The applicant must demonstrate special circumstances to justify a stay of execution which were not established in this case.

Liza Chan Sow Keng J:

Introduction

[1] Enclosure ("Encp") 352 is the Plaintiffs' application made pursuant to O 55 r 16 of the Rules of 2012and/or under the inherent jurisdiction of the Court for a stay of execution of the Judgment granted in favour of the Defendants on 12 December 2022 pending the disposal of the Plaintiffs' appeal against the said Judgment.

[2] The application for a stay of execution was dismissed with costs. The Plaintiffs have appealed against my decision. These are the grounds for my decision.

Background

[3] The 1st Plaintiff ("P1") at the commencement of this suit, is said to be a bankrupt with sanction of the Insolvency Department of Malaysia/Jabatan lnsolvensi Malaysia to commence this suit whilst the 2nd Plaintiff ("P2") is the brother of P1 and purportedly holds Pi's Power of Attorney. Pi's bankruptcy was said to be discharged on 29 December 2020.

[4] P1 in 2005, bought the residential property with an address as No 21, Jalan Puncak 2, Taman Puncak Bukit Utama, Bukit Antarabangsa, 68000 Ampang, Selangor Darul Ehsan ("the Property") for a sum of RM1,030,074.00.

[5] To part finance the purchase of the Property, P1 by a facility agreement dated 28 February 2006 and Letter of Offer dated 27 October 2005 ("the Agreement") took a facility of RM772,555.00 from the 1st Defendant (interchangeably "D1" or "the Bank") and as security for the facility, by a deed of assignment ("DOA") on the same date assigned all present and future right, interest and title the Property to the Bank, and also executed a power of attorney ("POA") in favour of the Bank appointing the Bank as his lawful attorney in relation to the Property.

[6] The 2nd Defendant ("D2") is an auctioneer whilst the 3rd Defendant ("D3") is the successful bidder and purchaser of the Property.

[7] P1 defaulted in payment of his facility instalments. The Bank by letter dated 30 May 2017, recalled the facility, demanded payment of the outstanding sum of RM716,844.16 as at 24 May 2017 within 14 days, and also gave notice that the Bank will exercise its right under the Agreement, DOA and POA, to inter alia, sell the Property in the event such payment is not received. Payment as demanded was not received and by its solicitors' letter dated 11 August 2017, the Bank terminated Pi's right to possession and/or occupation of the Property and exercised its rights under the Agreement, the DOA and POA to sell the Property by way of auction.

[8] After 7 previous unsuccessful attempts by the Bank to auction the Property, the Property was ultimately auctioned off on 19 November 2019 to D3 as the successful bidder. The sale of the Property to D3 was completed on 15 June 2020.

[9] The Plaintiffs filed this action on 7 July 2020 (and not 10 October 2021 as asserted in para 3 of their submissions) against the Defendants alleging that the Bank was negligent in failing to take reasonable precautions to obtain the true market value of the Property and sold the Property at an undervalue; the Bank was vicariously liable arising from the actions of the auctioneer, who is said to be the Bank's agent, in purportedly refusing to allow P2, who was present with a Hong Leong Banker's cheque no 148987 for the sum of RM111,603.00 to bid at the auction of the Property on 19 November 2019 at 2pm; the auction was not properly carried out; D3 was not present at the auction but was allowed to bid for the property. As such, the Plaintiffs sought inter alia to set aside the sale by auction of the Property and for general damages to be paid by the 1st, 2nd and 3rd Defendants.

[10] All 3 Defendants filed their respective defence. The 3rd Defendant counterclaimed against the Plaintiffs for an order for vacant possession of the Property, special