Matters occurring after judgment: Stay of Execution (O. 45 r 11) “Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.” [43] In London Permanent Benefit Building Society v. De Baer [1967] 1 All ER 372, Plowman J examined the similarly worded rule as found in the Order 45 Rule 11 of the Rules of Supreme Court and held follows: “The power conferred by that rule to grant relief is a power to do so, and I quote, ‘on the ground of matters which have occurred since the date of the judgment or order’. It is implicit in the rule that the matters referred to are matters which would or might have prevented the order being made or would or might have led to a stay of execution if they had already occurred at the date of the order…” [44] London Permanent Benefit Building Society was followed in the Singapore High Court decision in Sal Leasing (Pte) Ltd v. Hendmaylex Pte Ltd & Ors [1987] 2 MLJ 307 where Thean J held thus:- “I respectfully adopt the statement of law quoted above from the judgment of Plowman J., namely: it is implicit in Order 45 rule 11 that the matters referred to are matters which would or might have prevented the order being made or would or might have led to a stay of execution if they had already occurred at the date of the order. " [45] Both London Permanent Benefit Building Society and Sal Leasing have been followed by Malaysian cases, for example, in the Page 15 of 19 judgment of Hamid Sultan Abu Backer J (as he then was) in BBMB Leasing Sdn Bhd v Aquacut Sdn Bhd & Ors (No 2) [2011] 1 LNS 1249. [46] As such, Order 45 Rule 11 does not admit the Court of wide discretion to permit an application for stay of execution. The applicant must demonstrate that his application falls within the scope of the said provision. The Contributories in the instant case must be able to satisfy the Court that there were matters that had occurred since the date of the winding up order which would or might have prevented the order being made or would or might have led to a stay of execution if they had already occurred at the date of the order. [47] The Contributories stated that they have only recently obtained the grounds of the decisions of the High Court in NCC2 in respect of the granting of the interlocutory injunction and the dismissal of the setting aside of the joinder of the Petitioner in the Oppression Action. The latter was averred to have been received on 13 September 2017 which was after my decision winding up the Respondent on 31 July 2017. [48] As such, in my view, the discovery of the alleged conflicting findings upon the availability of the grounds of decision post the granting of the winding up order could be validly characterized as a matter which occurred since the date of the order. Nevertheless, I should emphasise that strictly, Order 46 r 11 cannot apply to winding up proceedings because a winding up order is not a form of execution in the first place (See the Court of Appeal decision in Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Berhad & Other Appeals [2001] 3 CLJ 248). [49] Regardless, it is well-established that the objective of a stay, like in the instant case, is to preserve status quo. But a stay will only be granted not because, say, an appeal is filed, but instead only if there are special circumstances demonstrated by an applicant to support his application for the stay. [50] The leading authority on this subject can be found in the Federal Court’s decision of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serba usaha Makmur Bhd [2004] 1 MLJ 257 which held that:- “It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. It is Page 16 of 19 an example of special circumstances. In other words, a special circumstances is the genus of which nugatoriness is a species. If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established.” [51] The Federal Court in Kosma Palm Oil Mill also held:- "The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application (see Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406)." [52] In Leong Poh Shee v. Ng Kat Chong [1966] 1 MLJ 86, Raja Azlan Shah J (as His Highness then was) described special circumstances in the following terms:- "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 excels in some way than which is usual or common." [53] The crux of the reason for stay in the application before me, in essence, is the potential for conflicting findings on the status of the Consent Judgment in light of the decisions by the High Court in NCC2 on the injunction against the transfer of the Said Lands, which as stated earlier, found that the questions surrounding the Consent Judgment raised serious issues to be tried, and that given the alleged dispute on the debt the Petitioner should not have presented the petition for the winding up of the Respondent. However, it is clear that these are not definite findings, and more crucially, the proceedings were interlocutory in nature. [54] Indeed, the findings made by the High Court in NCC2 on the two decisions may or may not later change as a result. For context, I need only refer to the following passage from the judgment of Gopal Sri Ram JCA (as he then was) in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin &Ors [1995] 2 CLJ 900:- “It is part of the function of a Judge hearing an application for an injunction to decide whether a serious question requiring trial is disclosed. He therefore does not exceed his proper role in such an interlocutory proceeding by commenting upon the credibility of the evidence or any issue as it lies before him at that stage. And any comments that he may make upon the nature Page 17 of 19 and quality of the evidence or pleadings presented to him at that stage does not and cannot be said to infect his mind with bias. In my judgment, it is a most serious matter to allege bias against a Judge whose sole function is to decide a case according to the evidence before him. I notice an unhealthy trend of late to allege bias too readily against a judicial arbiter on insufficient material. Nothing is capable of eroding public confidence in the judicial arm of the State than unwarranted and unfounded allegations of bias. It is therefore to be avoided at all costs, if necessary, by having resort to the power to punish for contempt. In my judgment, a Judge may, after expressing a view in the course of an interlocutory proceeding, quite properly hear the main action and come to a conclusion diametrically opposite to that expressed at the interlocutory level. Translated to a case such as the present, a Judge may grant an interlocutory injunction because he finds a particular line of defence taken to be untenable and yet, after hearing all the evidence and detailed argument at the trial, reach the opposite conclusion and dismiss the suit. I cannot help but think that such an occurrence is common place in our Courts as it is indeed in other jurisdictions”. [55] Nevertheless, I agree that there is a risk of conflicting findings on the key issues concerning the Consent Judgment which also extend to the question on the existence of a bona fide debt by the Respondent to the Petitioner. [56] As stated earlier, the Supreme Court had already ruled in Lesco Development Corp Sdn Bhd v. Malaysia Building Society Bhd [1987] CLJ Rep 160 that it is undesirable to allow a situation where two different Courts try and determine the same issues arising between the same parties relating to the same subject matter. But I do not consider the two key underlying actions, the winding up of the Respondent in NCC1 and Oppression Action against the controlling shareholders of the Respondent in NCC2 constitute a multiplicity of proceedings or in any manner an abuse of process. It is only that some of the material issues ventilated in one are also critical in the other. This is unlike the situation in the case of Ho Num Chon & Anor v Tech – Lab Manufacturing Sdn Bhd [2017] 5 CLJ 187 where I held that the conduct of the petitioners in that case in instituting a winding up petition when it had already commenced a minority oppression suit in a different Court based on substantially the same fact, and seeking similar reliefs, including for the winding up of the company was prima facie a multiplicity of proceedings and an abuse of process. Page 18 of 19 [57] In the context of the present application, I am therefore inclined to allow the stay on the basis of the potential for conflicting findings by two different Courts on issues which are now already pending before the Court of Appeal. The filing of the various appeals per se would of course be insufficient to warrant a stay. Neither do I consider the argument that the appeal would be nugatory if it was allowed after the Respondent had been wound up as sufficiently meeting the threshold of being a form of a special circumstance to justify a stay. [58] But here, I consider the risk of conflicting decisions, on the evidence of what appears to be findings by the High Court in NCC2 on material issues which are contrary to the conclusions I arrived at in the deliberative process to wind up the Respondent in NCC1, to be one that fulfils the character of being more than ordinary, and can even, under the circumstances, be construed as exceptional. It is therefore, rightly a form of special circumstances. At the same time, I take the view that the apparent conflict, as more recently discovered, would also serve to meet the requirements of Section 492, which mandates, as stated above, “…proof to the satisfaction of the Court” that all proceedings in relation to the winding up of the Respondent ought to be stayed. [59] I do not think much prejudice if any, would be occasioned to the Petitioner as a result, for the stay to be granted is only to operate for a specified and limited time, which, specifically is until the disposal of the appeals against the dismissal of the striking out of the petition and the granting of the winding up order of the Respondent at the Court of Appeal. In fact, neither did the Petitioner show in what fashion the stay would cause any prejudice to the Petitioner. Conclusion [60] In view of the foregoing reasons, I find that the Contributories have succeeded in establishing special circumstances, and in satisfying the requirements of Section 492 of the CA 2016 to justify the granting of the stay of the winding order against the Respondent for a limited time; that is only pending the disposal of the appeal of my decisions granting the said winding up order and in dismissing their striking out application. As such, I allow enclosure 42, with costs. Page 19 of 19 Dated: 11 December 2017 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for Applicants /Contributories Harvinderjit Singh & Sara Felix Vin Law & Co Kuala Lumpur Counsel for Petitioner Norliza Rasool & Bryan Teo Zul Rafique & Partners Kuala Lumpur Counsel for Respondent