appeal held that a single Judge of the Court of Appeal may grant an interim Erinford injunction under subsection 44(1) of CJA as an interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, applying the “prevention of prejudice” test, which is less stringent than the special circumstances test.  The Court of Appeal further held that any party aggrieved by such an interim order may apply under subsection 44(3) of CJA for a three-judge panel to affirm, vary, or discharge the interim order, consistent with the approach explained in Aspen Glove Sdn Bhd v Tialoc Malaysia Sdn Bhd [2024] 4 MLJ 825.
6. Finally, the Court of Appeal cautioned that section 44 of CJA should not be used as a backdoor to obtain a stay pending appeal.  If the substance of the relief sought is a stay of execution, the correct provision is section 73 of CJA rather than section 44 of CJA, and misusing section 44 for that purpose may amount to an abuse.  This is supported by Tamabina Sdn Bhd & Anor v Nakamichi Corp Bhd [2014] 4 MLJ 613, where the Court of Appeal stated that a stay application ought to have been made under section 73 of CJA and not section 44 of CJA.

Whether the Court of Appeal’s judge sitting alone should grant a conditional interim Erinford injunction.

1. At the inter partes hearing of encl 7 held virtually at 2pm on 28 April 2025, all parties were represented by counsel. The Court of Appeal first apprised counsel for the Respondents of the earlier procedural developments that morning and confirmed that the Respondents had received the Appellant’s letter to the President of the Court of Appeal, the notice of motion (encl 7) and all relevant cause papers. In light of the High Court’s eviction order which was to take effect the following day, the Court of Appeal emphasised the urgency necessitating an expedited hearing.
2. Counsel for the Second Respondent objected to the application on two principal grounds. First, it was submitted that damages constituted an adequate remedy for the Appellant, and that injunctive relief was therefore unwarranted. Second, it was contended that the Appellant had failed to pay the sums due under the agreement, which disentitled it to equitable relief.
3. Notwithstanding these objections, the Court of Appeal exercised its discretion under subsection 44(1) of CJA to grant an interim Erinford injunction against the Second Respondent pending disposal of the appeal.  The Court confined the order to the Second Respondent and imposed protective conditions to balance the interests of both parties.
4. The interim injunction was granted subject to the Appellant furnishing an undertaking in damages in favour of the Second Respondent.  The undertaking was to take effect if either (i) the interim order was subsequently set aside by a three-judge panel under subsection 44(3) of CJA, or (ii) the order was affirmed but the appeal was ultimately dismissed. In addition, the undertaking was fortified by a requirement that the Appellant deposit RM200,000 being the sum allegedly due under the agreement into an interest-bearing client account held in the sole name of the Second Respondent’s solicitors, to be retained as stakeholders pending the disposal of the appeal or further order of the Court.  Costs were ordered to follow the event of the appeal.
5. In providing reasons for the grant of the conditional interim order, the Court identified several considerations. First, the imminence of the eviction order left insufficient time for the Respondents to file affidavits or written submissions in opposition.  Second, the statutory safeguard under subsection 44(3) of CJA afforded the respondents an immediate and expeditious mechanism to apply to a three-judge panel to affirm, vary, or discharge the interim order.  Third, any loss suffered by the second Respondent as a result of the injunction would be compensable through enforcement of the Appellant’s undertaking, with assessment of damages to be conducted by the High Court if necessary.
6. The Court of Appeal further clarified that, due to the compressed timeline, the Respondents were not deemed to have admitted any factual averments in the Appellant’s supporting affidavit.  Importantly, the grant of the interim Erinford injunction did not constitute a determination on the merits of the application.  All parties remained at liberty to advance full arguments in any subsequent application under subsection 44(3) of CJA.  The Court expressly stated that the interim order would not give rise to issue estoppel against the Respondents in the appeal.

The Court demonstrated that interim Erinford relief should be balanced and conditional, particularly through undertakings in damages and fortification mechanisms. This reflects the Court’s effort to prevent prejudice to the Appellant while protecting the Respondent against potential loss.