Ismail Khoo & Associates (sebagai sebuah firma guaman) v Yeoh Yih Terk (PA-24NCvC-774-08/2022)

if a stay of execution is not granted, he will be forced (memaksa saya membuat bayaran) to pay the judgment sum to P;

it is highly likely (kemungkinan besar) that D cannot get back the money paid, if he succeeds in his Appeal;

any payment that D makes to P will destroy the substratum of his Appeal;

there is an error or uncertainty (kesilapan, ketidaktentuan atau ketidakpastian) in the Judgment, where it is stated that the subject Retainer Agreement dated 19.11.2021 is for an incorrect amount. THE LAW [5] As I consider D’s grounds, these are the principles that I must heed, and that bind me. [6] First, an appeal does not operate as a stay of execution. This is provided in section 73 of the Courts Of Judicature Act 1964. Section 73 is set out below— Section 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. [7] The High Court has an “absolute and unfettered discretion as to the granting or refusing of a stay”, and will only grant a stay if there are “special circumstances”— Che Wan Development Sdn. Bhd. v Co-Operative Central Bank Bhd [1990] 2 MLJ 265 (HC); [1989] 1 CLJ Rep 366; [1989] 1 MLRH 267. [8] The special circumstances principle is entrenched in our case law. And the special circumstances must be deposed to in the affidavit supporting the stay of execution Application—Kosma Palm Oil Mill v Koperasi Serbausaha Makmur Berhad [2004] 1 MLJ 257 (FC); [2003] 4 CLJ 1; [2003] 1 MLRA 536. [9] The Court will not normally grant a stay of execution for a monetary judgment. And the fact that the monetary judgment is for a large sum of money does not constitute special circumstances—Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased) v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224 (HC); [1996] 2 CLJ 353; [1995] 3 AMR 2313; [1995] 4 MLRH 45. Wu Shu Chen (supra) is also cited with approval in Renew Capital Sdn Bhd & 4 Ors v ADM Ventures (M) Sdn Bhd & Anor [2022] 6 MLJ 58 (CA); [2022] 8 CLJ 817; [2022] 5 MLRA 303. [10] D’s first ground—if a stay of execution is not granted, then D has to pay the judgment sum. I find this ground to be misconceived. Where there is a judgment to pay a monetary sum, D must pay that sum. [11] D’s second ground—if he wins his Appeal, it is highly likely that D cannot get back the money paid to P. I find that there is no evidence, or even evidential material from which an inference can be made—that P cannot pay the judgment sum back if D’s Appeal is wholly allowed. [12] Instead, the evidence discloses that P is a firm of 32 years standing, which makes it, among other things, reputable and well-established. This ground is untenable. [13] D’s third ground—any payment made will destroy the substratum of the Appeal. It appears to me that this “principle” (if it is at all a principle of law governing stay applications)—is not in line with modern and contemporaneous principles such as:

a purely monetary judgment should not be stayed in its execution; and

(ii) the successful litigant should be allowed to enjoy the fruits of his or her litigation. [14] I can only say that the authority that D relies on—Metropolitan Real and General Property Trust Ltd v Slaters and Bodega Ltd: Regal Property Trust Ltd v Slaters and Bodega Ltd; Freehold and Leasehold Investment Co Ltd v Slaters and Bodega Ltd [1941] 1 All ER 310 (UKCA)—is a 1941 case; that it is a UK jurisdiction case; and that it seemed to be about the UK Court (Emergency Powers) Act of 1939. I am not minded to apply this outdated UK case law authority to the facts and circumstances surrounding this stay application. [15] D’s fourth ground—there is an error or uncertainty in the Judgment, where it is stated that the subject Retainer Agreement dated 19.11.2021 is for an erroneous amount. [16] I do not consider this ground, even if it is correct, as a special circumstance that warrants a stay Order. I would like to point out that there were two Agreements between P and D for RM300K each, not for an aggregate of only RM300K. [17] Lastly, D asks this Court to consider granting a conditional stay, in the following manner—D is to pay a sum that is less than the full judgment sum of RM450K, but higher than the sum of RM30K that he had earlier offered to pay P (which was rejected), into Court, and D be granted a stay. [18] I do not see the purpose or even utility of such a condition. The payment does not satisfy the judgment sum, such that all that P had to do is to wait for the outcome of the Appeal, and if P wins, the money will then be released to P. [19] One last point by D—the Court Of Appeal hearing is fixed for 8.5.2024, a mere two weeks away. I am, however, of the view that the fact that the Appeal hearing is nearby, is not a special circumstance that compels a stay of execution of a monetary judgment. CONCLUSION [20] For these reasons, I dismiss D’s stay Application with costs of RM7K to be paid by D to P by 24.5.2024. Costs are subject to the allocator. Dated: 2 May 2024 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Plaintiff: John Khoo & Wei Wai Keong [Messrs. Ismail Khoo & Associates (Pulau Pinang)] For the Defendant: Sangeet Kaur Deo & Tan Chee Kian [Messrs. Karpal Singh & Co. (Pulau Pinang)] Legislation referred to:

Section 73 of Courts of Judicature Act 1964. Cases referred to:

Che Wan Development Sdn. Bhd. v Co-Operative Central Bank Bhd [1990] 2 MLJ 265 (HC); [1989] 1 CLJ Rep 366; [1989] 1 MLRH 267.

Kosma Palm Oil Mill v Koperasi Serbausaha Makmur Berhad [2004] 1 MLJ 257 (FC); [2003] 4 CLJ 1; [2003] 1 MLRA 536.

Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased) v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3 MLJ 224 (HC); [1996] 2 CLJ 353; [1995] 3 AMR 2313; [1995] 4 MLRH 45.

Renew Capital Sdn Bhd & 4 Ors v ADM Ventures (M) Sdn Bhd & Anor [2022] 6 MLJ 58 (CA); [2022] 8 CLJ 817; [2022] 5 MLRA 303.

Metropolitan Real and General Property Trust Ltd v Slaters and Bodega Ltd: Regal Property Trust Ltd v Slaters and Bodega Ltd; Freehold and Leasehold Investment Co Ltd v Slaters and Bodega Ltd [1941] 1 All ER 310 (UKCA).