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2021 MarsdenLR 2957
HIGH COURT MALAYA MUAR
ISMAIL SUID & ANOR – Appellant
Versus
WAN NADZIM WAN MOHD NORI & ANOR – Respondent
[Civil Appeal No: JB-12BNCVC-6-07/2019]
The court grants a stay of execution only if special circumstances are shown, ensuring the appeal is not rendered nugatory while maintaining the successful party's rights.
Headnote:(A) Courts of Judicature Act 1964 – Sections 44, 57(1), 73 – Application for Stay of Execution pending appeal – The Court has unqualified discretion to grant a stay, which will only be issued if special circumstances exist. The appeal must not render execution nugatory, supported by the preference for justice and maintaining status quo. (Paras 10-12, 22-64)
Facts of the case: The Appellants sought damages for professional negligence over failed property purchase due to partners' negligence. Appeal allowed granting RM632,965.38. (Paras 7-8)
Findings of Court: The Court ruled in favor of maintaining status quo, subject to conditions. (Paras 66-66)
Issues: Whether to grant a stay against execution from the previous decision pending the appeal with special circumstances.
Ratio Decidendi: The existence of special circumstances is a critical factor, alongside the preservation of the fruits of litigation. (Paras 58-66)
Result: Stay of execution granted pending appeal. (Paras 66)
JUDGMENT
(Enclosure 28)
Introduction
[1] This is an application for a Stay of Execution of the Court's Order pending the hearing of Appeal by the Court of Appeal which was filed by the Respondents against the decision of this Court given on 27 October 2020 after the hearing of the Appeal against the decision of the Learned Sessions Court Judge.
[2] The Appellants filed a Writ of Summons in the Sessions Court on seeking for damages for the professional negligence of the Respondents who were partners in the legal firm which had earlier acted as solicitors for the Appellants in the purchase of a property that was held under the Title HS(M) 259, Lot PTD560 Peserai Sub District, Jalan Batu Puteh, District of Batu Pahat, in the State of Johore (the said property). The Appellants took a loan from the Housing Loan Division (now known as the Public Service Housing Loan Board) Ministry of Finance, Malaysia.
[3] However the project was abandoned by the Developer, Syarikat Tuah Bakti Sdn Bhd (Company No 154828) for the housing scheme named as Taman Tuah Peserai, Jalan Batu Puteh, Batu Pahat, Johore.
[4] The Respondents were partners, practising under the style and name of Messrs Zainudin Wan Nadzim Chua Dan Mazlinda whose address for service is at No 18-1, Plaza Crystalville 2, Jalan 22A/70A, Desa Sri Hartamas, 50450 Kuala Lumpur.
[5] As a result of the negligence of the partner of the Respondents (by the name of Zainudin bin Maksom (now a bankrupt), the interest of the Appellants were not protected and notwithstanding payments were made by the Public Service Housing Loan Board to Syarikat Tuah Bakti Sdn Bhd, after the project was abandoned, the property was sold to a third party and the Appellants suffered losses because they could not own the said property, they have to service the loan which was disbursed by the Public Service Housing Loan Board.
[6] The other losses suffered by them were (among others) they had to bear rental of another house and other expenses as a result of the loss of the said property. The Appellants filed a Writ of Summons on 13 August 2018 at the Sessions Court in Muar and the decision of the Sessions Court to dismiss their claims was given on 9 July 2019 with costs of RM4,000.00.
[7] After hearing the arguments of parties, this Court allowed the appeal and granted the damages and cost amounting to RM632,965.38.
[8] The Respondents, being dissatisfied with the decision of this Court filed a Notice of Appeal with the Court of Appeal (encl 24) on 13 November 2020.
[9] The Respondents also filed a Notice of Stay of Execution pending appeal (encl 28) and I heard the arguments today and I allowed the stay of execution of the decision of this Court on the condition that RM70,000.00 be paid into the Respondents' Solicitors Clients Account to be held in trust pending the hearing of the appeal. I now give my reasons.
The Law In Respect Of Stay Of Execution
[10] The Merriam-Webster's Unabridged Dictionary defines "stay of execution" as "an order that temporarily stops an execution".
[11]The Black's Law Dictionary ( 2016 A Legal Dictionary) defines "the stay of execution" as "the hold that is put on the carryout of an order or judgment of a Court".
[12] In Latin, it is known as "Cesset Executio" meaning "let the execution be stayed".
[13] The provisions for an application for stay of execution are found in:
(a) Courts of Judicature Act 1964 , ss 44, 57(1), 73.
(b) Rules of 2012, O 55 r 16.
[14] As matter of law, a stay of proceedings will not be granted simply because there is an appeal to the Court of Appeal. This is stipulated in Courts of Judicature Act 1964 , s 73.
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 proceeding shall be invalidated except so far as the Court of Appeal may direct.
[15] Rules of the of Appeal 1994, s 13 al
