Contract of service

S 20(1)(b) - a contract which runs into such minute or numerous details,

or which is so dependent on the personal qualifications or volition of the
parties, or otherwise from its nature is such, that the court cannot enforce
specific performance of its material terms
Relevant category:
1. Contracts of service
Dayang Nurfaizah bte Awang Dowty v Bintang Seni Sdn Bhd
Management agreement between a professional recording artiste with her
personal manager was held to be a contract to render personal service
which cannot be specifically enforced under s 20(1)(b) of the SRA
More than 10 years
s. 20(1)(g) - A contract the performance of which involves the
performance of a continuous duty extending over a longer period than
three years
Marble Terrazzo Industries Sdn Bhd v. Anggaran Enterprise Sdn
Bhd & Ors [1991] 1 MLJ 253
P alleged that D had verbally allowed P to mine the land for a period of 30
years. P applied for an injunction to stop D from entering into a contract
with another person concerning the mining on the said land. According to
s54(f) SRA, an injunction cannot be granted to prevent a breach of
contract if the contract cannot be specifically enforced.
Held that injunction cannot be granted because specific performance
cannot be decreed in this case, as the contract involved performance
extending over a period of more than 3 years, as provided in s20(1)(g).
Interim injunction-: An order restraining the D only until after a
named day or further order.
For the principles which govern the granting of temporary injunction by
the court, see:
American Cynamid Co v. Ethicon Ltd [1975] AC 396
1. The court shall determine whether there is a serious question
which is required to be tried
2. If there is a serious question to be tried, the court will weigh
whether the balance of convenience support the granting of
the order or dismissing the application for interlocutory
injunction.
A serious question to be tried
Alor Jangus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd
& Ors [1995] 1 MLJ 241
Supreme Court fully approved the decision in American Cynamid
In emphasising the importance of ascertaining that there is a
serious question to be tried, the SC laid down the two prerequisites:

(1) the Ps case must raise serious issues to be tried; and

(2) the trial of the main suit is likely to take place in the sense that the Ps
case shows that they are genuinely concerned to pursue the claim to trial
and they are seeking the injunction as a means of holding operation
pending the trial
Per Jemuri CJ (Borneo) in refusing the grant of an interlocutory
injunction:
There is nothing to indicate any discussion or deliberation on the
Q of serious issue to be tried which must first be established by an
applicant in an application for an interlocutory injunction. It is
implicit in the judgment of Lord Diplock in the American Cyanamid
case that if the material available to the court fail to disclose that
the P has any real prospect of succeeding in his claims for a
permanent injunction, then the application must fail..
The Balance of Convenience
concerns with weighing the risk of success or failure on part of P vis-a vis
the D with the consequential harm that each may suffer if the injunction is
granted or refused
The Supreme Court in Alor Janggus held that after establishing that
there is a serious Q to be tried, the other guidelines must be invoked,
that is :
(a) whether damages can be adequate remedy
(b)where the balance of convenience lies
(c) whether there are any special factors
Perpetual Prohibitory injunction s. 52
Prohibitory injunction prohibits an act from being performed
S 52(1) Injunction to prevent breach of obligation
- Illustrations provide examples of injunctions restraining breach of
various types of obligations arising out of contract, trust, tort and other
legal obligations including intellectual property rights
Yukilon Manufacturing Sdn Bhd v Dato Wong Gek Meng & Ors (No.
4) [1998] 7 MLJ 551
-an ex parte injunction was granted to prevent Ds (formerly in JV with Ps)
from continuing to manufacture a product similar to that manufactured in
the JV company. Ds failed to set aside the injunction.
Section 54(f) - An injunction cannot be granted to prevent the
breach of a contract, if in the first place, specific performance
cannot be granted for the contract
Marble Terrazo
Injunction to perform negative agreement - s 55
Take note:
Section 55 provides that if the contract comprises:
an affirmative agreement to do a certain act;
coupled with a negative agreement not to do a certain act;

then the inability of the court to grant specific performance

of the affirmative agreement shall not preclude it from
granting an injunction to perform the negative agreement.

Pertama Cabaret Nite Club Sdn Bhd v. Roman Tam [1981] 1 MLJ 149.
R, a well-known HK singer, had signed a contract to sing at As night club
for a number of days. It was provided that in the event of breach, the R
would not be entitled to perform in KL during the period fixed by the
contract or 3 months thereafter. R refuse to honour contract and
performed at another night club. A sought an injunction to restrain the R
from appearing at any opera, theatre, concert hall or other public or
private entertainment in KL.
FC held : specific performance cannot be granted in relation to the
agreement that R was to perform in As night club as this agreement
relied on personal volition of R. But, together with this agreement, there
was a negative undertaking by R not to sing anywhere else in KL for a
certain period. Thus an injunction can be granted to prevent R from doing
so.
Lumley v. Wagner [1843-60] All ER 368
-a singer agreed for 3 months to sing at Ps theatre and not use her talent
at any other theatre without Ps permission.
In granting an injuction restraining her from singing except for P, the
learned judge opined that this did not amount to indirect specific
performance of her obligation to sing for P
Ehrman v. Bartholomew [1898] 1 Ch. 671.
D agreed to devote all his attention & time to P business and agreed
not directly or indirectly engage or employ himself in any other business
with any other persons for a term of 10 years
Court held that an injunction to perform the negative agreement will not
be granted if the defendant has no other alternative except to perform the
contract or to be unemployed.
Warner Brothers v. Nelson [1937] 1 KB 209
-film actress Bette Davis had agreed to render her exclusive services as an
actress to the P for a certain period and would not during that time render
any similar services to any other person. In breach of her contract she
entered into an agreement to appear for another film co. The P was
granted an injunction restraining her from appearing for any other film co.
Branson J:
it was also urged that the difference between what D can earn as a film
artiste and what she might expect to earn by any other for of activity is so
great that she will in effect be driven to perform her contract... She will
not be driven, although she may be tempted, to perform the contract, and
the fact that she may be so tempted is no objection to the grant of a
injunction.