Bertam Development Sdn Bhd v R&C Cergas Teguh Sdn Bhd (WA-24C-55-03/2017)

A party may apply to the High Court for a stay of an adjudication decision in the following circumstances:

An application to set aside the adjudication decision under section 15 has been made; or

The subject matter of the adjudication decision is pending final determination by arbitration or the court.” (emphasis added) 4 [6] The urgency is because after the statutory period has expired and no payment is made to the Defendant as the creditor here, the Defendant is entitled in law to present a winding-up petition against the Plaintiff. Principles [7] It is trite law that an appeal does not operate to Stay an order or judgment of the court and neither does it mean that a Stay would be granted as of right pending an appeal. [8] The successful party should not be deprived of the fruits of the order or judgment just because there is an appeal by the unsuccessful party or the party against whom the judgment is given. [9] It is statutorily provided that an appeal to the Court of Appeal does not operate as stay of execution or of proceedings of the decision appealed from. See Section 73 of the Courts of Judicature Act 1964 and Rule 13 of the Rules of the Court of Appeal 1994. [10] Granted the court would have a discretion to grant Stay when a Stay is applied for, such a discretion is exercised based on established principles and that generally a Stay would not be granted unless special circumstances are shown. A common special circumstance would be that the appeal would be nugatory even if the appeal is successful. 5 Whether the argument that there are merits in the appeal is relevant to the Stay Application [11] Learned counsel for the Plaintiff/Applicant argued that the appeal contains merits which are highly likely to succeed. These merits of appeal should be taken into consideration to determine whether they are special circumstances to allow the application to stay. [12] Learned counsel for the Plaintiff/Applicant referred to the case of Yun Hing (Sabah) Sdn Bhd v Sandakan Plywood & Veneers Co Sdn Bhd [1995] 1 MLJ 339, where the High Court allowed the Defendant’s application to stay and held as follows: “The merit of an appeal, though on its own may not be sufficient to constitute special circumstances, may be taken into consideration with other factors for the purpose of determining whether there are special circumstances. If the merit of an appeal were not a relevant consideration, a party may be successful in establishing special circumstances and thus obtain a stay when its appeal is devoid of merit, a result which surely undesirable.” [13] Learned counsel for the Plaintiff/Applicant further cited the case of Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja 6 Ladang Bhd [2000] 6 MLJ 493 in support of the above proposition as follows: “What factors would constitute as special circumstances may vary according to the circumstances of each particular case. Three essential ingredients constituting special circumstances has been propounded as follows:

where the balance of convenience is in favour of the applicant; (ii) where it is apparent that unless a stay is granted an appeal will be rendered nugatory; and (iii) that the applicant has an arguable appeal.” (emphasis added) [14] However the Federal Court has held that merits of appeal does not constitute a special circumstance to grant a stay of execution. 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 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. Lee Hun Hoe CJ (Borneo), in his 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. In dismissing the stay application, the learned Chief Justice (Borneo) observed in his judgment at p 132 as follows: 7 “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 have been misdirections that the verdict of judgment 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 [1891] 1 QB 346. Those are matters to be decided in the proper forum.” (emphasis added) [15] The reason why the merits or otherwise of an appeal is not relevant at the Stay Application stage is captured in the dicta of the Court of Appeal in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 at page 69 as follows: “I do not think that a court hearing an application for a stay of execution should make a finding that the appeal is doomed to failure or even that there are no merits in the appeal. The reasons are given by Shanker J (as he then was in) in Salim bin Ismail & Ors at p 3: 8 The grounds of judgment of the trial judge are not before us and it would be premature for us to say that this appeal is without any prospect of success. I would venture to add additional reasons: in the case of the Court of Appeal or the Federal Court, the court that sits to hear the stay application, it is only constituted to hear the stay application, not the appeal. Indeed the appeal may not even be heard by the same panel. Not only the grounds of judgment, usually, are not before the court, but so are the appeal records. The court too does not have the benefits of the arguments on the merits of the appeal. In the circumstances, I am of the view that, as a general rule, it is not only premature but it is also unfair to the parties and wrong for the court, hearing an application for a stay, to make a finding that the 'appeal is doomed to failure', 'without any prospect of success', 'has no merits' and the like.” (emphasis added) [16] After all it is said that one should not be appealing unless there are merits in the appeal. I would prefer the approach taken by the Court of Appeal in Ming Ann Holdings (supra) where at page 61 it was argued as follows: 9 “In Che Wan Development Sdn Bhd v Co-operative Central Bank Bhd [1989] 3 MLJ 40, NH Chan J (as he then was) wrote a lengthy judgment, relying mainly on English cases again applied the 'special circumstances' test. In his judgment, the learned judge, inter alia, says at p 42 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 to on the affidavit supporting the application. On discretion of the court, the learned judge says at p 42: 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. On special circumstances, the learned judge, inter alia, says at p 40: It is plain that the validity or correctness of the decision appealed from are not special circumstances. At p 43 of the report: 10 Merits or strong grounds for an appeal are also not special circumstances. At p 46 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.” (emphasis added) [17] At pages 70-71 the Court of Appeal summarized the fact that merits of Appeal is not relevant at the Stay Application stage as follows: “The applicant then talks about merits of the appeal. I prefer the more cautious approach taken by Shanker JCA in Salim bin Ismail & Ors and NH Chan J (as he then was) in Che Wan Development Sdn Bhd and not say emphatically that the appeal is 'doomed to failure' or otherwise, 'has no merits' or otherwise, without the benefit of the grounds of judgment, a full argument on merits, and I may not even be on the panel that hears the appeal eventually. I prefer to be neutral, at this stage, on the issue.” [18] Any further doubt as to the test to be applied for a stay of execution of a judgment has been put to rest in Kosma Palm Oil Mill Sdn Bhd & 11 Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, where the Federal Court explained the seeming confusion and conflict as follows: “18 ... 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 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. See Teow Guan & Ors v Kian Joo Holdings Sdn Bhd & Ors could have withstood scrutiny if it had merely referred to nugatoriness without rejecting special circumstances. As nugatoriness is a species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression. Any attempt to restrict the grant of a stay to nugatoriness, quite apart from its impropriety, will severely restrict the grounds on which an applicant may rely. Learned counsel for the applicants is therefore wrong in submitting that the nugatory 12 approach is not a matter for consideration in this case as what is relevant is only the special circumstances. He would have been correct if he had said that he was not relying on nugatoriness but on some other species of special circumstances. 19 Having expressed my views on the law, I shall now consider the motion. Both parties delved into some length on the merits of their respective case in the affidavits filed and the submission made in court. The merits of a party's case in a stay application is not a relevant matter for consideration. In this regard Lord Denning MR said in TC Trustees Ltd v JS Darwen [1969] 2 QB 295 at p 302: In this very case the defendants, in their affidavit under RSC Ord 14 did raise a plea for equitable relief. But it was overruled, and judgment given against the defendants. It is not permissible to renew it again on an application for a stay of execution … It is true that the 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 those must be raised in the action itself. 13 Mr Lipfriend raised a further point. He said that under RSC Ord 47 r 1, there is power, in the case of a writ of fi fa, or elegit, to stay proceedings if there are special circumstances which render it inexpedient to enforce the judgment or in case the applicant is unable from any cause to pay the money. I think that is appropriate here. The circumstances there again are circumstances which go to the enforcement of the judgment: and not those which go to its validity or correctness.” (emphasis added) [19] Based on both the principle of binding precedent and the preponderance of cases, the merits of otherwise of the appeal is not relevant at the stage of the Stay Application. Whether the Plaintiff/Applicant has shown special circumstance that would justify a stay [20] What is special would of course take its colour and texture from the facts and circumstances of each case. The fact that an appeal is successful would be rendered nugatory as in that the appellant’s victory would by pyrrhic in being deprived of the result of the appeal would be a special circumstance. It has been said that “special circumstances”, as the phrase implies, must be special under the circumstances as distinguished from the ordinary circumstances. It must be something 14 exceptional in character, something that exceeds or excels in some way that which is usual or common. [21] The Court of Appeal in Ming Ann Holdings (supra) approached the applicant’s argument of special circumstance as follows where a money judgment is concerned at pages 70-71 as follows: “Next, the applicant talks about 'special circumstances' which, in fact, is an argument that if the stay is not granted, the appeal, if successful will be rendered nugatory, or that the applicant, if successful in the appeal, cannot be restored to its former position. It must be remembered that the judgment is a money judgment. There is not even an allegation, what more evidence, that the respondent is not in a financial position to repay the applicant if it need be. And bear in mind that the respondent is Danaharta Urus Sdn Bhd. The grounds relied on by the appellant are nothing more than 'fear of losing'; fear of losing business, fear of losing customers, fear of losing suppliers, fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the appellant company is wound up. All that the applicant has to do to avoid such 'fears' is to settle the judgment debt. 15 The winding up petition is still pending. The applicant still has every opportunity to contest it. Whatever it is, those factors are not 'special circumstances' (if we want to use the term) nor do they show that the appeal, if successful, will be rendered nugatory (if we prefer that term). They are nothing unusual. Execution is a natural process after obtaining a judgment and winding up is one of them.” (emphasis added) [22] In Ming Ann Holdings case (supra) a winding up Petition had been filed. In the present case the 21 day Notice having expired the Plaintiff/Applicant is fearful of the attendant consequences that would follow the filing of a winding up Petition. That fear can be extinguished immediately by paying the Judgment Sum to the Defendant who had obtained an order to enforce the Adjudication Decision as if it is a judgment of the Court. [23] It was argued that the Plaintiff is part of a public listed company and is a solvent company as the Plaintiff has deposited the judgment sum of RM4,443,247.11 obtained by the Defendant to the Plaintiff’s solicitors on 15.6.2017. [24] It was also argued that it is trite law that in order to be solvent, the company must be able to pay its debts out of its own money and the 16 Plaintiff by depositing the money way back in June 2017 has proved that it is a solvent company. [25] I am afraid that argument has to be taken up in the winding up Court and not here in the Stay Application. This Court cannot Stay that judgment obtained unless there is shown special circumstance and being a money judgment, the Plaintiff/Applicant must show that the Defendant as successful Claimant would not be able to repay that judgment sum should it succeed in the appeal. There is no evidence pointing in that direction. [26] The judgment granted pursuant to the enforcement order has with it the effect of making the judgment sum into a debt that cannot be seriously or bona fide disputed such that the Court, in the absence of special circumstance, cannot prevent the statutory fulfillment of the ground of inability to pay its debt after the expiry of the 21 day Notice. [27] Under section 466(1) of the Companies Act 2016, the Party in whose favour an Adjudication Decision is given may proceed to serve a section 466(1) Notice under the Companies Act 2016 on the Party who has to pay the Adjudicated Sum, in this case the Plaintiff /Applicant. After all section 12(5) of the CIPAA provides that the adjudication decision shall also determine the adjudicated amount and the time and manner the adjudicated amount is payable. Further section 13 (a) of the CIPAA 17 declares that the adjudication decision is binding unless—(a) It is set aside by the High Court on any of the grounds referred to in section 15. Reading section 12(5) and 13(a) of the CIPAA together would lead one to the inevitable conclusion that the party who has to pay the Adjudicated Sum cannot refuse to pay unless a stay of the Adjudication Decision is obtained. [28] A fortiori, more so when the Adjudication Decision has been converted into a judgment of this Court pursuant to a section 28 of the CIPAA application for enforcement of the Adjudication Decision. [29] Section 466(1) of the Companies Act 2016 under which the 21 day Notice is given for payment of the Judgment Sum reads as follows:

“Definition of “inability to pay debts”

A company shall be deemed to be unable to pay its debts if –

the company is indebted in a sum exceeding the amount as may be prescribed by the Minister and a creditor by assignment or otherwise has served a notice of demand, by himself or his agent, requiring the company to pay the sum due by leaving the notice at the registered office of the company, and the company has for twenty-one days after the service of the demand neglected to 18 pay the sum or to secure or compound for it to the satisfaction of the creditor;”(emphasis added) [30] There is a rebuttal presumption of inability of a company to pay its debts after the expiry of 21 days after the service of the said section 466 Notice (previously section 218 Notice). [31] As provided for under section 465(1) of the Companies Act 2016 the Court may wind up a company for its inability to pay its debts as follows:

“Circumstances in which company may be wound up by Court

The Court may order the winding up if—

... ...

the company is unable to pay its debts;” [32] Where Parliament had allowed a company to be so wound up, this Court must not put any obstacle to the presentation of a winding up petition by way of a stay of the judgment given unless there is a bona fide serious dispute on the debt, here arising from an Adjudicated Sum or that otherwise there is an abuse of the Court’s process. It goes without saying that until the judgment is set aside on appeal or stayed, there cannot be a bona fide dispute on the judgment sum though there is an appeal 19 pending. Otherwise it would be easy not to pay pursuant here to a judgment given by just asserting that there is an appeal filed. [33] The fact that the Plaintiff continues to dispute the debt and deny owing the judgment sum does not make the debt one that is disputed bona fide. See Kosma Palm Oil Mill Sdn. Bhd. & Ors v Koperasi Serbuasaha Makmur Bhd. [2003] 4 CLJ 1, Chase Perdana Berhad v Md. Afendi Hamdan (No.2) [2006] 5 CLJ 575 and Walter Pathrose Gomez & Ors v Sentul Raya Sdn.Bhd. [2005] 7 CLJ 385. [34] Under the new section 467(2) of the Companies Act 2016, much of the severe consequences upon a presentation of the petition in Court have been buffeted by declaring that the commencement of winding up shall be at the date of the winding up order unlike previously when it was upon the presentation of the winding up petition. [35] It is not for the Plaintiff/Applicant to argue that payment of the debt to their solicitors is as good as payment to the Defendant creditor as the words of section 466(1)(a) of the Companies Act 2016 is clear; it is payment to the creditor or “to secure or compound for it to the satisfaction of the creditor.” Payment to the solicitors for the Plaintiff/Applicant as stakeholders until the disposal of the appeal against the order of this Court dismissing the setting aside of the Adjudication 20 Decision is not a securing of the debt to the satisfaction of the Defendant creditor as they have not agreed to that. Whether that the Judgment Sum must be a final judgment before a stay of the judgment may be dismissed or that a winding up Petition may be presented [36] It was argued by learned counsel for the Plaintiff/Applicant that a winding up Petition can only be filed on a final judgment. In the present case there is an appeal filed by the Plaintiff against the dismissal of the setting aside application and so therefore it is not a final judgment and on this ground alone the Petition should be dismissed. [37] There is no merit in the above submission which is misconceived anyway. First, no way does section 465 of the Companies Act 2016 say that the winding up of a company must be premised upon a judgment debt that is a final judgment in that no appeal has been filed against the judgment or that the appeal has been disposed of in favour of the party who had obtained a judgment in its favour in the first instance. That has not been the law with respect to filing a winding up Petition as the test is whether there is a debt which cannot be seriously disputed bona fide. 21 [38] The Supreme Court in Morgan Guaranty Trust Co of New York v Lian Seng Properties Sdn Bhd [1991] 1 MLJ 95 at page 97 stated the law as follows: “The issue is whether on the date of filing of the petition the company was unable to pay its debts. If it is shown by some evidence that the company was unable to pay its debts then the fact that there is a civil suit on the same amount in another jurisdiction is neither here nor there. In any event the debt must be disputed on some substantial grounds: see ReKing's Cross Industrial Dwellings Co (1870) 11 LR Eq 149 and Re Great Britain Mutual Life Assurance Society (1880) 16 Ch D 246 where Jessel MR said at p 253: … in my opinion it is not sufficient for the respondents, upon a petition of this kind, to say 'we dispute the claim'. They must bring forward a prima facie case which satisfies the court that there is something which ought to be tried, either before the court itself, or in an action, or by some other proceeding. There are many tests to be applied to see whether a petitioner for a winding-up order has locus standi. Insolvency is always a ground relied on in a petition. Prima facie an unpaid creditor is entitled to petition for a winding-up order against a company which 22 fails to pay its debt. Macpherson says that the only test which seems capable of resolving all difficulties is that suggested by Crossman J in Re North Bucks Furniture Depositories Ltd [1939] 2 ALL ER 549, namely, that the term 'creditor' 'includes every person who has the right to prove in winding-up.’ ” (emphasis added) [39] Learned counsel for the Plaintiff/Applicant had referred to the case of Public Bank Bhd v Muhibbah Meridian Sdn Bhd [2001] 1 CLJ 91 where the High Court held as follows: “(1) ... Where a debt is disputed, as in this case, being a debt on a judgment presently subject to and awaiting an appeal, it certainly cannot be said to be an undisputed debt.

The Judgment in question is not a final judgment that has finally disposed of the rights of the parties. To be final, it must be said to be the last and conclusive judgment without any right of appeal. In any event, s.222 of the Companies Act 1965 grants the court an unlimited jurisdiction to grant a stay and/or to restrain the Defendant from presenting such a petition, especially so if the court is satisfied that the debt is still a contentious civil matter.” 23 [40] However the case above has not been followed by the Court of Appeal in Pontian United Theatre Sdn Bhd v Southern Finance Bhd (formerly known as United Merchant Finance Bhd) [2006] 2 MLJ 602 and is to be considered as being impliedly overruled. The Court of Appeal opined as follows: “[2] For the first ground the appellants rely on the fact that their appeal against the judgment of the High Court of 22 August 2003, is pending before this court and on the ruling of Rekhraj J in Solid Kitchen Sdn Bhd v Regal Development Sdn Bhd [1998] 6 MLJ 437 and Public Bank Bhd v Muhibbah Meridian Sdn Bhd that a debt under a judgment which is under appeal cannot be said to be an undisputed debt and therefore cannot form the basis for a demand under the said s 218(2)(a). [3] I do not agree. A demand on a company under s 218(2)(a) may be made by 'a creditor … to whom the company is indebted in a sum exceeding five hundred ringgit then due'. A judgment for a sum establishes the debt, which then becomes due to the person to whom it is owed, who then becomes the creditor. The sum remains due even though the debtor's appeal against the judgment is pending, because an appeal does not operate as a stay of execution. The sum must be paid unless execution 24 of the judgment has been stayed, in which event it is no longer due. In this case there was no stay of execution of the summary judgment. The sum was therefore due when the demand under s 218(2)(a) was made. By the appellants' failure to settle the demand for three weeks after it was made they were to be deemed to be unable to settle their debts, a circumstance which constituted one of the grounds on which the appellants could be wound up. The appeal on the first ground therefore fails.” (emphasis added) [41] By the same token the fact that there is an appeal against the order of this Court to set aside the Adjudication Decision does not make the debt into an undisputed debt and more so when the Adjudication Decision has become enforceable as a Judgment of the Court. Whether the Defendant will be prejudiced if the application of stay is not allowed by the Court. [42] The Plaintiff/Applicant submitted that it did not have the intention to deny the Defendant’s rights of the fruit of litigation. However, the Plaintiff strongly believed that this appeal has a fair chance to succeed. [43] The Plaintiff further sought to impress upon the Court that it will be prejudiced and will suffer greater injustice and greater loss compared to the Defendant if this application is not granted. Conversely it was argued 25 that no prejudice will be suffered by the Defendant and even if there is prejudice (which is denied), it can still be compensated with cost and with a good financial position, the Plaintiff is able to pay the said compensation. [44] The Plaintiff referred to the case of Bloor v Liverpool Derricking and Carrying Co Ltd [1936] 3 All ER 399 at page 406 where the Court held as follows: “I would only add that in my view the learned judge has not given effect to the principle (I think the right principle) laid down in Doyle v White City Stadium, Ltd. (I); that it is improper that a learned judge should compel persons to pay money in any event which moneys, it may be subsequently be held by a higher court, they were under no legal duty to pay at all. Where the circumstances are that in any event they will have to pay something to the other side, I think it is right and proper, in appropriate case, that amount should be paid over; but where there is an appealable matter and the sum to be paid, either in whole or in part, still remain a matter of dispute, then I think it is contrary to all principle that persons should in any event receive the money which the law may ultimately decide they have no title to, leaving the persons 26 who has to pay, as a condition to getting his stay, without redress.” (emphasis added) [45] However that dicta of the Court was in the context of an irrecoverable payment to a widow, whose husband as a sole breadwinner had died in a work-related accident. [46] Moreover it was argued that this application for stay is only temporary in nature while waiting for the appeal to be heard by the Court of Appeal. It was further stated that a stay would not prejudice the Defendant since they will still get the payment later if the appeal is dismissed by the Court of Appeal. [47] The Plaintiff further referred to the case United Overseas Bank Ltd v Joo Hin Leong [1978] 2 MLJ 202 where the Court held as follows at pg 203 – 204: “Stay of execution with its ordinary meaning must be of a temporary nature until for example the completion of a certain events or fulfilling of certain acts or conditions. It means the full judgment is to be paid only it is deferred but not to be reduced where for instance payment by installments was allowed or where there was a claim by a third party that the property does 27 not belong to the defendant but belongs to him, the third party.” (emphasis added) [48] The Plaintiff/Applicant tried to prevail upon this Court that if this application not allowed, it will totally prejudice the Plaintiff since the Defendant will not be able to repay/return the said payment to the Plaintiff. However there is not a shred of evidence pointing to the insolvency or near insolvency of the Defendant. [49] The reason that the Plaintiff has a good financial standing and ability to pay is not a special circumstance and should not be used as a ground to deprive the Defendant of the fruits of their litigation and more so, in the context of a judgment that had proceed from an Adjudication Decision where it is precisely because of delay in payment for work done in the construction contract by contractors, that Parliament had promulgated the CIPAA for the designed purpose stated in the Long Title as follows: “An Act to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters.” (emphasis added) 28 [50] I would agree with learned counsel for the Defendant that it is of paramount importance that the Defendant should be paid speedily upon obtaining the court order for enforcement of the Adjudicator Decision in line with the purpose and intention of the CIPAA. [51] To say that delay would not prejudice the Defendant as successful Claimant in the Adjudication would be to understate the seriousness of cash flow problem that a contractor would face, having expended time, money and manpower and being out of pocket, to now have to be contented to wait until the appeal is disposed of. [52] As pointed out by the Defendant as Claimant in the Adjudication, they had claimed for RM6 million for which about RM4 million had been awarded by the Adjudicator. The fact that they did survive is testament to some extent to their sound financial position. [53] The Adjudication Decision would be denuded as to its potency and be devoid of its prophylactic properties with a stay of the judgment obtained merely because there is an appeal against dismissal of the setting aside of the Adjudication Decision. [54] By no means am I suggesting that there can never be a Stay of an Adjudication Decision pending the disposal of an Arbitration or Litigation on the matters that are the subject matter of the Adjudication. Parliament 29 itself had provided for a consideration of a stay of this nature in section 16(1)(b) of the CIPAA. Section 16(2) provides that “The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit.” (emphasis added) [55] However there is no averment that the Plaintiff has commenced an Arbitration or filed an action in Court for the same issues raised in the Adjudication. The threshold condition has thus not been met. Neither has it been shown that the Defendant as successful Claimant is not in a position to pay back the Adjudicated Sum that has now become the Judgment Sum pursuant to the enforcement order under section 28 of the CIPAA. That would be a more relevant consideration rather than the reverse, which is that the Plaintiff is able to pay compensation for any loss that the Defendant would suffer as a result of delayed payment if any. [56] Cash is the very life blood of the construction industry especially contractors who have done the work but not paid. Many in the days before the introduction of statutory adjudication under the CIPAA had been driven off the financial precipice in being wound up by suppliers and their subcontractors when payments from Employers are not forthcoming. 30 [57] There is therefore no need to make any conditional order for Stay as suggested by the Plaintiff/Applicant in paying the Judgment Sum to their solicitors as stakeholders pending the disposal of the Appeal. Pronouncement [58] Taking all the above considerations into the equation of deciding whether a Stay of the Judgment ought to be granted, I found no special circumstance to justify a Stay. The application for Stay in Enclosure 17 was thus dismissed with costs of RM5,000.00 to be paid by the Plaintiff/Applicant to the Defendant. Dated: 22 December 2017. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : S. Ashok (Messrs Leela A. Sanghrajka & Associates) For the Defendant : Paul Lee together with J S Lim (Messrs T G Lee & Associates) Date of Decision: 7 September 2017.