A stay of execution pending appeal requires the applicant to demonstrate special circumstances; mere filing of an appeal does not suffice.

JUDGMENT

Hazizah Kassim JC:

Introduction

[1] Enclosure 205 is the 1st Defendant's application to stay execution of the Court Order dated 29 January 2024 under O 55 r 16 and O 92 of the Rules of 2012. The 1st Defendant prays that the execution proceeding in this suit is to be stayed pending the appeals' disposal.

[2] On 18 October 2024, this Court allowed encl 205 with no order as to cost. Hence, the Plaintiff appealed against the decision.

Backgrounds

[3] The 1st Defendant outlined the case's brief facts in their submission as follows:

(i) The Plaintiff inherited a 65% share in Colourland Paints Sdn Bhd and Colourland Paints (Marketing) Sdn Bhd (the Colourland Companies) from her late husband.

(ii) Subsequently, the Plaintiff was appointed as the Managing Director of both companies.

(iii) The Plaintiff intended to sell her 65% share in the Colourland Companies after realising she could not manage the business.

(iv) Plaintiff appointed the Defendants as her representatives to sell her shares, and Plaintiff signed a commission letter on 22 March 2018.

(v) After Plaintiff made all commission payments to the Defendants, Plaintiff changed her mind and claimed that the commission should not have been paid to the Defendants.

(vi) Then, the Plaintiff initiated proceedings in this Court claiming undue influence, fraudulent misrepresentation, negligent misrepresentation, unjust enrichment and restitution.

(vii) The Plaintiff claims to recover a commission of RM8,065,239.00 that the Plaintiff paid to the Defendants.

[4] On 29 January 2024, the trial Judge, Justice Tee Geok Hock, dismissed all of Plaintiff's claims against the Defendants except for the commissions of RM2,414,722.36, which Plaintiff prematurely paid to the Defendants.

[5] The Court ordered that the 1st Defendant and 2nd Defendant pay RM2,414,722.36 into the joint stakeholder's account to be opened and operated jointly by the firm of solicitors representing the Plaintiff and the 1st Defendant for two years. The Plaintiff was also ordered to pay RM100,000.00 to the 1st Defendant and RM25,000.00 to the 2nd Defendant.

[6] Further, the Court ordered that in those two years, Plaintiff pursue its claim against Akzo Nobel, the purchaser of Plaintiff's shares in Colourland Sdn Bhd, at the International Arbitration Centre in Singapore. If the Plaintiff fails to do so, she will be considered to have abandoned her claim, and the deposit paid in the stakeholder account will be refunded to the Defendants.

[7] The Plaintiff appealed to the Court of Appeal on 22 February 2024 against the whole Judgment. The 1st Defendant filed a cross-appeal on 8 May 2024, and the 2nd Defendant filed a cross-appeal on 13 May 2024. The appeals in the Court of Appeal are fixed for hearing on 11 September 2025.

[8] Before the filing of the stay application by the 1st Defendant, the Plaintiff applied (Liberty to Apply) to vary the terms of the Judgment dated 29 January 2024 on 7 May 2024 (Enclosure 192), which was dismissed on 16 July 2024 with no order as to costs. Then, the Plaintiff filed the second application to vary the terms of the Judgment dated 29 January 2024 on 1 August 2024 (Enclosure 207).

Legal Principle On Stay Of Execution

[9] A stay of proceedings shall not be granted simply because there is an appeal to the Court of Appeal as stipulated in s 73 Courts of Judicature Act 1964 as follows:

73 Appeal not to operate as stay of execution

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 Court of Appeal may direct.

[10] Order 55 r 16 Rules of 2012 provides as follows:

16. (1) An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the Court appealed from or the High Court may order, and any application for stay shall be made in the first instance to the Cou