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1. Al-Co Malaysia Sales & Services Sdn Bhd v Gan Eng Foo & Anor
[2018] MLJU 1756
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 AL-CO MALAYSIA SALES & SERVICES SDN BHD v GAN ENG FOO &
ANOR
CaseAnalysis
| [2018] MLJU 1756

Al-Co Malaysia Sales & Services Sdn Bhd v Gan Eng Foo & Anor
[2018] MLJU 1756
Malayan Law Journal Unreported

HIGH COURT (SHAH ALAM)

MOHAMAD SHARIFF JC
SUIT NO BA-22NCVC-618-11 OF 2016
11 October 2018

M Mahendra (Enoveetha with him) (M Mahendra & Co) for the plaintiff.
Izyan Darlina (Kamarudin & Partners) for the defendant.

Mohamad Shariff JC:

JUDGMENTINTRODUCTION

[1]By Notice of Application dated 25 July 2018, the Defendants seeks for an Order (Enclosure 79) to stay the
execution of Judgment dated 28 June 2018 pending the determination and/ or disposal of the Defendant’s appeal
to the Court of Appeal against the decision of the case delivered by the learned Judicial Commissioner, Dato’ Sri
Tun Abdul Majid bin Dato’ Haji Tun Hamzah with directions for assessment of general damages to be carried out
thereafter.

[2]The cause papers for this application are as follows:

(a) The Notice of Application dated 25 July 2018;
(b) The Defendant’s Affidavit in Support affirmed by Gan Eng Sem on 25 July 2018;
(c) Affidavit Jawaban Plaintiff affirmed by Lim Jih Shyang on 14 August 2018; and
(d) Affidavit Balasan affirmed by Gan Eng Sem on 24 August 2018.

FACT OF CASE

[3]The decision was delivered in favour of the Plaintiff on 28 June 2018 by learned Judicial Commissioner Dato’ Sri
Tun Abdul Majid bin Dato’ Haji Tun Hamzah, with directions for assessment of general damages to be carried out
thereafter;

[4]The Defendants filed a Notice of Application to Stay of Execution on 25 July 2018 together with an Affidavit in
Support affirmed by one, Gan Eng Sem on 25 July 2018;

[5]It is the Defendants’ stance that the execution of the judgment and/or the Winding-Up Proceedings or
Bankruptcy Proceedings against the Defendants should be stayed pending appeal of the case to the Court of
Appeal, on the following grounds:-
(a) The monetary judgement sum of RM1.5 million (hereinafter referred to as ‘the Judgement Sum’) is
substantial;
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(b) The Plaintiff is not in the financial position to refund the sum of RM1.5 million as the Plaintiff’s assets and
liabilities are similar, and because the Plaintiff incurred as loss of RM316.647 in year 2017;
(c) There are special circumstances that warrants the stay of execution, namely that the Defendants’
appeal would become nugatory; and
(d) The stay of execution is pertinent to ensure the integrity of appeal.

[6]The Plaintiff’s had objected on the following, namely:

(a) An appeal does not operate as a stay of execution unless the Court so orders and the Plaintiff should not
be deprived of the fruits of a judgment obtained in his favour;
(b) There are no special circumstances to enable the Court to grant a stay of execution as the Defendants’
appeal would not be rendered nugatory if successful;
(c) The balance of convenience tilts in favour of the Plaintiff, wherein the Plaintiff will suffer irreparable
damage if stay is granted; and
(d) Even if special circumstances are established, Winding-Up Proceedings and/or Bankruptcy Proceedings
do not fall within the ambit of Execution Proceedings, and therefore, should not be stayed pending
appeal.

PRINCIPLES ON STAY OF EXECUTION

[7]Section 73 of the Courts of Judicature Act 1964 provides as follows:

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 proceedings shall be invalidated except so far
as the Courts of Appeal may direct

Rule 13 of the Rules of the Court of Appeal 1994 states:

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 proceedings shall be invalidated except so far as the Court
may direct.

As provided in the two statutory provisions, whether a court grants a stay of execution or stay of proceedings is an
exercise of judicial discretion dependant on the particular facts adduced in that court. Accordingly, judgments on
these matters are purely illustrative and have no binding effect. The Court of Appeal held in Structural Concrete
Sdn. Bhd. v. Wing Tiek Holdings Bhd. & Ors. (1977) 1 MLJ 581,; (1997) 1 CLJ 300:

“...Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular
case.”.

It is trite law that the burden and onus is on the Defendant in this case to prove special circumstances and this
must be explained and/ or shown in the Affidavit. Kosma Palm Oil Mill Sdn. Bhd. & Ors v. Koperasi Serbausaha
Makmur Bhd (2004) 1 MLJ 257, 269 (FC), Augustine Paul JCA (as he then was) delivering judgment of the court:

“....[1] 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 an example of special circumstances. As nugatoriness is a
species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression, and any
attempt to restrict the grant of stay to nugatoriness, quite apart from its impropriety, will severely restrict the grounds upon
which an applicant may rely. Therefore, the applicants were wrong in submitting that the nugatory approach was not a
matter for consideration in this case that only the special circumstances approach was relevant They would have been
correct if they had said that they were not relying on nugatoriness but on some other species of special
circumstances....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). Where it is alleged
that there is a danger of the unsuccessful party not being repaid if its appeal is successful for any reason like, for instance,
the insolvency of the other party, this must be shown in the affidavit (see The Annot Lyle (1886) 11 PD 114)..... .”
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[8]In the case of Leong Chee Kong & Anor v Tan Leng Kee (No.2) (2001) 5 CLJ 408, the Court considered the
special circumstances approach and the nugatory approach and came to the conclusion that the nugatory
principle is in itself a special circumstance and the correct legal position is the special circumstance test.
Similarly in the case: Ming Ann Holdings Sdn. Bhd. v. Danaharta Urus Sdn Bhd (2002) 5 CLJ 380 (CA), Abdul
Hamid Mohammed JCA in the Court of Appeal held as follows:

“....[2].... The most important factor for consideration is granting a stay appears to be whether the appeal if
successful is rendered nugatory. It does not matter whether the nugatory factor is considered under the head of “special
circumstances” so long as it is considered.... .”

[9]In deciding whether proceedings can be stayed pending the disposal of an appeal, the following should be
considered:
(a) Whether the applicant can show special circumstances - Jagdis Singh a/l Banta Singh v. Outlet Rank (M)
Sdn. Bhd. (2013) 4 MLJ 213,; (2013) 3 CLJ 47. An applicant can demonstrate special circumstances
when his or her appeal to the Court of Appeal will be rendered redundant if proceedings in the High Court
are not stayed;
(b) In Chinese Chamber Realty Pte Ltd. and others v. Samsung Corp (No. 2) (2003) 4 SLR 313, at para 3, the
Singapore High Court considered the balance of convenience (now popularly known as balance of
justice), namely a comparison of the existence, nature and extent of prejudice which may be suffered by
the parties if proceedings are stayed or otherwise;
(c) If an application to stay proceedings constitutes an abuse of court process, such application should be
refused - Jagdis’s case (supra);
(d) Whether there is an unexplained delay in applying for a stay of proceedings - MCAT Gen Sdn. Bhd. v.
Celcom (Malaysia) Bhd. (No. 2) (2007) 8 MLJ 107

FIRST ISSUE

Merits of the Appeal - Justifiable factors?

[10]The learned counsel for the Defendant had submitted based on the case of Ong Koh Hou v. Wong Kok Fong v.
DA Land Sdn. Bhd. & 2 others (2018) 1 LNS 827, the Court should adopt a less stringent approach in granting this
stay of execution. The Defendant’s agree that an appeal does not operate as a stay of execution unless the
Court orders. It is also the Defendant’s right under the law to stay any form of execution and/or enforcement by the
Plaintiff in view of the judgment given by the High Court Judge. Having view the provision of laws under Section 73
Courts of Judicature Act 1964, Rule 13, Rules of the Court of Appeal 1994, Ming Ann Holdings case (supra)
including the Federal decision in the case of Kosma Palm Oil Mill Sdn. Bhd. & Ors. Koperasi Serbausaha Bhd.
(2003) 4 CLJ 1, I hardly find anything explained in the Affidavit by the Defendant that there is any merit in special
circumstances which justify such stay. Furthermore, the Defendant’s averments in his Affidavit in Support that
there are merits in his appeal is irrelevant for the purposes of this stay application. In Kosma Palm Oil’s case
(supra), the Court held that:

“..... .Both parties delved into some length on the merits of their respective case in the affidavits filed and the submission
made in court. The merits of a party’s case in a stay application is not a relevant matter for consideration...... ”

Similarly, in the case of: Chang Shu Hua (supra), the Court held that an appeal pending before a higher court does
not and cannot constitute special circumstances to warrant a stay.

“..(10) Even if this panel were to hear the merits of the stay application in prayer (ii) of the notice of motion in end.
31a, there were insufficient materials to establish special circumstances in favour of the defendant respondent.
The reasons advanced by the defendant respondent in the affidavit in end. 31b to support the stay may be summarised as
follows:
(a) that he is filing an appeal to the Federal Court;

(b) that he is unable to comply with the interim order of the other panel of this court dated 15 November 2006;
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(c) that he is Questioning the merits of the interim order of the other panel of this court dated 15 November 2006; and

(d) that he has two “fears” to overcome: firstly, the fear of facing committal proceeding; secondly, the fear that his
children’s education may come to an abrupt end.

(11) All these reasons cannot and do not constitute special circumstances to warrant a stay...... ..”

Thus, the Defendant’s grounds in support of the stay of execution, that an appeal is currently pending at the Court
of Appeal is not a ground to justify the granting of a stay of execution.

SECOND ISSUE

Nugatoriness in the Defendants’ appeal??

[11]The Defendant’s primary argument that where the appeal by the Applicant Defendant to the Court of Appeal
against the decision of the High Court is a matter of right where no leave of the Court of Appeal is necessary or
required, that has been viewed as an exceptional circumstances which would justify a stay. With respect, to my
mind, if the Defendants’ would succeed in its appeal, the Respondent is fully capable of repaying the judgment sum.
The Defendants’ further submitted that the Plaintiff is not in the position to refund the Judgment sum as the
Plaintiff’s assets and liabilities are similar, and because the Plaintiff incurred a loss of RM316,647 in 2007 is
evidence that has been nit-picked in an attempt to shed negative light on the Plaintiff. It is my considered view
that based on the fact on the Plaintiff’s Statement of Comprehensive Income for the year 2017, the Plaintiff
had obtained profits as of December 2017. The Plaintiff’s assets have also been increased. As such, the
Defendants’ averment have failed to prove that the Plaintiff is not in the position to refund the judgment
sum and such disability raised is wholly speculative and unsubstantiated by cogent evidence. In the case
of: Malaysia Airport Sdn. Bhd. v. APFT Land Sdn. Bhd. (2018) MLJU 1055, Mohamad Shariff Abu Samah JC held
that:

“.....[15] The Defendant’s primary argument is founded upon the fact that there is an appeal pending before the Court of
Appeal and that if the Plaintiff proceeds to take over the concession area of the subject properties, the appeal, if successful,
would be rendered nugatory. However, apart from making this blanket statement and stating that monetary compensation
would be insufficient, the Defendant has faded to adduce any form of evidence to explain how exactly the appeal would be
rendered nugatory since the Court of Appeal may award the Defendan t with monetary compensation which based on the
evidence available, is sufficient. Nowhere in its affidavits in relation to the application for a stay of execution has the
Defendant alleged that if its appeal is successful, the Plaintiff would not be able to refund the judgment sum. There is also
no averment that if the Defendant is successful in its counterclaim, the Plaintiff would not be able to pay the sum adjudged
on the counterclaim. Likewise, there is no averment or evidence by the Defendant that the Plaintiff is impecunious
or insolvent. To my mind, the lack of the aforesaid averments and evidence means the Defendant has failed to
show that its appeal, if allowed, would be rendered nugatory..... ”

Similarly, in the case of: Trade Mode Sdn. Bhd. & Anor v. A,C Property Development Sdn. Bhd. (2010) MLJU
1489, Stephen Chung JC held that:

“[5] The defendant, if it is a viable and solvent company, should have sufficient funds to run its business efficiently.
Therefore, it is difficult to understand the stand taken by the defendant that it is not in a position to pay the monies in the
judgment to the plaintiffs and yet it is a viable company and is able to pay the judgment sums if the appeal is against the
defendant. As the above two authorities have shown, the paramount consideration is whether the plaintiffs are able to pay
back the judgment sums to the defendant if the appeal is successful so that the appeal is not thereby rendered nugatory. In
this respect, the defendant merely alleged that the plaintiffs “may not be able to refund the said Judgment sum if the appeal
is successful.” Not only was the defendant not sure whether the plaintiffs are able to pay the judgment sums to the
defendant or otherwise, the defendant also did not in the affidavit set out any reasons or particulars as to why the plaintiffs
may not be able to refund the judgment sums if the appeal is successful. The plaintiffs have addressed this issue in
paragraphs 16,17 and 18 of their affidavit. The audited reports of the plaintiffs as at 31.12.2008 as exhibited in the
affidavit showed that the 1st plaintiff had RM800,000.00 in bank fixed deposits and the 2nd plaintiff had
RM1,000,000.00 in bank fixed deposits apart from other assets. Therefore the defendant’s allegation that the
plaintiffs may not be able to refund the judgment sums if the appeal is successful cannot be supported.... ”
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In any event, even if the Defendant’s allegation that the Appeal would be rendered nugatory, to my mind the law is
clear that nugatoriness is merely one of the determining factors in considering an application for stay. In Kosma
Palm Oil (supra), the Court stated as follows at paragraph 14 of the said judgment:

“With regard to the specific factors that constitute special circumstances, I refer again to Government of Malaysia v Datuk
Haji Kadir Mohamad Mastan and another application where Ian Chin JC (as he then was) said at pp 520-521:

What, then, constitute special circumstances? It was said in Mohamad Mustafa v Kandasami (No 2) [1979] 2 MLJ 126, at
p 127, that:

‘One of the determining factors that calls for consideration is whether by not making an order of stay of the execution
it wou ld make the appeal if successful, nugatory in that it would deprive an appellant of the results of the
appeal. How pertinent that factor would be may vary according to the circumstances of each particular
case.....”

[12]Nevertheless, having had this in mind, I would further consider other factors as stated in the case of: Chang
Shu Hua v. Goon Fook Hong (2008) 3 CLJ 429 (CA), the Court also provided other factors that must be taken into
account when applying the special circumstances approach. Abdul Malek Ishak JCA (delivering judgment of the
court) held that:

“...The said factors are as follows..

(i) whether damages would be an adequate remedy if the applicant who applies for the stay succeeds in his
appeal?;

(ii) the public policy consideration that has to be taken into account;

(iii) the need to examine the subject matter of the appeal;

(iv) the need to weigh in a balance of the hardship of the parties involved;

(v) the delay in filing the application for a stay;

(vi) whether the court would exercise its inherent jurisdiction to grant the stay; and

(vii) where would the balance of convenience or the balance of justice lie.....?

THIRD ISSUE

Balance of Convenience??

[13]The case of: In Chinese Chamber Realty Pte Ltd. and others v. Samsung Corp (No. 2) (2003) 4 SLR 313 as
quoted in Universal Trustee (M) Bhd v. Lambang Pertama Sdn Bhd. & Anor (2015) 7 MLJ 305, Wong Kian Kheong
J noted that one of the factors to be considered in granting a stay pending disposal of an appeal is

“..... .the balance of convenience (now popularly known as balance of justice), namely a comparison of the existence,
nature and extent of prejudice which may be suffered by the parties if proceedings are stayed or otherwise...... ”

The above decision is in line with the Court of Appeal in the case of Chang Shu Hua (supra) clearly stated that the
balance of convenience is one of the factors that ought to be considered by the Court when deciding whether a
stay should be granted.

“.... In deciding where the balance of convenience or the balance of justice lie, the court has to decide between two
competing interests. One interest would be asking for a stay while the other interest is opposing the stay. It is the duty of
the court to look at the evidence and decide whether the balance of convenience or the balance of justice is in
favour of the applicant or the respondent. If it is in favour of the applicant then the stay would be granted and if it
is in favour of the respondent no stay would be granted. Here, the balance of convenience or the balance of justice
tilted in favour of the plaintiff appellant The stay should be refused......”
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[14]In the present case, the Plaintiff’s would suffer irreparable damage in the event that stay is granted. To
my mind, there is likelihood that the Defendants’ would not be able to pay the judgment sum in the future,
based on the Defendants financial situation, thus placing the Defendants’ at a highly disadvantageous
position. The above case has also cited and agreed with the decision of: Leong Chee Kong & Anor v. Tan Leng
Kee (No: 2) (2001) 5 CLJ 408, where it was held that there are two other factors that must be considered in order
to decide whether a stay ought to be granted or not and that would be whether the applicant will suffer “irreparable
damage” and “irremediably injured” if no stay was granted. Abdul Malek Ishak JCA (delivering the judgement of the
court):

“...[33] At the High Court, in the case of Leong Chee Kong & Anor v. Tan Leng Kee (No: 2) [2001] 5 CLJ 408, I added two
other factors in order to decide whether a stay ought to be granted or not. And that would be whether the applicant will
suffer “irreparable damage” and “irremediably injured” if no stay was granted. That was a case where the plaintiffs there
would suffer “irreparable damage” and be “irremediably injured” if the estate of the deceased were to fall into the hands of
the defendant there and the plaintiffs there would certainly not be able to return to their original positions if the stay was not
granted. For that and other reasons, the stay was granted. On “irreparable damage” as a factor to decide the stay, I had
this to say at p. 430 of the report:

(2) whether irreparable damage would be done to the plaintiffs should the stay be refused because the
plaintiffs may not be able to obtain the fruits of their litigation?

Continuing at p. 431 of the report, I had this to say about the “irremediably injured” factor:

(4) even in a situation where there are no special circumstances present but where the appellants ‘would be
irremediably injured if there was no stay should their appeals succeed,’ the court would still be empowered and has
the discretion to grant a stay (Development & Commercial Bank Bhd v. Che Wan Development Sdn Bhd & Ors [1989]
1 CLJ 469 (Rep);; [1989] 2 CLJ 1200; and Chong Wooi Leong & Ors v. Lebbey Sdn Bhd (No 2) [1998] 3 CLJ
685)......”

FOURTH ISSUE

Winding-up Proceedings and/ or Bankruptcy Proceeding - is it Execution Proceeding for stayed??

[15]The next question that comes to my mind, even if special circumstances has been established, does
Winding-Up Proceeding and/ or Bankruptcy Proceeding falls within the ambit of Execution Proceedings that merit
such stayed? In the case of: RHB Bank Bhd. v. Malaysia Pacific Corporation Bhd. & Another Appeal (2018) 6 CLJ
55 (CA), Mary Lim JCA delivering the judgment of the court:

“..[29] Such a construction and conclusion as reached by the learned judge also runs contrary to another settled principle,
that winding-up proceedings are not enforcement or execution proceedings, though in this case, they may appear to
be part of the appellant’s efforts to enforce the summary judgment. ”

Similarly, in the case of: Klass Corporation (M) Sdn. Bhd. v. MKRS Management Sdn. Bhd. (2018) 7 CLJ 303,
Mohd Nazlan Ghazali J held:-

“.... [29] The plaintiff advanced the argument that a stay would he unnecessary in this case because a stay of execution, if
granted, would not have the effect of preventing the pursuit of a winding-up proceedings against the plaintiff since
winding-up is under the law not a form of execution in any event.

.[30] It is correct, for it is already trite, that a stay cannot operate to restrain the execution of the judgment debt
should the mode of enforcement is by way of a winding-up action. Equally significantly, it is for this same basis -
in that a winding-up is not a form of an execution of judgment - such that, a creditor is not required to obtain
judgment before serving a statutory demand for the winding-up of a debtor company. A judgment is thus not a
prerequisite for the institution of a winding-up proceedings (see the Court of Appeal decisions in Lafarge Concrete
(Malaysia) Sdn Bhd v. Gold Trend Builders Sdn Bhd [2011] 1 LNS 1763;; [2012] 6 MLJ 817 and in Maril- Rionebe! (M)
Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248).

...[31] The plaintiff further seeks to fort if its position that a stay is irrelevant in the context of its present application by citing
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the following passage of my decision in Rotating Offshore Solutions Pte Ltd v. TH Heavy Engineering Bhd [2017] 1 LNS
940;; [2017] MLIU 904:

.[24] It is however well established that a stay of execution of the Judgment, if granted, cannot in law prevent
the presentation of a winding-up petition. This is because winding-up proceedings are not execution
proceedings that are caught within the ambit of a stay order. A winding-up petition is not “execution” in the
context of Order 46 r. l, for it is not based on any judgment of the Court (see the decisions of the Court of Appeal in
Juara Aspirasi (M) Sdn Bhd v. Tan Soon Ping [2011] 1 LNS 1952;; [2012] 1 MLJ 50 and also Maril-Rionabel (M) Sdn
Bhd & Anor v. Perdana Merchant Bankers Berhad & Other Appeals [2001] 3 CD248).... ”

In addition, in the case of: San Jung Suria Sdn. Bhd. v. PLB-KH Bina Sdn. Bhd. (2014) 7 MLJ 1, S Nantha Balan J
held:-

“....(1) There is no legal impediment to the judgment creditor commencing winding up proceedings
notwithstanding the stay order because winding up does not fall within the definition of execution (see para 38).

[37]The basic and fundamental premise is that an order of court including one which is in the nature of a stay of
execution/enforcement has to be obeyed by all parties, particularly the judgment creditor. Hence, in the ordinary course of
events, once a stay order is made, the judgment creditor is precluded from taking any form of execution or enforcement
proceedings against the judgment debtor.

[38]lam in agreement with counsel for PKBSB, when he submitted that there is no legal impediment to the judgment
creditor commencing winding up proceedings notwithstanding the stay order because winding up does not fall
within the definition of execution. This proposition has been made abundantly clear by the cases that have been cited to
me by PKBSB’s counsel on the restrictive definition of the word ‘execution’.”

In the case of: Maril-Rionebel (M) Sdn. Bhd. & Anor v. Perdana Merchant Bankers Bhd. & Other Appeal (2001) 3
CLJ 248 (CA), Gopal Sri Ram JCA (as his lordship then was) delivering the judgment of the court:

“...[3] It is settled law that more than one winding-up petition may be presented against a company. Rule 33 of the
Companies (Winding-up) Rules 1972(‘the Rules’) further allows a creditor to have himself substituted for a lethargic
petitioner. The winding-up petition also did not offend s. 224 of the Companies Act 1965 as it was not an execution and
was not based on any judgment of the court but on the company’s inability to pay its debts....... ”

In the Federal Court and Court of Appeal’s decision in the case of: Juara Aspirasi (M) Sdn. Bhd. v. Tan Soon Ping
(2012) 1 MLJ 50 (CA) referred to in the case of Perwira Affin Bank Bhd. v. Lim Ah Lee & Sim Ah Hee (2004) 2 CLJ
787, Zaleha Zahari FCJ (as her ladyship then was) delivering the judgment of the court:

“.....[11] In Perwira Affin Bank Bhd v Him Ah Hee @ Sim Ah Hee [2004] 3 MLJ 253 at p 265 Abdul Hamid Mohamad FCJ
(as he then was) in delivering the decision of the Federal Court held that a bankruptcy proceeding is not a writ of
execution, which was a continuation of the existing proceeding to enforce the judgment provided by the same
rules of court, i.e. the Rules of the High Court Bankruptcy proceedings are provided by separate law and rules, the
focus being the judgment debtor, not the debt, and the object being to appoint a receiver in the person of the
official assignee over the assets of the debtor and to convert the status of the debtor into a bankrupt with the loss
of control over his properties to the official assignee. The fact that it is based on a judgment does not necessarily
make it a continuation of the existing proceedings. It is a proceeding by way of petition just like divorce, winding
up or election to name a few, bears the characteristics of a fresh proceeding unlike an execution proceeding. This
principle is equally applicable to winding up proceedings.... ”

[16]In light of the above, it is best that the Defendants’ would seek for an injunction instead of applying for a stay of
execution. As such, the Defendants’ Application should not be allowed as the Plaintiff will be greatly prejudiced and
be denied from enjoying the fruits of the litigation that the Plaintiff is rightfully entitled to.
CONCLUSION

[17]In conclusion to the above, it is my finding as below:

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(a) An appeal that is currently pending at the Court of Appeal is not a ground to justify the granting of
a stay of execution;
(b) There is in any event, no special circumstances warranting a stay as even if the Defendant succeeds
in the appeal it would not be rendered nugatory as monetary compensation is more than sufficient;
(c) The balance of convenience tilts in favour of the Plaintiff; it is the Plaintiff who will suffer irreparable
damage in the event that this Honourable Court grants a stay of execution. The Plaintiff is in no better
position from before it came to this Honourable Court.
(d) The general rule is that the court will not deprive a successful party of the fruits of its litigation until
an appeal is determined. To allow the Defendant’s application for a stay of execution would be blatantly
unfair to the Plaintiff. This Honourable Court ought to bear in mind that the Plaintiff has already suffered
considerable loss due to the Defendant’s actions.

[18]After hearing the submission by both the learned counsel, in the premise, I have no hesitation to
conclude that the Defendant’s application for Stay of Execution of the Judgment Proceedings (Enclosure
79) is hereby dismissed with cost of RM4,000.00.

End of Document