JUDGMENT

Aliza Sulaiman JC:

[1] After a full trial, the High Court on 30 September 2019 had dismissed the Plaintiff's claim for the sum of RM2,579,582.72 with interest and costs, and allowed the Defendant's counterclaim in the sum of RM1,885,899.44 together with the interest at the rate of 5% per annum on the judgement sum from 30 September 2019 until full settlement, costs of RM40,000.00 and allocatur fees of RM1,600.00 ('said Judgment'). Aggrieved with the said Judgment, the Plaintiff filed a Notice of Appeal on 15 October 2019.

[2] On 16 October 2019, the Plaintiff filed an application to stay the execution of the said Judgment, including winding-up proceedings against the Plaintiff, pending the disposal of its appeal at the Court of Appeal pursuant to O 45 r 11 and O 92 r 4 of the Rules of 2012 ('ROC 2012').

[3] The Plaintiff's Notice of Application ('NoA') dated 16 October 2019 (Enclosure 71) was filed together with an Affidavit in Support ('AIS') of even date (Enclosure 72). The Defendant filed its Affidavit in Reply ('AIR') dated 29 October 2019 (Enclosure 73), which the Plaintiff duly replied vide its AIR dated 11 November 2019 (Enclosure 75).

[4] On 16 January 2020, I dismissed the Plaintiff's application with cost of RM5,000.00. These are my full grounds for the decision.

Brief Background Facts

[5] The Plaintiff is the main contractor for the project known as "Projek Mass Rapid Transit Lembah Kelang Jajaran Sungai Buloh - Kajang, Pakej MSPR8: Construction and Completion of Multi Storey Car Park Building, External Works and other Associated Works at Taman Koperasi Station" ('said Project'). The owner of the said Project is Mass Rapid Transit Corporation Sdn Bhd.

[6] Based on the Letter of Award dated 7 March 2015 ('LoA'), the Plaintiff had offered a subcontract to the Defendant to provide skilled labour, materials, tools, equipment and necessary machineries for the execution and completion of bored piling works for the said Project ('Subcontract Works') for the sum of RM20,329,268.40.

[7] A Supplementary Agreement was executed by the parties on 22 March 2015 whereby the Defendant agreed to give a discount of RM400,000.00 on the contract sum ('said Discount'). The Defendant accepted the appointment via a Letter of Acceptance dated 10 July 2015.

[8] The Defendant carried out the Subcontract Works and on 27 October 2017, the Plaintiff issued the Certificate of Practical Completion with effect from 17 July 2017.

[9] The Plaintiff prepared the Final Accounts and forwarded these to the Defendant vide letter dated 4 October 2017, and was duly received on 9 October 2017.

[10] According to the Plaintiff, the Final Accounts show that the Defendant had carried out Subcontract Works to the value of RM23,689,580 October The Plaintiff further claimed that it had paid certain amounts to the Defendant, and taking these into account together with the said Discount and some Debit Notes issued, the Defendant owes the Plaintiff a sum of RM2,579,582.72.

[11] The Defendant then counterclaimed for a sum of RM2,688,823.81 which includes, inter alia, the Goods and Services Tax ('GST') of 6% on Certificate Nos. 1 to 6; supply of machinery, materials and labour; retention sum; uncertified bored piling works, uncertified boring works and cut-off pile heads; and undervalued compaction grouting works.

[12] After a trial which took 9 days, the High Court pronounced the said Judgment.

The Plaintiff's Submissions

[13] The Plaintiff contended that it has discharged the onus of establishing the existence of special circumstances in that:-

(a) if the Court dismisses the Plaintiff's instant application, and in the event the Plaintiff succeeds in its appeal, the appeal would be rendered nugatory; and

(b) if the Court dismisses the Plaintiff's present application, and the Defendant executes the said Judgment against the Plaintiff, the Plaintiff will be put in a very tight cash flow position, which will subsequently impact on two current government projects where the Plainti