MOHD ARIF BIN MUDA (Beramal sebagai Perunding Arif QS) v Kerajaan Malaysia (TA-21NCvC-2-02/2020)

This is the Plaintiff's application by way of a Notice of Application filed on 30 December 2025 (Enclosure 68) seeking a certificate under Section 33 of the Government Proceedings Act 1956 (Act 359) ("GPA") against the Defendant, the Government of Malaysia, in respect of a judgment entered in favour of the Plaintiff on 20 December 2023. The application is made on the ground that the Defendant has failed, neglected, or refused to pay the judgment sum despite several demands, and more than twenty-one days have elapsed since the date of the judgment. The Defendant opposes the application principally on the basis that appeals against the judgment are pending before the Court of Appeal, and that the Defendant has filed an application for a stay of execution before the Court of Appeal.

This court heard the application on 29 April 2026. Having considered the affidavits, written submissions, and the oral submissions of counsel, this court now delivers its grounds of judgment.

The Plaintiff, Mohd Arif Bin Muda, acted as a quantity surveying consultant. He commenced this civil suit against the Government of Malaysia, claiming consultancy fees and other related sums.

A full trial was conducted over six days on 18 and 19 September 2022,22 and 23 November 2022,and 11 April 2023. Thereafter, on 20 December 2023, this Court (per Hassan Bin Abdul Ghani J) delivered judgment in favour of the Plaintiff and ordered the Defendant to pay the following sums:

Consulting fee for Tender 1: RM128,215.96;

Interest at 5% per annum on RM128,215.96 from 1 November 2009 until the date of judgment;

Exemplary damages: RM50,000.00;

Additional service costs for the extended period: RM53,597.25;

Interest at 5% per annum on RM53,597.25 from the date of summons until the date of judgment; and

Costs of RM15,000.00.

The Plaintiff, through his solicitors, served a copy of the sealed judgment on the Defendant and made repeated demands for payment by emails and letters dated 31 March 2024,1 April 2024, 20 May 2024, 18 July 2024, and 12 September 2024. Despite these reminders, the Defendant did not make any payment.

On 17 January 2024, both parties filed notices of appeal against the judgment to the Court of Appeal:

the Defendant through Civil Appeal No. T-01(NCvC)(W)-67- 01/2024, and

the Plaintiff through Civil Appeal No. T-01(NCvC)(W)-66- 01/2024. The appeals have been fixed for hearing together on 8 July 2026.

On 23 January 2026, the Defendant filed an application for a stay of execution and enforcement of the judgment under Section 44 of the Courts of Judicature Act 1964 (Act 91) before the Court of Appeal (via Notice of Motion - Enclosure 36). That application is fixed for case management on 5 February 2026 and for hearing on 15 May 2026.

The Plaintiff filed the present application for a Section 33 certificate on 30 December 2025. The Defendant filed an affidavit in reply on 4 February 2026 (Enclosure 71), and the Plaintiff filed a reply affidavit on 19 February 2026 (Enclosure 72). Both parties thereafter filed written submissions and reply submissions.

The following issues arise for determination:

Whether the Plaintiff has satisfied the prerequisites for the issuance of a certificate under Section 33(1) of the GPA;

Whether this court has a discretion under Section 33(1) to refuse to issue the certificate even if the prerequisites are met;

Whether the pendency of appeals and the Defendant's application for a stay of execution before the Court of Appeal are valid grounds to refuse the issuance of the certificate or to suspend payment under the proviso to Section 33(3) of the GPA; and

Whether, in the absence of a formal application by the Defendant under the proviso to Section 33(3), this court can nevertheless order a suspension of payment pending the appeals. COUNSELS' CONTENTIONS Plaintiff's Submissions

Learned counsel for the Plaintiff contends that the Plaintiff has fully complied with the requirements of Section 33(1) of the GPA. A valid judgment has been obtained against the Government, and the application was filed more than twenty-one days after the date of the judgment. Counsel relies on Cheong Wai Kwan & Anor (sebagai wasi dan pemegang amanah kepada harta Cheong Weng Sun, si mati) v Pentadbir Tanah Petaling & Anor (Pentadbir Hakmilik Tanah Negeri Selangor & Anor, third parties) [2021] MLJU 31 (HC) for the proposition that once these two prerequisites are satisfied, the court ought to issue the certificate.

On the issue of the pending appeals, learned counsel for the Plaintiff submits that the existence of an appeal is not a bar to the issuance of a Section 33 certificate. He relies on Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (No 2) [1997] 5 MLJ 432 (HC) and Tan Hak Ju v Ketua Menteri Negeri Pulau Pinang and Others [2009] MLJU 825 (CA). In Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (No 2) (supra), the court held that since Section 73 of the Courts of Judicature Act 1964 provides that an appeal shall not operate as a stay of execution unless the court below or the Court of Appeal so orders, and there was no stay order obtained, the certificate was properly issued. In Tan Hak Ju v Ketua Menteri Negeri Pulau Pinang and Others (supra), the Court of Appeal stated in clear terms that a certificate under Section 33 GPA can be issued even when an appeal is still pending, subject to the court's discretion to suspend payment under the proviso to Section 33(3).

The Plaintiff further argues that the Defendant has not obtained any order for a stay of execution from any court. The mere filing of a stay application before the Court of Appeal does not operate as a stay. Moreover, the Defendant did not file any formal application before this court under the proviso to Section 33(3) seeking a suspension of payment. Relying on Global Upline Sdn Bhd v Kerajaan Malaysia [2015] MLJU 423 (HC) per S Nantha Balan JC (as His Lordship then was), the Plaintiff submits that an oral request or a mere assertion that an appeal is pending is insufficient to invoke the court's discretion to suspend payment. The Defendant must satisfy the court by affidavit that there are circumstances warranting suspension. The Defendant has failed to do so.

The Plaintiff also emphasises that he has no other means to enforce the judgment against the Government, as Section 33(4) of the GPA expressly prohibits execution, attachment, or any similar process against the Government. The only remedy available to a judgment creditor against the Government is the Section 33 certificate. Accordingly, to deny the certificate would effectively render the judgment illusory and deprive the Plaintiff of the fruits of his litigation.

Learned Senior Federal Counsel does not dispute that the Plaintiff has obtained a valid judgment and that the application was filed after twenty-one days. Learned SFC concedes that the formal prerequisites under Section 33(1) have been met.

However, learned SFC argues that Section 33(1) does not make it mandatory for the court to issue a certificate regardless of the circumstances. It is submitted that the court retains a discretion whether or not to issue the certificate. In support, the counsel relies on Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors [2023] MLJU 276 (HC) per Tee Geok Hock J, which in turn interpreted the Federal Court decision in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (FC).

Learned SFC highlights that in Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors (supra), the court held that under Section 33(1) the court has a discretion whether to issue a certificate and as to the terms of the certificate. Only after a certificate is issued does Section 33(3) impose a mandatory obligation on the Government to pay.

Learned SFC further relies on the proviso to Section 33(3), which empowers the court that made the order, or the court to which an appeal lies, to direct that payment of the whole or any part of the judgment sum be suspended pending an appeal or otherwise. Learned SFC contends that this court should exercise its discretion under the proviso to suspend payment until the appeals are finally determined by the Court of Appeal.

Learned SFC advances several factual considerations in support of a suspension. First, the appeals have been fixed for hearing together on 8 July 2026, which is only about three months away. Second, the Defendant's application for a stay of execution under Section 44 of the Courts of Judicature Act 1964 is pending before the Court of Appeal and is fixed for hearing on 15 May 2026. Third, payment by the Government would involve processes by the Malaysian Treasury, which take time. Fourth, the Plaintiff is a sole proprietorship without a separate legal entity from its owner, and there is a real risk that if the Government pays now and succeeds on appeal, recovery of the judgment sum would be difficult, rendering the appeal nugatory. Fifth, in the context of current economic uncertainties, a prudent approach to public fund management is warranted. Sixth, the Plaintiff's rights would not be prejudiced by a suspension because the Government has the capacity to pay if the Plaintiff ultimately succeeds on appeal.

Learned SFC also submits that the court should take into account the factors and circumstances peculiar to the Government as recognised in Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors (supra), which include the need to balance justice to the Government against justice to the private judgment creditor. Learned SFC asserts that Defendant has no intention to default or disobey the judgment; compliance is merely deferred pending the final disposal of the appeals. COURT'S EVALUATION AND FINDINGS ISSUE 1: Whether the prerequisites for a Section 33 certificate are satisfied

It is common ground between the parties that the Plaintiff has obtained a final judgment against the Government dated 20 December 2023, and that the present application was filed on 30 December 2025, which is well after the twenty-one-day period prescribed by Section 33(1) of the GPA. The formal statutory prerequisites are therefore satisfied. Indeed, the Defendant expressly admitted this in paragraph 8 of its written submissions (Enclosure 75) and reiterated in its reply submissions (Enclosure 79). The court accordingly finds that the prerequisites have been met. ISSUE 2: Whether the court has a discretion under Section 33(1) to refuse to issue the certificate

The critical question is whether, once the prerequisites are satisfied, the court is bound to issue the certificate, or whether the court retains a residual discretion to refuse the certificate. The Plaintiff, relying on Cheong Wai Kwan & Anor (sebagai wasi dan pemegang amanah kepada harta Cheong Weng Sun, si mati) v Pentadbir Tanah Petaling & Anor (Pentadbir Hakmilik Tanah Negeri Selangor & Anor, third parties) (supra), argues that the satisfaction of the two prerequisites compels the issuance of the certificate. The Defendant, relying on Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors (supra) and Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd (supra), argues that the court has a discretion under Section 33(1).

The court has carefully examined the relevant authorities. In Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors (supra) and Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd (supra), the Federal Court was primarily concerned with the effect of a certificate once issued. Abdul Hamid Mohamad CJ stated that once a certificate is issued and duly served, it is obligatory on the State Government to make payment under Section 33(3). The Federal Court also noted that Section 33(4) prohibits ordinary execution against the Government. However, the Federal Court did not expressly rule on whether the court has a discretion under Section 33(1) to refuse a certificate. The issue was not central to that case.

The High Court in Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors (supra) undertook a comprehensive analysis of Section 33. After considering the legislative history, the context, and the express words of the proviso to Section 33(3), the court held (at paragraph [26]) that "Section 33(1) does not make it mandatory for the Court to issue the section 33(1) certificate irrespective of the circumstances of the case." This court respectfully agrees with that reasoning. If Parliament had intended the issuance of a certificate to be automatic and mandatory upon satisfaction of the two prerequisites, there would be no need for the proviso to Section 33(3) which expressly grants the court power to suspend payment pending an appeal, and to direct that such suspension be inserted into the certificate before it is issued. The proviso implicitly acknowledges that the court retains control over the certificate and its terms. A discretion to suspend payment would be meaningless if the court had no discretion to delay the issuance of the certificate itself. Furthermore, the use of the word "shall" in Section 33(1) ("the proper officer of the court shall ... issue ... a certificate") must be read in the context of the application being made "on an application in that behalf". The court must first consider that application. If the court finds that there are good reasons not to issue the certificate or to issue it on specific terms, it would be open to the court to refuse the application or to direct that the certificate be issued only after certain conditions are met or with a suspension direction.

The court therefore finds that Section 33(1) of the GPA does confer a discretion on the court to refuse to issue a certificate, or to issue it with terms, where the facts and circumstances of the case so warrant. The discretion must, of course, be exercised judicially and not arbitrarily. ISSUE 3: Whether the pendency of appeals and the stay application warrant refusal of the certificate or suspension of payment

The Defendant asks this court either to refuse the certificate altogether or, alternatively, to suspend payment under the proviso to Section 33(3) pending the outcome of the appeals. The Plaintiff contends that the mere pendency of an appeal is not a sufficient ground.

The court accepts, as a general proposition, that the existence of an appeal does not automatically bar the issuance of a Section 33 certificate. Both Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (No 2) (supra) and Tan Hak Ju v Ketua Menteri Negeri Pulau Pinang and Others (supra) stand for that proposition. However, those cases also recognise that the court may, in its discretion, order a suspension of payment pending appeal under the proviso to Section 33(3). The proviso expressly contemplates that a court may direct that payment be suspended "pending an appeal or otherwise". It would be anomalous if the court could suspend payment under the proviso but could not, in an appropriate case, refuse to issue the certificate altogether where the circumstances overwhelmingly favour a stay. The power to suspend payment is a lesser power; the power to refuse the certificate is the greater power. In this court's view, if the proviso permits suspension of payment, the court's discretion under Section 33(1) to determine whether to issue a certificate at all must be at least as broad.

The real question is whether, on the facts of this case, the court should exercise its discretion in favour of the Defendant. The Defendant points to the fact that the appeals have been fixed for hearing on 8 July 2026, which is only about three months away. The Defendant also has a pending stay application before the Court of Appeal fixed for hearing on 15 May 2026. The Defendant asserts that it has no intention to default; it merely seeks to defer payment until the appeals are resolved.

The Plaintiff, on the other hand, has been kept out of the judgment sum for more than two years since the judgment was delivered on 20 December 2023. The Plaintiff has made repeated demands since March 2024. The Defendant did not file any stay application until 23 January 2026, which was after the Plaintiff had filed the present Section 33 application on 30 December 2025. The Defendant's application before the Court of Appeal appears to have been prompted by the Plaintiff's enforcement action. The Defendant did not, at any point, apply to this court under the proviso to Section 33(3) for a suspension of payment, nor did it seek a stay of execution from the trial court before filing the appeal. The Defendant simply withheld payment on its own accord, relying on the pendency of the appeals. That is not permissible. Section 73 of the Courts of Judicature Act 1964 is clear: an appeal shall not operate as a stay of execution unless the court below or the Court of Appeal so orders. No such order has been obtained.

The court has also considered the factors enumerated by the Defendant, including the alleged difficulty of recovery if the Government succeeds on appeal because the Plaintiff is a sole proprietorship. That argument cuts both ways. If the Defendant is ultimately unsuccessful on appeal, the Plaintiff would have been further delayed in receiving payment. The Government of Malaysia is a permanent and substantial entity; there is no evidence that it would be unable to recover money paid if the appeal succeeds. The Government has legal remedies to recover overpayments, including by way of restitution. The mere fact that the Plaintiff is a sole proprietorship does not, without more, create a real and substantial risk that recovery would be impossible. The Defendant has not adduced any specific evidence that the Plaintiff would dissipate or abscond with the funds. The court finds that the risk of the appeal being rendered nugatory is not sufficiently established on the evidence.

The court also notes that the Defendant only raised the issue of the Plaintiff's business structure in its written submissions. It was not pleaded in the affidavit in reply. The affidavit merely stated, in a conclusory manner, that there is a "reasonable risk" of difficulty of recovery. No factual foundation was laid. Accordingly, the court places little weight on this submission.

The court is also mindful of the unique position of a judgment creditor against the Government. Section 33(4) of the GPA expressly removes the ordinary remedies of execution and attachment. The Section 33 certificate is the sole statutory mechanism for a successful litigant to compel the Government to satisfy a judgment. If this court were to refuse the certificate or suspend payment indefinitely, the Plaintiff would be left without any remedy. The Plaintiff has already waited more than two years since the judgment. The appeals are only fixed for hearing in July 2026, and there can be no guarantee that they will be finally determined on that date, or that there will not be further appeals to the Federal Court. To further delay the Plaintiff's right to enforce his judgment would, in the circumstances of this case, amount to a denial of justice.

The Plaintiff's reliance on Global Upline Sdn Bhd v Kerajaan Malaysia (supra) is instructive. In that case, the court rejected an oral application for suspension of payment under the proviso to Section 33(3) made by Federal Counsel, holding that the mere existence of an appeal was insufficient and that the Government must satisfy the court by affidavit that there are circumstances warranting suspension. The court observed (at paragraph [51]) that if nothing is shown to the court and reliance is placed on the mere fact that there is an appeal, then a suspension would be an erroneous exercise of discretion. Applying that principle here, the Defendant has not filed any application under the proviso before this court, and has not placed sufficient material before this court to justify a suspension. The bare assertion that an appeal is pending, without more, is not enough.

This does not mean that the court ignores the legitimate interest of the Government in preserving public funds pending an appeal. The proviso to Section 33(3) exists precisely to allow the court to balance the interests of the judgment creditor and the Government. However, that balance must be struck on proper evidence and through a proper application. The Defendant could have applied to this court, either before or after filing the appeal, for a suspension of payment under the proviso. It did not do so. Instead, it simply withheld payment and now invites this court, in an application for a certificate, to effectively grant a stay by refusing the certificate. This court is not persuaded that such an indirect approach is appropriate. ISSUE 4: Whether the court can order suspension without a formal application by the Defendant

The Defendant did not file any cross-application or notice of motion under the proviso to Section 33(3) before this court. The Defendant merely raised the issue of suspension in its affidavit in reply and written submissions. The Plaintiff objects, relying on Global Upline Sdn Bhd v Kerajaan Malaysia (supra), that a formal application supported by affidavit is required.

The court agrees with the Plaintiff. The proviso to Section 33(3) empowers the court to direct that payment be suspended. That power is invoked by an application, either by the Government or by the judgment creditor, but it should be done by way of a formal application supported by evidence. The Court in Global Upline Sdn Bhd v Kerajaan Malaysia (supra) held that an oral request is insufficient. By analogy, a request buried within an affidavit in opposition to a Section 33 application, without a formal notice of motion, does not properly invoke the court's discretion under the proviso. The Defendant had ample opportunity to file such an application but chose not to. The court is therefore not inclined to grant a suspension of payment in the absence of a proper application.

In the final analysis, the court finds as follows:

The Plaintiff has satisfied the prerequisites for a certificate under Section 33(1) of the Government Proceedings Act 1956: there is a valid judgment against the Government, and the application was made after the expiry of twenty-one days.

While the court has a discretion under Section 33(1) to refuse to issue a certificate or to issue it with terms, that discretion must be exercised judicially. On the facts of this case, there is no compelling reason to refuse the certificate.

The Defendant has not obtained any order for a stay of execution from the trial court or the Court of Appeal. The mere pendency of appeals does not operate as a stay.

The Defendant has not made a proper application under the proviso to Section 33(3) before this court for suspension of payment, nor has it placed sufficient evidence before the court to justify a suspension. The bare fact that appeals are pending, without more, is not sufficient.

The Plaintiff, as a judgment creditor against the Government, has no alternative remedy to enforce the judgment other than the Section 33 certificate. To deny the certificate would render the judgment nugatory and cause grave injustice to the Plaintiff.

Accordingly, the court hereby allows the Plaintiff's application in Enclosure 68. The court orders that a certificate in the prescribed form under Section 33 of the Government Proceedings Act 1956 be issued by the proper officer of this court against the Defendant in respect of the judgment dated 20 December 2023. The certificate shall state the amounts payable as set out in the judgment, together with interest accrued up to the date of the certificate.

The court makes no order as to suspension of payment under the proviso to Section 33(3), as no proper application has been made by the Defendant. The Defendant remains free to pursue its pending application for a stay of execution before the Court of Appeal. However, pending any stay order from the Court of Appeal, the certificate shall be issued and may be served by the Plaintiff on the Defendant, and the Defendant shall be obliged to make payment in accordance with Section 33(3) of the GPA.

Costs of RM3,000.00 for this application are awarded to the Plaintiff, to be paid by the Defendant.

The court expresses no view on the merits of the pending appeals, which will be determined by the Court of Appeal in due course. Dated: 7 June 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu For the Plaintiff: Fozi Addhwa (together with Abdul Aziz Hassan) Messrs Nordin Kassim & Aziz, No.134-L, Tingkat 2, Jalan Sultan Zainal Abidin, 20000 Kuala Terengganu, Terengganu Darul Iman. For Defendant: SFC Norhanum Binti Hassan (together with SFC Husniyyah Binti Hanapi) Attorney General's Chambers (Civil Division), No.45, Persiaran Perdana 62100 Putrajaya.

Cheong Wai Kwan & Anor (sebagai wasi dan pemegang amanah kepada harta Cheong Weng Sun, si mati) v Pentadbir Tanah Petaling & Anor (Pentadbir Hakmilik Tanah Negeri Selangor & Anor, third parties) [2021] MLJU 31 (HC).

Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (No 2) [1997] 5 MLJ 432 (HC).

Tan Hak Ju v Ketua Menteri Negeri Pulau Pinang and Others [2009] MLJU 825 (CA).

Global Upline Sdn Bhd v Kerajaan Malaysia [2015] MLJU 423 (HC).

Rajamani A/P Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors [2023] MLJU 276 (HC).

Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641 (FC).

Section 33 of the Government Proceedings Act 1956.

Sections 44 & 73 of the Courts of Judicature Act 1964.