an applicant for stay of proceedings must come with clean hands because what he is asking is an equitable relief. Equity will not assist the unclean. That is why the court has to look into the antecedents of the parties.” [Emphasis added] [22] The 3rd and 4th Applicants submitted that this Application falls under ‘special circumstances’ in view of the material and peculiar facts mentioned earlier and the entire case should not be rendered nugatory based on the following points which will be discussed in turn. Overlapping Asset [23] To begin with, the dispute concern Enclosure 1 of this Case is mainly concerning the actual ownership of the Asset, which is claimed by two fractions, namely the estate of the Deceased in the present suit and at the same time by estate of Dato’ Tan in Suit 662 (Exhibit “TAL-7” & Exhibit “TAL-8” of Enclosure 60). [24] It is the 3rd and 4th Applicants’ case that the Asset is listed as an asset of Dato’ Tan in the List of Assets and Liabilities of Dato’ Tan issued with the Grant of Probate. However, in the application for letters of administration of the estate of the Deceased, the 1st and 2nd Applicant have sought to include the Asset to be included in the List of Assets and Liabilities in their affidavits affirmed on 24.02.2021 filed to this Court. [25] It is thus clear that there are presently two competing claims over the ownership of the Asset by two distinct estates, namely the estate of Dato’ Tan and the estate of the Deceased. [26] However, the 1st and 2nd Applicants rebutted this point by stating that there are no competing assets as alleged. This is clearly evident in the List of Assets and Liabilities provided for the Probate of Dato’ Tan in Enclosure 18. [27] The 3rd and 4th Applicants have nevertheless responded by stating that there is an inadvertent error in the List of Assets and Liabilities of Dato’ Tan annexed to the Grant of Probate dated 30.03.2018. In particular, the shares beneficially owned by Dato’ Tan in TJI at all material times was incorrectly stated as one share instead of two shares. Since the Grant of Probate annexing the List of Assets and Liabilities of Dato’ Tan was delivered up to the Central Probate Registry at the Kuala Lumpur High Court on 12.09.2018, the 3rd and 4th Applicants were unable to rectify this error. [28] Unfortunately, apart from the submission, I find that the 1st and 2nd Applicants have not disputed this point by way of affidavit evidence. The 1st and 2nd Applicants merely averred several factual assertions in their submission (“Enclosure 76”) including the issue concerning the validity of Form 32A. In Enclosure 76, the 1st and 2nd Applicants’ counsel argued that the said Form 32A is questionable as it seems to look more like an attempt to fabricate the contents or to be a draft, of which the 2nd Applicant has no knowledge and denied the signature contained therein. In addition to that, the 1st and 2nd Applicants in its submission asserted that the argument of error in regard to the details of assets of Dato’ Tan forwarded by the 3rd and 4th Applicants is highly doubted and seems to be an afterthought. [29] In reply, the 3rd and 4th Applicants argued that these assertions ought to have been raised by the 1st and 2nd Applicants by way of affidavit evidence. However, for reasons best known to them, this was not done. It was only raised in the submission and such submission of material and disputed facts by the counsel from the bar should not be considered by this Court. In fact, the 1st and 2nd Applicants did not attempt to seek leave of Court to file an affidavit in response to Enclosure 68 to controvert the material facts or assertions made by the 3rd and 4th Applicants. [30] It is trite law that the courts frown upon such statements from the bar. This was made clear in the case of Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 CLJ 609, where Gopal Sri Ram JCA expounded that it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted. [31] In Ng Hee Thoong (supra), the Court of Appeal admonished the Judicial Commissioner for accepting an explanation from the Bar as the explanation amounted to Counsel giving evidence on behalf of the client without taking an oath as to the veracity of the evidence adduced. [32] I also find the decision in Malayan Banking Bhd v Boo Hock Soon [2012] 1 LNS 971 instructive. In that case, Abdul Malik Ishak JCA held that the defendant guarantor ought not to be allowed to challenge the correctness of the certificate of indebtedness because the defendant guarantor has not alluded to this in any of his affidavits in reply nor was there any averment that there were manifest errors in the said certificate. A submission from the bar on this very crucial issue will not be entertained by the court. [33] It also well established that where a case is to be decided on a contest of affidavits, any failure to contradict or challenge the positive assertions upon a material issue by one party is usually treated as an admission by that party (see Binary Force Sdn Bhd v Lembaga Pelabuhan Johor [2009] MLJU 296). [34] In this regard, relevant guidance can be gleaned from the case of Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287 at p.293 (para D-G): “Obviously, the whole case had to be decided on affidavit evidence alone and thus the plaintiff should have filed an affidavit in reply as he must have realized the importance of replying to the Dato' Bandar's affidavit. Consequently, the failure of the plaintiff in filing an affidavit in opposition would mean that the plaintiff admits to what was alleged in encl 12 (Overseas Investment Pte Ltd v Anthony William O'Brien & Anor [1988] 3 MLJ 332). Way back in 1986, Lee Hun Hoe CJ (Borneo) (as he then was) said in Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382: There is force in the appellant's contention that an affidavit must reply specifically to allegations, and if it does not, then those allegations not replied to must be taken to have been accepted.” [Emphasis added] [35] Anchored on the above principles, this Court is of the view that the 1st and 2nd Applicants have failed to controvert or challenge the material facts averred in Enclosure 68 by affidavit evidence. The practice of averment of material facts by the counsel from the bar should not be condoned by this Court. If at all, all disputed facts must be from the litigants themselves properly affirmed before any commissioner for oaths. This not only involves the accountability of the deponent(s) but also prevent the counsels from breaching legal profession ethics that prevent advocate and solicitor from affirming affidavit on behalf of his or her clients in contested matters. Besides, such facts need to be properly put by the litigants in the affidavit so that the other parties could respond to it by way of another affidavit. By virtue of Ng Hee Toong (supra), the courts would take it as admission if the respondent of such affidavit choose not to reply to such positive assertion in the affidavit. How could the opponent respond if such material facts were put forward in the submission? The opponent counsel could not in all fairness be able to reply to this for it must only be known and averred by the litigants themselves. [36] Thus, the fact that the 1st and 2nd Applicants did not reply to Enclosure 76 or seek the permission to put in an affidavit to reply to Enclosure 76 but instead attempted to controvert material averments in Enclosure 68 through their submission does not hold water. In the event that these statements from the bar are taken into consideration by this Court, the 3rd and 4th Applicants will be severely prejudiced as their right to challenge those statements by affidavit evidence is not available since parties have exhausted their affidavits and have filed their respective submissions and replies as directed by this Court. [37] In short, the fact that the 1st and 2nd Applicant have not challenged the material facts put forward by the 3rd and 4th Applicants has rendered this Court with no other option than to warrant the stay of proceeding as prayed by the 3rd and 4th Applicants. [38] Therefore, the 3rd and 4th Applicants premised that, to which I agree, these averments are deemed to have been admitted and accepted by the 1st and 2nd Applicants. This is in light of the Court of Appeal case of See Kok Kol v Chong Kui Seng & Ors and Another Appeal [2010] 2 CLJ 481, where Low Hop Bing JCA held that: “[13] We also found that the affidavits affirmed by the said witnesses reveal that the documents sought by the plaintiff had been classified as official secrets under the Official Secrets Act 1972 and had not been declassified. The averments in these affidavits remain unchallenged and undisputed by the plaintiff. It is trite law that, in the circumstances, the plaintiff is deemed to have accepted or admitted such averments: Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609, as applied e.g., in Keng Kien Hock v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2007] 5 CLJ 171 CA.” No Personal Representative Appointed over the Estate of Dato’ Tan [39] The biggest consideration of this Court to allow this Application and to stay this proceeding is mainly because of the fact that presently there is no proper personal representative over the estate of Dato Tan due to the skirmish in Suite 662. Pending the disposal of Suit 662, the estate of Dato’ Tan has been under the stewardship of a court appointed receiver and manager, Lim Tian Huat pursuant to the Receiving & Manager Order dated 03.02.2020. Mr Lim’s power under the said order is only to manage the estates. No power has been given in that order to allow him to handle our current situation in this Case. [40] The only inference that can be drawn is that the estate of Dato’ Tan would not be in a position to deal with any issue concerning the ownership of the Asset, or any assets at all since the administration of the estate of Dato’ Tan has been put on hold. [41] Therefore, it is my finding that there are indeed special circumstances to justify this Application. Firstly, there exists a dispute whether the Asset was held by the Deceased on trust for Dato’ Tan. Secondly, there is another contested fact here: whether the Deceased had duly executed Form 32A to transfer the Asset to Dato’ Tan. Without going into the finality of these disputes, it is my view that these disputes remain key issues in this Case and at the moment the estate of Dato Tan could not be able to put forward any of its cases because the proper representation of the estate of Dato Tan has yet to be determined by the Court pending the outcome of Suit 662. [42] Thus, I am in full agreement with the 3rd and 4th Applicants that the outcome of Suit 662 would certainly have a bearing upon on the present suit as the question of ownership over the Asset can only be properly determined upon the disposal of Suit 662 and the appointment of an executor or administrator over the estate of Dato’ Tan. [43] In the event that this Court refuse to grant the stay, the result would be devastated for the Asset will be recognised as part of the estate of the Deceased and this situation is irreversible and will result in serious prejudice towards the estate of Dato’ Tan if the final determination of the same is in its favour. [44] This in turn would render the outcome of this Case futile so far as the Asset is concerned and it would result in further dispute between the estate of the Deceased and the estate of Dato’ Tan upon the determination and disposal of Suit 662. Stay of Proceeding Will Maintain the Status Quo of the Matter [45] Furthermore, the 3rd and 4th Applicants stressed that it is imperative for this Court to stay the administration of the estate of the Deceased pending disposal of Suit 662 and the appointment of an executor or administrator over the estate of Dato’ Tan in order to maintain status quo of the present matter. Again, I agree with this contention. [46] I refer to the case of Ling Peek Hoe & Anor v Golden Star & Ors [2020] 6 MLJ 689 on this. Hanipah Farikullah JCA held in that case: “[45] The issue of staying proceedings was the subject of detailed consideration by the Court of Appeal in AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921. The court firstly contrasted a stay of proceedings with a stay of enforcement of a judicial decision or order. It emphasised that stay of proceedings issue involve case management decisions. It added at para [25]: It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown. [Emphasis added] [47] Therefore, this Court is of the view that it is for the best interest of all parties to stay of proceeding until Suit 662 is disposed of since there is technically nobody to speak on behalf of the late Dato’ Tan’s estate presently until the Court has appointed the administrator of the estate of Dato’ Tan. Stay of Proceeding Will Not Prejudice the Estate of the Deceased [48] In opposing this Application, the 1st and 2nd Applicants submitted that stay of proceeding will prejudice the beneficiaries and the estate of the Deceased. The 3rd and 4th Applicants rebutted this by stating that the stay prayed herein is only for a limited time until the disposal of Suit 662 which is currently being part heard before this Court and that it will not prejudice any parties. [49] I find that the latter averment is not baseless. As I highlighted to the parties, Suit 662 which is also before this court should be deliberated by the end of this year which is only about a few more months to go. Further, the 3rd and 4th Applicants submitted that it is apparent from the conduct of the parties, particularly the 1st and 2nd Applicants, that there is no urgency in administering the estate of the Deceased. The Deceased passed away in 2015 while Dato’ Tan passed away unexpectedly in December 2017