Lee Hun Hoe CJ (Borneo):

[1] Leave to appeal against the decision of the Federal Court delivered on 4 August 1975, to the Yang Dipertuan Agung and stay of execution in respect of the first two orders were granted to second and third respondents soon after the delivery of judgment. The first respondent, the Kong Thai Sawmill (Miri) Sdn Bhd now applies for leave to appeal to the Yang Dipertuan Agung and for stay of execution in respect of three further orders. Leave to appeal has not been opposed.

[2] Several grounds were put forward for stay of execution. It was said that the appointment of "watchdog director" was inconsistent with and in contravention of the Articles of Association of the company. The case of Re Chi Liung & Son Ltd, Tong Chong Fah v. Tong Lee Hwa & Ors, [1968] 1 MLJ 97 was cited. There because of a pending probate action the Court was prepared to maintain the status quo till the determination of that action. In the present case the situation is entirely different. Another ground was that two of the persons named as alternate "watchdog directors" were not parties to the action and that this would be unfair to the other shareholders. It was further said that the company was, therefore, unnecessarily burdened with pecuniary burden in the form of fees to directors.

[3] The application for stay was strenuously opposed. It was submitted that apart from various reasons for the appointment of "watchdog directors" such appointment was not only in the interest of appellant but also other shareholders. It was further submitted that the Federal Court made the various orders after detailed argument on law and facts and that I should not disturb the orders. Whether the Federal Court is right or not is a matter for the Privy Council. There is an affidavit by appellant in reply to one by Datuk Ting Lik Hung, a director of the company.

[4] In Griffiths v. Benn 27 TLR 350 the Master of the Rolls indicated that:-

"... where, after a full hearing, a definite conclusion was arrived at by the Court of Appeal, it was not fair on a successful litigant to hamper him with any such undertaking and it would need most exceptional circumstances to induce this Court to accede to such an application."

[5] In Atkins v. The Great Western Railway Company 11 TLR 400 where in support of an application for stay of execution pending appeal it was alleged that a great deal of prejudice had been imported into the case at the trial and that there were strong grounds for the appeal, the Court held that the grounds were not sufficient to grant the application. The Master of the Rolls said that he would not undertake to say that the Court of Appeal would never listen to what happened at the trial in order to see whether they would grant a stay of execution. However, he observed that an a general rule, the only ground for such a stay was an affidavit showing that if the damages and costs were paid there was reasonable probability of getting them back even if the appeal succeeded. He would not say that the Court would not interfere for some other reason, but that there were strong grounds for appeal was no reason for no one ought to appeal without strong grounds for doing so.

4

"The Court of Appeal has had to consider this question some time ago and decided that the practice on appeals to the House of Lords was that stay of execution, pending such an appeal, would not be granted save under very exceptional circumstances, such as for instance, where execution would destroy the subject-matter of the action or deprive the appellant of the means of prosecuting the appeal. In our view the appellant's motion is not consistent with the practice on which this Court, after consideration, has determined."

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