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2025 MarsdenLR 625
HIGH COURT MALAYA KUALA LUMPUR
AW PECK LUAN & ANOR – Appellant
Versus
KAU PECK GUAT (ENCL 164) – Respondent
[Suit No: WA-22NCvC-374-05/2021]
A stay of execution pending appeal requires demonstration of special circumstances, including the risk of an appeal being rendered nugatory, with the court balancing justice and convenience.
Headnote:(A) Courts of Judicature Act 1964 - Section 73 - Stay of execution - Application for stay of execution pending appeal - Court declares will invalid and orders intestate administration to plaintiffs - Partial stay granted for certain paragraphs pending appeal, while execution for asset return is ordered - Court emphasizes that appeal does not automatically operate as a stay and special circumstances must be demonstrated - Balance of justice and convenience considered in granting stay, ensuring estate preservation and addressing asset security concerns. (Paras 1, 4, 12, 31, 32)
(B) Legal principles governing stay applications - Special circumstances must be shown to justify a stay, including the risk of appeal being rendered nugatory - Factors include adequacy of damages, balance of hardship, and delay in application. (Paras 9, 10, 11, 13)
(C) Balance of convenience - Court must weigh the convenience of both parties and the need to maintain the status quo pending appeal. (Paras 24, 26)
(D) Decision - Partial stay granted for execution of will invalidation and intestacy declaration pending appeal, while asset return ordered to proceed immediately. (Para 32)
Background
[1] On 5 February 2025, this court gave Judgment declaring the deceased Tee Kok Cheng's will dated 6 October 2020 invalid and ordering intestate administration to the plaintiffs. The defendant, named as sole executor and beneficiary in the invalidated will, has appealed and now seeks a stay of execution pending appeal.
[2] The crux of the application seeks a stay of the execution of the Judgment dated 5 February 2025 pending the outcome of her appeal to the court of Appeal vide the Notice of Appeal dated 21 February 2025.
[3] The Judgment against the defendant was given with costs as follows:
(a) a declaration that the Will dated 6 October 2020 which is said to be Tee Kok Cheng's Last Will and Testament, deceased, be declared invalid;
(b) a declaration that Tee Kok Cheng, deceased, passed away intestate;
(c) an order granting to the Plaintiffs a Letter of Administration to administer the assets of Tee Kok Cheng, deceased;
(d) an order for restitution of all money withdrawn from Tee Kok Cheng's account and/or joint account with Tee Kok Cheng, is to be returned to the estate of Tee Kok Cheng, deceased; and
(e) an order for all the assets under the name of Tee Kok Cheng is to be returned to the estate of Tee Kok Cheng, deceased.
[4] After reading and hearing the evidence and submission of both parties, I ordered a partial stay of execution on 29 May 2025 where the Order reads as follows:
(a) that the execution for paragraph (a), (b) and (c) in the Judgment is stayed pending the outcome of the Defendant's appeal to the court of appeal vide the notice of appeal dated 21 February 2025; and
(b) That the stay of execution for paragraph (e) and (e) in the Judgment dated 5 February 2025 is dismissed; and
(c) no order as to costs.
[5] Both parties have appealed against my decision for grant a partial stay of execution. The plaintiffs are dissatisfied with the stay granted for paragraph (a), (b), and (c), while the defendant is unhappy with the remaining paragraphs (d) and (e) that were not stayed.
[6] I believe that the balance of justice leans in favour of maintaining the estate of the deceased in status quo until the court of Appeal hears the case. Sufficient evidence shows that both parties have been able to support themselves since the deceased's passing up to the conclusion of this trial, approximately four years ago. The plaintiffs live together as mother and daughter, with no financial difficulties demonstrated despite complaints, while the defendant manages the deceased's business.
Parties Arguments
[7] The table below encapsulates both parties' arguments.
[8] None of the allegations made by the parties are supported by cogent evidence.
Legal Principles
[9] The law governing stay applications is well established according to Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd ; ; [2003] 5 AMR 758 FC. A stay may be granted if special circumstances exist, most commonly where an appeal would be rendered nugatory without the stay.
[10] Per Chang Shu Hua v. Goon Fook Hong ; [2008] 3 MLJ 10; [2008] 3 CLJ 429 CA, relevant factors include: adequacy of damages as remedy, balance of hardship between parties, delay in application, and where balance of convenience lies.
[11] Section 73 of the Courts of Judicature Act 1964 states that appeals do not automatically operate as stays. The burden lies on applicants to demonstrate special circumstances that justify a departure from the general rule, which asserts that successful litigants should enjoy the fruits of litigation.
[12] For a stay of execution application, the court must rely on precedent authorities and analyse all evidence to justify the stay. In examining the evidence, the court must gather proof of the special circumstances that occurred after the Judgment, particularly the nugatory factor and the financial stability of both the Plaintiff and the Defendant. After considering any evidence of special circumstances, the court can analyse the ev
