Remedies in Damages are Adequate

The question whether or not an injunction should be granted was determined solely by asking such questions as these. Is the plaintiff’s undertaking in damages adequate? Is remedy in damages against the defendants adequate?

In the case of PDE Consulting Services (supra) there is an issue whether damages would be an adequate remedy, the court is satisfied that although the plaintiff’s claim against the defendant is ostensibly for declaratory and injunctive relief’s, it is substantially a claim founded on the defendant’s alleged breach of contract and, therefore, the plaintiff can be adequately compensated by an award of damages in favour of the plaintiff at the conclusion of the trial.

Having considered that there are no facts forthcoming from the plaintiff to support its contention that the plaintiff would suffer irreparable harm or damage because its reputation would be seriously injured by the refusal of the court to grant the injunction sought for, the court is satisfied that an award of damages would be an adequate remedy for the plaintiff.

In the case Bains Harding (Malaysia) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd & Ors, (MLJ 425, 1996) Further, damages would not be an adequate remedy to the plaintiff because if the defendants were allowed to call on the bank guarantees and the bank made payment, the plaintiff might not be able to reimburse the bank, as it had been deprived of the profits it would have earned had the contract not been terminated. That would expose the plaintiff to being wound up. The balance of convenience favoured the plaintiff.

In the event the plaintiff suffered losses as a result of the bank releasing the money to the first defendant under the performance bond, the defendant would be adequately compensated by damages through a civil suit. In other words, there are alternative remedies available to the plaintiff, if at all it suffers damages. It is well-settled law that in cases where there is alternative remedies available, injunction is not an appropriate order to be granted: HSH Engineering & Construction (supra).

An in the case of IJM Construction (supra) the court stated that two major factors propelled it in favour of the plaintiff. Firstly, the issue of “damage to reputation”; and, secondly, that there was a very strong prima facie case that the performance bond was invalid and void. The “balance of justice” should be the guiding force and applying that phrase generously to the factual matrix of the case, the judge order that the interlocutory injunction to continue until the conclusion of the trial or the conclusion of the arbitration whichever was relevant. That order is in favour of the plaintiff.

It could be concluded that, the court will preventing to grant the injunction on performance bond if there is an alternative remedy for damages which adequate to compensate by the innocent party. But, it was different circumstances if the calling of performance bond by default party will give huge impact to another party. The impact might be considered by the court if there is evidence which showed that insolvency will be faced by the innocent party.