A stay of execution pending appeal requires the demonstration of special circumstances; merely filing an appeal does not automatically stay execution.

Introduction

[1] This Court had allowed the Plaintiff's application to enter summary judgment against the Defendant on 16 January 2025 (see Low Jee Keong v. Next Fortune Sdn Bhd [2025] MLRHU 140). The Defendant had made an oral application for a stay of execution after judgment was pronounced and this was refused by this Court. The led the Defendant into filing the present application in encl 33 on 21 March 2025, seeking a stay of execution pending appeal pursuant to O 45 r 11 and/or O 92 r 4 of the Rules of Court 2012.

The Singular Issue

[2] The sole issue for determination is whether this is a proper case for this Court to exercise its discretion to grant a stay of execution pending appeal by the Defendant to the Court of Appeal against this Court's decision in granting summary judgment to the Plaintiff.

The Summary Judgment

[3] This Court made the following orders following the application by the Plaintiff for summary judgment against the Defendant on 16 January 2025:

a. Judgment sum of RM13,915,172.05;

b. Interest at 6.5% per annum on RM10,426,338.80 from 23 February 2024 until full payment; and

c. Costs of RM20,000.00.

The Defendant's Contentions

[4] The Defendant contended that its appeal would be rendered nugatory if the stay of execution that it is seeking in encl 33 were disallowed.

[5] It was argued by the Defendant that if execution were allowed to proceed "particularly through the winding-up proceedings already initiated by the Plaintiff", the consequences for the Defendant would be grave and irreversible. According to the Defendant, if it were to succeed in its appeal, its "operations, corporate structure, and business reputation would have already been decimated", thus rendering the appeal "nugatory and academic".

[6] The Defendant relied on Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd 2003 MarsdenLR 386 ; [2004] 1 MLJ 316 ; 2004 MarsdenLR 1831 ; 2003 MarsdenLR 1713 . ("Kosma Palm Oil"), Government Of Malaysia v. Jasanusa Sdn Bhd 1995 MarsdenLR 845 ; 1995 MarsdenLR 1895 ; [1995] 2 CLJ 701 ; 1994 MarsdenLR 1871 ("Jasanusa Sdn Bhd"), Mohamed Mustafa v. Kandasami (No 2) 1979 MarsdenLR 77 ; 1979 MarsdenLR 171 and Mammoth Empire Construction Sdn Bhd v. Kenwise Sdn Bhd 2021 MarsdenLR 1243 to support its application.

[7] The Defendant highlighted the following circumstances which it considered as underscoring "the risks of the appeal being rendered nugatory", that is:

a. Ongoing Possession of the Properties: The Plaintiff remains the registered and beneficial owner of eight (8) semi-detached units that are the subject of the dispute. These units were part of the investment arrangement underlying the agreements between the parties. Without a stay, the Plaintiff may enforce the full judgment sum without returning or accounting for these Properties thereby depriving the Defendant of any meaningful redress even if the appeal succeeds.

b. Threat of Winding-Up: The Plaintiff has issued a statutory notice of winding-up based on the judgment sum whereby the Winding-up Petition has been also been filed and the Hearing has been fixed on 17 July 2025. If carried out, this would not only cripple the Defendant's operations but also irreversibly damage its commercial standing, financing arrangements, third-party obligations, together with the disruption in the Defendant's process of obtaining the Individual Title for the said development. The winding-up would effectively bring the Defendant's legal and commercial existence to an end.

c. Balance of Convenience Favour