Chin Yook Phing v Enisah Binti Baharuddin (WA-22NCvC-513-07/2021)

ENISAH BINTI BAHARUDDIN (NRIC No: 630801-10-6400)

YULINA BINTI BAHARUDDIN (NRIC No: 660409-04-5348) …DEFENDANTS

Before this Court is the plaintiff’s notice of application dated 9 December 2025 (enclosure 323) seeking a stay of execution of the judgment of this Court dated 1 December 2025 (“the Judgment”), pending the disposal of the plaintiff’s appeal to the 01/04/2026 11:46:12

The application is brought pursuant to section 25 read together with the Schedule and section 73 of the Courts of Judicature Act 1964 (“CJA 1964”), rule 13 of the Rules of the Court of Appeal 1994, Order 92 rule 4 of the Rules of Court 2012, and the inherent jurisdiction of this Court.

The plaintiff’s application is resisted by the defendants. Both parties have filed extensive affidavits and written submissions. The plaintiff’s written submissions are contained in enclosure 335, while the defendants’ written submissions opposing the application are contained in enclosure 333. I have considered these materials in their entirety, together with the affidavits exchanged and the record of proceedings leading to the Judgment.

This is not an application to revisit the merits of the substantive dispute, nor to rehear the appeal in advance. It is, rather, an application which engages the well-settled but carefully circumscribed discretion of the Court to determine whether, notwithstanding the general rule that an appeal does not operate as a stay, justice nevertheless requires that execution of the Judgment be held in abeyance pending appellate determination.

The factual background is largely undisputed and has been extensively canvassed at trial and in the written submissions now before me. The defendants are the registered proprietors of a parcel of land held under Geran No. 100212, Lot 1388, Mukim Bukit Segumpal, Daerah Maran, Pahang, measuring approximately 20.65 hectares (“the Land”). The Land devolved from the defendants' grandfather to their late father, Dato' Baharuddin bin Musa, and subsequently to the defendants. The title expressly states that the Land is "Dalam Kawasan Rezab Melayu", that is to say, it is designated as being within a Malay Reservation.

On 1 May 2016, the plaintiff and the defendants entered into a joint venture agreement (“the JVA”). Under the JVA, the plaintiff undertook, at his own cost and expense, to develop and cultivate the Land, converting it from an oil palm plantation into an orchard, with durian trees as the principal crop for a period of 30 years. In consideration thereof, the defendants were to receive, inter alia, twenty per cent of the net profits from the sale of fruits, after deduction of expenses, and a fixed monthly payment of RM3,300, payable on or before the 7th day of each month. The JVA made no reference to the Land being Malay Reserve land.

It is not disputed that, pursuant to the JVA, the plaintiff entered into possession of the Land in 2016 and commenced extensive works thereon. Over the years, he planted a substantial number of durian trees, including Musang King and Black Thorn varieties, and installed infrastructure such as irrigation and fertigation systems, fencing, and ancillary structures necessary for plantation operations.

Disputes subsequently arose between the parties. The defendants alleged persistent breaches of the JVA by the plaintiff, including failure to pay the agreed monthly sums punctually and failure to provide proper accounts or to remit the defendants’ share of net profits. By a notice dated 9 June 2021, the defendants terminated the JVA. They thereafter demanded vacant possession of the Land.

The plaintiff disputed the validity of the termination and commenced the present action in July 2021, seeking, among other reliefs, specific performance of the JVA or, in the alternative, damages in lieu thereof. The defendants counterclaimed.

Following a full trial, including an in-situ site visit conducted on 19 August 2024, this Court delivered the Judgment on 1 December 2025. The Court held, in essence, that the JVA had been validly terminated by the defendants, dismissed both the plaintiff’s claim and the defendants’ counterclaim, and ordered the plaintiff to surrender possession of the Land forthwith. The S/N LIoJIzJW1kuiinQ3k3u6qg plaintiff was permitted to dismantle and remove his structures and movable property, but was restrained from uprooting crops or damaging the Land.

On the day the judgment was pronouncement, the plaintiff's counsel made an oral application for a stay of execution, however the trial Judge directed that a formal application be filed to be determined by the Court. The plaintiff subsequently filed a notice of appeal on 5 December 2025 and, shortly thereafter, the present application for a stay of execution. The defendants have also filed a notice of appeal in respect of certain aspects of the Judgment.

The plaintiff submits that this is a case which discloses special circumstances justifying a stay of execution. His arguments may be summarised, as follows.

First, the plaintiff contends that his appeal would be rendered nugatory if a stay were refused. He emphasises that his primary relief at trial was specific performance of the JVA. If possession and management of the Land and the durian orchard are transferred to the defendants pending appeal, any eventual success on appeal would be hollow, as the plaintiff would no longer be able to resume performance of the JVA in its original form.

Secondly, the plaintiff submits that the substratum of the dispute consists not merely of the Land as an inanimate res, but of a living, maturing durian orchard comprising nearly one thousand trees, planted and nurtured by him over approximately nine years. He argues that durian trees are sensitive biological assets requiring continuous, specialist care, and that disruption in management or changes in cultivation practices pose a real risk of irreversible and irreparable harm.

Thirdly, the plaintiff argues that the Judgment entitles him to remove his structures and infrastructure from the Land. He submits that compliance with this aspect of the Judgment, absent a stay, would necessitate the dismantling of irrigation and fertigation systems essential to the survival and productivity of the trees, thereby exacerbating the risk of damage and further undermining the appeal.

Fourthly, the plaintiff relies on the balance of convenience. He contends that maintaining the status quo pending appeal would cause minimal prejudice to the defendants, who remain the registered proprietors of the Land and who have undertaken not to dispose of it, whereas refusal of a stay would irreparably prejudice the plaintiff by destroying the value of his investment and the subject matter of the appeal.

The defendants oppose the application in its entirety. They submit that the plaintiff has failed to discharge the heavy onus of demonstrating special circumstances.

The defendants emphasise the fundamental principle that an appeal does not operate as a stay and that a successful litigant ought not lightly to be deprived of the fruits of litigation. They argue that the plaintiff’s complaints go primarily to the merits of the appeal, which, as a matter of law, do not constitute special circumstances.

The defendants further submit that the plaintiff has been in occupation of the Land without right since the valid termination of the JVA in June 2021 and, in any event, since the delivery of the Judgment on 1 December 2025. They characterise the plaintiff as a trespasser and contend that the stay application is a device to prolong his unlawful occupation so as to benefit from the impending commercial maturity of the durian trees.

It is also the defendants’ case that there is no credible evidence that they would destroy or neglect the Land or the trees. On the contrary, as owners, they have every incentive to preserve the Land. They have undertaken not to sell the Land pending the disposal of the appeal and assert that they have access to appropriate expertise to manage the orchard.

Finally, the defendants submit that the balance of convenience favours immediate enforcement of the Judgment, given their prolonged deprivation of possession and income, and that any prejudice to the plaintiff is compensable in damages should he ultimately succeed.

The applicable legal principles are not in dispute. Section 73 of the CJA 1964 and rule 13 of the Rules of the Court of Appeal 1994 make plain that an appeal does not, of itself, operate as a stay of execution. A stay is an exception rather than the rule, and the discretion to grant it must be exercised judicially and sparingly.

Section 73 of the CJA 1964 provides as follows: 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.

Rule 13 of the Rules of the Court of Appeal 1994 is to similar effect: 13 Stay of proceedings on appeal S/N LIoJIzJW1kuiinQ3k3u6qg 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.

The leading authority on the exercise of this discretion remains the decision of the Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257. The Federal Court held: “[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.… [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….” [Emphasis is mine] The Federal Court thus made clear that the burden rests squarely on the applicant, and that the reasons relied upon must relate to the enforcement of the judgment, rather than its correctness.

It is equally well established, as articulated by the Court of Appeal in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49, that the special circumstances relied upon must be truly special, not ordinary or commonplace, and must go to the execution of the judgment rather than to its merits. The following passage is instructive: “[66] 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 appears to me to say that the 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). … It is a common view that merits of the appeal (or correctness or validity of the judgment) is not special circumstances. Some judges do not use the term “special circumstances”. They straight away consider whether the appeal, if successful, would be rendered nugatory. Examples are Mohamed Mustafa and Gentali (M) Sdn Bhd v. Kawasaki Sunrock Sdn Bhd [1996] 2 MLRA 369….(CA) and the term was used “in the sense that the appellant is deprived of the fruits of his success.” I think it does not matter whether the nugatory factor is considered under the head “special circumstances” or not, so long as it is considered.” [Emphasis is mine]

Against this legal backdrop, the central question for determination is whether, on the particular facts of the present case, refusal of a stay would render the plaintiff’s appeal nugatory or would otherwise occasion such injustice as to constitute special circumstances justifying a departure from the general rule.

I begin with the nature of the subject matter. This is not a case involving a simple monetary judgment. Nor is it merely a dispute over vacant land. The evidence, including that observed during the site visit, establishes that the Land presently contains a mature and maturing durian orchard developed over many years. The trees are living assets whose condition, productivity, and long-term viability depend on consistent and informed management.

The plaintiff’s primary relief on appeal is specific performance of a long-term joint venture agreement. While it is true that specific performance is discretionary and not lightly granted, it is equally true that, if such relief is to remain realistically available, the subject matter to which it relates must be preserved in substance and not merely in name.

If execution proceeds, the plaintiff will be required to vacate the Land and relinquish control over the orchard. Even assuming, as I must, that the defendants act in good faith and with reasonable care, the reality is that management practices will inevitably change. Decisions as to pruning, fertilisation, pest S/N LIoJIzJW1kuiinQ3k3u6qg control, harvesting, and reinvestment are matters of judgment which, once implemented, cannot readily be unwound.

In this regard, I find persuasive the reasoning of the High Court in Beamwood Sdn Bhd v Aerlynna Liza Lius & Ors [2025] CLJU 1158, which bears, in my view, a close factual and juridical resemblance to the present case. There, the dispute concerned land upon which the respondents had undertaken cultivation and erected structures, and where execution of the judgment pending appeal would have entailed the clearing and destruction of those cultivations. The High Court held that such execution would irreversibly alter the subject matter of the appeal and thereby render any eventual success nugatory. Importantly, the learned Judge recognised that the need to preserve the physical condition of the land pending appeal constituted a special circumstance justifying a stay, notwithstanding the proprietary rights of the successful party at first instance. In that context, the Court held as follows: “[17] This Court finds that the facts of this case similar to Chong Wooi Leong & Ors v Lebbey Sdn Bhd (No: 2) [1998] 2 CLJ 509, whereby by majority decision (Abu Mansor Ali JCA and Ahmad Fairuz JCA), the application for stay was allowed. [18] In that case, Ahmad Fairuz JCA (as he then was) decided: As to the merits of the application, I am of the view that the applicants’ premises should be preserved. The destruction of their premises will, as contended in para 9 of their S/N LIoJIzJW1kuiinQ3k3u6qg affidavit in support, cause them to suffer losses, hardships and difficulties which are irreparable (“mengalami kerugian, penderitaan dan kesusahan yang tidak boleh dibaiki”). I find no evidence that can show that such contention of the applicants as inherently improbable.” [Emphasis is mine] While each application for stay must necessarily turns on its own facts, the underlying principle articulated in Beamwood, namely, that the Court should act to preserve the practical efficacy of the appeal and prevent irreversible alteration of its subject matter, applies with equal force to the circumstances of the present case.

I also take into account the plaintiff’s entitlement under the Judgment to dismantle and remove his infrastructure. Absent a stay, the plaintiff would be placed in an invidious position, either comply with the Judgment and remove systems essential to the orchard’s survival, thereby accelerating deterioration, or refrain from doing so and risk allegations of non-compliance. This dilemma underscores the practical risk that the appeal would be rendered nugatory.

Turning to the balance of convenience, I accept that the defendants have been kept out of possession of their Land for a considerable period and that this is a matter of legitimate grievance. However, the prejudice occasioned by a temporary continuation of the status quo must be weighed against the S/N LIoJIzJW1kuiinQ3k3u6qg potentially permanent prejudice to the plaintiff. The defendants remain the registered proprietors. They have given an undertaking not to dispose of the Land. Any delay, while undesirable, is temporary in nature and capable of being remedied, whereas the alteration or degradation of the orchard pending appeal would be irreversible and incapable of being adequately undone.

I am not persuaded that the stay application is an abuse of process. While the plaintiff plainly has an interest in remaining in possession, that interest is intertwined with the preservation of the subject matter of the appeal. Nor is there any material delay in bringing the application.

Ultimately, the discretion must be exercised in the interests of justice. Having considered all the circumstances, I am satisfied that the plaintiff has demonstrated special circumstances, in particular the real risk that his appeal would be rendered nugatory if a stay were refused.

For the reasons set out above, I allow the plaintiff’s application for a stay of execution of the Judgment dated 1 December 2025, pending the disposal of the plaintiff’s appeal to the Court of Appeal.

The stay is granted on terms that the plaintiff shall not uproot any crops, shall not damage the Land, and shall continue to maintain the orchard in a proper and husband-like manner pending appeal.

Costs of this application shall be costs in the appeal. Dated the 19th day of January 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Plaintiff : Anneliz Reina George, Janet Chai Pei Ying, Wong Cheer Feng and Jason Kok Jia Qi Messrs C F Wong & Co Counsel for the Defendants :