: This is an application by the defendant for a stay of execution pending appeal.

The plaintiff is now 67 years old. Her father died intestate in 1944. The defendant took out letters of administration in 1948, and effectively distributed the entire estate between himself and his brothers pursuant to a distribution order he obtained in 1949. The plaintiff was thus deprived of her inheritance. I valued this as at the date of judgment at RM547,847.21. I also ordered that the plaintiff be paid interest thereon from the date of her entitlement up to the date of my judgment. This came to another RM131,483.28. I then added these two sums to make up the decretal amount and ordered that the defendant pay 8% pa thereon until realization. It is this order the defendant now seeks to stay.

The defendant sold some of the lands he inherited from his fathers estate and bought another estate in Batang Kali, which he registered in the names of himself and his son. When he was about to sell this estate, the plaintiff obtained an ex parte injuction restraining him from doing so. This injunction was set aside by consent upon terms that the defendants half share of the sale proceeds be put on fixed deposit and the receipts be placed in the custody of this court.

The issue as to whether a stay should be granted has been hotly contested. All the authorities have been reviewed by my brother NH Chan J in Che Wan Development Sdn Bhd v Co-operative Central Bank Bhd [1989] 3 MLJ 40, except the following:

(1) Mohamed Mustafa v Kandasami (No 2) [1979] 2 MLJ 126;

(2) Orion Property Trust & Ors v Du Cane Court Ltd [1962] 3 All ER

466;

(3) Lee Kuan Yew v Jeyaretnam JB [1991] 1 MLJ 83.

The core factors in this equation which emerge from these cases can be summarized as follows:

(1) The court will not deprive the successful party of the fruits of his

litigation until an appeal is determined unless the unsuccessful party can

show special circumstances otherwise;

(2) The validity or correctness of the decision appealed from are not

special circumstances;

(3) Special circumstances are circumstances which go to the enforcement of

the judgment and not those which go to its validity or correctness. Merits or

strong grounds of appeal are not special circumstances;

(4) Proof that a successful appeal would be nugatory is a special

circumstance.

The courts have held that it is no small matter for a successful party to go without his damages for a long time, and that the poverty of the plaintiff by itself is not a special circumstance except where there was no reasonable probability of getting the money back if the appeal succeeded. It is not enough to contend that the plaintiff is impecunious and therefore incapable of making reimbursement. Evidence has to be adduced to prove that it is so.

Mr Gunaseelan counsel for the plaintiff contended that because the plaintiff had traced the original assets of the deceaseds estate to the Batang Kali estate, the proceeds of the sale of the latter was in fact part of the deceaseds estate and therefore the order I made was for equitable restitution, and not a money judgment.

With respect I cannot agree. Order 47 r 1 of the Rules of the High Court 1980 is clear. This is a money judgment and being so,

... the court may by order stay the execution ... either absolutely or

for such period and subject to such conditions as the court thinks fit.

In Syarikat Berpakat v Lim Kai Kok [1983] 1 MLJ 406, Hashim Yeop Sani J confirmed that the court has an absolute and unfettered discretion to grant or refuse an application for stay.

This discretion must be exercised within the parameters. Subject to that limitation every decision on stay of execution being an exercise of judicial discretion can only be a decision on its own facts, and cannot be treated as judicial precedent and binding.

A word or two as to what is nugatory is not out of place. According to The New Shorter Oxford Dicti