N. Vasantha Rajan A/L Nagarajan Wasi Harta Pusaka N. Arumugam Pillai alias N.T.S Arumugam Pillai son of Nagappa Pillai v 1. ) YEOH SOON PENG (PA-22NCVC-212-11/2016)

YEOH SOON PENG (No. K/P: 680227075827)

PUSPARAJAN A/L N. ARUMUGAM PILLAI (No. K/P: 700517075361) … DEFENDAN-DEFENDAN JUDGMENT (STAY PENDING APPEAL) PRELUSION [1] On 21.7.2023, I dismissed the Plaintiff’s (P) application under Order 33 of the Rules Of Court 2012 to pose certain questions to Court. If the answers to the questions favour P, then P sought an Order to enter Judgment against the 2nd Defendant (D2). [2] As I dismissed P’s application, P appealed to the Court Of Appeal. S/N k6gSIjZw1E2MklXegNgfpQ Page 2 of 14 [3] P then files this application to stay all the proceedings in this suit until his appeal to the Court Of Appeal is determined. [4] Should I allow the stay? THE CURRENT STATUS OF THIS SUIT [5] It is now September 2023. The trial of this suit is fixed for 19 and 26 October, and 20 to 23 November 2023. In other words, the trial will start in a month. [6] The trial dates were fixed at the Pre-Trial Case Management in July 2023 (on 26.7.2023). Parties were directed to comply with pre-trial directions to get the pre-trial documents ready for trial. The pre-trial documents include the Bundle Of Pleadings, the Common Bundles Of Documents, the Chronology Of Facts, the respective Summaries Of Case, the parties’ List Of Witnesses, the Common Agreed Facts and the Agreed Issues To Be Tried. [7] Directions for the filing and exchange of Witness Statements were also given, in preparation for trial. [8] Enclosure 307 is P’s Application under Order 33 of the Rules Of Court 2012 to pose questions about the validity of the sanctions that D2 and their current solicitors: Messrs. CP Ang & Company (CP Ang) obtained from the Director General Of Insolvency (DGI), for D2 to defend against this suit and to be represented by CP Ang. S/N k6gSIjZw1E2MklXegNgfpQ Page 3 of 14 [9] On 21.7.2023, I dismissed P’s Enclosure 307. P appealed to the Court Of Appeal (P’s Order 33 Appeal). P’s Order 33 Appeal is awaiting a hearing and determination in the Court Of Appeal. [10] P files this Enclosure 339—P’s Application to stay all proceedings in this suit, including the pre-trial directions, the Witness Statement directions, and the trial itself. SUMMARY OF PREVIOUS PROCEEDINGS [11] This suit has gone up to the Court Of Appeal three times. First, the High Court dismissed P’s application for summary judgment. P appealed to the Court Of Appeal. P eventually withdrew this appeal. [12] Next, the trial of this suit was conducted and concluded. The High Court granted judgment in favour of the Defendants i.e. P’s claim was dismissed. P appealed to the Court Of Appeal. The Court Of Appeal ruled that this suit should be re-tried by another High Court Judge. [13] Then, back at the High Court, P filed two applications—(i)an application under Order 27 Rule 3 of the Rules Of Court 2012 for a judgment on the admission of facts against D2; and (ii)an application to strike out D2’s Defence and accordingly enter judgment against D2. The High Court found in P’s favour i.e. entered separate judgments against each of the Defendants. Both Defendants appealed to the Court Of Appeal. The Court Of Appeal allowed both appeals i.e. the judgments were set aside, and again reverted this suit to be tried at the High Court. S/N k6gSIjZw1E2MklXegNgfpQ Page 4 of 14 [14] P filed two Motions for leave to appeal to the Federal Court against the decisions of the Court Of Appeal. One of the Motions was dismissed. P withdrew the other Motion. [15] This suit is now back at the High Court for trial. SUMMARY OF THE PERTINENT FACTS SURROUNDING THIS SUIT [16] P obtained a Grant of Probate under N. Arumugam Pillai’s Will. P obtained the Grant of Probate in 1990. P is the executor of N. Arumugam Pillai’s estate (Estate). [17] D2 obtained a Grant of letters of administration (Grant of LA) on the ground that there was no Will. D2 is the administrator of the Estate. D2 obtained the Grant of LA in 2015. [18] D2 contends that the Will was forged. P asserts that the Will is genuine. [19] The Estate owns nine properties. D2 transmitted two of the nine properties to his name as the administrator of the Estate. [20] In this suit, P prays for a declaration that the transmission of the two properties was done fraudulently; that D2 had no right to apply for the Grant of LA; and to set aside the transmission of the two properties on the ground that it was done through fraudulent misrepresentation and fraud. [21] P is also seeking to remove the caveats lodged by the 1st Defendant (D1) on the nine properties that the Estate owns. D1 avers S/N k6gSIjZw1E2MklXegNgfpQ Page 5 of 14 that he was authorised to enter those caveats by the Estate’s administrator i.e. D2. [22] In Penang High Court Suit 46-03/2016, the High Court, by Judgment dated 30.5.2017 held that D2’s Grant of LA is null and void. The High Court set aside D2’s Grant of LA. D2 appealed to the Court Of Appeal. The Court Of Appeal struck out the appeal on a procedural technicality. The merits were not heard. So, the High Court judgment stands. The Grant of LA remains set aside. [23] D2 then commenced a fresh writ action to impeach the High Court Judgment. P applied to strike out this fresh action. The High Court struck out the fresh action. D2 appealed against the Order striking out the fresh action. D2’s Appeal is pending hearing and disposal at the Court Of Appeal. P’s APPLICATION TO STAY ALL PROCEEDINGS IN THIS SUIT [24] Enclosure 339 is P’s application to stay all pre-trial directions and the trial, pending the determination of P’s Order 33 Appeal. [25] D2, through D2’s solicitors (CP Ang), is not opposing Enclosure

CP Ang’s reason is that P’s Order 33 Appeal bears upon their authority to represent D2 in the trial. They say that they are unsure about the effects of representing D2 in the trial. If the Court Of Appeal decides to allow P’s Order 33 Application, the Court Of Appeal may hold that the DGI’s sanction for them to represent D2 is invalid. S/N k6gSIjZw1E2MklXegNgfpQ Page 6 of 14 [26] But, I would like to remark here that if both parties are expecting to get a stay of the trial merely because Enclosure 339 is unopposed, they may both be disappointed. [27] Parties agreeing or consenting to a stay Order does not fetter the Court’s discretion to grant or not to grant a stay Order. Particularly when this suit is a 2016 suit. [28] Since it is a 2016 suit, it is even more imperative that this Court is slow to entertain a stay. [29] The Court Of Appeal’s Judgment in Jagdis Singh a/l Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213 (CA); [2013] 3 CLJ 47, guide and bind me. I need only refer to a portion of paragraph [22] of the Judgment— [22] Now, what factors or principles will, and should, guide the courts in applications for a stay of an order granted by a court. These factors or principles have been reiterated in very many of cases decided by our courts. The factors or principles so enumerated are inexhaustive, and not all of them are applicable to every case. Each has its own peculiar principle. Some of the principles to be considered in the motions may be stated as follows:

(a)the courts have an unimpeded discretion to grant or refuse stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically (see Serangoon Garden Estate Ltd v Ang Keng [1953] 1 MLJ 116; Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86);

(b)an unsuccessful party applying for a stay must show 'special circumstances'. What will constitute 'special circumstances' will no doubt vary from case to case. The fact that an appeal would be S/N k6gSIjZw1E2MklXegNgfpQ Page 7 of 14 rendered nugatory if stay was refused is the most common one (see Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257; [2003] 4 CLJ 1 and Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1976] 1 MLJ 131). The application is not granted as a matter of routine and it is not an automatic or mechanical relief slavishly followed after filing an appeal. In every matter or suit before a court of law, whether in its original or appellate stage of proceedings, the court will consider the competing rights of both parties including the applicant and respondent to justice;

(c)there is a need to preserve the res or preservation of the subject matter of litigation. The courts have an obligation to protect the res for the purpose of ensuring that the appeal, if successful, will not be rendered nugatory (see Erinford Properties Ltd v Cheshire County Council [1974] 2 WLR 749). But where it is shown by affidavit evidence, say by the respondent, that the res will not be destroyed or there is in fact no res, an application may not be granted;

(d)where an application is an abuse of the court process, then the stay of proceedings will not be granted. A typical example of abuse of court process is where a suit is duplicated or where a party employs improper and perverse procedure to obtain an advantage undeservedly;

(e)it is important to stress that initiation of a suit in a court of law demands the suit will be heard expeditiously and completed without any inhibition midway. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings; it will be refused. Some applicants, on seeing the weakness of their client's case, would resort to application for stay and thereby waste the time of the other party and the court. The party simply cannot resort to the interlocutory of stay proceedings on having the slightest disagreement with any ruling S/N k6gSIjZw1E2MklXegNgfpQ Page 8 of 14 of a trial judge. Courts are enjoined not to encourage such unwholesome practice;… [emphases mine] [30] This Court has a duty to dispose of this suit justly, expeditiously and economically. It is not just, expeditious or economical to allow normal circumstances (regardless of whether the circumstances are caused by the parties themselves or not) to hold up the determination of this aged suit. [31] I have a duty to complete this suit timeously, without any prejudice to either party. P’s GROUNDS FOR A STAY OF THE TRIAL [32] P’s grounds for a stay of the trial are these. [33] First, P submits that if a stay of the trial is not granted, P’s Order 33 Appeal, if successful, will be rendered nugatory. [34] Second, P submits that if a stay of the trial is not granted, there may occur a circumstance where this Court’s Judgment after the trial is inconsistent with the outcome or effect of the Court Of Appeal’s decision on P’s Order 33 Appeal. [35] Third, P asserts that he has merits in his Order 33 Appeal. [36] Fourth, if the stay is not granted, P will suffer prejudice in the sense that P would have to waste his time and costs to continue with S/N k6gSIjZw1E2MklXegNgfpQ Page 9 of 14 this suit (“P akan mengalami prejudis kerana terpaksa membazirkan masa dan kos untuk meneruskan tindakan ini”). [37] Fifth, if a stay is granted, there is no prejudice to D2, as he can proceed to trial eventually. [38] The law is trite that to persuade the Court to exercise its discretion to grant a stay Order, P has to satisfy the Court that there are special circumstances to justify a stay of the trial. P argues that each or several of these grounds amount to the special circumstances that warrant a stay. FIRST GROUND: NUGATORINESS OF A SUCCESSFUL ORDER 33 APPEAL [39] I do not see how if P is successful in P’s Order 33 Appeal, the decision there will be rendered nugatory. When I asked P to demonstrate to me how a successful outcome in P’s Order 33 Appeal would be rendered nugatory if a stay is not granted, P was not able to do so. [40] In Enclosure 307 (P’s Order 33 Application), P posed questions about the validity of the sanction obtained by D2 and CP Ang. The questions relate to D2’s sanction to defend against this suit and CP Ang’s sanction to represent D2. P asserts that if the questions are answered in P’s favour i.e. the sanctions are invalid, then Judgment can straightaway be entered against D2. S/N k6gSIjZw1E2MklXegNgfpQ Page 10 of 14 [41] But this argument is untenable. The answers to the questions about sanction and representation do not put an end to the merits of this suit, particularly D2’s defence against P’s claim. The answers to the questions posed in Enclosure 307 should not be permitted to entirely extinguish D2’s defence, such that Judgment can be entered against him without hearing him on the merits of his Defence. [42] P is effectively arguing that if the sanction obtained by D2 and the sanction for CP Ang to act are invalid, then D2 has no defence to the claim; or that D2 should not be heard on the merits of his defence at all. That is akin to shutting D2 out of the trial process. It is akin to striking out D2’s Defence (when the issue is merely that his sanction is not valid). [43] I am of the view that since I found that P’s Order 33 Application is not the appropriate process to determine this suit, if P succeeds in his Order 33 Appeal, the likely Order that the Court Of Appeal will make is to reverse my Order. An Order reversing my Order would effectively provide that P’s Order 33 Application is indeed the appropriate procedure to utilise, and that the High Court should answer the questions posed. To answer the questions posed would necessitate the calling of evidence from the DGI as to the purpose and effect of the sanctions issued by the DGI. Only then can the High Court decide whether the sanctions are valid. [44] By this reasoning, I find no cogency in P’s point that nugatoriness is a special circumstance that justifies a stay of the trial. If the stay is not granted, and the trial proceeds, and P succeeds in his Order 33 Appeal, then the sanction issue will be an additional issue to be tried. S/N k6gSIjZw1E2MklXegNgfpQ Page 11 of 14 SECOND GROUND: POSSIBLE INCONSISTENT OUTCOMES [45] On the second ground of the possibility or likelihood of an inconsistent outcome at the High Court (after trial) and the Court Of Appeal (after P’s Order 33 Appeal), there can be two alternative outcomes. [46] The first alternative outcome is that after trial, this Court dismisses P’s claim against D2 (no Judgment entered against D2), but the Court Of Appeal allows P’s Order 33 Appeal and, by P’s argument, immediately enters Judgment against D2. This outcome would mean that judgment is entered against D2, straightaway and summarily, without hearing D2 in a trial. P argues that this is likely to happen. But with respect, I am of the opposite view. I am of the view that this outcome is not likely as it requires judgment to be entered against D2 summarily. [47] The second alternative outcome is that, after trial, this Court allows P’s claim and enters Judgment against D2, but the Court Of Appeal, by P’s argument, dismisses P’s Order 33 Appeal and also dismisses P’s claim entirely, without a trial (no Judgment against D2). Again, I find this argument untenable. If the Court Of Appeal dismisses P’s Order 33 Appeal, this suit will still have to be tried by the High Court, only that the issue of the DGI’s sanction to D2 and CP Ang may have to be canvassed and decided at trial as well. The merits of P’s claim and D2’s defence will still and should still be heard and determined. This alternative does not lead to an inconsistent outcome, as alleged. S/N k6gSIjZw1E2MklXegNgfpQ Page 12 of 14 THIRD GROUND: MERITS IN P’s ORDER 33 APPEAL [48] It is trite that an Appeal, even a meritorious Appeal is not a special circumstance, and hence is not a ground for a stay. FOURTH GROUND: PREJUDICE IN HAVING TO INCUR TIME AND COSTS [49] P asserts that if a stay is not granted, P will suffer prejudice in the sense that he will be wasting time and incurring costs to continue with this suit. [50] I do not see how P having to continue his Order 33 Appeal and continue with the trial as well is prejudicial to P. P chose to file this suit. After so many years, it is finally at trial. P chose to appeal against the Order dismissing P’s Order 33 Application. The time utilized and the costs incurred are initiated and caused by P’s own choices. This circumstance that P finds himself in is the vicissitude of his litigation choices. [51] In other words, P made choices to initiate proceedings. Legal proceedings take time and incur costs. This circumstance is hardly a special circumstance that warrants this Court to stay the proceedings that P himself initiated and progressed to after seven years. FIFTH GROUND: IF THE STAY IS GRANTED, THERE IS NO PREJUDICE TO D2 [52] P argues that if a stay is granted, there is no prejudice to D2. P argues that if P’s Order 33 Appeal is dismissed, D2 will still be able to go to trial eventually anyway. This argument is not cogent. S/N k6gSIjZw1E2MklXegNgfpQ Page 13 of 14 [53] If a stay is granted, D2 will have to wait even longer than the 7 years that he has already waited to go to trial to canvass the merits of his defence. In my view, that is part of the prejudice. [54] P might venture to argue that there is no prejudice because D2 or his solicitors are not opposing the stay. To this argument, I reiterate that D2’s counsel informs me that D2 and CP Ang are not opposing the stay purely because of the sanction issue, not because they are prepared to wait until after the Court Of Appeal’s decision on P’s Order 33 Appeal to go to trial. [55] I similarly do not find that this ground is a special circumstance that warrants a stay of the trial. CONCLUSION [56] For these reasons, I dismiss Enclosure 339—P’s application to stay the pre-trial directions and the trial—with costs of RM7K to be paid by P to the DGI for the account of D2’s estate. Dated: 12 October 2023 signed KENNETH ST JAMES Judicial Commissioner Penang High Court S/N k6gSIjZw1E2MklXegNgfpQ Page 14 of 14 Counsel/Solicitors For the Plaintiff: Loh Li Lian [Messrs. Gan Teik Chee & Ho (Pulau Pinang)] For the Defendants: Ang Khoon Cheong [Messrs. CP Ang & Co. (Pulau Pinang)] Legislation referred to:

Order 27 Rule 3 and Order 33 of the Rules Of Court 2012. Cases referred to:

Jagdis Singh a/l Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213 (CA); [2013] 3 CLJ 47. S/N k6gSIjZw1E2MklXegNgfpQ