Raja Azlan Shah FJ:

On 26 August 1973 the plaintiff obtained judgement against the defendant in the High Court at Kota Bharu for immediate vacant possession of premises No. 40, Jalan Market, Pasir Mas and costs. The defendant continued to be in possession and has sublet the ground floor as a restaurant. The plaintiff continued to pay the rent at the rate of $110 pm ever since the termination of the partnership on 31 May 1970 for fear that the tenancy would be terminated by the landlord for arrears of rent.

The defendant has appealed against the said judgment but has not yet paid the costs of the High Court action.

On 30 September 1973 the defendant applied for a stay of execution. The plaintiff did not object but asked for security for the unpaid costs below and costs of the appeal. The Judge has jurisdiction to order a conditional stay e.g. the defendant to provide security for past costs, but he granted an unconditional stay. He has clearly no jurisdiction to order further security for costs of the appeal. That is the province of a Federal Court Judge (s. 44 Courts of Judicature Act, 1964).

The plaintiff now comes before this Court. His application which was filed on 10 October 1973 is in two limbs: (a) for security for the unpaid costs below, and (b) for further security for costs of the appeal. He says the defendant is an impecunious litigant and cannot afford to pay the past costs which is estimated at well over $5,000, the cost of the appeal which is estimated at more than $2,500 and the rent which is estimated at $5,000 by the time the appeal is determined by the Federal Court, should the defendant fail in the appeal.

The defendant says he has a good ground of appeal in law, i.e. he is a protected tenant under the provisions of the Control of Rent Act, 1966.

With regard to the application for unpaid costs below it is plain that the trial Judge has ranted an unconditional stay. That is eminently a matter of discretion for him and unless it can be shown that his exercise of discretion is plainly wrong, this Court will not interfere. Nothing of sufficient gravity has been established to entitle this Court to take a different view of the matter.

Rule 18(1) of the Federal Court (Civil Appeals) (Transitional) Rules, 1963 gives this Court a discretion to order further security for costs of an appeal "at any time, in any case where it thinks fit". Thus this is a discretionary remedy to be exercised in accordance with well known principles. This Court is not bound by any hard and fast rules, but has to look at all the circumstances of the case. (See Abu Bin Mohamed V. Voo Fui Tong & Anor. .

Poverty of the defendant is a ground to increase the security for costs but where it exists, the Court must consider other circumstances, whether in a particular case it will order further security to be given. As was said by Lord Usher, MR in Hood Barrs v. Heriot [1896] 2 QB 376 which was quoted by Home J in Abu bin Mohamed's case, supra:

All that this Court has ever held is that poverty or inability to pay is a special circumstances, and, where it exists the Court must consider whether in the particular case it will order security to be given. The Court is not bound in such a case to order security to be given. It has a discretion in the matter which it has exercised on many occasions.

The matter is therefore a question of discretion for the Court.

It may well be that the defendant is in a state of doubtful solvency. But the matter must be resolved at the earliest opportunity, i.e. when the notice of appeal was given. Beyond saying in his affidavit that the defendant has appealed the respondent for some inexplicable reason has not disclosed the date the notice of appeal was given. A perusal of the Court Registry file reveals 4 September 1973 was the date, that is some eight days after judgment was delivered.

In ordinary circumstances the respondent ought to confront the defendant by letter to give security. If there is n