There must be special circumstances to justify a stay of execution; mere merit of an appeal is insufficient.

Introduction

[1] On 28 November 2014, after a full trial of the originating summons, I granted the plaintiff his application in encl 1 made under s 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 ("the LRA"). The effect of the order is that the plaintiff is given the exemption sought under the same section and leave to file a divorce petition without first having to refer his matrimonial difficulty with the defendant to the conciliatory body.

[2] Pursuant to the order, the plaintiff had filed Divorce Petition No: 33-650-12-2014 on 4 December 2014 at the Kuala Lumpur High Court, Family Division.

Enclosure 103

[3] This is the application by the defendant for stay of execution of the Court Order dated 28 November 2014 pending the defendant's appeal to the Court of Appeal filed on 1 December 2014.

Court's Decision Given On 23 January 2015 Regarding Enclosure 103

[4] The defendant's application is dismissed. Costs of RM4,000.00 is to be paid by the defendant to the plaintiff.

The Law

[5] Under s 73 of the Courts of Judicature Act 1964 , an appeal does not operate as a stay.

[6] The guiding principles on whether to grant a stay of execution are laid down in Serangoon Garden Estate Ltd v. Ang Keng , where two main principles should be considered:

"(a) the Court will not deprive a successful party of the fruits of his litigation until an appeal is determined; and

(b) whether the unsuccessful party can show special circumstances to justify a stay."

Whether The Various Factors Raised By The Defendant Constitute Special Circumstances To Justify A Stay Of Execution ("Stay")?

Merits Of The Defendant's Appeal To The Court Of Appeal

[7] The defendant contended that there are merits to her appeal regarding, inter alia, the following important and novel questions of law:

(i) Whether the legal doctrine of coverture applies in Malaysia?;

(ii) Whether the Convention On The Elimination Of All Forms Of Discrimination Against Women ("CEDAW") has any impact on the issues regarding domicile in Malaysia?;

(iii) Whether the defendant, as a wife, has her own domicile of choice which is independent from that of her husband's domicile?;

(iv) The principle of judicial comity bearing in mind that this Court has made a decision which "flies across the face of the earlier decision of the English High Court".

[8] The above issues have been considered fully by this Court in its judgment dated 28 November 2014, and I have already decided on those issues. In any case, the merits of an appeal do not constitute special circumstances to justify a stay.

[9] In Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur, , the Federal Court at p 546 of its judgment referred to the case of Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2); [1976] 1 MLJ 131 at p 78 where Lee Hun Hoe CJ (Borneo), in considering whether there are special circumstances stated, inter alia, "it is therefore unnecessary for me to consider the merits of the respective case ...".

Appropriate Jurisdiction

[10] In regard to the issue of appropriate jurisdiction, I bear in mind that the Court of Appeal had also decided earlier in the defendant's appeals regarding encls 1 and 6 of this same case that the Malaysian Court is the appropriate forum for these proceedings.

Defendant's Appeal May Have Flaws

[11] Learned counsel for the plaintiff submitted, inter alia, that there may be flaws in the defendant's notice of appeal in the event that the d