Ekuiti Setegap Sdn. Bhd. v Plaza 393 Management Corporation (WA-24NCVC-803-04/2018)

The Defendant had, vide a Notice of Application dated 26.9.2018 (Enclosure 46), applied for a stay of execution of the High Court Order dated 28.8.2018 (‘said HC Order’) pending disposal of the Defendant’s appeal to the Court of Appeal pursuant to O. 45, r. 11 of 2 the Rules of Court 2012 (‘RoC 2012’), sections 43 and 73 of the Courts of Judicature Act 1964 [Act 91] (‘CJA 1964’) and/ or Rules 13 and 14 of the Rules of the Court of Appeal 1994 (‘RCA 1994’).

Having heard oral submissions by learned counsels for the Defendant and the Applicant on 17.10.2018 and having read the Affidavits and written submissions filed, I allowed the Defendant’s application with costs as agreed by the parties of RM4,000.00 subject to allocatur fees.

Being dissatisfied, the Applicant has appealed against my decision. My full grounds for allowing the Defendant’s application for stay of execution are set out herein below.

For purposes of these grounds, I shall refer to the Defendant as “Plaza 393 MC” and the Applicant as “ESSB”.

The relevant affidavits in respect of Enclosure 46 are as follows: 3

Plaza 393 MC’s Affidavit In Support (‘AIS’) affirmed on 26.9.2018 (Enclosure 47);

ESSB’s Affidavit In Reply (‘AIR’) (1) affirmed on 3.10.2018 (Enclosure 48);

Plaza 393 MC’s AIR affirmed on 10.10.2018 (Enclosure 49);

Plaza 393 MC’s Additional Affidavit affirmed on 22.10.2018 (Enclosure 59); and

ESSB’s AIR (2) affirmed on 23.10.2018 (Enclosure 60). [6] At the outset, I should state that my decision was pronounced by Daryl Goon JC on 24.10.2018 since I was unable to do so due to illness (O. 42, r. 1(4) RoC 2012 referred) and in view of the urgency of the matter as the reconvened 6th Annual General Meeting (‘AGM’) of Plaza 393 MC was scheduled to be held on 28.10.2018 and Notice of the said AGM had been issued on 11.10.2018. Learned counsels were directed to appear before me on 29.10.2018 for brief 4 submissions on the matter regarding costs occasioned by the application. However, on that date, the Court was informed that the parties had agreed to costs of RM4,000.00 which was duly recorded, subject to the payment of allocatur fees. BACKGROUND [7] ESSB is the registered proprietor of seven retail parcels identified as M1/B1/2, M1/B1/3, M1/B1/4, M1/1/5, M1/2/6, M1/3/7 and M1/4/8 (‘the 7 Parcels’) with a total area of 439,524.64 sq ft in a complex known as Plaza 393. Plaza 393 MC is a management corporation incorporated under the Strata Titles Act 1985 [Act 318] (‘STA 1985’). [8] A dispute arose between the parties which resulted in the filing of High Court Suit No.: WA-22NCvC-160-03/2016 (‘Suit 160/2016’) by Plaza 33 MC against ESSB on 15.3.2016 claiming for outstanding service charges, contributions to the sinking fund, quit rent, insurance and late payment interest. The amount claimed was for the accumulated arrears from the date of incorporation of Plaza 393 MC on 21.4.2008 until 4.3.2016. 5 [9] After a full trial of Suit 160/2016, the High Court on 8.12.2016 allowed Plaza 393 MC’s claim in the sum of RM10,420,461.50 (‘Judgment Sum’) with interest and cost. ESSB appealed to the Court of Appeal and in the meantime filed a stay application in the High Court. On 8.2.2017, the High Court allowed ESSB’s application for stay on the condition that ESSB deposit the Judgment Sum with Plaza 393 MC’s solicitors as stakeholder. [10] On 10.3.2017, ESSB paid the Judgment Sum together with interest and cost amounting to RM11,367,468.37 to Plaza 393 MC’s solicitors. On 21.3.2017, the Court of Appeal allowed ESSB’s appeal and set aside the judgment of the High Court. [11] Plaza 393 MC then filed an application for leave to appeal to the Federal Court against the whole decision of the Court of Appeal vide Civil Application No.: 08(f)-148-03/2018(W). On 25.7.2018, the application for leave was dismissed by the Federal Court. 6 [12] On 10.4.2018, ESSB received a statement of account dated 5.4.2018 from Plaza 393 MC for the 7 Parcels (‘said statement of account’) showing that ESSB was indebted to Plaza 393 MC in the sum of RM11,930,047.15. [13] By a letter dated 18.4.2018, Plaza 393 MC informed that it was proposing to hold an AGM to determine the issue of the contributions to the management fund on a share unit basis. ESSB disputed the said statement of account and demanded from Plaza 393 MC to provide confirmation that ESSB is entitled to attend and vote at the AGM. [14] On 20.4.2018, Plaza 393 MC replied and informed that it was only obliged to put up the names of persons entitled to vote at the AGM on the notice board at least 48 hours prior to the AGM which would be held on 6.5.2018 and that ESSB had failed to pay contributions to the management fund from 21.4.2008 until 31.3.2016. 7 [15] On 24.4.2018, in order to preserve its right to attend and vote at the AGM, ESSB filed an Ex Parte Originating Summons (‘OS’) against Plaza 393 MC seeking, inter alia, the following reliefs:

a declaration that ESSB is entitled to attend and vote at the AGM of ESSB which was scheduled to be held on 6.5.2018;

an order that the duly elected Chairman of AGM shall not prevent ESSB from casting its votes and shall accept the votes of ESSB in any motion or resolution proposed in the AGM; and

alternatively, in the event that the OS cannot be heard before 6.5.2018, an order that any AGM held without the participation of ESSB shall be null and void, of no effect, and/ or set aside. [16] The OS was called up for hearing on 8.8.2018 and 10.8.2018. On 28.8.2018, Faizah Jamaludin JC pronounced the said HC Order as follows:

the AGM held on 6.5.2018 is null and void and of no effect; 8

Plaza 393 MC is to convene a rescheduled AGM within 60 days from the date of the said HC Order;

ESSB is entitled to attend the rescheduled AGM and to cast votes in respect of its 29,000 share units, provided that ESSB pays to Plaza 393 MC the sum of RM38,280.00 per month for the months of July, August, September and October 2018 in respect of charges and contributions to the sinking fund and late payment interest for the months of July, August, September and October 2018, as invoiced, if any;

parties are given liberty to apply to carry out and effect the said

Plaza 393 MC is to pay the overall costs of RM10,000.00 to ESSB in respect of the OS and Plaza 393 MC’s application for striking out the OS subject to the payment of the allocatur fee. [17] Being dissatisfied, Plaza 393 MC had filed a Notice of Appeal dated 21.9.2018 against the whole decision. Five days later, Plaza 393 MC 9 filed Enclosure 46 to stay the execution of the said HC Order pending the full and final disposal of Plaza 393 MC’s appeal to the Court of Appeal. SUBMISSIONS BY PLAZA 393 MC [18] Learned counsel for Plaza 393 MC submitted the authorities of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1 and Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380 in support of the proposition that there are many factors that constitute “special circumstances” to warrant a stay of execution and the fact that an appeal would be rendered nugatory is the most common example. [19] It was further contended that based on the affidavit evidence, Plaza 393 MC has established that there are special circumstances in view of the following: 10

if the AGM is to be reconvened within 60 days from 28.8.2018, Plaza 393 MC’s appeal to the Court of Appeal, should it succeed, would be rendered nugatory;

ESSB could potentially “outvote” any motions put to a vote in the reconvened 6th AGM. Any resolutions passed and implemented thereafter would be irreversible and further, it will lead to serious and irreversible consequences to Plaza 393 MC as well as other parcel proprietors;

there would be no prejudice to ESSB as one of the parcel proprietors who is liable to pay the contributions to the management fund anyway. On the other hand, Plaza 393 MC would be highly prejudiced in the sense that any resolution passed in the reconvened AGM would have to be subsequently given effect by ESSB and would be irreversible even if the appeal is allowed, should the stay order be refused including, but not limited to, any resolution directly and detrimentally affecting Plaza 393 MC’s appeal; 11

following that, irreparable damage may be caused to Plaza 393 MC and for which it cannot be compensated by costs. Plaza 393 MC’s operation as the Management Corporation will be disrupted and financially destroyed;

the granting of a stay is necessary to maintain the status quo and to preserve the integrity of the appeal, until the disposal of the appeal; and

costs, time and expenses in order to reconvene the 6th AGM pending the appeal or to reverse any matters relating to the reconvened 6th AGM should the stay granted, would be incurred and wasted. [20] The authorities of Ong Koh Hou @ Won Kok Fong v Da Land Sdn Bhd & Ors [2018] 1 LNS 827; Equiticorp Holdings Ltd v United Securities Sdn Bhd [2007] 6 CLJ 268; Ng Pik Lian v United Eastern Resources Sdn Bhd & Ors [2018] 1 LNS 596; Board of Governors of Sekolah Menengah St Gabriel v Ranjit Singh [1969] 1 LNS 16; and 12 Ho Kam Wah @ Ho Kim Wah v Began Land Sdn Bhd [2018] 1 LNS 671 were also cited in the course of submissions. SUBMISSIONS BY ESSB [21] Learned counsel for ESSB had also relied on the case of Kosma Palm Oil Mill Sdn Bhd in contending that the onus on Plaza 393 MC to demonstrate the existence of special circumstances to justify the grant of a stay of execution. It was further submitted that Plaza 393 MC has failed to discharge this onus of proof since there is no evidence which would enable the Court to find that if a stay is not granted, the appeal, if successful, would become nugatory or that Plaza 393 MC cannot be restored to their former position. Plaza 393 MC’s allegations, it was said, amount to “inconvenience”, in particular as regards costs, time and expenses incurred to reconvene an AGM, and such “inconvenience” would not render the appeal nugatory. [22] In addition, ESSB put forth the following reasons in support of their submission that ESSB would be prejudiced if the stay application is granted: 13

ESSB would be deprived of the fruits of the judgment obtained in their favour;

ESSB will be prejudiced by the delay in reconvening an AGM if Plaza 393 MC’s appeal is subsequently dismissed by the Court of Appeal;

ESSB had acted against the STA 1985 and Strata Management Act 2013 [Act 757] (‘SMA 2013’) in levying the service charges on a square foot basis and in excluding ESSB from voting at the AGM;

Plaza 393 MC has yet to pay back the illegal service charges paid by ESSB to them from 1.4.2016 until 31.12.2016 amounting to RM791,144.55;

Plaza 393 MC has refused and/ or failed to allow ESSB to inspect their books of account despite the fact that the right to inspect books of account is guaranteed under paragraph 7(6) of the 2nd Schedule of SMA 2013; 14

Plaza 393 MC has refused and/ or failed to issue a certificate to ESSB pursuant to section 73 of SMA 2013 certifying the sum standing to the credit of the maintenance account and sinking fund account and the sum in the account that has been committed or reserved for expenses already incurred by the

Plaza 393 MC’s audited accounts for the financial year ending June 2017 has not been tabled at the 6th AGM. [23] Apart from the above points, ESSB also raised arguments that merits in the appeal are not a relevant consideration, and that there was delay in the filing of Enclosure 46 to which no cogent and reasonable explanation had been provided by Plaza 393 MC. The cases referred to by learned counsel for ESSB to support his submissions are Leong Poh Shee v. Ng Kat Chong [1966] 1 MLJ 86; Che Wan Development Sdn Bhd v Co-operative Central Bank Bhd [1989] 3 MLJ 40; Jagdis Singh a/l Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213; Customer Loyalty Solutions Sdn Bhd v Advance Information 15 Marketing Berhad & Ors [2017] 1 LNS 2146; and Tan Tien Seng v. Grobina Resorts Sdn Bhd [2006] 6 CLJ 654. THE LAW [24] O. 45, r. 11 RoC 2012 states that “Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.”. [25] The provision of section 73 CJA 1964 reads as follows: “Appeal not to operate as stay of execution 16 [26] Similarly, rule 13 of RCA 1994 provides that: “Stay of proceedings on appeal. 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.”. [27] The head notes in the report of the Federal Court decision in Kosma Palm Oil Mill Sdn Bhd sets out the established principles of law on a stay of execution in the following words: “(1) An appeal shall not operate as a stay of execution unless the court so orders. The paramount consideration governing an application for a stay of execution is that the appeal to this court, if successful, should not be rendered nugatory. If upon balancing all the relevant factors, this court comes to the conclusion that an appeal would be rendered nugatory without the 17 grant of a stay or other interim preservation order, then it should normally direct a stay or grant other appropriate relief that has the effect of maintaining the status quo….

There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay was referred is the most common one. The merits of a party’s case in a stay application is not a relevant matter for consideration….

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 added] 18 [28] At paragraph 13 of the judgment of the Federal Court as delivered by the late Augustine Paul JCA, His Lordship referred to a decision pronounced by Ian Chin JC (as he then was) as follows: “[13] … An appreciation of the meaning of the phrase ‘special circumstances’ may resolve the confusion. As Ian Chin JC (as he then was) said in Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 at p 521: An attempt was made to define special circumstances by Raja Azlan Shah (as His Majesty then was) in the case of Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, viz: ‘Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common.’ 19 The definition only serves to emphasize the fact 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. Any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion. This is surely not what discretion is all about.”. [emphasis added] [29] Based on the case authorities, it is thus well established that the phrase “special circumstances” means something special or exceptional in character; going beyond what is ordinary, common or usual circumstances: (refer also to Abdul Hamid Mohamad JCA (as his Lordship then was) in Ming Ann Holdings Sdn Bhd.). 20 ANALYSIS & FINDINGS OF THE COURT [30] The onus is on Plaza 393 MC to show the existence of special circumstances to justify the grant of a stay of execution and the reasons must relate to the enforcement of the said HC Order. [31] During the hearing of Enclosure 46, Ms. Aimee Liew for Plaza 393 MC referred to paragraph 16 of the AIS (Enclosure 47) where Yip Nim An as Chairman of Plaza 393 MC had affirmed, inter alia, that all motions proposed by ESSB on 28.4.2018 and marked as exhibit “YNA-7” were presented, debated and put to a vote at the 6th AGM. Learned counsel used the motions in exhibit “YNA-7” as samples of the motions which were anticipated to be tabled at the reconvened 6th AGM to support her submission that the motions are unreasonable, far-reaching and self-serving to ESSB. [32] In reply, Mr. Kent Chai submitted that the grouses mentioned by learned counsel for Plaza 393 MC relating to the motions for the reconvened 6th AGM amounted to statements from the Bar as these were nowhere to be found in the affidavits filed by Plaza 393 MC up 21 to the date of the hearing. Furthermore, the motions in exhibit “YNA- 7” are no longer valid since these had been tabled at the 6th AGM held on 6.5.2018, which has since been declared as null and void. It was further argued that it is premature for Plaza 393 MC to say that the motions for the reconvened 6th AGM will be framed in a way that is advantageous to ESSB’s interests when the final date for the filing of motions was 21.10.2018. [33] I was of the view that it is critical for all relevant evidence to be presented before the Court for a complete and proper consideration of the issues to be undertaken. Therefore, I had directed learned counsel for Plaza 393 MC to file an additional affidavit exhibiting the Agenda and motions for the reconvened 6th AGM by 22.10.2018. This direction was duly complied with, except that Plaza 393 MC’s Additional Affidavit contained arguments in respect of the motions. Since ESSB had subsequently filed its AIR(2) to counter the arguments put forth by Plaza 393 MC, I took into account both affidavits (Enclosures 59 and 60). 22 [34] A copy of the Notice of the reconvened 6th AGM can be seen in exhibit “YNA-14” in Enclosure 59 where item (7) in the said Notice states as follows: “(7) … To decide whether to confirm or vary the present charges and to decide on the contributions to the management fund and/or charges levied on a per share unit basis for the period 21.4.2008 to 31.12.2016.”. [35] The motions proposed by the Chairman of Plaza 393 MC were annexed to Enclosure 59 as exhibit “YNA-15” and the following is the relevant excerpt: “Appendix A Rate of Contribution to the Management Fund (STA) and Charges and Sinking Fund (SMA) … Without prejudice to the Plaza 393 MC’s appeal to the Court of Appeal against the order of the Kuala Lumpur High Court 23 in Originating Summons No. WA-24NCVC-803-04/2018, it is hereby resolved that:

The contributions to the management fund (inclusive of contributions to the sinking fund/special account) will be levied at the rate of RM1.32 per share unit from 01.07.2012 to 31.05.2015;

The Charges (inclusive of payments towards the sinking fund) will be levied at the rate of RM1.32 per share unit on all residential parcels and RM3.00 per share unit on all commercial/retail parcels (including car parks meant for commercial/retail use) from 01.06.2015 to 31.12.2016. Payments towards the sinking fund will be levied at a sum equivalent to 10% of the Charges imposed; and 24

The Charges (inclusive of payments towards the sinking fund) will be levied at the rate of RM1.32 per share unit on all residential parcels and RM3.00 per share unit on all commercial/retail parcels (including car parks meant for commercial/retail use) from 01.11.2018 onwards. Payments towards the sinking fund will be levied at a sum equivalent to 10% of the Charges imposed.

Resolutions No.1-4 above shall only be effective and implemented subject to the outcome of the appeal by the Plaza 393 MC to the Court of Appeal.”. [emphasis added] [36] One of the parcel proprietors, namely Tan Kim Chooi of Unit No. A-8- 14, had also proposed five motions under “Appendix A: Rate of Contribution to the Management Fund (STA) and Charges and Sinking Fund (SMA)” and four motions under “Appendix B: Demands from the Parcel Proprietors of the Plaza 393 Complex”. (see exhibit “YNA-16” in Enclosure 59). In this regard, I note that the motions under Appendix A and Appendix B are made “Without prejudice to 25 the Plaza 393 MC’s appeal to the Court of Appeal against the order of the Kuala Lumpur High Court in Originating Summons No. WA- 24NCVC-803-04/2018” whilst motion number 5 under Appendix A states that “Resolutions No.1-4 above shall only be effective and implemented subject to the outcome of the appeal by the Plaza 393 MC to the Court of Appeal.”. [37] Turning now to the motions put forth by ESSB in exhibit “YNA-17” in Enclosure 59, there are altogether six motions. Motion 1 which relates to “Agenda No. 4 – To present the audited accounts and reports for year ending 30/6/2016” states as follows: “In accordance with the requirement under Section 62(1)(b) Strata Management Act 2013 where it is the duty of the management committee to appoint an approved company auditor to carry out the audit of the account annually, it is hereby proposed that the management committee to prepare an audited account up to date, up to 31/12/2017 and table it 26 within 30 days from the date hereof at an Extraordinary General Meeting.”. [emphasis added] [38] ESSB’s Motion 2 and Motion 3 are in connection to Agenda No. 7: “MOTION 2: In order to arrive at a factual and accurate apportionment of service charges for the period 21/4/2008 to 31/12/2016, it is hereby proposed that the committee table the expenses spent in maintaining the building in particular the common property for retail parcels for the period 21/4/2008 to 31/12/2016.”; and “MOTION 3: If the floor decides that service charges for retail proprietors are to be paid in accordance with share units for the period 21/4/2008 to 31/12/2016, it is hereby proposed that the expenses spent by retail proprietors in maintaining the common property for the period 21/4/2008 to 31/12/2016 to 27 be reimbursed and such reimbursement be deducted from the amount of service charges to be paid by the retail proprietors in respect of any amount owing for the period 21/4/2008 to 31/12/2016.”. [39] Lastly, Motion 4, Motion 5 and Motion 6 which were submitted by ESSB come under Agenda No. 9 on “Other Matters”: “MOTION 4: It is hereby proposed that the committee table the expenses incurred for residential apartments and retail parcels by the Management Corporation for the period from 1/1/2017 until today and to determine if the rate of charges previously determined in the 5th AGM was excessive.”; “MOTION 5: It is proposed that the Management Corporation table for the approval of the floor the detailed budget for the period from 1/11/2018 to 31/10/2019 especially a budget for the maintenance of retail parcels.”; and 28 “MOTION 6: It is proposed that the floor do consider the power given under Section 60 (3)(b) of the Strata Management Act 2013 to impose different rates of service charges to be paid in respect of parcels which are used for significantly different purposes in view of the different usage between residential parcels and retail parcels on the budget for the period from 1/11/2018 to 31/10/2019.”. [40] Having read ESSB’s AIR (2) (Enclosure 60), ESSB’s averments can be summarised to the effect that ESSB and other parcel owners have been kept in the dark over the financial affairs of Plaza 393 MC and what ESSB seeks to do is to hold Plaza 393 MC accountable to all proprietors in respect of its statutory duties. ESSB maintains that, as opposed to the motions proposed by the Chairman of Plaza 393 MC and Tan Kim Chooi, the motions proposed by ESSB are in the best interest of all parcel owners and do not prejudice Plaza 393 MC. [41] Having further read the motions proposed for the reconvened 6th AGM (exhibits “YNA-15”, “YNA-16” and “YNA-17” in Enclosure 59), I 29 agree with the submission by Plaza 393 MC that these motions are similar to Motions 1 to 6 which were submitted in the 6th AGM held on 6.5.2018 (exhibit “YNA-7”). In particular, it is observed that –

unlike the motions proposed by the Chairman of Plaza 393 MC and Tan Kim Chooi, the motions submitted by ESSB do not contain the statements that the motions are made “Without prejudice to the Plaza 393 MC’s appeal to the Court of Appeal against the order of the Kuala Lumpur High Court in Originating Summons No. WA-24NCVC-803-04/2018” and that any resolution “shall only be effective and implemented subject to the outcome of the appeal by the Plaza 393 MC to the Court of Appeal”. Under the circumstances, if the reconvened 6th AGM had proceeded on 28.10.2018, and if any of ESSB’s motions were passed, Plaza 393 MC would be duty bound to implement them immediately. To illustrate this point, Motion 1 as set out in paragraph 37 above, if passed, would require the management committee to prepare an audited account up to 31.12.2017 and table it within 30 days from 28.10.2018 at an Extraordinary General Meeting (‘EGM’). Resolutions made at the EGM would 30 also have to be implemented immediately and in accordance with whatever deadline set. Plaza 393 MC would then have conducted itself in a manner that would have irreversible consequences;

there appears to be an underlying motive when ESSB proposed Motion 1, namely as a means to convene an EGM and to delay the determination of contributions to the management fund and charges to be paid. Again, from a comparison between the motions proposed by the Chairman of Plaza 393 MC and Tan Kim Chooi, and ESSB’s motions, it is apparent that the motions submitted by ESSB do not mention the proposed rates of contribution to the management fund and the charges. In addition, if an EGM is indeed convened, there is a likelihood that ESSB could re-propose the motions previously proposed at the 6th AGM on 6.5.2018; and

Motion 2 to Motion 6 as submitted by ESSB, if passed at the reconvened 6th AGM would, in effect, overturn the resolutions which have been validly passed in the earlier AGMs. These 31 would surely have far-reaching consequences on Plaza 393 MC, including from the financial aspect as costs and expenses will have to be incurred to implement the resolutions, and in the event that their appeal is allowed by the Court of Appeal, further costs and expenses will be expended in order to reverse the position. Although this Court appreciates ESSB’s arguments that equity will not assist the unclean following Plaza 393 MC’s conduct in proceeding to hold the 6th AGM despite the filing of ESSB’s OS, the particular circumstances in this case, viewed in its entirety is such that it is in the best interest of all parcel proprietors that there be no further wastage of the management corporation funds by holding an AGM and/ or EGM when the dispute between ESSB and Plaza 393 MC have not been finally determined through the exhaustion of all appeal process. [42] In the upshot, many factors might constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay was refused, is one of them. This Court is of the view that based on the affidavit evidence, Plaza 393 MC has discharged the onus on it and the appeal in this case would be rendered nugatory if this Court 32 was to refuse to grant a stay of execution, especially in light of the motions proposed by ESSB and marked as exhibit “YNA-17” in Enclosure 59. [43] Thus, having taken all matters into consideration, it is just and reasonable that this Court exercises its discretion in allowing the stay application. The issues raised by Plaza 393 MC do not amount to mere inconvenience as submitted by ESSB but would result in real prejudice to Plaza 393 MC if a stay of the said HC Order is not granted. [44] There is one final point to be addressed and that is as regards delay in the filing of Enclosure 46 as alleged by ESSB. Enclosure 46 was filed by Plaza 393 MC 29 days after the said HC Order was made and with 31 days left to reconvene the 6th AGM. Although the filing of Enclosure 46 was not as prompt as it should have been, the length of time taken for the application to actually be filed in Court, to my mind, was not such as to deny the application from being heard on its merits. 33 CONCLUSION [45] Premised on the reasons as stated above, I allowed Plaza 393 MC’s application for stay of execution of the said HC Order with costs of RM4,000.00 as agreed by the parties subject to the payment of allocatur fees. (ALIZA SULAIMAN) JUDICIAL COMMISSIONER HIGH COURT NCvC 1 KUALA LUMPUR Dated: 18 February 2019 Counsels/ Solicitors: For the Applicant: Mr. Kent Chai Wai Hong (Messrs. Mah-Kamariah & Philip Koh 3A07, Block B, Phileo Damansara II 15, Jalan 16/11 Off Jalan Damansara 46350 Petaling Jaya Selangor) 34 For the Defendant: Ms. Aimee S. H. Liew (Ms. Chin Weng Yan with her) (Messrs. YH Teh & Quek Level 6, Wisma Bandar No. 18, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur)