1] Sigur Ros Sdn. Bhd. v 1] Maybank Islamic Berhad (BA-22NCVC-466-08/2017)

By Notice of Application dated 25 May 2018, the First Plaintiff seeks for an Order (Enclosure 164) to stay the execution of Judgment dated 24 May 2018 pending the determination and/ or 2 disposal of the First Plaintiff‘s appeal against this Honourable Court’s decision.

The cause papers for this application are as follows :

The First Plaintiff’s Notice of Application for Stay of Execution of Summary Judgment dated 25 May 2018 (Enclosure 164);

(ii) The First Plaintiff ‘s and the First Defendant’s has filed their respective notices of intention to refer to those Affidavit in these proceedings as follows : First Plaintiff

Plaintiffs’ Affidavit (No.1) of Mohamad Azmadi bin Fadzil dated 8 August 2017 (‘Plaintiffs’

Plaintiffs’ Affidavit (No.2) of Mohamad Azmadi bin Fadzil dated 5 September 2017 (“Plaintiffs’

Plaintiffs’ Affidavit (No.3) of Mohd Shafiee bin Surip dated 6 September 2017 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 4) of Amir Zohri bin Abdul Rahim dated 7 September 2017 (“Plaintiffs’

Plaintiffs' Affidavit (No. 5) of Mohamad Azmadi bin Fadzil dated 19 September 2017 (“Plaintiffs’ Affidavit No. 5”); 3

Plaintiffs’ Affidavit (No.6) of Mohamad Azmadi bin Fadzil dated 27 September 2017 (“Plaintiffs’

Plaintiffs' Affidavit (No,7) of Mohamad Azmadi bin Fadzil dated 27 September 2017 (“Plaintiffs’

Plaintiffs' Affidavit (No.8) of Mohd Shafiee bin Surip dated 5 October 2017 (“Plaintiffs’ Affidavit

Plaintiffs' Affidavit (No.9) of Amir Zohri bin Abdul Rahim dated 5 October 2017 (“Plaintiffs’ Affidavit

Plaintiffs’ Affidavit (No. 10) of Amir Zohri bin Abdul Rahim dated 11 October 2017 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 11) of Amir Zohri bin Abdul Rahim dated 24 October 2017 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 12) of Sulaiman bin Sabur dated 6 November 2017 (“Plaintiffs’ Affidavit No. 12”);

Plaintiffs’ Affidavit (No. 13) of Amir Zohri bin Abdul Rahim dated 30 November 2017 (“Plaintiffs’ Affidavit No. 13”)

Plaintiffs’ Affidavit (No. 14) of Sulaiman bin Sabur dated 30 November 2017 (“Plaintiffs’ Affidavit No. 14”); 4

Plaintiffs’ Affidavit (No. 15) of Sulaiman bin Sabur dated 2 February 2018 (“Plaintiffs’ Affidavit No. 15”);

Plaintiffs’ Affidavit (No. 16) of Sulaiman bin Sabur dated 26 February 2018 (“Plaintiffs’ Affidavit No. 16”);

Plaintiffs’ Affidavit (No. 17) of Amir Zohri bin Abdul Rahim dated 19 April 2018 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 18) of Amir Zohri bin Abdul Rahim dated 19 April 2018 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 19) of Amir Zohri bin Abdul Rahim dated 27 April 2018 (“Plaintiffs’

Plaintiffs’ Affidavit (No. 20) of Amir Zohri bin Abdul Rahim dated 14 May 2018 (“Plaintiffs’

Plaintiff’s Affidavit No. 21 dated 30 May 2018;

The First Plaintiff’s Affidavit No. 22 dated 29 June 2018;

First Defendant's Affidavit of Nor Lida bt Raja Omar dated 22 August 2017 ("D1's 1st Affidavit ");

First Defendant’s Second Affidavit of Wong Juen Vei dated 6 September 2017 ("D1's 2nd Affidavit")

First Defendant’s Third Affidavit of Nor Lida bt Raja Omar dated 21 September 2017 ("D1's 3rd Affidavit "); 5

First Defendant's Fourth Affidavit of Nor Lida bt Raja Omar dated 10 October 2017 ("D1’s 4th Affidavit");

First Defendant's Fifth Affidavit of Chia Shiou Liang dated 11 October 2017 ("D1's 5th Affidavit");

First Defendant's Sixth Affidavit of Nor Lida bt Raja Omar dated 17 November 2017 ("D1’s 6th Affidavit");

First Defendant’s Affidavit in Support of Application to Summary Judgment on Counter Claim of Nor Lida bt Raja Omar dated 3 April 2018 (“D1’s Ord 14 Affidavit”);

First Defendant’s Affidavit in Support of Application to Strike Out Plaintiffs’ Claim of Nor Lida bt Raja Omar dated 3 April 2018 (“D1’s Ord 18 Affidavit”);

First Defendant’s Affidavit in Reply for Application to Summary Judgment on Counter Claim of Nor Lida bt Raja Omar dated 3 May 2018 (“D1’s Ord 14 Reply Affidavit”).

First Defendant’s Affidavit in Reply for Application to Strike Out Plaintiffs’ Claim of Nor Lida bt Raja Omar dated 3 May 2018 (“D1’s Ord 18 Reply Affidavit”).

First Defendant’s Affidavit in Reply No. 2 for Application to Summary Judgment on Counter Claim (encl 108) and Strike Out Plaintiffs’ Claim (encl 109) of Nor Lida bt Raja Omar dated 3 May 2018 (“D1’s Ord 18 Reply Affidavit”).

The First Defendant’s Affidavit in Reply dated 13 June 2018. FACT OF CASE 6

The facts alluded by the Plaintiff and the Defendant, I have concluded such scenario as below :

At the First Plaintiff’s request, the First Defendant granted the First Plaintiff Financings. The First Plaintiff defaulted in its payment obligations.

The Plaintiffs filed the current suit in August 2017 with the objective of declaring the Financings null and void. The First Defendant filed a Counterclaim against the First Plaintiff for the amounts due and owing under the Financings.

The First Defendant filed an application for summary judgment of its Counterclaim against the First Plaintiff (Enel. 108) and an application to strike out the Plaintiffs' claim (Enel. 109). On 24 May 2018, the First Plaintiffs claim was struck out and summary judgment of the First Defendant’s Counterclaim against the First Plaintiff was granted. The Plaintiffs have filed an appeal against the said decision.

Pending the hearing and disposal of the appeal, the First Plaintiff filed the present stay application on 28 May 2018 PRINCIPLES ON STAY OF EXECUTION

Section 73 of the Courts of Judicature Act 1964 provides as follows : 7 An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceedings shall be invalidated except so far as the Courts of Appeal may direct Rule 13 of the Rules of the Court of Appeal 1994 states : An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the High Court or the Court so orders and no intermediate act or proceedings shall be invalidated except so far as the Court may direct As provided in the two statutory provisions, whether a court grants a stay of execution or stay of proceedings is an exercise of judicial discretion dependant on the particular facts adduced in that court. Accordingly, judgments on these matters are purely illustrative and have no binding effect. The Court of Appeal held in Structural Concrete Sdn. Bhd. v. Wing Tiek Holdings Bhd. & Ors. (1977) 1 MLJ 581, (1997) 1 CLJ 300 : “…..Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case…”. It is trite law that the burden and onus is on the Defendant to prove special circumstances and this must be explained and/ or shown in the Affidavit. Kosma Palm Oil Mill Sdn. Bhd. & Ors v. Koperasi Serbausaha Makmur Bhd (2004) 1 MLJ 257, 269 (FC), 8 Augustine Paul JCA (as he then was) delivering judgment of the court : "……….[1] There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one; it is an example of special circumstances. As nugatoriness is a species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression, and any attempt to restrict the grant of stay to nugatoriness, quite apart from its impropriety, will severely restrict the grounds upon which an applicant may rely. Therefore, the applicants were wrong in submitting that the nugatory approach was not a matter for consideration in this case that only the special circumstances approach was relevant They would have been correct if they had said that they were not relying on nugatoriness but on some other species of special circumstances……….The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application (see Syarikat Berpakat v Lim Kai Kok (1983) 1 MLJ 406). Where it is alleged that there is a danger of the unsuccessful party not being repaid if its appeal is successful for any reason like, for instance, the insolvency of the other party, this must be shown in the affidavit (see The Annot Lyle (1886) 11 PD 114)…………….” In the case of : Dato’ Francis Ng Tian Sang v. Alexander Wong Shoon Choy & Ors (2002) 7 CLJ 301, Syed Ahmad Helmy JC (as 9 he then was) dismissed an application for stay of execution of a summary judgment granted by a Senior Assistant Registrar and held that special circumstances must be shown regardless of whether the judgment was obtained by summary disposal or full trial. The court held that : “…….I have scrutinised the Supreme Court judgment of Edgar Joseph Jr FCJ and nowhere does the Supreme Court decision endorse the views expressed by VC George J in Hong Leong Finance Bhd v. Hon Hoi Weng & Ors [1987] 2 CLJ 227; [1987] CLJ (Rep) 656 in respect of the applicability of different consideration of stay principles for summary judgment cases. In point of fact the paragraph relating to the agreement with the views of VC George J was the view of the High Court judge which the Supreme Court narrated. Again a close scrutiny of the passage of the Supreme Court judge purportedly agreeing with the views expressed by VC George J would reveal that its endorsement is only to that part of the decision relating to special circumstances and not the distinction between summary judgment and full trial. This becomes evident when immediately after endorsing the views of VC George J the learned Supreme Court judge went into the special circumstances phraseology as defined by Raja Azlan Shah J (as His Majesty then was) in Leong Poh Shee v. Ng Kat Chong [1965] 1 LNS 90; [1966] 1 MLJ

In essence the ratio of the Supreme Court decision is a reaffirmation of the special circumstances approach rather than endorsing the distinction of approach and application of stay principles between summary judgment and full trial cases. At the other end of the spectrum there are authorities with contrary views namely there is no difference in the 10 applicable stay principles between summary judgment and full trial cases in that the well established test of special circumstances is the applicable test. The authorities in support of this view are Rising Credit Sdn Bhd v. Tan Hock Chan (KL High Court Civil Suit No. (23-2698- 86)) and Overseas Chinese Finance Corporation Bhd Iwn. Polite Enterprise Sdn Bhd & Yang Lain [1991] 1 CLJ (Rep) 737 ; [1991] 3 CLJ 2425. In Rising Credit Sdn Bhd v. Tan Hock Chan the learned judge Chan J (as he then was) in disagreeing with VC George J stated: With respect, I am unable to agree with my brother George J in Hong Leong Finance v. Hon Hoi Weng (CSC 294 of 1983). The Court's inherent jurisdiction to stay proceedings has to be exercised only on grounds which are relevant to stay and does not extend to grounds which are probably matters of defence on law or relief in equity; see Trustees Ltd v. Darwen [1969] 1 All ER 271; 17 Halsbury’s Laws of England, 4th Edn. para 451. Abdul Hamid Mohamed JC (as he then was) in adopting the approach adopted by Chan J in Rising Credit Sdn Bhd case and disagreeing with VC George in Hong Leong Finance case emphasised that the approach to be adopted is that as laid down by HashimYeop A Sani J (as his Lordship then was,) in Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406 in that the court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. In ruling that the test of special circumstances is the applicable test for both summary judgment cases and full trial cases the learned judge stated : Saya tidak fikir untuk tujuan ini patut diadakan perbezaan di antara penghakiman terus dan 11 penghakiman selepas perbicaraan sepenuhnya. Kedua-duanya adalah penghakiman muktamad. Kita sedia maklum bahawa penghakiman terus hanya diberi dalam kes yang jelas, di mana tidak ada persoalan-persoalan yang patut dibicarakan. la tidak patut dianggap sebagai mempunyai nilai yang kurang. Setiap plaintiff yang Berjaya memuaskan Mahkamah bahawa pembelaan tidak membangkitkan apa-apa persoalan yang patut dibicarakan seharusnya boleh menikmati hasil penghakiman itu sama seperti seorang plaintiff yang mendapat penghakiman seiepas perbicaraan, melainkan jika terdapat keadaan-keadaan yang tertentu (special circumstances). I am in agreement and endorse the views expressed by his Lordship Abdul Hamid Mohamad JC (as he then was). There is no valid justification for such a distinction to be made. On the contrary the very fact that the judgment is summarily granted must by itself be justification enough of the overwhelming evidence that obviates the necessity of a full trial and hence it would be contrary to justice to deprive the successful litigant to savour the fruits of his judgment... Again merits of appeal as a factor standing alone cannot amount to special circumstances Perwira Affin Bank Bhd v. Zakaria Ismail & Ors [1998] 2 CLJ 770; MBf Property Services Sdn Bhd v. Madihill Development Sdn Bhd (No 3) [1998] 5 CLJ 461 where the court expressly stated that "neither merits nor appeal nor the correctness or otherwise of judgments are special circumstances" for a stay of execution………………..”

In the case of Leong Chee Kong & Anor v Tan Lena Kee (No.2)

5 CLJ 408, the Court considered the special circumstances approach and the nugatory approach and came to the conclusion 12 that the nugatory principle is in itself a special circumstance and the correct legal position is the special circumstance test. Similarly in the case : Ming Ann Holdings Sdn. Bhd. v. Danaharta Urus Sdn Bhd (2002) 5 CLJ 380, Abdul Hamid Mohammed JCA in the Court of Appeal held as follows : "……..[2].... The most important factor for consideration is granting a stay appears to be whether the appeal if successful is rendered nugatory. It does not matter whether the nugatory factor is considered under the head of "special circumstances" so long as it is considered………….”

In deciding whether proceedings can be stayed pending the disposal of an appeal, the following should be considered :

Whether the applicant can show special cimcumstances – Jagdis Singh a/l Banta Singh v. Outlet Rank (M) Sdn. Bhd. (2013) 4 MLJ 213, (2013) 3 CLJ 47. An applicant can demonstrate special circumstances when his or her appeal to the Court of Appeal will be rendered redundant if proceedings in the High Court are not stayed;

In Chinese Chamber Realty Pte. Ltd. and others v. Samsung Corp (No. 2)(2003) 4 SLR 313, at para 3, the Singapore High Court considered the balance of convenience (now popularly known as balance of justice), namely a comparison of the existence, nature 13 and extent of prejudice which may be suffered by the parties if proceedings are stayed or otherwise;

If an application to stay proceedings constitutes an abuse of court process, such application should be refused – Jagdis’s case (supra);

Whether there is an unexplained delay in applying for a stay of proceedings – MCAT Gen Sdn. Bhd. v. Celcom (Malaysia) Bhd. (No. 2) (2007) 8 MLJ 107 FIRST ISSUE Merit of Appeal – a relevant consideration?

The counsel for the First Plaintiff had submitted that they had merits to succeed justifying the grant of a stay of execution of the Summary Judgment for the following reasons :-

the alleged outstanding balance claimed by Maybank for the outstanding Commodity Murabahah Term Financing-i (“CMTF-i”) is inaccurate and unjustified;

(ii) there is a serious conflict of material facts in SRSB’s affidavits;

(iii) SRSB had raised bona fide triable issues; and

(iv) Maybank failed to explain the inordinate delay in filing its Summary Judgment application and was delaying the fair trial of SRSB’s action. 14 Having considered the above, to my mind the First Plaintiff relies solely on the alleged merits of its appeal against the Summary Judgment to justify its application for stay of execution of a pure monetary judgment. In the case of: Kosma Palm Oil Mill Sdn. Bhd. & Ors v. Koperasi Serbausaha Makmur Bhd. (2003) 4 CLJ 1 (FC), Augustine Paul JCA delivering the judgment of the court : "…………..(1) An appeal shall not operate as a stay of execution unless the court so orders. The paramount consideration governing an application for a stay of execution is that the appeal to this court, if successful, should not be rendered nugatory. If upon balancing all the relevant factors, this court comes to the conclusion that an appeal would be rendered nugatory without the grant of a stay or other interim preservation order, then it should normally direct a stay or grant other appropriate relief that has the effect of maintaining the status quo (paras 7,10). [19] Having expressed my views on the law, I shall now consider the motion. Both parties delved into some length on the merits of their respective case in the affidavits filed and the submission made in court. The merits of a party’s case in a stay application is not a relevant matter for consideration. In this regard Lord Denning MR said in TC Trustees Ltd v JS Darwen [1969] 2 QB 295 at p 302: In this very case the defendants, in their affidavit under RSC Ord14 did raise a plea for equitable relief. But it was overruled, and judgment given against the defendants. It is not permissible to renew it again on an application for a stay of execution ... It is true that the courts have an inherent jurisdiction to stay proceedings, but only on grounds which are 15 relevant to a stay. It does not extend to grounds which are properly matters of defence of law or relief in equity, for those must be raised in the action itself. [22] It is therefore unnecessary for me to consider the merits of the respective case of the applicants and respondents…………….” In the case of: Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd (2002) 3 MLJ 49 (CA), Abdul Hamid Mohamed JCA delivering the judgment of the court : "…………….(1) A court hearing an application for a stay of execution should not make a finding that the appeal is doomed to failure or even that there are no merits in the appeal. In the case of the Court of Appeal or the Federal Court, the court that sits to hear the stay application, it is only constituted to hear the stay application, not the appeal. Indeed the appeal may not even be heard by the same panel. Not only the grounds of judgment, usually, are not before the court, but so are the appeal records. The court too does not have the benefits of the arguments on the merits of the appeal. In the circumstances, as a general rule, it is not only premature but it is also unfair to the parties and wrong for the court, hearing an application for a stay, to make a finding that the 'appeal is doomed to failure', 'without any prospect of success', ’has no merits’ and the like (see p 69D-G).

A successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of 16 the judgment and not to the validity or correctness of the judgment (or merits of the appeal) (see p 67G-H)…………" Similarly in the case of : Colliers International Property Consultants (USA) And Anor. v. Colliers Jordan Lee and Jaafar (Malaysia) (2010) MLJU 650, Mohamad Ariff Yusoff held that: “…………..Special circumstances", according to the case authorities, must be "something exceptional in character" and “exceeds………………in some way that which is usual or common."(See Leong Poh Ghee v Ng Kat Chong [1966] 1 MLJ 86)...Nevertheless, the "merits of the appeal" is commonly not regarded as falling within the description of "special circumstances" (Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380). These are established principles to be considered by the court in exercise of its discretionary jurisdiction in relation to stay of execution……………….” Finally, in the case of : Che Wan Development Sdn. Bhd. v. Co-Operative Central Bank Bhd. (1989) 3 MLJ 40, NH Chan J (as he then was) held that : " …………Special Circumstances It is plain that the validity or correctness of the decision appealed from are not special circumstances………. Merits or strong grounds for an appeal are also not special circumstances. In Atkins v. GW Ry [1886] 2 TLR 400, Lord Esher MR said: 17 ... but that there were strong grounds for an appeal was no reason, for no one ought to appeal without strong grounds for doing so. When the Court is exercising its inherent jurisdiction to stay the execution of a judgment or order (which, as earlier explained, is not a general power to order a stay but is only a limited power conferred by statute (such as, as here, s. 73 of the Courts of Judicature Act 1964) or under rules of Court (such as O. 47 r. 1)), the Court is not to have regard to matters which may operate as a defence in law or relief in equity, for such matters must be raised in the action itself, but it is to rely only on grounds which are relevant to a stay of the enforcement of the judgment or order itself: see TC Trustees Ltd. v. JS Darwen (Successors) Ltd. [1969] 2 QB 295, CA. This is what Lord Denning MR said, at 302: In this very case the defendants, in their affidavit under RSC, 0.14 did raise a plea for equitable relief. But it was overruled, and judgment given against the defendants. It is not permissible to renew it again on an application for a stay of execution. We were referred to a statement in Halsbury, 3rd Edn. Vol. 16 [1956], 'Execution', p. 34. But I think it is too widely stated. The authorities cited do not support it. It is true that the Courts have an inherent jurisdiction to stay (execution, proceedings, but only on grounds which are relevant to stay. It does not extend to grounds which are properly matters of defence of law or relief in equity, for those must be raised in the action itself. Similarly, in the case of a money judgment. where O. 47, r. 1(1) applies, the Court is not to have regard to the validity or correctness of the judgment but only to concern itself with the special circumstances which are relevant to the enforcement of the judgment; see per 18 Lord Denning MR in Trustees Ltd. v. Darwen (Successors) Ltd., at 302: Mr. Lipfriend raised a further point. He said that under RSC O. 47, r. 1, there is power, in the case of a writ of fi. fa., or elegit, to stay (execution) proceedings if there are special circumstances which render it inexpedient to enforce the judgment or in case the applicant is unable from any cause to pay the money. ... The circumstances there again are circumstances which go to the enforcement of the judgment: and not those which go to its validity or correctness. See also Halsbury's Laws of England, 4th Edn., Vol. [1976] p. 270, para. 451, which reads: The special circumstances which entitle the Court to stay execution of a money judgment are circumstances which go to the enforcement of the judgment and not those which go to its validity or correctness…………….” In view of the above authority and having considered that argument by both parties, to my mind the merits of the case is not relevant consideration for whether there are special circumstances, especially in cases of pure monetary judgment. 19 SECOND ISSUE Appeal rendered Nugatory?

The First Plaintiff's primary argument is founded upon the fact that there is an appeal pending before the Court of Appeal and that the First Plaintiff has a meritorious appeal. Having read the relevant Affidavit filed by the Plaintiff, I hardly find anything propounded by the Plaintiff to show that its appeal would be rendered nugatory if a stay of execution is not granted. It is clear that the Summary Judgment ordered by this court is purely on monetary judgment. To my mind, such appeal would only deemed nugatory only if the First Defendant is unable to repay the judgment sum. I hardly see any risk incurred on the First Plaintiff’s appeal being rendered nugatory is such stay of execution is not granted. I am fully aware that the First Defendant, is a major Islamic Bank in Malaysia is clearly in a position to repay any judgment sum. However, apart from making this blanket statement and stating that monetary compensation would be insufficient, the First Plaintiff has failed to adduce any form of evidence to explain how exactly the appeal would be rendered nugatory since the Court of Appeal may award the First Plaintiff with monetary compensation which based on the evidence available, is sufficient. Nowhere in its affidavits in relation to the application for a stay of execution has the First Plaintiff alleged that if its appeal is successful, the First Defendant would not be able to refund the judgment sum. Likewise, there is no averment or evidence by the First Plaintiff that the First Defendant is impecunious or insolvent. To my mind, the lack of the aforesaid averments and evidence means the First Plaintiff has failed to show that its appeal, if allowed, would be 20 rendered nugatory. In the case of: Ming Ann Holdings (supra), the Court of Appeal in refusing to grant a stay of execution held that: “…………..Next, the applicant talks about 'special circumstances' which, in fact, is an argument that if the stay is not granted, the appeal, if successful will be rendered nugatory, or that the applicant, if successful in the appeal, cannot be restored to its former position. It must be remembered that the judgment is a money judgment. There is not even an allegation, what more evidence, that the respondent is not in a financial position to repay the applicant if it need be. And bear in mind that the respondent is Danaharta Urus Sdn Bhd…………….." Similarly, in the case of : PWC Corp Sdn. Bhd. v. Ireka

MLJU 151, Lee Swee Seng J held that : “………….[75] What is “special" would of course take its colour from the context of the facts and circumstances of each case. This being a money judgment, it is difficult to see how if the Respondent were to succeed on appeal, the appeal would be nugatory unless the Claimant is insolvent or near insolvent or that there is serious doubt as to the capacity of the Claimant to repav back the judgment sum…………” More so, in the case of : Bertam Development Sdn Bhd v R&C Cergas Teguh Sdn Bhd (2017) MLJU 2276, Lee Swee Seng J held : 21 “……………[25] I am afraid that argument has to be taken up in the winding up Court and not here in the Stay Application. This Court cannot Stay that judgment obtained unless there is shown special circumstance and being a money judgment, the Plaintiff/ Applicant must show that the Defendant as successful claimant would not be able to repay that judgment sum should it succeed in the appeal. There is no evidence pointing in that direction…. [26] The judgment granted pursuant to the enforcement order has with it the effect of making the judgment sum into a debt that cannot be seriously or bona fide disputed such that the Court, in the absence of special circumstance, cannot prevent the statutory fulfillment of the ground of inability to pay its debt after the expiry of the 21 day Notice………...” CONCLUSION

In conclusion to the above, this is an obvious case of the First Plaintiff defaulting in payment of financings granted by the First Defendant. The Summary Judgment is a monetary judgment for the amounts due and owing to the First Defendant. The First Plaintiff’s appeal would not be rendered nugatory if there is no stay. The First Defendant being a major Islamic Bank in Malaysia would be able to pay back the Summary Judgment sum, in the unlikely event the First Plaintiff’s appeal is allowed by the Court of Appeal. During the course of the Summary Judgment proceedings, parties had relied on a total of 31 Affidavits and filed many submission. The First Plaintiff relies solely on the same allegations to show the alleged merits of the appeal. There is nothing in the First Plaintiff’s Affidavits to show that there are merit to the 22 Plaintiff’s appeal since this court has already decided on those very same allegations in granting Summary Judgment. As such, it is my finding as below :

In any event, there is no special circumstances warranting a stay as even if the Plaintiff succeeds in the appeal it would not be rendered nugatory as monetary compensation is more than sufficient;

The Plaintiff’s reason to seek a stay of execution in that it has lodged an appeal. There is nothing special, extraordinary, uncommon or unusual on lodging an appeal;

The balance of convenience tilts in favour of the First Defendant; it is the First Defendant who will suffer irreparable damage in the event that this Honourable Court grants a stay of execution; and

The general rule is that the court will not deprive a successful party of the fruits of its litigation until an appeal is determined. To allow the First Plaintiff’s application for a stay of execution would be blatantly unfair to the First Defendant. This Honourable Court ought to bear in mind that the First Defendant has already suffered considerable loss due to the First Plaintiff’s actions. 23

After hearing the submission by both the learned counsel, in the premise, I have no hesitation to conclude that the First Plaintiff’s application for Stay of Execution of the Judgment Proceedings (Enclosure 164) is hereby dismissed with cost of RM4,500.00 shall be borne by the Plaintiff’s company Directors. Dated 10 August 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff : Mah Sue Ann and Santhyaa Venugopal (Messrs. Izral Partnership) For the 1st Defendant : Claudia Cheah and Brenda Chan (Messrs. Skrine) For the 2nd Defendant : Low Mei Hui (Messrs. Adnan Sundra & Low)