1. Titanwood Industries Sdn. Bhd. v Ncs Wood Products Sdn. Bhd. (JB-11BNCVC-1-02/2021 (Enclosure 36))

TITANWOOD INDUSTRIES SDN. BHD.

ROXY BENDWOOD SDN. BHD. (COMPANY NO.: 201501012391/1137726-H) ... APPELLANTS NCS WOOD PRODUCTS SDN. BHD. (COMPANY NO.: 984396-T) … RESPONDENT [IN THE SESSIONS COURT AT MUAR IN THE STATE OF JOHORE DARUL TAKZIM, MALAYSIA CIVIL SUIT NO.: JB-B52NCC-12-11/2019 WRIT OF EXECUTION: JB-56WS-3-07/2020 WRIT OF EXECUTION, TANGKAK NO. JE-76WS-11-7/2020 BETWEEN NCS WOOD PRODUCTS SDN. BHD. (COMPANY NO.: 984396-T) … PLAINTIFF December 28, 2021 2 ROXY HERITAGE FURNITURE MANUFACTURER SDN BHD (COMPANY NO.: 165725-M) … DEFENDANT

TITANWOOD INDUSTRIES SDN. BHD.

ROXY BENDWOOD SDN. BHD. (COMPANY NO.: 201501012391/1137726-H) ... CLAIMANTS CORAM: AWG ARMADAJAYA BIN AWG MAHMUD JUDICIAL COMMISSIONER  GROUNDS OF JUDGMENT (ENCLOSURE 36)  INTRODUCTION [1] This is an application for a stay of execution vide Enclosure35, pursuant to Order 47 Rule 1, Rules of Court and / or Order 45 Rule 11 and / or the inherent jurisdiction of this Court, of the decision of this Court given on 28 July 2021. [2] After a full hearing, the Learned Magistrate dismissed the claim filed by the Claimant for the movable properties attached, sealed and December 28, 2021 3 listed by the Court Bailiff pursuant to the Writ Seizure and Sales filed by the Execution Creditor for the execution of Court Order dated 02.07.2020 against the Judgment Debtor (interpleader application); [3] After hearing the Appeal, this Court ruled that that the Appellants failed to make out a case or show that the Learned Magistrate has erred in her decision that merits appellate intervention. [4] The Court then dismissed the appeal with cost. The Appellant then filed an appeal with the Court of Appeal. Hence this application vide Enclosure36. [5] The Cause Papers are as follows: i. Notice of Application (Enclosure 36). ii. Affidavit-in-support by the applicant / appellant. (Enclosure 37). iii. Affidavit-in-opposition by the Respondent. (Enclosure 38). iv. Affidavit-in-reply by the applicant. (Enclosure 39). v. Supplementary affidavit (Enclosure 44) BACKGROUND FACTS [6] The Execution Creditor (“Respondent”) has obtained a Judgment against the Execution Debtor Roxy Heritage Manufacturer Sdn Bhd for RM 481,541-10 with interest thereon and costs (as of 16 December 2020). The matter came before this Court on appeal and after hearing all parties, this Court dismissed the appeal. I was under the impression (and I believe that it was rightly so) that no appeal was lodged. December 28, 2021 4 [7] Following that, there was an application for a Writ of Seizure and Sale and armed with the Judgment of the Magistrates Court (obtained earlier), the Execution Creditor applied for a Writ of Seizure and Sale to be issued. [8] The Writ of Seizure and Sale was issued by the Court below. On 11 August 2020, the Bailiff attached the following movable assets at the Execution Debtor’s place of business at No. 54, Tanjung Agas Industrial Estate, 84000 Ledang, Johor: (hereinafter as “Tanjung Agas address”) and at the Court Bailiff’s satisfaction, attached the movable assets which include machineries and some office furnitures at the said premise. [9] At the request from the Execution Debtor and upon the agreement from the Respondent, the Court Bailiff did not attach or seal the stocks and/or inventories produced by the Execution Debtor.

4 units of various computers;

4 units of fax/printer;

3 units of fans;

1 unit of photostat machine;

6 units of office table;

10 units of chairs;

1 set of round table and chair;

6 sets of bed + mattress + pillow;

7 units of makeup cabinet;

4 sets of dining table + chair;

2 units of air conditioner;

23 units of hot press machine; December 28, 2021 5

2 units of fork lift;

2 units of glue spreading machine;

2 units of shredding machine;

1 unit of water tank. [10] Aggrieved by the attachment, the Claimants (“Appellants”) lay claim to the assets by filing a Notice to Claim on the basis that assets attached by the Bailiff belong to them and not the Execution Debtor in turn that the Court’s Bailiff filed an interpleader summons at the Court below. Titanwood Industries Sdn Bhd and Roxy Bendwood Sdn Bhd then lay claims to the assets by filing a Notice to Claim with the Magistrates Court, on the basis that assets attached by the Bailiff belonged to them and not the Execution Debtor which led to the Court’s Bailiff filing the interpleader summons. [11] The evidence which are to the satisfactions of all parties, including the Court’s Bailiff are that the premise of business at No. K54, Tanjung Agas Industrial Estate, 84000 Ledang, Johor belonged to / is the place of business at to the Execution Debtor as can be seen in the Record of Appeal filed before the Court based on the following:- a. The Purchase Orders issued by the Execution Debtor stating that, No. K54, Tanjung Agas Industrial Estate, 84000 Ledang, Johor is the office address; [See: Page 105-111, Record of Appeal, Exhibit marked as TSY-1 at Tay Su Yern’s Affidavit-In-Reply]. b. The Court Bailiff who, at the premise for attachments on 11 August 2020 has seen the signages’ and / or board signages’ December 28, 2021 6 which are showing that the premise is a business address for Execution Debtor; [See: Page 112-114, Record of Appeal, Exhibit marked as TSY-2 at Tay Su Yern’s Affidavit-In-Reply]. c. That 3rd Party Source website also showed that the business address for Execution Debtor is at No. K54, Tanjung Agas Industrial Estate, 84000 Ledang, Johor; [See: Page 125, Record of Appeal, Exhibit marked as TSY-4 at Tay Su Yern’s Affidavit-In-Reply]. [12] At all material times, the Execution Debtor’s place of business is located at the Tanjung Agas address. [13] The Claimants (Appellants in this case) are as follows: i. Titanwood Industries Sdn. Bhd.; and ii. Roxy Bendwood Sdn. Bhd. [14] The Respondent is the Execution Creditor in the Court below and the Plaintiff for the original suit, which is:- i. NCS Wood Products Sdn. Bhd. [15] The Execution Debtor/Judgment Debtor is the Defendant for the original suit, i.e.:- i. Roxy Heritage Manufacturer Sdn. Bhd. [16] After a full hearing the Learned Magistrate dismissed the claim filed by the Claimant for the movable properties attached, sealed and December 28, 2021 7 listed by the Court Bailiff pursuant to the Writ Seizure and Sales filed by the Execution Creditor for the execution of Court Order dated 02.07.2020 against the Judgment Debtor (interpleader application); [17] After hearing the Appeal, this Court ruled that that the Appellants failed to make out a case or show that the Learned Magistrate has erred in her decision that merits appellate intervention. [18] The Court then dismissed the appeal with cost. The Appellant then filed an appeal with the Court of Appeal. Hence this applicant vide Enclosure36. THE LAW IN RESPECT OF STAY OF EXECUTION [19] The Black’s Law Dictionary (© 2016 A Legal Dictionary) defines “the stay of execution” as “the hold that is put on the carryout of an order or judgment of a court”. [20] In Latin, it is known as “Cesset Executio” meaning “let the execution be stayed”. [21] The provisions for an application for stay of execution are found in-

S. 44, s. 57(1) and s. 73 Courts of Judicature Act 1964.

O. 55 r. 16 Rules of Court 2012. [22] As matter of law, a stay of proceedings will not be granted simply because there is an appeal to the Court of Appeal. This is stipulated in Section 73 Courts of Judicature Act 1964. December 28, 2021 8 73 Appeal not to operate as stay of execution 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 proceeding shall be invalidated except so far as the Court of Appeal may direct. [23] The English Court of Appeal's case of RE FLATAU EX P SCOTCH WHISKY DISTILLERS LTD (1889) 22 QBD 83 where the court refused to grant a stay on the ground that an appeal was pending against the judgment. [24] Rule 13 of the Rules of the Court of Appeal 1994 also provides that:

Stay of proceedings on appeal. 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 proceeding shall be invalidated except so far as the Court may direct. [25] Order 55 - Appeals to high court from subordinate courts - Rule 16 - Stay of execution

An appeal shall not operate as a stay of execution under the decision appealed against...

The Court appealed from or the High Court may grant an order of stay of execution on such terms as it thinks fit [26] The same sentiments have been expressed in the following cases: December 28, 2021 9

CHE WAN DEVELOPMENT SDN BHD V. CO-OPERATIVE CENTRAL BANK BHD [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366 HC;

WU SHU CHEN (SOLE EXECUTRIX OF THE ESTATE OF GOH KENG HOW, DECEASED) V RAJA ZAINAL ABIDIN BIN RAJA HUSSIN & ANOR [1996] 2 CLJ 353 HC;

ALL PERSONS IN OCCUPATION OF THE HOUSE AND THE WOODEN STORES ERECTED ON A PORTION OF LAND HOLD UNDER GRANT NO. 26977 FOR LOT 4271 IN THE TOWNSHIP OF JOHOR BAHRU, JOHOR V. PUNCA KLASIK SDN BHD [1998] 5 CLJ 49;

WALTER A/L PATHROSE GOMEZ & ORS V. SENTUL

CHASE PERDANA BHD V. MD AFENDI BIN HAMDAN [2006] 5 CLJ 563 HC. [27] The Court has an unqualified discretion to grant a stay of execution. However, the Court will only grant stay if there are special circumstances. It is trite law that the Court will not deprive a successful party of the fruits of his litigation. [28] The filing of a notice of appeal shall not operate as a stay of execution, but the Court may, on application, and on sufficient cause being shown, stay the execution on such terms as it may think fit. O. 56 R. 1 (4) Rules of Court 2012; s. 73 Courts of Judicature Act 1964 December 28, 2021 10 [29] The procedure for a stay application may be done either by the stay of execution be applied for orally if it is applied immediately after the decision or order has been made by the Judge or the Court. In such an event, no formal written application and no supporting affidavit need be filed. [30] However, if the Magistrate / Judge does not wish to entertain an oral application for stay, then he may indicate or direct that the unsuccessful party should make a formal written application vide a Notice of Application which is supported by affidavit. Such application for stay should be made as early as possible and the cause papers be served on the adversary party. [31] The law relating to the granting of a stay of proceedings is settled. The court must exercise its discretion as to what is the fairest mode, after taking into consideration all the relevant matters, which exist between the parties. Put differently, the court may exercise its discretion whenever it is just and reasonable to do so, so as to ensure that justice is done to both the parties. It is entirely an exercise of discretion, pure and simple. These principles of law are reflected in Halsbury’s Laws of England, 4th edition, reissue, vol. 37 at p. 290 at para. 926: In general a stay of proceedings arises under an order of the court which puts a stop or 'stay' on the further conduct of the proceedings in that court at the stage which they have then reached, so that the parties are precluded thereafter from taking any further step in the proceedings. The object of the order is to avoid the trial or hearing of the claim taking place, where the court thinks it is just and convenient to make the order, to prevent undue prejudice being occasioned to the opposite party or to prevent the abuse of process. The order is made generally in the exercise of December 28, 2021 11 the court's discretionary jurisdiction, and by way of summary process, that is without a trial on the substantive merits of the case, and, at any rate in the exercise of its inherent jurisdiction, an order for the stay of proceedings is made very sparingly and only in exceptional circumstances. (see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10 CLJ 375). [32] In BOARD OF GOVERNORS OF SEKOLAH MENENGAH ST. GABRIEL V. RANJIT SINGH [1970] MLJ 38 where his Lordship Justice Raja Azlan Shah (as His Majesty then was) aptly said at p. 39 of the report: I hold the view that a stay of proceedings is a matter of discretion and the court must exercise its discretion as to what is the fairest mode, upon taking all matters into consideration of trying the several disputes which exist between the parties. In one case one consideration may have more sway, more cogency, and more effect than that same consideration, perhaps, may have in another. Putting it in another way, the court must exercise its discretion whenever it is just and reasonable to do so. [33] His Lordship Justice Zakaria Yatim, in BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. V. LORRAIN ESME OSMAN, BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. V. LORRAIN ESME OSMAN & ORS [1987] 1 CLJ 572 said the same thing in these salient words: The law on this point has developed in England over the years. I shall start with the case of ST. PIERRE V. SOUTH AMERICAN STORES (GATH & CHAVES) LTD. [1936] 1 K.B. 382. In that case the Court decided that a mere balance of convenience was not a sufficient ground for depriving a plaintiff of the advantages of December 28, 2021 12 prosecuting his action in an English Court. The Court laid down two requirements to be satisfied in order to justify a stay. Firstly, the defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the Court. Secondly, the stay must not cause injustice to the plaintiff. The burden of proving both requirements was on the defendant. [34] His Lordship Justice Abdul Malik, in analysing the law, said this, “Even if the merits of the appeal were to be considered as was considered by his Lordship Justice Brown, in SERANGOON GARDEN ESTATE LTD. V. ANG KENG [1953] 19 MLJ 116, the plaintiff's appeal to the Court of Appeal, so submitted the defendant, has no good prospects of success. It was a case of transferring the S4 suit to the S6 court and the S4 suit to be heard after the S6 suit has been heard. It was as simple as that. It looks like the D4 suit would be heard next month (June 2007) as was said by the plaintiff. And if that is really true, then the trial of the S6 suit would surely be heard after the D4 suit. No one knows the outcome of the trial of the D4 suit. It is to be heard by another judge. It is because of the "potential disaster of inconsistent verdicts" (to borrow the words of Justice Lai Kew Chai, in BARING FUTURES (SINGAPORE) PTE LTD (IN LIQUIDATION) V. DELOITTE & TOUCHE (A FIRM) & ANOR [1997] 3 SLR 312) or the fear of "two inconsistent judgments" (to borrow the words of his Lordship Chief Justice (Malaya) Raja Azlan Shah (as His Majesty then was) in CENTRAL SECURITIES (HOLDINGS) BHD. V. HARON BIN MOHAMED ZAID [1979] 2 MLJ 244, 251) that I made those orders as I did in the first judgment. I wonder why the defendant in the D4 suit did not apply to transfer the D4 suit to this court! It would certainly save time and costs. (see MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10 CLJ 375) December 28, 2021 13 [35] Further his Lordship said, “At the outset, I must categorically say that the plaintiff has failed to disclose a single fact or issue that would amount to a special circumstance. In fact, the plaintiff’s affidavits failed to make any reference to the existence of any special circumstances. The plaintiff’s application for a stay was premised on two considerations, namely:(a) pending an appeal to the Court of Appeal against my decision; and(b) pending the full and final determination of the trial of the D4 suit. With respect, these two considerations cannot constitute special circumstances unless the plaintiff can show that my decision dated 11 December 2006 as reflected in the first judgment had caused an injustice in that it was oppressive or vexatious to the plaintiff or that it would amount to an abuse of the process of the court. Additionally, the plaintiff must establish that the stay of the present proceedings would not cause an injustice to the defendant” [36] In MCPHAIL V. PERSONS, NAMES UNKNOWN [1973] 1 Ch 447, at 460, Lord Denning MR said that in the case of a mortgagee who seeks possession of a dwelling house, that - The Court has power by statute (Administration of Justice Act 1970, s. 36(2)) to suspend the order. This goes to show that, apart from statute, the Court would have no such power. [37] His Lordship Justice NH Chan said in CHE WAN DEVELOPMENT SDN. BHD. v. CO-OPERATIVE CENTRAL BANK BHD. [1989] 1 CLJ Rep 366 - It seems to me to be plain that the Court has no general inherent jurisdiction to grant a stay of execution beyond the jurisdiction December 28, 2021 14 given by certain statutes (such as s. 36(2) of the English Administration of Justice Act 1970 and, in this country, such as s. 73 of the Courts of Judicature Act 1964) or by the Rules of the High Court (such as O. 47, r. 1).No authority can be produced showing that such a jurisdiction exists outside the power conferred by rules of Court or by statute. The Court, therefore, has no inherent jurisdiction (because no power has been conferred under rules of Court or by statute) to stay or suspend the execution of the judgment or order for possession of land against a trespasser; see MCPHAIL V. PERSONS, NAMES UNKNOWN, supra. In the present case which is an application for a stay of execution by the defendant, O. 47, r. 1(1) does not apply as that rule only applies to money judgments. The only thing that is applicable here is s. 73 of the Courts of Judicature Act 1964. Section 73 Courts of Judicature Act 1964 is similar to the provisions of the English RSC, O. 59, r. 13(1). See also Halsbury’s Laws of England, 4th Edition., Vol. 17 [1976], p. 272, para. 454 which reads: Except so far as the Court below or the Court of appeal may otherwise direct, an appeal does not operate as a stay of execution or of proceedings under the decision of the Court below, and no intermediate act or proceeding is invalidated by an appeal. [38] This is what Halsbury’s Laws of England says on the effect of the English O. 59, r. 13(1); 4th Edition., Vol. 17 [1976], at p. 272, para. 455: The Court has an absolute and unfettered discretion as to the granting of refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special December 28, 2021 15 circumstances, which must be deposed to an affidavit unless the application is made at the hearing. [39] And the position is this country is as stated by his Lordship Justice Hashim Yeop Sani (as he then was) in SYARIKAT BERPAKAT V. LIM KAI KOK [1983] 1 MLJ 406, at 407: The law on the granting of an order for stay of execution has been examined a number of times in the Courts of this country. It is trite law that the Court has an absolute and unfettered discretion to grant or refuse an application for stay. As a rule the Court will however only grant stay if there are special circumstances and which circumstances must be deposed in the affidavit supporting the application. The governing principle in all cases where the Court is asked to exercise its discretion is clearly expressed by Brown J in SERANGOON GARDEN ESTATE LTD. V. ANG KENG [1953]1LNS98 and the principle is this: 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. [40] The principle enunciated here goes back to many years ago as can be seen in MONK V. BARTRAM [1891] 1 QB 346. In that case stay had been refused by the trial Judge and in the Court of Appeal it was held that where a stay of execution has been refused by the trial Court an application made in a Court of Appeal for a stay pending appeal must be supported by special circumstances and allegations that there has been misdirection or that the verdict or judgment was against the weight of evidence, or that there was no evidence to support the verdict or judgment are not special circumstances. Lord Esher MR in the Court of Appeal when refusing the application for stay said: December 28, 2021 16 We have made inquiries, and find that the practice in the Divisional Court has been similar to that as to appeals in this Court in cases of trials before a Judge without a jury. It has never been the practice in either case to stay execution after the Judge at the trial has refused to grant it, unless special circumstances are shown to exist. [41] The Court of Appeal in MING ANN HOLDINGS SDN BHD v. DANAHARTA URUS SDN BHD [2002] 3 CLJ 380 held that, “The approach taken by most judges appears to be that 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 weight of authorities consider that special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal). The most important factor for consideration in 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.” [42] In KOSMA PALM OIL MILL SDN BHD & ORS V. KOPERASI SERBAUSAHA MAKMUR BHD [2004] 1 MLJ 257, the Federal Court said this, It is therefore clear beyond doubt that 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. In other words special circumstances is the genus of which nugatoriness December 28, 2021 17 is a species. If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established. Thus they cannot be treated as separate heads and one cannot be an alternative to the other. Neither can one be accepted or rejected in favour of the other as they are inter-related. ... 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. [43] The nugatory principle is for the purpose of obtaining a stay pending appeal so as not to render the appeal, if successful, nugatory. In other words, a successful appeal should not be rendered futile. [44] The nugatory approach was considered in WILSON V. CHURCH (NO: 2) [1879] 12 Ch D 454, some 129 years ago. That case concerned the distribution of money to a large number of bondholders. The plaintiff there obtained judgment against the company and the court ordered that the money should immediately be distributed among the bondholders. On the defendant’s appeal and based on an application to stay pending appeal, the English Court of Appeal ordered a stay. The court was concerned that the appeal, if successful, ought not to be rendered nugatory. The court was also concerned about the fund after its distribution. Lord Justice Brett had this to say at p. 459 of the report: December 28, 2021 18 ...the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory. That being the general rule, the next question is whether, if this fund were paid out, the appeal, if successful, would be nugatory. Now it seems to me that, looking at this matter in the view of men of business, one cannot help seeing that if this fund is paid out it is impossible to say to whom it will be paid. It is quite true that the payments out will be to persons many of whom will never be able to be found; it is very possible, and most likely, that several of them will be abroad; it is most likely that several of them will be in America; and the practical result of paying this money out to the different bondholders, or to the persons who would be holding the bonds at the time, would be that the fund never could be got back again if the appeal were successful. [45] In KOSMA PALM OIL MILL SDN BHD & 2 ORS (supra) where the Federal Court made the following observations:

The merit of a party’s case in a stay application was not a relevant matter for consideration.

The onus was on the applicant to demonstrate the existence of special circumstances to justify the grant of a stay of execution and the reasons must relate to the enforcement of the Judgement of the appeal.

There were many factors that might constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay were refused was the most common example of special circumstances. Any attempt to restrict the grant of a stay of execution to nugatoriness was wrong and December 28, 2021 19 would severely restrict the grounds on which the applicant might rely.

As the applicants had not put forward reasons that related to the enforcement of judgment of the appeal but instead had focused on the problems that the applicants would encounter if the motion were not successful, they failed to raise special circumstances which warrant a stay of execution. [46] The Concept of “Special Circumstances” have been defined in LEONG POH SHEE v. NG KAT CHONG [1966] 1 MLJ 86 by Justice Raja Azlan Shah (as His Majesty then was), as “special under the circumstances as distinguished from ordinary circumstances, it must be something exceptional in character something that exceeds or excels in some way that which is usual or commons”. [47] Other factors must be taken into account in applying the special circumstances approach. These factors, and they are not exhaustive, may be listed as follows:

whether damages would be an adequate remedy if the applicant who applies for the stay succeeds in his appeal?

the public policy consideration that has to be taken into account;

the need to examine the subject matter of the appeal; December 28, 2021 20

the need to weigh in a balance of the hardship of the parties involved;

the delay in filing the application for a stay;

whether the court would exercise its inherent jurisdiction to grant the stay; and

where would the balance of convenience or the balance of justice lie? (see CHANG SHU HUA v. GOON FOOK HONG [2008] 3 CLJ 429. [48] Where summary judgment is entered for a Plaintiff, the Court may by order, and subject to such conditions, if any, as may be just stay execution of any judgment given against a defendant until after the trial of any counterclaim made or raised by the defendant in the action [O. 14 R. 3(2) Rules of Court 2012]. [49] The Court of Appeal in SUGUMAR BALAKRISHNAN v. PENGARAH IMIGRESEN NEGERI SABAH & ANOR [1998] 3 CLJ 85; [1998] 3 MLJ 289 held that an Order for Stay is not an injunction. In the context of O. 53 R. 1(5), an Order of Stay has the effect of temporarily suspending the effect of a public law decision pending the outcome of certiorari or prohibition proceedings brought to challenge the validity of the particular decision. [50] In SILVER CONCEPT SDN BHD v. BRISDALE RASA EKSPEDISI RIA SDN BHD) [2002] 4 CLJ 27; [2002] 4 MLJ 113, the December 28, 2021 21 Court of Appeal held that the grant by the High Court of a stay pending appeal is not an admission by the Court that it had erred in making the order that is the subject matter of the appeal. Neither is it inconsistent with the decision that is proposed to be appealed. [51] In ROSENGRENS LTD V. SAFE DEPOSIT CENTRES LTD (unreported, 19 July 1984, CA, Lexis Nexis) Justice Dillon said: The most common special circumstance is, normally no doubt, that it would be doubtful whether, if the judgment was enforced, the defendant would get his money back if the appeal subsequently succeeded. But there are others as, for instance, if there is a likelihood that the money the subject of the judgment, if paid over, would go to a foreign jurisdiction where the defendant would have difficulty recovering it. [52] In SERANGOON GARDEN ESTATE LTD. V. ANG KENG [1953] 19 MLJ 116, though only a judgment of the High Court (Singapore), is perhaps the most quoted case on the subject. That case is an appeal from the District Court against an order granting a stay of execution in a case where an “order for possession” had been made. The subject matter was an illegal pig-sty. It must be noted that when the application was made, not at the conclusion of the case but subsequently, no affidavit in support was filed. This is what his Lordship Justice Brown says in his judgment: The learned District Judge had a discretion to grant a stay of execution. And I should not think it right to interfere with the exercise of his discretion if I was satisfied that he had exercised it on correct principles. There is no rule of practice limiting the exercise of his discretion. But it is a clear principle that the Court will not deprive a successful party of the fruits of his litigation until December 28, 2021 22 an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. The only ground, so far as appears in the written grounds for granting this stay, is that if the defendant succeeded in his appeal he could not be restored to the same position as before because the plaintiffs would have removed his pig-sty. That ground, standing alone, in my opinion cannot be a sufficient ground on which to grant a stay of execution. It seems to me that to hold otherwise would be to establish a precedent, and in effect to lay down a rule of practice, that in all cases where the defendant cannot be restored to his original position if his appeal succeeds, a successful litigant is to be deprived of the fruits of his litigation until such time as the appeal is determined. Such a ground might well be an important factor to take into consideration if there were other grounds. If, for example, another ground had been that there were merits in the appeal, that fact coupled with the fact that the defendant, if successful, could not be restored to his original position might well have afforded special circumstances to justify the learned District Judge in exercising his discretion to grant a stay; and I should not have thought it right to interfere. [53] The following points emerged from the learned judgment:

granting a stay pending appeal is an exercise of discretion;

there is no rule of practice limiting the exercise of the discretion;

it is a clear principle that the court will not deprive a successful party of the fruits of his litigation until the appeal is determined unless there are special circumstances;

the ground that, if the defendant is successful in his appeal, he cannot be restored to the same position as before, standing December 28, 2021 23 alone, is not a sufficient ground on which to grant a stay, however, it is “an important factor” to take into consideration, if there are other grounds, for example merit of the appeal. Both grounds, together, may well amount to “special circumstances.” [54] In LEONG POH SHEE V. NG KAT CHONG [1966] 1 MLJ 86 is a judgment of the High Court where the plaintiff had obtained a judgment in default of appearance for the land in question to be transferred to him. The defendant applied for a stay of execution. The relevant part of the judgment of his Lordship Justice Raja Azlan Shah (as His Majesty then was) reads as follows: Although the court has an unqualified discretion to grant a stay it has never been the practice to do so unless it is supported by an affidavit of special circumstances. The law on the point is well settled. I quote a passage from Halsbury’s Laws of England, 3rd Edition, Volume 16, paragraph 51 at page 35: The court has an absolute and unfettered discretion as to the granting or refusing a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant it if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. [55] In AJAIB SINGH V. JEFFREY FERNANDEZ [1971] 1 MLJ 139, his Lordship Justice Yong referred to a number of cases, including a Privy Council judgment from India and concluded: After consulting these and other authorities up to the present day I am of the opinion that an application for stay of proceedings should be made promptly, and it must be proved to the satisfaction of the December 28, 2021 24 court that special circumstances exist such as if the stay was not granted serious or irreparable injury would result to the party applying. [56] In RE KONG THAI SAWMILL (MIRI) SDN. BHD.; LING BENG SUNG V. KONG THAI SAWMILL (MIRI) SDN. BHD. & ORS. (NO. 2) [1976] 1 MLJ 131 is a judgment of the Federal Court. In that case the first respondent applied to the then Federal Court for leave to appeal to the Yang Di Pertuan Agong (Privy Council) and for a stay of execution. His Lordship Chief Justice (Borneo) Lee Hun Hoe, in his learned judgment referred to a number of English cases and held that no special circumstances were shown to support the application for stay of execution and dismissed the application. This is what the learned Chief Justice (Borneo), inter alia, said in his judgment: It is my view that where stay of execution has previously been refused by this court after a hearing of an appeal lasting over a week, an application made to the same court for stay pending an appeal must be supported by special circumstances. Allegations that there has been mis-directions that the verdict of judgement was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances on which the court will grant the application. See MONK V. BARTRAM [1981] QB 346. Those are matters to be decided in the proper forum. [57] In MOHAMED MUSTAFA V. KANDASAMY (NO. 2) [1979] 2 MLJ 126 is a judgment of the Federal Court and it was an application for leave to appeal to the Yang Di Pertuan Agong and for a stay of execution. The court granted both applications, the stay being granted “to maintain status quo.” December 28, 2021 25 [58] The judgment of the court was delivered by his Lordship Federal Court Justice Abdul Hamid (as he then was) and his Lordship said: On the question of stay of execution it is I think settled law that the granting of such a stay is a matter of the court’s discretion, and it is true that the exercise of such discretion must be founded upon established judicial principles. One of the determining factors that calls for consideration is whether by not making an order to stay of the execution it would make the appeal if successful, nugatory in that it would deprive an appellant of the results of the appeal. How pertinent that factor would be may vary according to the circumstances of each particular case. [59] In MATANG HOLDINGS BHD. & ORS. V. DATO’ LEE SAN CHOON & ORS. [1985] 2 MLJ 406, there was an application for a stay of the order of dissolution of injunction pending appeal to the higher court. His Lordship Justice Yusoff Mohamed (as he then was) referred to LEONG POH SHEE [1966] 1 MLJ 86, SERANGOON GARDEN ESTATE LTD. [1953] 19 MLJ 116 and AJAIB SINGH V. JEFFREY FERNANDEZ [1971] 1 MLJ 139, all mentioned earlier and held held: There are no special grounds in this application except the appeal pending the merits of which have been discussed above. In my view, the application should be dismissed. [60] In the “YIH SHEN”: LAI LAI YIN V. M.V. “YIH SHEN”, OWNERS OF AND OTHER PERSONS INTERESTED [1986] 2 MLJ 65 is a judgment of his Lordship Justice Mohamed Dzaiddin (as he then was). That was an application for a stay of execution of an order for the vessel “YIH SHEN” to be appraised and sold pendente lite. The grounds were, first, the defendants intended to appeal against the December 28, 2021 26 said order and, secondly, unless restrained, the vessel, if sold prior to the appeal will render the appeal, if successful, nugatory. The learned judge (as he then was) dismissed the application. The learned judge (as he then was), inter alia, said: This is a case where the Court has an absolute and unfettered discretion to grant or refuse the stay. Halsbury’s Laws of England, 4th Edition, Vol. 17, para. 455 states as follows: The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. Thus, it is incumbent upon the defendant in this case to show from the affidavit the special circumstances to enable this court to grant a stay of execution. Examples of “special circumstances” are many and are enumerated at the footnote of Halsbury’s Laws (supra). However, the leading authority relied upon by the defendant is WILSON V. CHURCH (NO. 2) where Cotton LJ laid down the principle at p. 458 “... when a party is appealing, exercising his undoubted right to appeal, this Court ought to see that the appeal, if successful, is not nugatory.” This principle was applied in ORION PROPERTY TRUST LTD. V. DU CANE COURT LTD.; and in the local case of RE KONG THAI SAWMILL (MIRI) SDN. BHD. From the affidavit of Mr. Chan and the submission of counsel I cannot find anything which would amount to being nugatory in the event the appeal (Supreme Court Civil Appeal No. 173 of 1985) being successful. I should also add that the fact that the defendants believe they have a reasonable chance of success in the appeal is no ground for granting a stay. See: ATKINS V. GREAT WESTERN RAILWAY CO., December 28, 2021 27 where the English Court of Appeal held that strong grounds of appeal are not sufficient to grant the application. [61] In PERWIRA HABIB BANK MALAYSIA BHD. V. SUNNY TRAVEL & TOUR SDN. BHD. & ORS. [1989] 2 CLJ 470, quoted in Mallal’s Digest 4th edition, vol. 2(2) para; 4254, in a judgment dated 13 August 1988, where her Ladyship Justice Siti Norma Yaakob (as she then was) held:

courts have an inherent jurisdiction to stay proceedings but only on grounds which are relevant to a stay. It does not extend to grounds which are properly matters of defence of law or relief in equity, for these must be raised in the action itself. Special circumstances must be shown which must relate to the enforcement of the judgment and not those which go to its validity or correctness; [62] In PERWIRA HABIB BANK MALAYSIA BHD. V. SYARIKAT JOHORE TENGGARA SDN. BHD & ORS [1989] 2 CLJ 470 his Lordship Justice Gunn Chit Tuan (as he then was), in setting aside an order for a stay of execution, held that in hearing commercial cases, courts should recognise business realities by taking notice of the commercial purpose of guarantees, the purport, utility and obvious intent of which are to ensure that creditors would be paid early by guarantors when the principle debtors are unable or unwilling to do so. [63] In CHE WAN DEVELOPMENT SDN. BHD. V. CO-OPERATIVE CENTRAL BANK BHD (supra) his Lordship Justice NH Chan (as he then was) wrote a lengthy judgment, relying mainly on English cases again applied the “special circumstances” test. In his December 28, 2021 28 judgment, the learned judge, inter alia, says at p. 588 (p. 370) of the report: Put shortly, it is this: that the court has a discretion as to the granting or refusing of a stay of execution pending appeal and that as a rule it will only grant a stay if there are special circumstances, which circumstances must be deposed in the affidavit supporting the application. [64] On discretion of the court, the learned judge says: In this country, the words of s. 73 of the Courts of Judicature Act 1964 are, ‘unless the court... so orders’. Plainly, this gives a discretion to the court. A judicial discretion, no doubt, which must be guided by proper rules founded on principle. [65] On special circumstances, the learned judge, inter alia, says: It is plain that the validity or correctness of the decision appealed from are not special circumstances. [66] At p. 589 (p. 371) of the report: Merits or strong grounds for an appeal are also not special circumstances. [67] At p. 595 (p. 376) of the report: Again there is no evidence which has been deposed on affidavit which would enable this court to find that if a stay is granted the appeal if successful would become nugatory. December 28, 2021 29 [68] In the concluding paragraph of the judgment, at p. 597 (p. 377) of the report, the learned judge says: The plaintiff has obtained judgment, and it seems to me impossible to suggest that on the basis of the orders which I have made, the plaintiff ought to be deprived of its rights on the judgment the fruits of which it would have been fully entitled. Therefore, whether the judgment and the orders which I have made are right or wrong and that is a matter which may be tested in the Supreme Court I reach the conclusion that there is nothing in the law and the facts which I have already mentioned which would make it just or proper for me to grant a stay of execution. [69] Taking note of the principles of law in respect of stay of execution in SERANGOON GARDEN ESTATE LTD (supra) that are as follows:

granting a stay pending appeal is an exercise of discretion;

there is no rule of practice limiting the exercise of the discretion;

it is a clear principle that the court will not deprive a successful party of the fruits of his litigation until the appeal is determined unless there are special circumstances;

the ground that, if the defendant is successful in his appeal, he cannot be restored to the same position as before, standing alone, is not a sufficient ground on which to grant a stay, however, it is “an important factor” to take into consideration, if there are other grounds, for example merit of the appeal. Both grounds, together, may well amount to “special circumstances” there are rooms for consideration without any December 28, 2021 30 concession on the strength of the judgment earlier given by this Court.

it is plain that the validity or correctness of the decision appealed from are not special circumstances. [70] I also keep in mind KOSMA PALM OIL MILL SDN BHD & 2 ORS (supra) where the Federal Court made the following observations:

The merit of a party’s case in a stay application was not a relevant matter for consideration.

The onus was on the applicant to demonstrate the existence of special circumstances to justify the grant of a stay of execution and the reasons must relate to the enforcement of the Judgement of the appeal.

There were many factors that might constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay were refused was the most common example of special circumstances. Any attempt to restrict the grant of a stay of execution to nugatoriness was wrong and would severely restrict the grounds on which the applicant might rely.

As the applicants had not put forward reasons that related to the enforcement of judgment of the appeal but instead had focused on the problems that the applicants would encounter if the motion were not successful, they failed to raise special circumstances which warrant a stay of execution. December 28, 2021 31 [71] Two common approaches are usually adopted by the courts. The first would be the special circumstances approach while the second is the nugatory approach. The Supreme Court case of KERAJAAN MALAYSIA V. JASANUSA SDN BHD [1995] 2 CLJ 701 SC and the Federal Court case of KERAJAAN MALAYSIA V. DATO' HJ GHANI GILONG [1995] 3 CLJ 161 FC adopted the special circumstances approach. Halsbury’s Laws of England, vol. 13, 4th edn, at p. 272, at para 455 has this to say: The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. [72] Summing up the authorities that are cited above, the principles of law to be considered in deciding whether a stay of execution may be granted are as follows: i. Nugatory Principle. ii. Special Circumstances. iii. Flexible approach. [73] Any one of the above must be balanced against the right(s) of the Plaintiff to enjoy the fruits of litigation. [74] It must be borne in mind that a stay has nothing to do with correctness or legality of the Order granted by the High Court. This Court in hearing the Stay Application may adopt a flexible and open attitude which does not amount to admission of infirmities in the judgment but rather that the matter is not final as yet. December 28, 2021 32 [75] Any one of the above must be balanced against the right(s) of the Plaintiff to enjoy the fruits of litigation. [76] It must be borne in mind that a stay has nothing to do with correctness or legality of the Order granted by the High Court. This Court in hearing the Stay Application may adopt a flexible and open attitude which does not amount to admission of infirmities in the judgment but rather that the matter is not final as yet. [77] I also keep in mind KOSMA PALM OIL MILL SDN BHD & 2 ORS (supra) where the Federal Court made the following observations:

The merit of a party’s case in a stay application was not a relevant matter for consideration.

The onus was on the applicant to demonstrate the existence of special circumstances to justify the grant of a stay of execution and the reasons must relate to the enforcement of the Judgement of the appeal.

There were many factors that might constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay were refused was the most common example of special circumstances. Any attempt to restrict the grant of a stay of execution to nugatoriness was wrong and would severely restrict the grounds on which the applicant might rely.

As the applicant had not put forward reasons that related to the enforcement of judgment of the appeal but instead had December 28, 2021 33 focused on the problems that the applicants would encounter if the motion were not successful, they failed to raise special circumstances which warrant a stay of execution. THE ISSUES IN THIS APPLICATION i. Whether the Preliminary Objection has any merits. [78] The Learned Counsel for the Respondent is raising an objection against the Application for stay of judgment. [79] The basis of the objection are as follows: a. The intitulement and the application stated that the provision of law are Order 47 Rule 1, Rules of Court and / or Order 45 Rule 11 and / or the inherent jurisdiction of this Court. b. The Appellant / Applicant are not parties that may appeal pursuant to Order 47 Rule 1, Rules of Court. [80] The Learned Counsel for the Applicant draw the Court’s attention to the inherent jurisdiction of the Court which may be found in Order 92 Rule 4, Order 1A Rules of Court. Order 47 Rule 1 reads as follows: 47 Writs of seizure and sale

Power to stay execution by writ of seizure and sale (O. 47 r. 1)

Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at December 28, 2021 34 any time thereafter, by the judgment debtor or other party liable to execution-

that there are special circumstances which render it inexpedient to enforce the judgment or order; or

that the applicant is unable from any cause to pay the money, then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of seizure and sale either absolutely or for such period and subject to such conditions as the Court thinks fit. …. [81] It has been submitted that under the new Order 47 Rule 1, the party that may make an application for a stay against a writ of seizure and sale shall be “the judgment debtor or other party liable to execution”. [82] In our instant case, is the applicant, the judgment debtor? [83] Obviously no. It is Roxy Heritage Manufacturer Sdn. Bhd. [84] Excluding the judgment debtor, the other party that is allowed to make an application will be the “other party liable to execution”. It must a party that is liable for the execution, not anyone else. [85] It is the view of this Court that the properties seized belongs to Roxy Heritage Manufacturer Sdn. Bhd, the judgment debtor and the December 28, 2021 35 applicants / appellants are not a party for the execution of the writ of seizure and sale and hence has no locus standi. [86] On this reason alone, I find that the requirements of Order 47 Rule 1 Rules of Court 2012 has not been fulfilled and this application must be dismissed in limine. ii. Whether there is any merits in the application vide Enclosure36. [87] The applicant’s affidavit-in-support (Enclosure 37) at paragraph 22(ii) and Exhibit “SKY-7” the applicants has deposited RM72,500- 00 being the value of the assets that were forfeited and Messrs Alan Tan & Associates became the stakeholder. [88] Therefore, it is not in dispute the value of the assets forfeited is RM72,500-00. [89] This brings us to section 68 Courts of Judicature Act 1968 which stipulates- 68 Non-appealable matters

No appeal shall be brought to the Court of Appeal in any of the following cases:

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the

where the judgment or order is made by consent of parties; December 28, 2021 36

where the judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and

where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final.

(Repealed by Act A886).

No appeal shall lie from a decision of a Judge in Chambers in a summary way on an interpleader summons, where the facts are not in dispute, except by leave of the Court of Appeal, but an appeal shall lie from a judgment given in court on the trial of an interpleader issue. [90] Where the value of the subject matter is less than RM250,000-00, there shall be no appeal, except with leave of the Court of Appeal. [91] The Federal Court in ASIA PACIFIC HIGHER LEARNING SDN BHD v. MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153 held that- [43] Let me now turn to the respondent’s point that s. 68 contains provisions limiting appeals to the Court of Appeal. In other words, the section imposes a limitation on the jurisdiction of the Court of Appeal to hear and determine civil appeals conferred by sub-s. 67(1) of the Act. Section 68 is enacted to the effect that the following matters are not appealable to the Court of Appeal: Non-appealable matters December 28, 2021 37

68.(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the Court of Appeal;

where the judgment or order is made by consent of parties;

where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and

where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final.

(Repealed).

No appeal shall lie from a decision of a Judge in Chambers in a summary way on an interpleader summons, where the facts are not in dispute, except by leave of the Court of Appeal, but an appeal shall lie from a judgment given in court on the trial of an interpleader issue. [44] In view of the above provisions, it is quite correct and reasonable to imply that matters that are non-appealable in civil cases are expressly provided for in s. 68 of the Act… December 28, 2021 38 [92] Earlier, in HARCHARAN SINGH SOHAN SINGH v. RANJIT KAUR S GEAN SINGH [2011] 3 CLJ 593 the Federal Court held [16] However the value of the subject matter of the claim (half share of the disputed property) as pleaded in the amended statement of defence was RM248,500, which was the same value assessed for estate duty in the schedule to the Letters of Administration issued to the respondent (see p. 417/451 appeal record vol. 5) dated 26 August 1997. This valuation had been accepted by the learned trial judge and subsequently by the Court of Appeal. As this would be the concurrent findings of facts by the courts below we would be slow to interfere with such findings. [17] This court in LAM KONG COMPANY LTD. V. THONG GUAN CO. PTE. LTD. [2000] 3 CLJ 769 held that the legal authority to decide whether leave is required or not under s. 68(1)(a) of the Act is the Court of Appeal and it follows that the decision of the Court of Appeal is final. To hold otherwise would lead to absurdity and defeat the “filter” principle unless an appeal from it is expressly given. In the instant appeal the Court of Appeal had already dismissed the appeal for lack of jurisdiction since there was no leave obtained to proceed with the appeal. [18] As for the contention that s. 68(1)(a) of the Act does not apply because the relief sought by the appellant is for a declaration, we agree with the judgment of the Court of Appeal in Lam Kong Company Ltd. v. Thong Guan Co. Pte Ltd. (supra) where it was held inter alia, that item (ii) of the Court of Appeal Practice Direction No. 2 of 1996 only applies to declarations respecting subject matters that have no value attached to them or those with values that cannot be quantified. December 28, 2021 39 [19] In the appeal before us, the subject matter of the claim had been identified and its value determined at RM248,500. Therefore we are of the view that s. 68(1)(a) of the Act is still applicable. [93] I have no alternative but to apply the law. After perusing over all the cause papers, I found leave to appeal was granted by the Court of Appeal as per Enclosure47. [94] The next question is whether there are any one of the 3 principles of law to allow a stay of execution. [95] It has been submitted that: a. Leave to appeal has been obtained. b. The items seized will be lost if they are disposed off and the appeal would be rendered nugatory. c. The items if disposed off, could not be compensated by cost or monetary damages because the computers, particularly contain information, works, confidential files etc. One known to others, these secrets would not be able to be retrieve back. d. The Respondent’s solicitors is holding the equivalent amount in trust pending the appeal and the Respondents would not be prejudiced because they are interested in the monetary value and not so much in the assets seized. December 28, 2021 40 [96] Notwithstanding that Order 47 Rule 1 has not been fulfilled (which I have ruled earlier) I must scrutinised the application with a magnifying glass to prevent injustice. [97] A successful litigant as it has been held, deserves to enjoy the fruits of his litigation, and a dissatisfied litigant has a right to lodge an appeal where the law provides for it. It is the responsibility and duty of the Court to ensure that, if an appeal is successful, it is not be rendered academic. Where a successful litigant won’t be able to pay back damages received in the event of the appeal being successful, a stay order ought to be granted. [98] In SERANGOON GARDEN ESTATE LTD. v. ANG KENG [1953] 1 LNS 98; [1953] 19 MLJ 116, though a judgment of the High Court (Singapore), is perhaps the most quoted case on the subject. That case is an appeal from the District Court against an order granting a stay of execution in a case where an “order for possession” had been made. The subject matter was an illegal pig-sty. It must be noted that when the application was made, not at the conclusion of the case but subsequently, no affidavit in support was filed. This is what his Lordship Justice Brown said in his judgment: The learned District Judge had a discretion to grant a stay of execution. And I should not think it right to interfere with the exercise of his discretion if I was satisfied that he had exercised it on correct principles. There is no rule of practice limiting the exercise of his discretion. But it is a clear principle 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. The only ground, so far as appears in the written grounds for granting this stay, is that if the defendant succeeded in his appeal he could not be restored to the same position as before because December 28, 2021 41 the plaintiffs would have removed his pig-sty. That ground, standing alone, in my opinion cannot be a sufficient ground on which to grant a stay of execution. [99] In other words, the intended appeal: a. Must not be frivolous; and b. Must raise at least one bona fide (i.e. genuine) issue that can be argued before the court. [100] Whether an appeal will be rendered nugatory if a stay is not granted depends on if: a. what is sought to be stayed is reversible; b. any damage to the aggrieved party can be reasonably compensated by damages; or c. it is in the public interest to grant a stay. [101] It is now trite law that an appeal to the Court of Appeal from the decision of this Court does not operate automatically as a stay of execution. Section 73 of the Courts of Judicature Act 1964 enacts that (as amended by Act A886 with effect from 24 June 1994). [102] 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 proceeding shall be invalidated except so far as the Court of Appeal may direct. [103] Worded and having the same effect would be R. 13 of the Rules of the Court of Appeal 1994: December 28, 2021 42 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 (of Appeal) so orders and no intermediate act or proceeding shall be invalidated except so far as the Court may direct. [104] The discretion would entirely be a judicial one whether to grant a stay of execution or not and that discretion must be exercised in accordance with established principles, having regard to all the circumstances of the case. [105] Essentially, there are 2 major principles in an application for stay of proceedings: i. There are special circumstances that merits a stay of such proceedings. This is called the “Special Circumstances Principle”. ii. The refusal of granting a stay would result in the loss of whatever that was gained through litigation that would render the appeal, even if it resulted in a success, be of no use or no gain at all. The Appeal would be rendered of no effect because the objective(s) of the appeal has been defeated by the events that took place before the appeal could be heard rendering the Appeal otiose. This is called the “Nugatory Principle”. [106] It is the underlying concern of this Court or any Court for that matter, that justice is the most important factor. [107] Or. 1A Court or Judge shall have regard to justice-December 28, 2021 43 Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. [108] In considering the balance of convenience, it is necessary to assess the harm to the Plaintiff if there is no stay, and the prejudice or harm to the Defendants if a stay is granted. As part of the consideration, the Court must also consider whether damages are likely to be an adequate remedy for the Plaintiff if its rights are upheld in the final hearing but if no stay is granted. [109] Conversely, a counter consideration is whether damages are likely to give adequate compensation to the Defendants, and any affected third party, if the interlocutory stay is subsequently found to be wrongly granted and whether the Defendant is likely to suffer irreparable harm. [110] The balance of convenience helps to preserve the status quo pending a trial. If a Defendant can show that the cost and inconvenience caused by granting an interlocutory stay outweigh the benefits and justice for the Plaintiff, it is unlikely that an interlocutory stay will be granted. [111] Likewise, the converse is equally true. [112] This is not an issue of only once side’s interest must be protected but there must be preservation of status quo so as to ensure no party shall be prejudiced. December 28, 2021 44 CONCLUSION [113] I have perused over the cause papers, the written submissions and heard parties and I have given this application my most anxious consideration. [114] The application pursuant to Enclosure36 is allowed subject to the following terms: i. The stay of execution of this Court’s judgment shall be applicable only until disposal of the appeal before the Court of Appeal. ii. The amount of RM72,500-00 is to be held in trust by the Respondents’ solicitors as a security for damages. [115] I also make no order as to cost. Dated 28 December 2021 at Muar in the State of Johore t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels: For the Appellants : Andrew Tan Meng Kuan For the Respondent : Ooi She Yi December 28, 2021 45 Solicitors: For the Appellants Messrs Alan Tan & Associates Advocates & Solicitors No. 9-9A & 9-10A Lorong Wan Haji Ibrahim 84000 Muar Johor. [Ref. No.: AT/CIV/0549/APP-ROXY/2021] For the Respondent Messrs Ooi’s Chambers Advocates & Solicitors No.65-1-10, Fadason Business Centre Jalan 1/17 Taman Fadason 52000 Kuala Lumpur. [Ref. No.: L/WSS/NCS/Titan/02/02/21(appeal)] Hearing Date : 23rd December 2021. Decision Date : 28th December 2021. LEGISLATURE: ➢ S. 44, s. 57(1) and s. 73 Courts of Judicature Act 1964. ➢ O. 1A, 47, 55 r. 16, 92, Rules of Court 2012. ➢ Rule 13 of the Rules of the Court of Appeal 1994 LITERATURE: ➢ The Black’s Law Dictionary (© 2016 A Legal Dictionary) ➢ Halsbury’s Laws of England, 4th edition, reissue, vol. 37 at p. 290 ➢ Mallal’s Digest 4th edition, vol. 2(2) para; 4254 CASES REFERRED TO: ➢ RE FLATAU EX P SCOTCH WHISKY DISTILLERS LTD (1889) 22 QBD 83; December 28, 2021 46 ➢ CHE WAN DEVELOPMENT SDN BHD V. CO-OPERATIVE CENTRAL BANK BHD [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366 HC; ➢ WU SHU CHEN (SOLE EXECUTRIX OF THE ESTATE OF GOH KENG HOW, DECEASED) V RAJA ZAINAL ABIDIN BIN RAJA HUSSIN & ANOR [1996] 2 CLJ 353 HC; ➢ BOARD OF GOVERNORS OF SEKOLAH MENENGAH ST. GABRIEL V. RANJIT SINGH [1970] MLJ 38; ➢ BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. V. LORRAIN ESME OSMAN, BANK BUMIPUTRA MALAYSIA BERHAD & ANOR. V. LORRAIN ESME OSMAN & ORS [1987] 1 CLJ 572; ➢ MCAT GEN SDN BHD v. CELCOM (M) BHD (NO 2) [2007] 10 CLJ 375; ➢ MCPHAIL V. PERSONS, NAMES UNKNOWN [1973] 1 Ch 447 ➢ SYARIKAT BERPAKAT V. LIM KAI KOK [1983] 1 MLJ 406; ➢ ALL PERSONS IN OCCUPATION OF THE HOUSE AND THE WOODEN STORES ERECTED ON A PORTION OF LAND HOLD UNDER GRANT NO. 26977 FOR LOT 4271 IN THE TOWNSHIP OF JOHOR BAHRU, JOHOR V. PUNCA KLASIK SDN BHD [1998] 5 CLJ 49; ➢ WALTER A/L PATHROSE GOMEZ & ORS V. SENTUL RAYA SDN BHD [2005] 7 CLJ 385; ➢ CHASE PERDANA BHD V. MD AFENDI BIN HAMDAN [2006] 5 CLJ 563 HC; ➢ MONK V. BARTRAM [1891] 1 QB 346; ➢ MING ANN HOLDINGS SDN BHD v. DANAHARTA URUS SDN BHD [2002] 3 CLJ 380; ➢ KOSMA PALM OIL MILL SDN BHD & ORS V. KOPERASI SERBAUSAHA MAKMUR BHD [2004] 1 MLJ 257; ➢ WILSON V. CHURCH (NO: 2) [1879] 12 Ch D 454; ➢ LEONG POH SHEE v. NG KAT CHONG [1966] 1 MLJ 86; ➢ CHANG SHU HUA v. GOON FOOK HONG [2008] 3 CLJ 429; ➢ SUGUMAR BALAKRISHNAN v. PENGARAH IMIGRESEN NEGERI SABAH & ANOR [1998] 3 CLJ 85; [1998] 3 MLJ 289; ➢ SILVER CONCEPT BHD v. BRISDALE RASA EKSPEDISI RIA SDN BHD) [2002] 4 CLJ 27; [2002] 4 MLJ 113; ➢ SERANGOON GARDEN ESTATE LTD. V. ANG KENG [1953] 19 MLJ 116; ➢ LEONG POH SHEE V. NG KAT CHONG [1966] 1 MLJ 86; ➢ AJAIB SINGH V. JEFFREY FERNANDEZ [1971] 1 MLJ 139; ➢ RE KONG THAI SAWMILL (MIRI) SDN. BHD.; LING BENG SUNG V. KONG THAI SAWMILL (MIRI) SDN. BHD. & ORS. (NO. 2) [1976] 1 MLJ 131; December 28, 2021 47 ➢ MOHAMED MUSTAFA V. KANDASAMY (NO. 2) [1979] 2 MLJ 126; ➢ MATANG HOLDINGS BHD. & ORS. V. DATO’ LEE SAN CHOON & ORS. [1985] 2 MLJ 406; ➢ “YIH SHEN”: LAI LAI YIN V. M.V. “YIH SHEN”, OWNERS OF AND OTHER PERSONS INTERESTED [1986] 2 MLJ 65; ➢ PERWIRA HABIB BANK MALAYSIA BHD. V. SYARIKAT JOHORE TENGGARA SDN. BHD & ORS [1989] 2 CLJ 470; ➢ KERAJAAN MALAYSIA V. JASANUSA SDN BHD [1995] 2 CLJ 701 SC; ➢ KERAJAAN MALAYSIA V. DATO' HJ GHANI GILONG [1995] 3 CLJ 161; ➢ MING ANN HOLDINGS SDN BHD v. DANAHARTA URUS SDN BHD [2002] 3 CLJ 380; ➢ KOSMA PALM OIL MILL SDN BHD & ORS V. KOPERASI SERBAUSAHA MAKMUR BHD [2004] 1 MLJ 257; ➢ WILSON V. CHURCH (NO: 2) [1879] 12 Ch D 454; ➢ CHANG SHU HUA v. GOON FOOK HONG [2008] 3 CLJ 429; ➢ SILVER CONCEPT BHD v. BRISDALE RASA EKSPEDISI RIA SDN BHD) [2002] 4 CLJ 27; [2002] 4 MLJ 113; ➢ ASIA PACIFIC HIGHER LEARNING SDN BHD v. MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 3 CLJ 153; ➢ HARCHARAN SINGH SOHAN SINGH v. RANJIT KAUR S GEAN SINGH [2011] 3 CLJ 593.