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2021 MarsdenLR 1937
HIGH COURT MALAYA MUAR
LIM HING LONG – Appellant
Versus
TAN EE & ORS (ENCL 251) – Respondent
[Civil Suit No: 22NCVC-40-06/2016]
A stay of execution requires demonstration of special circumstances, ensuring the appeal is not rendered nugatory, balancing it against the successful party's right to enforce the judgment.
Headnote:(A) Courts of Judicature Act 1964 – Sections 73; Rules of 2012 – Application for stay of execution – Court considers principles such as nugatory effect, special circumstances, and the necessity to balance rights of parties – The court upheld the stay of execution for the 3rd Defendant while dismissing the motion for the 12th and 13th Defendants due to lack of special circumstances. (Paras 57-71)
Facts of the case: The Plaintiff claimed a half share of property from the 1st Defendant, citing fraudulent transfer of title after a caveat had been entered. (Paras 3-6)
Findings of Court: The application for the stay of execution was allowed with conditions for the 3rd Defendant while the application for the 12th and 13th Defendants was dismissed. (Paras 71)
Issues: The issues addressed include the existence of special circumstances warranting a stay and the implications for the parties involved. (Paras 57-68)
Ratio Decidendi: The court emphasized that a stay of execution may only be granted under special circumstances, not merely based on the appeal's merit or anticipation of difficulties in enforcing the judgment. (Paras 18-20)
Result: Stay granted for 3rd Defendant; rejected for 12th and 13th Defendants.
JUDGMENT
(Enclosure 251)
Introduction
[1] These are 2 applications for a stay of execution of the Order of the High Court pending the disposal of appeal before the Court of Appeal as follows:
a. Enclosure 236
i. A Stay of execution of Order of the High Court dated 3 June 2020 against the 3rd Defendant pending the hearing and disposal of the Appeal No J-01(NCVC)(W)-282-06/2020.
ii. Any execution of Order of the High Court dated 3 June 2020 against the 3rd Defendant be stayed ad interim pending the hearing and disposal of the Appeal No J-01(NCVC)(W)-282-06/2020.
iii. Cost.
iv. Other reliefs or orders as the Honourable Court deems fit and just.
b. Enclosure 251
i. A Stay of execution of Order of the High Court dated 3 June 2020 against the 12th and 13th Defendants pending the hearing and disposal of the Appeal No J-01(NCVC)(W)-282-06/2020.
ii. Any execution of Order of the High Court dated 3 June 2020 against the 12th and 13th Defendants be stayed ad interim pending the hearing and disposal of the Appeal No J-01(NCVC)(W)-282-06/2020.
iii. Cost.
iv. Other reliefs or orders as the Honourable Court deems fit and just.
[2] The Cause Papers are as follows:
a. Enclosure 236
i. Notice of Application (Encl 236).
ii. Affidavit-in-support (Encl 237).
iii. Affidavit-in-opposition (Encl 248).
iv. Affidavit-in-reply (Encl 264).
b. Enclosure 251
i. Notice of Application (Encl 251).
ii. Affidavit-in-support (Encl 252).
iii. Affidavit-in-opposition (Encl 257).
iv. Affidavit-in-reply (Encl 262).
The Background Facts
[3] In the case before the Court, the Plaintiff filed a Writ of Summons and Statement of Claim to claim for ½ share of a property that is held under the Title GM 1145, Lot 33 Sungai Kluang Sub District, District of Rengit, State of Johore ("the said property") which is owned by the 1st Defendant because of the failure of the 1st Defendant to pay money owed to the Plaintiff. When the transfer of title could not be executed because the Document of Title which was then deposited with the firm of Messrs Jaswant Singh & Associates, was taken by the 1st Defendant and has not, since, been returned.
[4] On 6 September 2010 the ½ share of the said property was transferred to the 3rd Defendant. At the time, the Plaintiff has already filed a suit in the High Court Suit No 22NcVC-155-12/2012 against the 1st, 2nd, 3rd Defendants, when the Plaintiff found out that there was an approval for sub division of the said property into 2 parts namely HSM 3240 Lot 3704 (joint ownership between the 4th until 11th Defendant) and HSM3241 Lot 3704 (owned by the 3rd Defendant which was effected by the transfer from the 1st Defendant).
[5] The Plaintiff asserted that he has no knowledge of the Application for the removal of Lien Holder's Caveat and alleged that his signature has been falsified. Hence the claim by the Plaintiff was that the Transfer of Title was done fraudulently.
[6] Another Writ of Summons and Statement of Claim against the 12th and 13th Defendants were filed on 30 June 2016. The allegations against the 12th Defendant was that the 12th Defendant through his servant and/or agent and/or representative had accepted, and registered the application for sub division of the said property which was registered on 21 December 2011 through the Presentation No 145/2011 and the 3rd Defendant, the 4th Defendant until the 11th Defendant was approved and registered by the 12th Defendant, notwithstanding there were 2 Caveats entered by the Plaintiff on the said property.
[7] The 12th Defendant further cancelled the Original Document of Title of the said property and issued 2 separate documents of title.
[8] After a full trial, the High Court ruled on 3 June 2020 as per the Order as exhibited in the Affidavit-in-Opposition filed by the Plaintiff Exhibit LHL-5. An appeal was filed before the Court of Appeal which is No J-01(NCVC)(W)-282-06/2020. Hence this application pending disposal of the said appeal.
The Law In Respect Of An Application For Stay
[9] The Merr
