Kanyawee Anekthanaboon v Leong Wei Pin (BA-37G-9-01/2025)

This is an appeal against the decision of the Senior Assistant Registrar (SAR) dated 25.09.2025, which allowed the Respondent’s application for stay of the garnishee proceedings filed by the Appellant until the hearing and disposal of the ongoing variation application in the Shah Alam High Court, Family Division concerning the Interim Maintenance Order dated 11.10.2024.

The Respondent filed a Divorce Petition on 05.10.2023 in the Family Court bearing the case number BA-33-748-10/2023. On the 08.02.2024, an interim maintenance notice was filed in the Family Court by the Appellant claiming maintenance for child support while awaiting the resolution of the divorce petition.

Subsequently on 06.02.2024, the Family Court issued an Interim Maintenance Order as follows: - I. Leong Wei Pin / Respondent / Husband Petitioner was ordered to pay RM6,000.00 per month as interim maintenance for the son, Leong Hao Yun starting from February 6, 2024, until the divorce petition is disposed of. II. The arrears claim of RM2,000.00 for August 2023 and RM2,000.00 for September 2023, totaling to RM4,000.00 III. The Outstanding arrears of RM6,000.00 per month from October 2023 to January 2024 totaling to RM24,000.00 to be paid within 7 days. IV. Court costs of RM3,500.00

Subsequently demand letters were issued by the Appellant’s solicitor, requesting compliance with the Interim Maintenance Order, to the Respondent. Due to the failure of the Respondent to make payments, on the 16.01.2025, garnishee proceedings were commenced for the total amount of RM103,640.00. Pursuant to the above, a show-cause order was issued to garnishee banks for further details on 06.03.2025,

However, the Respondent filed an Affidavit of Opposition to the garnishee proceedings and an Affidavit to set aside the proceedings on the grounds that the garnishee actions, have caused several banks to withhold funds in the Respondent’s accounts.

At the same time, the Respondent also filed a variation application at the Family Court, to amend the terms of the Interim Maintenance Order, namely the payment methods, joint account, submission of receipts, direct school fee, domestic helper’s salary payments.

On the 04.07.2026, the Respondents also filed a Notice of Application for stay of proceedings in Enclosure 38, to suspend all enforcement actions pending the decision on the Variation Application at the Family Court and the mediation outcome.

The SAR, allowed the Respondent’s Enclosure 38, for the stay of garnishee proceedings until the hearing and decision on the variation application at the Family Court. Consequently, the Appellant filed this Notice of Appeal against the SAR’s decision dated 25.09.2025. S/N EuEfMA1kmEaoVlombFNnw

The Appellant argues that the stay order is unjustified because the Interim Maintenance Order issued by the Family Court is final until further amendments are allowed. The variation application does not have any retrospective effect on existing arrears owed to the Appellant.

The relevant test for a stay, is whether there are any “special circumstances” shown by the Respondent in granting the stay order. Furthermore, the stay order affects the child’s welfare and the Appellant’s right to necessary maintenance which are overdue arising from an interim maintenance order. Delaying this enforcement could cause undue harm to the child’s welfare.

The Respondent argues that the variation application concerns future maintenance terms, including payment mechanisms, which could materially impact the calculation and implementation of the maintenance claim. Since this variation application is still pending in the Family court, continuing the garnishee proceedings might conflict with any future variation orders.

The SAR has the authority to stay the garnishee proceedings when special circumstances exist, taking into consideration the risk of conflicting orders from the same Family Court.

They further argue that the Interim Maintenance Order is only temporary and subject to change under the Family Court. Granting a stay of proceedings until the full determination of the Interim Maintenance Order protects the integrity of the judicial system and prevents inconsistent outcomes. Issues for Determination by the Court.

Did the SAR exercise his discretion properly by granting a stay of proceedings based on the existence of special circumstances and risk of conflicting orders?

(ii) Which legal test applies to an application for stay of execution/garnishee proceedings, is it the special circumstances test or the rare and compelling circumstances? The Relevant Law and the Factual Circumstances

In my opinion the correct legal test to apply in the present context would be the “special circumstances” and not so towards the “rare and compelling circumstances”. If both proceedings are between the same parties over family maintenance and the variation would S/N EuEfMA1kmEaoVlombFNnw only affect prospective maintenance, the classic special circumstances test for stay of execution should be adequate.

The rare and compelling circumstances is of higher level as it tends to apply where distinct proceedings such as arbitration involving non‑parties or a separate substantive action which threaten duplication or conflict. However, in this case, the real issue here is not classification but the substance of the risk of conflicting outcomes.

This court in exercising its discretion will not retry the case on the merits, but weigh the practical consequences namely the outcome of the variation application, the risk of enforcement if future maintenance order is varied and conflicting outcomes of the court’s decision.

The central issues raised by the both the Appellant and the Respondent concerns “Special Circumstances” for granting stay of proceedings by the SAR, taking into consideration, the Garnishee Proceedings at hand and the timely Variation Application to the Family Court on the Interim Maintenance Order.

In the Federal Court case of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 (“Kosma Palm Oil”), where it was held: “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 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 status quo”.

Kosma Palm Oil further goes on to explain the broad nature of phrase “special circumstances” referring to Ian Chin JC’s (as he then was) decision in Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514, it was held: “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: - 'Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, S/N EuEfMA1kmEaoVlombFNnw something that exceeds or excels in some way that which is usual or common.' “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.”

In the case of LEONG POH SHEE v NG KAT CHONG [1966] 1 MLJ 86 the High Court held the following with regards to the meaning of “special seperti berikut:- “Although the court has an unqualified discretion to grant a stay it has never been the practice to do so unless it is supported by an affidavit of special circumstances. The law on the point is well settled... … I would also adopt a passage in Mallal's Supreme Court Practice" at page 573 where the learned author said "A stay will not be allowed unless there are special circumstances". The substantial question now to be posed, as I see it, is whether the allegation that the land office might take three years to sub-divide the land in question affords special circumstances for a stay. S/N EuEfMA1kmEaoVlombFNnw 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 excells in some way that which is usual or common. For the land office to sub-divide a piece of land is common or usual. For it to do so for a period of one, two or three years is usual or common. It is nothing distinctive or out of the way and therefore, to my mind, that by itself does not constitute special circumstances to persuade the court to stay the execution.”

The stay was granted by the SAR pending the final determination of an ongoing variation application in the Family Court concerning the Interim Maintenance Order dated 11.10.2024. The proposed amendments could influence future handling of maintenance payments and could impact how payments are recognised and credited into the Appellant’s account.

In the case of Mark Sia Eng Joo (L) v Ong Wei Wei (P) & Anor [2020] MLJU 20 the High court highlighted that interim maintenance orders are meant as temporary measures and will be further addressed during the final hearing of the divorce proceedings: - S/N EuEfMA1kmEaoVlombFNnw [13] There is a real and immediate possibility of duplicity of action leading to unnecessary possibility of differing judgments by High Courts of concurrent jurisdiction into the issue which ought to be properly mitigated in the right forum as far as possible. I take judicial cognizance of the Singapore CA decision in UDA v UDB & Another (supra), where:

The Family Court on its own accord had decided to stay the hearing of the ancillary matters to allow the husband to pursue a civil action to determine the disputed property issue. The wife’s mother(intervener) appealed; and

(ii) The CA had dismissed the appeal and found that the stay had been properly declared. It was ruled that the family Court do not have jurisdiction by virtue of s.112 of the Women’s Charter (in Pari Materia with s.76 LRA) to hear, determine and make orders on claims by third party to be the legal or beneficial owner of any alleged matrimonial assets. The CA Page 9 of 10 Mark Sia Eng Joo (L) v Ong Wei Wei (P) & Anor [2020] MLJU 201 in that case had made restrictive interpretation of the phrase “between the parties” in s.112(1) which is similar to our s.76(1) to mean only disputes between the divorcing husband and the wife, not involving third parties. S/N EuEfMA1kmEaoVlombFNnw

(iii) In the event of a third party dispute on the alleged matrimonial assets the CA promulgated that an application for intervention be made in the matrimonial proceeding to enable the Family Court to be properly and formally notified of the impending third party claim on the alleged matrimonial assets for the Family Court to then act accordingly and thereafter for the third party to proceed to the Civil Court to address and establish his/her claim thereto”

In my view, there is a real risk, that enforcement actions such as freezing or withdrawing funds might interfere with future arrangements or cause discrepancies between paid and owed amounts, if at all the variation alters the payment structure.

Evidence suggests that the funds are still within the control of the court and the stay granted aims to prevent final payments until the variation is resolved. The suspension is only temporary and aligned with the full hearing of the variation application. Child welfare

The Appellant argues that the Child’s welfare is off paramount importance as the garnisheed sums are for the child’s needs and any delay may cause harm to the child’s well-being. I do agree that this court is sympathetic towards the protection of the child’s maintenance rights.

However, on a more practical note, the garnishee banks have already frozen funds and now the Respondent is unable to gain access to those funds in order to support the child’s current maintenance. Furthermore, by continuing the ongoing garnishee proceedings, may deprive the child, off funds, that the family court might reallocate or treat differently.

The Respondent’s application for a variation in the Family Court, will determine the terms of engagement as to the amounts and mechanism for future maintenance. In my opinion, the stay granted by the SAR, is a temporary postponement that preserves the status quo until the family court decides on the substantive questions on variation and thus avoids conflicting decisions.

This Court must exercise caution when the main issue involves ongoing proceedings in a different forum, namely the Family Court and the risk of conflicting decisions or irreparable harm justify maintaining the suspension until the variation is resolved.

Based on the above considerations, I find that the SAR did not error in exercising his discretion to allow the suspension of garnishee proceedings until the Family Court disposes of the variation application. His decision was reasonable, balanced, and well justified by the circumstances.

The stay granted is only temporary in nature and does not affect the Appellant’s substantive right to enforce the order if the variation is rejected by the Family Court, as well as it involves procedural matter with practical implications.

Therefore, the Appellant’s appeal is dismissed with cost and the decision of the Senior Assistant Registrar dated 25.09.2025 is upheld. Dated : 11 February 2026 sgd SHOBA DORAI RAJAH Judicial Commissioner Shah Alam High Court Peguam bagi pihak Plaintif/Pemiutang Penghakiman: Eng Khin Hock [Tetuan STEPHEN & CO] S/N EuEfMA1kmEaoVlombFNnw Peguam bagi pihak Defendan/Penghutang Penghakiman: Dinesh Venkisan [VILASINY GAN & CO.]