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2021 MarsdenLR 3156
HIGH COURT MALAYA MUAR
LIM HING LONG – Appellant
Versus
TAN EE & ORS (ENCL 2361) – Respondent
[Civil Suit No: 22NCVC-40-06/2016]
A stay of execution pending appeal requires demonstration of special circumstances and cannot simply be based on the appeal's pendency.
Headnote:(A) Courts of Judicature Act 1964 – Sections 44, 57(1), and 73 – Rules of 2012 – Order 55 r 16 – Applications for stay of execution pending appeal – Court exercises discretion to grant stay in special circumstances – The court must ensure that the successful party is not deprived of the fruits of litigation without just cause – Application for a stay granted with conditions; another dismissed for lack of justification. (Paras 9, 13, 17, 34, 71)
Facts of the case: The Plaintiff seeks a stay of the High Court’s Order pending appeal against the 3rd Defendant regarding a property dispute rooted in allegations of fraudulent transfer of title. The 2nd application involves disciplinary actions tied to a different ruling.
Findings of Court: The Court granted the stay for the 3rd Defendant under specified conditions, emphasizing the necessity of maintaining status quo, while denying the absence of special circumstances in the application concerning defendants 12 and 13.
Issues: The applications raised issues regarding whether special circumstances existed to justify the stay of execution or whether such stays would adversely impact any parties' rights.
Ratio Decidendi: The Court ruled that stays are contingent upon showing special circumstances; the mere pendency of an appeal does not automatically result in stays unless injustice would occur if the appeal is successful.
Result: The stay of execution for Enclosure 236 is allowed with conditions; the application for Enclosure 251 is dismissed.
JUDGMENT
(Enclosure 236)
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 Merria
