lix 1 CLJCurrent Law Journaltwo answers to that. The narrow one is that a dealing byway of transfer or lease or mortgage is not the onlymethod of transgressing the contract. Retention and userand alteration of the property by the defendant himselfcould not be prevented by a caveat, and these are equallywithin the dominion claimed by him. But the broaderground is this: that where rights and liabilities are notcreated by a statute, but arise by common law, then, eventhough they are affirmed by a statute which gives a specialand peculiar form of remedy different from the remedywhich existed by common law, yet, unless the statuteexpressly or by necessary implication excludes the commonlaw remedy, the latter still remains.The granting of an injunction is always in the discretion of thejudge or the court. An injunction is available, in appropriatecircumstances, to the plaintiff to ensure interim preservation of thesubject matter of a civil suit even though the plaintiff had failed toresist the removal of a caveat (at the instance of the chargee)which he had earlier entered. In Tan Lay Soon v. Kam Mah TheatreSdn Bhd 4 CLJ 1922;  3 CLJ (Rep) 657 whereEdgar Joseph Jr J (as he then was) held at p. 663 that:Accordingly, in my view, the purchaser, having failed to resist thechargee’s attempt to remove the caveat is not prevented fromseeking a separate and distinct remedy as against the chargor forinterim preservation of the subject matter in order to preserve thestatus quountil his claim is adjudicated upon. If, in certaincircumstances, as against the same party, a plaintiff may beentitled to both a caveat and an injunction (see Manilal & Sons(M) Sdn Bhd. v. M Majumder 3 CLJ (Rep) 264 305), Ifail to see why, having failed to resist removal of a caveat by oneparty, a plaintiff may not, in appropriate circumstances, obtain anorder whose object is to ensure interim preservation of the subjectmatter of the litigation against another party.Eventually, the plaintiff, Mr. Tan Lay Soon, lost his case in theSupreme Court in the appeal by the vendor in Kam Mah TheatreSdn Bhd v. Tan Lay Soon 1 CLJ 1 on the ground thatthere was no binding contract. Peh Swee Chin SCJ, in deliveringthe judgment of the Supreme Court making observation on theexpression ‘usual terms and conditions’, said at p. 6:We were of the view that there was no contract at all, becausewe found that the said document was dependent on the signingof a formal contract to be further negotiated and approved byboth parties. On this ground alone, we would allow the appeal.L A W
l x 1 CLJCurrent Law JournalThere was another ground on which we would have equallyallowed the appeal.That other ground for finding that there was no contract at allwas that the words in the said proviso – “usual terms andconditions” failed to reveal certainty they were too ambiguous.