Chan Chean Gaik v Elegance Club Sdn. Bhd. (WA-12BNCC-14-06/2025)

On 10-6-2025, the Appellant was found liable to the Respondent after trial at the Sessions Court and Judgment was entered against her for RM622,000.00 for the price of jewellery sold and delivered, general damages in the sum of RM10,000.00, exemplary damages in the sum RM5,000.00, costs of RM7,000.00 and interest (“Judgment”). The Appellant’s appeal to the High Court was dismissed on 18-11-2025, and a further appeal to the Court of Appeal has been lodged.

Enclosure 44 is the Appellant’s application for a stay of execution of the Judgment pending her further appeal. This Court allowed the application on 12-2-2026, but only conditionally. The condition imposed for the stay of execution to take effect is that the sum of RM650,000.00 be deposited into an interest-bearing firm client account of Messrs. Christopher Lee Ong, solicitors for the Appellant, within 30 days. An interim stay previously granted was extended until then.

The Appellant has now appealed to the Court of Appeal against the conditional stay, presumably because she is dissatisfied with the condition imposed. It is noted that in moving the Court for a stay of execution in Enclosure 44, the Appellant had offered to deposit all but one of the pieces of jewellery said to have been sold to her, the one exception being the piece that she claimed not to have received, together with a cash sum of RM200,000.00 as a condition for a stay of execution. The Respondent rejected the offer.

It is trite that an appeal does not operate as a stay of execution and the onus was on the Appellant to demonstrate special circumstances why a stay of execution ought to be granted, especially in the case of a pure monetary judgment. In line with good authority, this Court has refrained from descending into merits or otherwise of the pending appeal (Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 (“Kosma Palm”)).

As far as this Court is concerned, the Judgment is a pure monetary judgment. In considering Enclosure 44, the Appellant’s counsel argued and this Court agreed, that when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory by the Appellant’s inability to recover the Judgment sum.

As identified in Kosma Palm, it is a special circumstance if an appeal would be nugatory by reason of the respondent's poverty (Wilson v. Church (No 2) [1879] 12 Ch D 454). Thus, arguments at the hearing of Enclosure 44 focused primarily on the Appellant’s assertion that the Respondent has not filed any accounts since FYE 2020 and appears to no longer be in operation.

Considering the evidence adduced and in exercise of the Court’s discretion, the conditional stay was granted to balance between the Respondent’s competing right to enjoy the fruits of its litigation with the Appellant’s right not to have her appeal rendered nugatory (Genisys Intergrated Engineers Pte Ltd v Uem Genisys Sdn Bhd (In Liquidation) & Ors [2019] MLJU 471).

This Court considers that the condition imposed operates to evenly balance the interests as argued, and the Appellant is in no better position than the Respondent to either dictate the condition for the stay of execution, or to demand an unconditional stay of execution. Bertarikh: 25 Februari 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Perayu: Adam Lee Leong Soon (Hadiputera Bin Mohd Dzulrila bersamanya)