Badan Pengurusan Bersama Gurney Paragon Residential v Hunza Properties (Gurney) Sdn Bhd (PA-22NCvC-247-12/2017)

HUNZA PROPERTIES (GURNEY) SDN BHD

HUNZA PROPERTIES (PENANG) SDN BHD

BEACHFRONT SERVICES SDN BHD

PENGARAH TANAH DAN GALIAN PULAU PINANG …DEFENDAN-DEFENDAN JUDGMENT (APPLICATION FOR STAY OF EXECUTION) PRELUSION [1] This application for a stay of execution of a judgment is unusual. It is unusual because the application for a stay of execution is made by the unsuccessful Plaintiff (P), not by the Defendants. 18/11/2024 16:53:43 PA-22NCvC-247-12/2017 Kand. 338 Page 2 of 8 [2] This application for a stay is contested between P and the 1st, 2nd and 3rd Defendants (D1D2D3). In P’s Re-Amended Statement Of Claim, P made a total of 33 prayers for various reliefs and remedies against D1D2D3. [3] After the trial, out of the 33 prayers against D1D2D3—

P withdrew 17 prayers;

no orders were made on 4 prayers; and

12 prayers were dismissed. [4] P lost the case. P’s claims were dismissed. [5] There was no counterclaim. D1D2D3 did not mount a counterclaim against P. There was no judgment made against P. Yet P files this application for a stay of execution of the judgment. Should P’s application for a stay of execution be allowed? PRINCIPLES FOR A STAY OF EXECUTION [6] The legal principles for a stay of execution that guide and bind me in this particular application for a stay of execution include these principles. One—the applicant (here: P) must demonstrate by affidavit evidence (normally through the affidavit in support of the application) that there are special circumstances that warrant a stay— Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 (FC), para [23]; [2003] 5 AMR 758; [2003] 4 CLJ 1; [2003] 1 MLRA 536. Page 3 of 8 [7] Two—the grounds, namely the asserted special circumstances, must relate to the enforcement of the judgment sought to be stayed— again Kosma Palm Oil Mill (supra) [8] Three—usually (as it is here) the applicant seeks a stay of execution of a judgment pending the outcome of the appeal that the applicant has lodged against the judgment. But the merits of the applicant’s appeal, including challenges to the correctness or validity of the judgment appealed against—do not amount to the required special circumstances that justify a stay of execution— Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 (CA); [2002] 3 AMR 2867; [2002] 3 CLJ 380; [2002] 1 MLRA 214. [9] Four—Courts will not normally grant a stay of execution of a monetary judgment; not even if the judgment is for a large sum of money—Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased) v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224 (HC); [1996] 2 CLJ 353; [1995] 3 AMR 2313; [1995] 4 MLRH 45. [10] Five— A stay of execution will prejudice the successful party. Courts will not deprive a successful party of the fruits of their litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it—Serangoon Garden Estate Ltd v Ang Keng [1953] 1 MLJ 116; [1953] CLJU 98; [1953] 1 MLRH 690. MY GROUNDS FOR DISMISSING P’s APPLICATION [11] First—as I alluded to earlier, it is unusual for an unsuccessful plaintiff, in a suit with no counterclaim by the defendants, to ask for a stay of execution of the judgment. The terms of the judgment denied P Page 4 of 8 their claim. Here, P’s primary claim was for the alleged arrears in maintenance and sinking fund charges that D1D2D3 allegedly did not pay P. [12] The judgment does not order P to pay any sum of money. The judgment does not order P to perform any act or carry out an obligation. [13] I asked P to show me—from the terms of the judgment dated 26.6.2024—which term of the judgment is available for D1D2D3 to execute or enforce against P. P could not give me an answer. And so I find that there is no term in the judgment that can be executed or enforced against P. There exists no term in the judgment that should be stayed. This leads me to conclude that this application for a stay of execution does not (cannot) relate to “the enforcement of the judgment”. [14] Second—P then elaborated that as a result of the judgment, the 1st and 2nd Defendants (D1D2) may assert their rights to vote at P’s general meetings and outvote everyone else. (P is the joint management body for the residential component—residential units and common property—in D1D2’s mixed development project. D1 is the proprietor of the land and D2 is the developer of the project. D1D2 are the owners of the commercial component—offices and other buildings—of the development. P’s primary claim against D1D2 was for the arrears of maintenance and management charges for the residential component that P asserted that D1D2 should have but did not pay. One of D1D2’s defences was that D1D2 were not involved in the maintenance and management of the residential component, which P manages. D1D2 did not get to vote at P’s general meeting when P passed the resolution for Page 5 of 8 the residential component unit owners to pay maintenance and sinking fund charges to P.) [15] Now that P’s claim against D1D2 is dismissed, P fears that D1D2 will assert their right to vote at P’s forthcoming general meetings and outvote the residential parcel owners. Since they can outvote everyone else, D1D2 can “change the dynamics of P’s appeal”—P’s appeal to the Court Of Appeal against the judgment. P submitted an example of the circumstance that worries them—that D1D2, by their overwhelming voting power, can cause P to disengage P’s current solicitors from representing P in the appeal. In other words, D1D2 has the power and means to affect (control) P’s decision-making and resolution-passing process, hence controlling P’s decisions. [16] In my grounds of judgment, I held that P is to continue to maintain separate maintenance and sinking fund accounts exclusively for the maintenance and management of the residential component, independent of D1D2: the commercial component owners. As such, I do not consider this speculated circumstance—that P submits may happen— to constitute the required special circumstance that warrants a stay of execution. [17] Third—it also appears to me that P is endeavouring to have a stay of execution order act as an injunction to prevent D1D2 from voting at P’s general meetings. P submits that the status quo i.e. D1D2 not voting at P’s general meetings, must be preserved. [18] I am of the view that such an order is in the purview of Order 29 of the Rules Of Court 2012—the preservation of what is commonly called the status quo. Such orders are injunctive-type orders. I see such Page 6 of 8 orders and the effect of such orders to be rather different to a stay of execution order (which is what P seeks to obtain here). Such orders are different in their purpose and utility compared to an order for a stay of execution. [19] Fourth—P argues that they have good grounds in their appeal, referring particularly to a Court Of Appeal case law authority that lends support to their appeal. However, I reiterate that having merits in an appeal does not constitute the required special circumstances that justify the grant of a stay of execution. [20] Fifth—P also asks to stay P’s obligation to pay D1D2D3 the RM200K costs awarded against P. Against this argument, case law authorities bind me to hold that the execution or enforcement of a payment-of-money judgment should not be stayed. The successful party should not be denied the fruits of their litigation. [21] Further, P has, through its affidavit in support of this application for a stay of execution, disclosed no special circumstances to justify not paying the post-judgment costs that P was ordered to pay. CONCLUSION [22] For these reasons, I dismiss P’s application for a stay of execution of the judgment, with costs of RM7K to be paid by P to D1D2D3 by 24.10.2024. Costs are subject to the allocatur. Page 7 of 8 Dated: 18 November 2024 KENNETH ST JAMES Judge Penang High Court Counsel/Solicitors: For the Plaintiff – Ooi Xin Yi [Messrs. Chee Hoe & Associates (Kuala Lumpur)] For the 1st, 2nd and 3rd Defendants – Ashok Kumar and Lim Chin Lun [Messrs. Skrine (Kuala Lumpur)] For the 4th Defendant – Charanjit Singh a/l Mahinder Singh [Pejabat Penasihat Undang-Undang Negeri Pulau Pinang] Legislation referred to:

Order 29 of the Rules of Court 2012. Cases referred to:

Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 (FC); [2003] 5 AMR 758; [2003] 4 CLJ 1; [2003] 1 MLRA 536. Page 8 of 8 2. Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 (CA); [2002] 3 AMR 2867; [2002] 3 CLJ 380; [2002] 1

Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased) v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224 (HC); [1996] 2 CLJ 353; [1995] 3 AMR 2313; [1995] 4

Serangoon Garden Estate Ltd v Ang Keng [1953] 1 MLJ 116; [1953] CLJU 98; [1953] 1 MLRH 690.