Tay Kuan Tea v Phoon Yuh Jiun (WA-22NCvC-566-09/2020)

The Defendant applied to stay the enforcement of an order of the High Court Judge allowing the Plaintiff’s application for return of possession of 2 pieces of land (“the Order”) as well as the stay of a final judgment of the High Court in favor of the Plaintiff. (“the Judgment”) 30/09/2024 16:36:27

The application is made under Order 45 Rule 11, Order 92 rule 4 of the Rules of Court 2012 (“the Rules”), Section 73 of the Court of Judicature Act 1964 and Order 13 of the Rules of Court of Appeal 1994.

For ease of reference all these provisions of the law relied upon by the Defendant are reproduced here:

Matters occurring after judgment: Stay of execution (O. 45 r. 11)( “the Rules”) 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.

Inherent powers of the Court (O. 92 r. 4) (“the Rules”) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct. (Section 11 of Court of Judicature Act 1964) An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated except so far as the Court may direct. (Order 13 of the Rules of Court of Appeal 1994). The Order of the High Court 4. The Order of the High Court dated 6/9/2023 allowed the application of the Plaintiff to obtain vacant possession of land known as No. 19 , Jalan SAFA, Desa Parkcity Kulala Lumpur and property known as No. 37 , Jalan USJ 13/3, 47630 Subang Jaya , Selangor within 2 months of the Order i.e. before 5/11/2023. The Judgement of the High Court 5. The Judgment after a full trial at the High Court allowed the Plaintiff’s claim with cost of RM20,000 on 31/3/2022. The Judgement directed the sale of 3 properties by way of auction.

The 3 properties were identified as No. 31,Jalan Vista Kirana 5, Tmaman Vista Kirana, Air Keroh , Melaka; No 19 , jalan SAFA 2, Desa parkcity 52200 Kuala Lumpur: and No 37, Jalan USJ 13/3. 47630 Subang Jaya Selangor. The reasons for the Application to stay 7. The main reasons forwarded by the Defendant in applying for stay is that there are exceptional circumstances to allow the stay and if stay is not allowed and the properties are disposed of the Defendant’s appeal to the Court of appeal will become nugatory.

The special circumstances alluded to by the Defendant as contained in the affidavit in support are 2 fold, the first is that in complying with the Court order and judgement the Defendant will have to vacate the properties by removing all the personal possessions and find an alternative accommodation.

The second is that in the event the Defendant’s appeal to the Court of Appeal is successful the Defendant can bid to buy the properties without a need for the properties to be sold by public auction. The preliminary objection of the Plaintiff 10. The Plaintiff asserts that the Defendant’s appeal against the High Court order was only filed on 5/10/2023 and not on 20/9/2023 as alleged in the affidavit in support. More importantly no appeal has been filed against the Court’s judgement on 31/3/2023 as no such appeal has been exhibited. The decision of this Court on the Plaintiff’s preliminary objection 11. After perusing the affidavit in support of the application to stay and the documents exhibited thereto the Court agrees with the objection of the Plaintiff and rules that there are material contradictions between what is stated in the affidavit in support and the documents exhibited. It is clear that the notice of appeal against the order of the Court was only filed on 5/10.2023 and not 20/9/2023 as stated in the affidavit.

Even more glaring is that there is no appeal against the Court’s judgment on 31/3/2023 as no such Notice of Appeal is exhibited in either the application or the affidavit in support.

In agreeing with the preliminary objection by the Plaintiff, the Court is entitled to disallow the Defendant’s application for stay without going into the merits. Nevertheless the Court proceeded to determine whether there was any merit in the Defendant’s application. Special circumstances 14. The Court rules that the potential hardship faced by the Defendant in removing her belongings from the said properties does not amount to special circumstanced and any loss suffered can always be compensated monetarily if she wins the appeal. 6 15. Further to allow a stay will be denying the Plaintiff the fruit of a successful litigation and obstructing his rights to dispose of the properties in a manner directed by the Court.

The Defendant’s contention that she can bid for the properties is merely speculative and the Defendant has not shown any proof that she has the means to bid for the property.

The wordings of the provision of law relied by the Defendant and as reproduced above are itself clear that an appeal cannot operate as a stay of either execution nor the proceedings of the Court. Only in exceptional cases such stay will be allowed. In this case no such exceptional or special circumstances exist or are shown by the Defendant. Conclusion 18. In the upshot the Court dismissed the Defendant application to stay the court order and judgment with a cost of RM3, 000. Dated: 30.9.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Ashokvijay J. Sanghrajka Tetuan Sanghrajka & Associates B-3-3A, 3rd Floor, Block B, No. 1, Jalan PJS 8/15, Dataran Mentari, 46150 Bandar Sunway, Petaling Jaya, Selangor Darul Ehsan. For the Defendant: Nama Peguamcara: Khoo Ai Theng Tetuan Ng, Zainurul, Seke & Khoo OT-9F-03A, 2 Rio Office Tower, Persiaran Rio, Bandar Puteri, 47100 Puchong, Selangor