Sim Chon Siang v Yu Chee Hong @ Looi Chee Hong (WA-23CY-41-11/2024)

This is the Court's Grounds of Judgment in respect of the Defendant's application in Enclosure 89 seeking an order for a stay of execution of the Judgment in Default entered on 20 March 2025 together with the Order made after the assessment of damages dated 5 November 2025 pending the disposal of the Defendant's appeal to the Court of Appeal.

In the alternative, the Defendant sought a conditional stay upon the payment of RM200,000 to the Plaintiff's solicitors as stakeholders pending the disposal of the appeal.

After hearing learned counsel for both parties, considering the affidavits filed, the written submissions, the authorities relied upon and the applicable legal principles, this Court allowed the application by granting a conditional stay of execution subject to the conditions imposed by the Court.

As the Plaintiff has appealed against that decision, these are the Grounds of Judgment.

The present application arises from a Judgment in Default entered against the Defendant on 20 March 2025.

Subsequently, damages were assessed and the Court made an Order after Assessment of Damages on 5 November 2025.

The Defendant thereafter applied to set aside the Judgment in Default. That application was dismissed by this Court.

Being dissatisfied with the dismissal of the application to set aside the Judgment in Default, the Defendant lodged an appeal to the Court of Appeal.

Pending the disposal of that appeal, the Defendant filed the present application seeking a stay of execution of both the Judgment in Default and the consequential Order after Assessment of Damages.

The Defendant advanced several grounds in support of the application.

Amongst others, it was contended that:

the judgment sought to be executed was not obtained after a full trial but was a Judgment in Default;

the appeal raises substantial questions of law;

the judgment contains both monetary and non-monetary relief, including mandatory and prohibitory orders;

the order requiring an apology raises an arguable legal issue in light of the recent Court of Appeal decision in Tan Sing How & Ors v Ng Ze Xuan [2026] MLJU 2283; and

in any event, the Defendant was prepared to provide security by depositing RM200,000 should a conditional stay be granted.

The Plaintiff opposed the application.

The Plaintiff submitted that none of the matters relied upon constituted "special circumstances" within the meaning of the authorities governing stay of execution and that the Defendant was merely inviting this Court to revisit the correctness of its own earlier decision.

The governing principles are well established.

Section 73 of the Courts of Judicature Act 1964 provides that an appeal does not operate as a stay of execution unless the Court otherwise orders.

Likewise, Order 45 rule 11 of the Rules of Court 2012 preserves the Court's discretion to order a stay where appropriate.

It is equally well settled that the burden rests upon the applicant to demonstrate the existence of special circumstances justifying the exercise of the Court's discretion.

This principle has consistently been recognised in decisions such as Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbusaha Makmur Bhd. [2004]1 MLJ 257, Hongkong Bank Malaysia Bhd v Wexcel Holdings & Ors [2005] 2 MLJ 616, Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47, and the other authorities relied upon by the parties.

At the same time, the Court also accepts the observations of the Court of Appeal in Low Nam Hui & Sons Sdn Bhd v Huang Yan Teo [2007] 7 MLJ 13, namely that the categories of special circumstances are not closed and that whether such circumstances exist depends upon the particular facts of each case viewed as a whole.

It is therefore necessary to distinguish between factors which, viewed individually, are insufficient to justify a stay, and the Court's ultimate exercise of discretion after considering the cumulative effect of all relevant circumstances. E. ANALYSIS ISSUE 1 - Whether the Defendant has established special circumstances warranting a stay of execution

The principal issue before this Court is whether the Defendant has discharged the burden of establishing the existence of special circumstances sufficient to justify a stay of execution pending the disposal of the appeal.

The Defendant relied upon several grounds in support of the application. These included the fact that the judgment sought to be executed was a Judgment in Default rather than one obtained after a full trial, that the pending appeal raises arguable questions of law, that the Judgment contains both monetary and non-monetary relief including mandatory and prohibitory orders, and that the Defendant was prepared to provide security by depositing RM200,000 should a conditional stay be granted.

While each of those submissions has been carefully considered, this Court is unable to accept that any of them, viewed individually, constitutes a special circumstance within the established principles governing applications for stay of execution.

(A) Judgment in Default

The Defendant first submitted that the Judgment sought to be executed was entered in default and not after a full trial. It was argued that such a circumstance distinguishes the present case from the ordinary execution of a judgment following a contested hearing.

With respect, this Court is unable to accept that submission.

The fact that a judgment was obtained by way of a Judgment in Default does not, without more, diminish its legal effect. A Judgment in Default regularly entered remains a valid and enforceable judgment of the Court unless and until it is set aside or varied by a court of competent jurisdiction.

The Court is therefore unable to accept that the mere characterisation of the judgment as a Judgment in Default constitutes a special circumstance justifying a stay.

To hold otherwise would effectively mean that every unsuccessful application to set aside a Judgment in Default would ordinarily be followed by a stay pending appeal. Such an approach would be inconsistent with section 73 of the Courts of Judicature Act 1964, which expressly provides that an appeal does not operate as a stay unless the Court otherwise orders.

(B) Merits of the Appeal

The Defendant further submitted that the appeal raises substantial questions capable of succeeding before the Court of Appeal.

Again, this Court is unable to accept that submission as a sufficient ground for the present application.

The established authorities have consistently held that the Court hearing a stay application should not embark upon a detailed assessment of the correctness of its own decision or attempt to predict the eventual outcome of the pending appeal. Such an exercise would inevitably trespass into matters reserved for the appellate court.

The Court therefore declines the invitation to determine whether the Defendant's appeal is likely to succeed.

Whether the Judgment in Default ought to have been set aside and whether this Court erred in dismissing that application are matters exclusively within the jurisdiction of the Court of Appeal.

Consequently, the alleged merits of the pending appeal cannot, standing alone, constitute the special circumstances required to justify a stay of execution.

(C) The reliance on Tan Sing How

Learned counsel for the Defendant also relied heavily upon the recent Court of Appeal decision in Tan Sing How & Ors v Ng Ze Xuan [2026] MLJU 2283, particularly in relation to the observations made concerning the appropriateness of an order requiring an apology in a defamation action.

This Court accepts that the decision demonstrates the existence of an arguable legal issue concerning the scope of relief which may properly be granted in defamation proceedings.

Indeed, questions concerning the appropriateness of mandatory apology orders are matters capable of legitimate appellate consideration.

Nevertheless, the existence of an arguable point of law does not automatically translate into the existence of special circumstances for the purpose of obtaining a stay.

The Court of Appeal decision relied upon concerns the substantive determination of the appeal before it. It does not lay down any separate principle that whenever such an issue arises, execution ought automatically to be stayed.

Accordingly, while the Defendant has succeeded in demonstrating that the appeal raises legal issues worthy of consideration by the appellate court, this Court is unable to accept that this factor, standing by itself, satisfies the legal threshold required for the grant of a stay.

(D) The offer to deposit RM200,000

Considerable reliance was also placed upon the Defendant's willingness to deposit RM200,000 as security pending the appeal.

The Court appreciates the significance of that offer.

However, the offer of security does not itself create a right to a stay.

Rather, security only becomes relevant after the Court is satisfied that there exists a proper basis upon which its discretion may be exercised.

The Court therefore does not regard the proposed deposit as constituting a special circumstance in itself.

Having considered each of the Defendant's submissions individually, this Court is not persuaded that any one of them satisfies the established requirement of special circumstances.

The Court therefore rejects the proposition that the present application ought to succeed merely because the judgment was entered in default, because the Defendant believes the appeal possesses substantial merit, because an arguable legal issue exists regarding the apology order, or because the Defendant has offered security.

If the Court's enquiry were to end at this stage, the application would necessarily fail. ISSUE 2 - Whether the Court should nevertheless exercise its discretion to grant a conditional stay

Although this Court has rejected each of the Defendant's individual grounds as constituting special circumstances in their own right, the Court does not consider that the enquiry ends there.

The discretion to grant a stay of execution is, ultimately, a judicial discretion. Like all judicial discretions, it must be exercised not mechanically, but judicially, upon a consideration of the entirety of the facts and circumstances of the particular case.

This Court is mindful that the authorities consistently emphasise that the categories of special circumstances are not closed. Whether such circumstances exist cannot be determined by examining each individual factor in isolation. Rather, the Court must consider the cumulative effect of all relevant circumstances and determine whether, viewed as a whole, the interests of justice justify intervention.

In this regard, this Court respectfully adopts the observations of the Court of Appeal in Low Nam Hui & Sons Sdn Bhd v Huang Yan Teo [2007] 7 MLJ 13, namely that circumstances which may not individually amount to special circumstances may nevertheless, when considered collectively, justify the exercise of the Court's discretion.

In the present case, this Court is satisfied that while none of the Defendant's individual arguments crosses the legal threshold by itself, the overall circumstances of the case require a broader consideration of the competing interests of both parties. The balance of justice

The Plaintiff, as the successful litigant, is undoubtedly entitled to enjoy the fruits of the Judgment obtained.

That principle remains fundamental and has not been displaced.

Equally, however, the Court cannot disregard the fact that the Defendant has exercised his statutory right of appeal and that such appeal remains pending before the Court of Appeal.

The Court's task is therefore not to determine which party should ultimately succeed, but rather to ensure that, pending the appellate process, justice is fairly balanced between both parties.

The Court is satisfied that several circumstances assume significance when viewed collectively.

First, the appeal has been filed promptly and there is no suggestion that the appeal itself is frivolous or brought merely for purposes of delay.

Secondly, the Judgment sought to be executed is not confined to the payment of damages alone. It also contains mandatory and prohibitory relief affecting future conduct.

Thirdly, should those non-monetary orders be fully executed before the appeal is heard, certain consequences may not readily be reversible even if the appeal subsequently succeeds.

This observation is made not because the Court accepts the Defendant's legal submissions concerning those reliefs, but because the practical consequences of execution form part of the overall factual matrix which the Court is entitled to consider in exercising its discretion.

The Court therefore considers that the present application cannot properly be analysed as though it concerns an ordinary money judgment alone.

While monetary awards are ordinarily capable of restitution, the execution of mandatory or prohibitory relief may involve consequences which are not always capable of being restored to the status quo with complete precision.

It is this practical consideration, rather than the correctness of the Judgment itself, which forms part of the Court's assessment. The Defendant's offer of security

The Court further takes into account the Defendant's express willingness to provide security by depositing RM200,000 pending the disposal of the appeal.

The Court reiterates that this offer does not, by itself, create any entitlement to a stay.

Neither does it amount to a special circumstance.

However, once the Court reaches the stage of considering whether its discretion should be exercised, the existence of adequate security assumes legitimate significance.

The proposed security substantially reduces the potential prejudice to the Plaintiff should execution be temporarily postponed.

Conversely, it also preserves the Defendant's position pending the determination of the appeal.

The Court therefore regards the proposed security as an important factor in balancing the competing interests of both parties. The cumulative effect

Having regard to all the circumstances, this Court is satisfied that the present case is not one in which any single factor justifies a stay.

Rather, it is the cumulative effect of the following circumstances:

the pending appeal;

the nature of the relief granted in the Judgment;

the practical consequences of immediate execution;

the preservation of the status quo pending the appellate process; and

the Defendant's willingness to furnish substantial security, which persuades the Court that the balance of justice favours the grant of a conditional stay.

It is important to emphasise that this conclusion should not be misunderstood as lowering the established threshold governing applications for stay of execution.

This Court does not hold that every Judgment in Default, every arguable appeal, or every offer of security justifies a stay. Nor does this Court depart from the established principle that an appeal does not operate as a stay.

The present decision is confined to the particular combination of circumstances existing in this case.

Ultimately, judicial discretion exists precisely because rigid application of general principles cannot anticipate every factual situation that may arise before the Court.

Having carefully weighed the prejudice likely to be suffered by each party, this Court is satisfied that the interests of justice are better served by preserving the existing position pending the disposal of the appeal, while at the same time adequately protecting the Plaintiff through appropriate conditions. ISSUE 3 - Whether a conditional stay is appropriate

Having concluded that the interests of justice favour a temporary suspension of execution, the remaining question concerns the terms upon which such relief should be granted.

In the Court's judgment, an unconditional stay would inadequately protect the Plaintiff, who has already obtained a valid judgment in his favour.

Conversely, an outright refusal of the stay would expose the Defendant to the risk that certain aspects of the execution, particularly those involving non-monetary relief, may produce consequences not readily reversible should the appeal ultimately succeed.

Neither extreme would satisfactorily balance the competing interests before the Court.

A conditional stay therefore represents the most proportionate and equitable solution in the circumstances of this case. By requiring the Defendant to furnish security in the sum of RM200,000 within the stipulated period, the Court preserves the Plaintiff's legitimate interests while ensuring that the Defendant's pending appeal is not rendered susceptible to avoidable prejudice through premature execution.

The Court is satisfied that the condition imposed is reasonable, proportionate and consistent with the equitable nature of the jurisdiction exercised under Order 45 rule 11 of the Rules of Court 2012 and section 73 of the Courts of Judicature Act 1964.

Before concluding, this Court considers it appropriate to reiterate that the present decision is not founded upon any acceptance that the Defendant has successfully established a standalone special circumstance recognised by the existing authorities. Rather, the decision reflects the Court's exercise of judicial discretion after weighing the cumulative effect of all relevant circumstances against the competing interests of both parties. In the Court's judgment, this approach is entirely consistent with the established authorities, which recognise that the exercise of discretion in stay applications ultimately turns upon the particular facts of each individual case. F.

Having carefully considered the affidavits filed, the written submissions of learned counsel and the authorities relied upon by both parties, this Court is satisfied that the applicable legal principles governing applications for stay of execution are well settled and require no restatement beyond what has already been discussed.

This Court has not accepted the Defendant's contention that the mere fact that the judgment was obtained by way of a Judgment in Default, the alleged merits of the pending appeal, the existence of an arguable legal issue concerning the apology order, or the Defendant's offer to furnish security, individually constitutes a special circumstance warranting a stay of execution.

Nevertheless, the exercise of judicial discretion cannot end with a compartmentalised examination of each individual factor. As recognised by the authorities, particularly Low Nam Hui & Sons Sdn Bhd v Huang Yan Teo [2007] 7 MLJ 13, the Court is required to evaluate the overall circumstances of the case in order to determine whether the interests of justice require temporary intervention pending the disposal of an appeal.

In the present case, the Court is satisfied that the cumulative effect of the relevant circumstances, including the nature of the relief granted, the practical consequences of immediate execution, the pendency of the appeal, and the Defendant's willingness to furnish substantial security, renders this an appropriate case in which the Court's discretion ought to be exercised.

The Court emphasises that the present decision should not be understood as creating any new category of special circumstances, nor as suggesting that every pending appeal, every Judgment in Default or every offer of security would justify a stay of execution. Each application must continue to be determined upon its own facts and in accordance with the settled legal principles governing the exercise of judicial discretion.

Ultimately, this Court is satisfied that the balance of justice is best achieved by preserving the Plaintiff's rights as the successful litigant while, at the same time, ensuring that the Defendant's pending appeal is not exposed to unnecessary prejudice before it is heard by the Court of Appeal. A conditional stay, supported by appropriate security, represents the most proportionate means of achieving that balance in the particular circumstances of this case.

Accordingly, Enclosure 89 is allowed upon the following terms:

The Defendant shall deposit the sum of RM200,000.00 into the Plaintiff's solicitors' stakeholder account, or into Court, within fourteen (14) days from the date of this order;

In default of compliance with the above condition, the stay granted herein shall automatically lapse without the necessity of any further order of this Court;

Execution of the Judgment in Default dated 20 March 2025 and the Order after Assessment of Damages dated 5 November 2025 shall be stayed pending the disposal of the Defendant's appeal before the Court of

The costs of this application shall be costs in the appeal.

In concluding these Grounds, this Court reiterates that the present decision is not intended to dilute the settled principles governing applications for stay of execution. Nor should it be understood as creating a new category of special circumstances.

Rather, the Court has sought to apply those settled principles to the particular facts before it by exercising the judicial discretion entrusted to it. Whether the appellate court ultimately agrees with that exercise of discretion is, of course, a matter for the Court of Appeal.

For present purposes, this Court is satisfied that the order made represents the outcome which, on the facts and circumstances of this particular case, most appropriately balances the competing rights of both parties while preserving the proper administration of justice. Dated: 15th July 2026 ……………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiff : Ng Yih Miin & Goh You Ngee Messrs. TS Ong & Ng (Kuala Lumpur) Advocates & Solicitors Counsel for The Defendant : Phang Soon Mun & Yvonne Chai Yi Wen Messrs. Han & Partners (Kuala Lumpur)