Castle Fitness Consultancy Pte Ltd v Manz

JurisdictionSingapore
JudgePunch Coomaraswamy J
Judgment Date28 September 1989
Neutral Citation[1989] SGHC 82
Docket NumberSuit No 6964 of 1985
Date28 September 1989
Year1989
Published date19 September 2003
Plaintiff CounselDavid See and Leong Choi Fun (David See & Co)
Citation[1989] SGHC 82
Defendant CounselKoh Kok Wah (Arthur Loke & Partners)
CourtHigh Court (Singapore)
Subject MatterCivil Procedure,Consequences of failure to make full and frank disclosure,Injunctions,Discharge of interim injunction by defendant's ex parte application,Circumstances allowing such application

This appeal is against my decision to discharge an interim injunction obtained by the plaintiffs against the defendant. The interim injunction restrained the defendant, his servants or agents from infringing the plaintiffs` rights in an agency agreement entered into between the plaintiffs and Hydra Fitness Equipment Ltd (HFEL) and from selling Hydra Fitness products in the territories of Singapore, Malaysia, Indonesia, Brunei and Hong Kong.

On the hearing of the notice of motion for the continuation of the injunction, I adjourned the matter and ordered the plaintiffs to fortify their undertaking as to damages by a bank guarantee in the sum of $20,000 and that the interim injunction do continue till the next hearing.
The guarantee was duly furnished by the plaintiffs. The defendant made an application before the registrar to strike out the plaintiffs` statement of claim. No order was made but the plaintiffs were given leave to amend their statement of claim.

The defendant then made an ex parte application to discharge the interim injunction.
Since it was an ex parte application, the papers were not served on the plaintiffs. However, in what they regarded as a matter of courtesy and etiquette, the defendant`s solicitors informed the plaintiffs` solicitors of the ex parte application by telex. Instead of turning up to state their objections or to ask for an adjournment at the ex parte application before me, the plaintiffs` advisers chose not to come and instead protested with a note to the defendant`s solicitors. Further, the plaintiffs` solicitors had, before the hearing, been advised by my secretary of the ex parte hearing but they nevertheless decided not to attend.

Although they did not say so, the defendant`s solicitors were (in giving notice to the plaintiffs` solicitors of the ex parte application) acting under the now re-activated and established practice in England resulting in what is called `an opposed ex parte application`.
Its history, nature and usefulness are examined in detail by Megarry J (as he then was) in Pickwick International Inc (GB) v Multiple Sound Distributors [1972] 3 All ER 384.

Megarry J after hearing both parties dismissed the ex parte application for an injunction and the plaintiffs appealed.
At the hearing of the ex parte appeal later that day, the defendants were again represented by counsel. Russell LJ described the appearance of the adversary in ex pare matters as `the modern and very sensible practice to assist the court` ( Pickwick International Inc (GB) v Multiple Sound Distributors [1972] 3 All ER 384).

The views of Megarry J and Russell LJ were those of judges in the Chancery Division where an application for ex parte injunctions is by motion.
A similar view on representation of the adversary is held in the Queen`s Bench Division where applications of this type are made by summons-in-chambers, as they are in Singapore. The need for notice to the adversary is specified in that Division`s Practice Direction dated 30 March 1983, in reference to RSC O 29 r 1 (identical in terms in Singapore and England). Part B-3, para 2(c) of that Direction requires an affidavit in support of an ex parte application for an injunction to contain:

a clear and concise statement of the facts justifying an application ex parte including details of any notice given to the defendant or, if none has been given, the reasons for giving none. [Emphasis added.]



A practice direction made in England has, as such, no authority in Singapore.
However, in the Queen`s Bench Division this Practice Direction and, in the Chancery Division, what Megarry J and Russell LJ said are, inter alia, the foundations on which the English decisions on interim injunctions are based. In view of the highly persuasive authority in Singapore of English decisions on injunctions, these foundations cannot be ignored by a Singapore court. In my humble view, the opponent should be given notice of the ex parte application and invited to attend. Alternatively, in appropriate and justifiable instances, adequate...

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