Bentley Systems, Incorporated v Pusb Engineering Sdn. Bhd. (WA-22IP-58-09/2023)

This is the Court's Grounds of Judgment in respect of the Defendant's Notice of Application dated 26.6.2025 vide Enclosure 147 seeking: a) A stay of execution of the Judgment dated 23.5.2025 (Enclosure 142) ("the Judgment") pending the disposal of the Defendant's appeal to the Court of Appeal ("the Appeal"); and 2! ! b) A stay of the Plaintiff's assessment of damages proceedings pursuant to Clauses 8, 9 and 10 of the Judgment pending the disposal of the Appeal.

Having heard submissions from both parties and having considered the written submissions, affidavits filed, and relevant authorities cited, I dismissed Enclosure 147 with costs of RM 5000.

These are my grounds for arriving at that decision.

The Plaintiff, Bentley Systems, Incorporated, is a foreign corporation incorporated in the United States of America and is the owner and developer of various software programs, including the software known as "SACS Connect Edition" ("the Works").

The Defendant, PUSB Engineering Sdn. Bhd., is a company incorporated in Malaysia that provides engineering consultancy, cost and project management, and maintenance engineering services primarily for the oil and gas, petrochemical, and construction industries.

On 26.9.2023, the Plaintiff commenced this suit against the Defendant alleging copyright infringement of the Works pursuant to the Copyright Act 1987 ("the Copyright Act"). The Plaintiff claimed that the Defendant had unlawfully reproduced, used, and possessed unauthorised copies of the Works. 3! !

On 23.5.2025, after a two (2) day trial, the Learned High Court Judge had allowed the Plaintiff’s claim against the Defendant with costs of RM200,000.00 and pronounced the following orders: -

Tuntutan Plaintif terhadap Defendan untuk pelanggaran hak cipta adalah dibenarkan dan Tuntutan Balas Defendan terhadap Plaintif adalah ditolak;

Satu deklarasi bahawa hak cipta Plaintif wujud dalam program komputer SACS Connect Edition dan pelbagai versinya yang mengandungi bahasa, kod, atau notasi yang berhak cipta Plaintif ("Karya-Karya tersebut”);

Satu deklarasi bahawa Plaintif adalah pemilik hak cipta Karya-Karya tersebut di Malaysia;

Satu injunksi kekal untuk menghalang Defendan sama ada bertindak secara sendirian atau melalui pekerja-pekerja, pembantu-pembantunya atau ejen-ejennya atau bagaimana jua pun selainnya daripada berbuat demikian atau membenarkan yang lain untuk melakukan tindakan-tindakan seperti berikut atau mana-mana daripadanya:- a. Melanggari hak cipta Plaintif dalam Karya-Karya tersebut; b. Melanggari hak cipta Plaintif dalam Karya-Karya tersebut dengan membuat atau menyebabkan orang lain untuk membuat tindakan-tindakan berikut atau mana-mana daripadanya, iaitu:- i. dalam apa-apa cara membuat dan/atau menghasilkan semula dan/atau menghasilkan semula secara substansial dalam apa-apa bentuk materia Karya-Karya tersebut yang mana hak ciptanya wujud dan dimiliki Plaintif; dan/atau 4! ! ii. memiliki apa-apa karya-karya yang merupakan atau mengandungi penghasilan semula yang tidak diberikuasa/tidak dilesenkan dan/atau penghasilan semula secara substansial (“Salinan-Salinan Langgaran”) di mana hak cipta tersebut adalah wujud dan dimiliki oleh Plaintif; dan/atau iii. melupuskan/memusnahkan, menyembunyikan atau memisahkan dengan kuasa (parting with power), pemilikan, penjagaan atau kawalan kepada sesiapa selain daripada peguam cara Plaintif, pembantu-pembantu atau ejen-ejen mereka, apa-apa karya yang merupakan atau mengandungi penghasilan semula yang tidak diberikuasa/tidak dilesenkan di mana hak cipta tersebut wujud dan dimiliki Plaintif.

Bahawa Defendan sama ada bertindak secara sendiri, pengarah-pengarah, pegawai-pegawai atau ejen-ejen mereka atau sesiapa daripada mereka atau bagaimana jua pun dalam tempoh 7 hari dari tarikh penyampaian Penghakiman ini, menyampaikan dan menyerahkan kepada peguam cara Plaintif salinan-salinan Salinan-Salinan Langgaran dalam milikan, penjagaan atau kawalan Defendan, pegawai-pegawainya atau ejen-ejennya atau sesiapa daripada mereka;

Satu perintah untuk Defendan untuk memfailkan satu Afidavit untuk mengikrarkan bahawa Defendan, sama ada bertindak secara sendiri, pengarah-pengarah, pegawai-pegawai atau ejen-ejen mereka atau sesiapa daripada mereka atau bagaimana jua pun tidak lagi mempunyai dalam milikan, jagaan, atau kawalan mereka Salinan-Salinan Langgaran dalam tempoh 7 hari dari tarikh penyampaian dan penyerahan semua Salinan-Salinan Langgaran kepada peguam Plaintif, Tetuan Josephine, L K Chow & Co;

Satu perintah untuk memaksa Defendan untuk memfailkan satu Afidavit yang menzahirkan semua dokumen relevan, terutamanya invois, penyata akaun, 5! ! margin keuntungan, rekod pelanggan, rekod jualan, dan dokumen lain yang berkaitan dengan penggunaan Salinan-Salinan Langgaran dalam tempoh 30 hari dari tarikh penyampaian Penghakiman ini;

Satu inkuiri ke atas ganti rugi dan juga atas akaun keuntungan bagi pelanggaran hak cipta dan bayaran gantirugi sebegini oleh Defendan kepada Plaintif selaras dengan Seksyen 37(1)(b) dan (c) Akta Hak Cipta 1987;

Ganti rugi statutori di bawah Seksyen 37(1)(d) Akta Hak Cipta 1987 untuk ditaksirkan;

Ganti rugi tambahan di bawah Seksyen 37(7) Akta Hak Cipta 1987 untuk ditaksirkan;

Faedah penghakiman pada kadar 5% setahun ke atas jumlah penghakiman yang diperintahkan dari tarikh penghakiman sehingga tarikh penyelesaian penuh;

Kos prosiding taksiran ganti rugi;

Defendan untuk membayar kepada Plaintif jumlah kos sebanyak RM200,000.00 tertakluk kepada fi alokatur;

Faedah ke atas kos selaras dengan Aturan 59 Kaedah 24 Kaedah-Kaedah Mahkamah 2012 pada kadar 5% setahun dari tarikh kos diperintahkan sehingga tarikh penyelesaian penuh;

Jaminan untuk kos sebanyak RM100,000.00 yang diperintahkan di bawah Perintah (Kandungan 8) bertarikh 24.4.2024 (Kandungan 62) dan diletakkan (‘placed’) dengan Defendan adalah dikembalikan kepada Plaintif bersama dengan faedah pada/sebelum 30.6.2025.

For ease of reference, the salient terms of the above order can be summarised as follows: 6! ! a) Clause 1: The Plaintiff's claim for copyright infringement is allowed and the Defendant's counterclaim is dismissed; b) Clauses 2-3: Declarations that copyright subsists in the Works and that the Plaintiff is the owner of such copyright in Malaysia; c) Clause 4: A permanent injunction restraining the Defendant from further infringement; d) Clause 5: An order requiring the Defendant to deliver up all infringing copies within 7 days; e) Clause 6: An order requiring the Defendant to file an affidavit confirming that it no longer possesses any infringing copies within 7 days of delivery; f) Clause 7: An order compelling the Defendant to file an affidavit disclosing all relevant documents, particularly invoices, statements of account, profit margins, customer records, sales records, and other documents related to the use of the infringing copies within 30 days; g) Clauses 8-10: Orders for inquiry as to damages, account of profits, statutory damages under Section 37(1)(d), and additional damages under Section 37(7) of the Copyright Act; h) Clauses 11-14: Orders for interest, costs of the assessment proceedings, costs of RM200,000.00 subject to allocatur fees, and interest on costs; i) Clause 15: Order for return of security for costs of RM100,000.00. 7! !

On June 18, 2025, the Defendant filed a Notice of Appeal, appealing to the Court of Appeal against all clauses of the Judgment, with the exception of Clause 15.

On June 26, 2025, the Defendant filed a Notice of Application seeking a stay of proceedings and execution of the Judgment's terms.

It should be noted that, by consent of the parties, the Assessment of Damages proceedings are currently stayed pending the resolution of the Defendant's stay application.

It is trite law that the grant of a stay of execution pending appeal is not automatic. Section 73 of the Courts of Judicature Act 1964 provides that an appeal does not operate as a stay of execution.

It is trite law that for a stay application, the onus lies on the applicant (here the Defendant) to show the existence of special circumstances to justify the grant of a stay. This is reflected in the landmark case of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 where the Federal Court held as follows: - “[9] The need to establish the existence of special circumstances to enable the court to grant a stay of execution has been well-established in this country… 8! ! [23] 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

The underlying philosophy is that a successful litigant should not be deprived of the fruits of litigation by an appeal which may be dilatory or vexatious. The Court of Appeal in!Chang Shu Hua v Goon Fook Hong [2008] 3 CLJ 429 held as follows: "The general rule is that where a party has obtained judgment in his favour, he is entitled to the fruits of that judgment... An appellant who seeks a stay must therefore demonstrate special circumstances which justify a departure from this general rule."

The question then arises: what constitutes "special circumstances"?

In! Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380 ("Ming Ann"), the Court of Appeal defined “special circumstances” in the following manner: "The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that 9! ! go to the execution of the judgment and not to the validity..."

In Government of Malaysia v Datuk Haji Kadir Mohamad Mastan [1993] 4 CLJ 98, Ian Chin JC (as His Lordship then was) observed that: "...there are myriad circumstances that could constitute special circumstances with each case depending on its own facts. I am of the opinion that the list of factors constituting special circumstances is infinite and could grow with time."

However, His Lordship also cautioned that this does not mean that the burden on an applicant is any less stringent. The circumstances must still be "special" – that is, exceptional, unusual, and not the ordinary incidents of litigation.

It is critical to emphasize that the merits of the appeal do not, by themselves, constitute special circumstances. This was made abundantly clear by the Court of Appeal in!Polygram Records Sdn Bhd v The Search [1994] 3 MLJ 127, where His Lordship Gopal Sri Ram JCA (as His Lordship then was) held: "I should mention that an assertion by a defendant of his belief in the merits of his appeal cannot, in the absence of any other circumstance, be regarded as amounting to special circumstances. If it were otherwise, a stay would be granted in every case where a defendant lodges an appeal." 10! !

With these legal principles in mind, I now turn to examine the grounds raised by the Defendant in support of the Stay Application.

Learned counsel for the Defendant had raised six grounds to demonstrate that there are “special circumstances” in this case, namely: - a. Irreparable damage and irremediable injury; b. Inability to hand over infringing copies; c. Res judicata and estoppel arising from the dismissed discovery application; d. Nugatoriness and commercial standing; e. Foreign Jurisdiction f. Balance of convenience lies with the Defendant.

I shall address each of the grounds raised in turn. My Findings a) Irreparable damage and irremediable injury

Learned counsel for the Defendant submitted that enforcement of Clauses 4-7 of the Judgment would cause irreparable damage because the Defendant would be required to disclose confidential information allegedly protected by Section 129 of the Evidence Act

Learned counsel for the Defendant submitted that such 11! ! disclosure would "definitely affect the competitiveness of the Defendant in the market and would adversely affect the Defendant's relationship with its customers".

I have considered this point and find no merit in learned counsel’s contention.

The disclosure required by Clauses 5-7 of the Judgment is not of a general nature but is strictly confined to infringing copies of the Works, documents relating to the use of infringing copies, and financial records necessary to assess damages arising from the proven infringement. Clauses 5-7 of the Judgment require the Defendant to disclose information solely to the Plaintiff (or, more accurately, to the Plaintiff's solicitors). There is no requirement for public disclosure or disclosure to the Defendant's competitors or customers. Therefore, the Defendant's concern that such disclosure "would definitely affect the competitiveness of the Defendant in the market and would adversely affect the Defendant's relationship with its customers" is unsupported by credible evidence.

It is crucial to emphasise that the documents sought in Clause 7 are directly relevant and necessary to quantify the damages suffered by the Plaintiff as a direct result of the Defendant's copyright infringement. This Court has already found, after a full trial, that the Defendant infringed the Plaintiff's copyright. Consequently, the Plaintiff is entitled to ascertain the full extent of said infringement in order to claim appropriate damages. 12! !

The orders in Clauses 5-7 are standard post-trial discovery orders in copyright infringement cases. They do not impose any unusual or onerous burden on the Defendant beyond what is ordinarily required in such cases.

Further thereto the Defendant's reliance on Section 129 of the Evidence Act 1950 is misconceived. Section 129 concerns legal professional privilege – communications between a client and legal adviser. As clarified in!Gideon Tan v Tey Por Yee [2017] 1 MLJ 352 (CA): "[26] Section 126 provides that 'no advocate' is permitted, without his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment… Section 129 further provides that no person shall be compelled to disclose to the court any confidential communication between him and his 'legal professional adviser'."

It is clear from the above that Section 129 does not extend to ordinary commercial records such as invoices, account statements, profit margins, customer records, and sales records. These are standard business documents that parties in commercial litigation are routinely required to disclose.

I further find that the Defendant’s asserted harm to its “competitiveness” and “customer relationships” is wholly speculative. The Defendant has produced no evidence explaining how disclosure to the Plaintiff alone (as opposed to disclosure to the public at large) would erode its competitive position. Nor has it 13! ! identified any contractual confidentiality obligations owed to customers that would be breached by compliance with the discovery order, or adduced any evidence that customers would terminate or downgrade their relationships merely because such disclosure is made in the course of litigation. Further, the Defendant has offered no coherent explanation as to why the disclosure of documents said to relate specifically to the alleged infringing activities would, without more, prejudice legitimate business relationships.

For the foregoing reasons, I find that the Defendant's concerns are, on their face, entirely speculative. The Defendant’s concerns are devoid of any evidentiary foundation and rest instead on hypothetical future events that have not transpired. To rely on such speculative apprehensions as a basis for establishing "special circumstances" is, with respect, to misconstrue the concept. I find no such circumstances arise from these unsubstantiated fears.

In this regard, I refer to the case of Koh Hooi Siang (menyaman sebagai pentadbir harta pusaka Low Yew Sun) & Ors v Tay Yew Chong [2018] MLJU 1759 where the High Court had held that speculative worries of the Defendant shall not be taken as a special circumstances to warrant a stay. The High Court in Koh Hooi Siang held that:- [16] Furthermore, the Defendant merely makes a speculative assumption without adducing any supportive documents or facts that supports Defendant’s allegation that “ada kemungkinan 14! ! yang tinggi sekiranya Hartanah tersebut dipindahmilik kepada Plaintif-Plaintif akan melupuskan Hartanah tersebut kepada pihak-pihak lain untuk melepaskan diri daripada keputusan Mahkamah Rayuan sekiranya Mahkamah berpihak kepada saya”. The Defendant not only speculates for monetary loss and on top of it makes an uncalled for allegation against the Plaintiffs that they will transfer out the said property to escape/avoid the decision by the Court of Appeal although in actual fact the Defendant is the one trying to escape/avoid and refusing the rights given by this Honourable Court pursuant to the judgement dated 21 September 2018 and try to evade it by filing this stay application and appeal. I hardly find any substance of the Defendant’s allegation without proving the same and therefore the speculative worries of the Defendant shall not be taken as special circumstances to warrant a stay in this matter. In any event, the Defendant’s false and misleading allegations are mere assumption without adducing any substantive evidence to proof the same.

To reiterate my views aforesaid, in the instant case, the Defendant’s worries that the Defendant’ commercial status might be affected is speculative at its best and does not amount to a special circumstances. I therefore find that the Defendant has not established irreparable damage or irremediable injury constituting special circumstances. b) Inability to hand over infringing copies

In addressing this point, learned counsel for the Defendant submitted that the Defendant is unable to deliver up infringing copies as required by Clause 5 of the Judgment because it purchased 15! ! licensed software, SACS Offshore Structure, on 11 November 2022, and this license has been renewed.

I find that the Defendant's assertion that it cannot deliver up infringing copies because it purchased a license on 11 November 2022 is not a valid ground for a stay. This Court conducted a full trial and made findings of fact that the Defendant had infringed the Plaintiff's copyright. The Defendant was represented by counsel and had every opportunity to present its case. The subsequent purchase of a license does not negate the prior infringement.

Further, I find that the Defendant's argument effectively challenges the merits of the Judgment. It is well-established that the merits of an appeal are not relevant to a stay application. As learned counsel for the Plaintiff correctly submitted, citing established authority, merits alone do not constitute special circumstances. If the Defendant believes the Judgment is wrong, its remedy is to pursue the appeal. The stay mechanism is not designed to allow a losing party to avoid compliance with a judgment simply because it disagrees with the outcome.

The extent the Defendant contends it has "no infringing copies to deliver up", this is a matter to be addressed through compliance with Clause 6 of the Judgment (filing an affidavit deposing to the position); or through explanations to be provided during the assessment of damages as to what happened to the infringing copies. 16! !

In sum, I find this ground to be without merit and amounting to a collateral challenge to the Judgment under the guise of a stay application. c) Res judicata and estoppel

The Defendant contended that the Plaintiff's pre-trial discovery application (Enclosure 73) was dismissed by the High Court on 6 August 2024 and the Plaintiff's appeal against that dismissal was dismissed by the Court of Appeal on 16 June 2025.

In this regard learned counsel highlighted that there is an overlap between the documents sought in Enclosure 73 and the disclosure required under Clause 7 of the Judgment. Learned counsel submitted that the Plaintiff is therefore estopped from seeking the same documents through post-trial discovery.

I have considered this point and I find that the Defendant's argument is misconceived.

There is a clear distinction between: a. Pre-trial discovery (Enclosure 73) – which was sought to assist in trial preparation and was refused; and b. Post-trial discovery (Clauses 5-7 of the Judgment) – which has been ordered following a finding of liability to enable the quantification of damages. 17! !

The doctrine of res judicata applies to prevent re-litigation of issues that have been finally determined between the same parties. The discovery sought in Enclosure 73 was an interlocutory application for the purposes of trial preparation. Its dismissal does not create a res judicata bar to post-judgment disclosure ordered by the Court following a finding of infringement.

Learned counsel for the Defendant took pains to prepare a comparison table (showing overlap between documents sought in Enclosure 73 and Clause 7 of the Judgment). The comparison table is reproduced hereinunder for ease of reference: Enclosure 73 (Plaintiff’s Application for Discovery) Paragraph 7 of the

Digital copies of all folder/ files/ documents related to the SACS software in the Defendant’s computing devices. “All relevant documents particularly invoices, statements of account, profit margins, customer records, sales records, and other documents related to the use of the Infringing Copies”

(ii) Records and/or details of work attendance/ work sheets/ activity log of employees or ex-employees from January to October 2022 who used the said Defendant’s computing devices, including list of named users. “…other documents related to the use of the Infringing Copies” These inevitably cover logs/ activity records that demonstrate usage of the software. 18! !

I find that the comparison table as referred to above does not advance the Defendant’s case. If there is overlap, the reason is neither surprising nor sinister: the same categories of documents may be relevant at different stages for different purposes. The Plaintiff first sought them to prepare for trial; having succeeded on liability, it now seeks disclosure to support an assessment of damages. That is a change in legal context, not a prohibited second bite.

To accept the Defendant's argument would lead to the absurd result that a plaintiff who fails in a pre-trial discovery application could never obtain post-trial disclosure, even after succeeding at trial and obtaining judgment. That would improperly fetter the Court’s power to make consequential orders to ensure damages are assessed on a proper evidential footing.

For these reasons, I reject the Defendant’s res judicata and estoppel argument entirely.

(iii) Copies of contracts between the Defendant and major enterprise/ entities such as Petronas, Sarawak Shell Berhad and Sabah Shell Petroleum Company Ltd. “…invoices, statements of account, profit margins, customer records, sales records.” These documents are directly connected to the said contracts and reflect commercial dealings between the Defendant with those customers. 19! ! d) Nugatoriness and Commercial Standing

The Defendant averred that the Assessment of Damages proceedings will be rendered nugatory and judicial time, costs and resources will be wasted if the Defendant’s Appeal is allowed.

Learned counsel for the Plaintiff submitted that this factor is clearly irrelevant, as it concerns the Assessment of Damages proceedings being rendered nugatory, not the Defendant’s Appeal.

It is trite that assessment of damages proceedings is merely a procedural step to determine the quantum of damages. It does not affect the outcome of the appeal in any manner whatsoever.

In the case of Bank Kerjasama Rakyat Malaysia Bhd v Siemens Malaysia Sdn Bhd & Anor [2024] MLJU 3138, the High Court had held that the assessment of damages proceedings must not be delayed as a stay would result in unfair prejudice being caused to the Plaintiff. The High Court held as follows: - “[20] Applying the above principles to the factual matrix of our case, I am of the view that the assessment of damages can proceed without prejudicing the defendant’s appeal. Even if the defendants succeed in overturning the liability finding, the assessment does not become futile because findings of fact on damages are procedural and can be set aside 20! ! if necessary. The assessment of damages will not cause irreparable harm to the defendants as that there is no indication that the defendants would be unable to return to the status quo should the defendants’ appeal succeed. [22] On the issue of balance of convenience, I am of the considered view that the defendants would not suffer any irretrievable loss as the assessment of damages involves only quantification, not enforcement of payment. A stay of the assessment proceedings would result in undue delay and prejudice to the plaintiff, depriving them of their right to a timely and fair resolution of their claim for damages. Such a delay undermines the plaintiff’s entitlement to have the quantum of damages promptly assessed, contrary to the principles of justice and the efficient administration of the legal process. [23] Proceeding with the assessment aligns with the principles of judicial efficiency, ensuring the expeditious and economical resolution of the case. Completing the fact-finding process on damages also serves a practical purpose, as the information will remain relevant irrespective of the outcome of the appeal. Delaying the assessment risks obstructing the judicial process and burdening the Court with inefficiencies caused by subsequent catch-up proceedings. [26] The special circumstances test requires the defendants to prove exceptional and compelling reasons that justify halting the proceedings. Their reliance on concerns about judicial efficiency or potential duplication of effort falls short of this standard. Such reasons are neither unusual nor extraordinary; they are inherent risks in 21! ! litigation and do not meet the threshold for special circumstances. [27] Similarly, under the nugatoriness test, the defendants must demonstrate that continuing the assessment proceedings would render the appeal futile, leaving the appellate decision ineffective or incapable of providing meaningful relief. However, this is not the case here. The assessment of damages is a procedural step that quantifies the plaintiff’s entitlement following the finding of liability, which remains unaffected by the outcome of the appeal. If the defendants’ appeal is successful, adjustments can be made without undermining the appellate process.” [Underlined Emphasis Mine]

I am guided by the above pronouncement. The assessment of damages is a procedural step that quantifies the plaintiff’s entitlement following the finding of liability, which remains unaffected by the outcome of the appeal. If the defendants’ appeal is successful, adjustments can be made without undermining the appellate process. Based on the foregoing, the Defendant’s assertion that the Assessment of Damages proceeding will be rendered nugatory does not constitute a special circumstance.

Speaking on the issue of costs, the Defendant has not adduced any evidence to suggest that, if the appeal succeeds, the Plaintiff would be unable to repay or make good any sums or costs (including the 22! ! sum of RM200,000.00) that may have been incurred in consequence of the assessment proceedings.

Indeed, the Defendant itself acknowledges that the Plaintiff is a multinational entity with strong financial standing. That concession sits uneasily with any attempt to suggest that the Defendant will suffer irreparable prejudice if the assessment proceeds pending appeal. e) Foreign Jurisdiction

Learned counsel for the Defendant submitted that the Plaintiff is a foreign corporation incorporated in the United States. Counsel argued that if any monies are paid to the Plaintiff, the funds would be remitted out of the jurisdiction, thereby creating a practical difficulty for the Defendant in recovering them should the appeal ultimately succeed.

I have considered this submission and find it to be without merit.

The Defendant has adduced no evidence of the Plaintiff's financial position, nor any evidence to suggest that the Plaintiff would be unable or unwilling to make restitution if required.

In the present case, the Plaintiff is Bentley Systems, Incorporated-an established international corporation in the software industry. There is nothing before me to suggest 23! ! financial fragility or any real risk that restitution would not be forthcoming if the appeal succeeds.

In short, the Defendant has not produced sufficient evidence to elevate this contention to a "special circumstance" warranting a stay in the present case. f) Balance of convenience

Learned counsel for the Defendant contended that the balance of convenience favours granting a stay, primarily because its business operations would face serious disruption. Counsel also cited a perceived risk-characterised as a "possibility" or "fear"-that its standing within the oil and gas industry may be adversely affected. Learned counsel submitted that the Plaintiff would suffer no prejudice should a stay be granted pending the appeal's disposal, emphasizing the interim nature of such an order. Counsel argued that the Plaintiff retains the full right to enforce the judgment should the appeal ultimately be dismissed. In support, counsel emphasised the Plaintiff's status as a multinational entity of sound financial standing, noting the absence of evidence before the Court suggesting an inability to recover any due sums should the appeal prove unsuccessful.

With respect, I am unable to agree with learned counsel’s contention. 24! !

The grounds relied upon by the Defendant above is, once again, speculative. The Defendant’s asserted “worries” and “fears” concern future contingencies which have not materialised, and may never materialise. More critically, the Defendant has not placed before this Court any cogent material—whether documentary or otherwise—to substantiate these bare assertions.

I cite with approval the case referred to by learned counsel for the Plaintiff, Alliance Bank Malaysia Bhd v Khee San Food Industries Sdn Bhd & Anor [2021] MLJU 2707, in which the High Court held that the fear of losing something does not constitute a special circumstance warranting a stay of execution. The High Court in Alliance Bank Malaysia held as follows: “[34] The issue of the Appeal being rendered nugatory and “fear of losing” issue were also considered in Government of Malaysia v. Mohd Najib bin Hj Abd Razak [2020] 9 MLJ 618 at paragraph 22 to 27 and at paragraphs 28 and 31, in particular, High Court Judge, Justice Ahmad Bache held as follows: “[28] This court opined that based on the principles derived from the above cases, the ground of colossal financial damage shall not constitute ‘special circumstances’.” ……… [31] This court opined that the defendant’s fear of losing is with respect mere speculative and without lawful basis. In the Federal Court case of Asean Security Paper Mills Sdn Bhd lwn Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 2 MLJ 137 the court held that: 25! ! The respondent’s fear that there was no prospect in recovering the money from the appellant in the event they were successful in the revision was mere speculative and an unfounded fear. The risk of the appellant’s dissipation of the insurance money awarded was a universal risk regardless of whether the appellant was rich or poor and a universal risk was not a special circumstances.” (own emphasis added) [35] The prospect of being wound up and the fear of being classified as a PN-17 company are also not grounds to warrant a stay of execution”

I find that the balance of convenience weighs in favour of the Plaintiff and militates against the grant of a stay of execution. The Plaintiff would be deprived of the fruits of its litigation and would suffer real prejudice if a stay order is granted.

In the case of Khee San Bhd & Anor v HSBC Bank Malaysia Bhd [2021] MLJU 1281, Adlin Abdul Majid JC held that preventing the successful party from recovering monies and depriving them of the fruits of their litigation are, in themselves, prejudicial. Her Ladyship held as follows: “[30] On this final issue, the Plaintiffs maintained that the grant of a stay of execution of the Summary Judgment would not cause prejudice or loss to the Defendant, as the Defendant is entitled to interest until full settlement of the judgment sum under the Summary Judgment. 26! ! [31] I do not accept this argument. The fact that the Defendant is prevented from recovering the monies due to it and is deprived of “the fruits of his litigation” (in the words of Brown J in Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116) are in themselves prejudicial to the Defendant. It is precisely for this reason that the judicial principle that has been adopted over the years has been that stay should only be allowed if special circumstances justifying the stay are shown.”

I respectfully adopt the principles articulated in the aforementioned cases. To grant a stay is to deprive the Plaintiff-the successful litigant-of the benefit of its hard-won judgment, a deprivation that is inherently prejudicial.

For the reasons adumbrated above I find that the Defendant had failed to show special circumstances which warrants the grant of a stay of execution and a stay of proceedings. In the circumstances enclosure 147 is dismissed with costs. Dated this 13th day of January 2026. -sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR 27! ! Counsel: For the Plaintiff : Mr. Chan Wei Yang and Mr. Chin Hau Zhe (Messrs Josephine, L K Chow & Co.) For the Defendant : Mr. Subramaniyan A. Nambiar and Ms. Melissa Ong Wi Xin (Messrs L.Ho & Associates)