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HIGH COURT MALAYA, KUALA LUMPUR
MCAT GEN SDN BHD – Appellant
Versus
CELCOM (M) BHD (NO 2) – Respondent
[Suit No: S6-23-74-2005]
JUDGMENT
Abdul Malik Ishak J:
Introduction
[1] I gave an order on 11 December 2006 that the High Court Civil Suit No: S4-22-23-77-2005 ("S4 suit") be transferred to this Court and heard after the adjudication of the present proceedings vide the High Court Civil Suit No: S6-23-74-2005 ("S6 suit"). Aggrieved by that decision, the plaintiff has since filed an appeal to the Court of Appeal. I have since written a judgment and it has not been reported and for convenience it shall be referred to as the "first judgment".
[2] The plaintiff now filed an application in encl. 35 seeking a stay until the full and final determination of the plaintiff's appeal to the Court of Appeal against my decision as reflected in the first judgment. The plaintiff too sought for a stay to enable the trial and final determination of the Kuala Lumpur High Court Civil Suit No: D4-22-1682-2005 ("D4 suit") involving the same parties as in the S6 suit. Whereas the plaintiffs in the S4 suit were the directors of the present plaintiff while the defendant is the present defendant.
To The Heart Of The Matter
[3] The plank of the plaintiff's arguments may be stated in this way. That the stay must be granted to enable the trial and final determination of the D4 suit. That, according to the plaintiff, constituted the special circumstance that this Court ought to consider and accept. It was also submitted at the bar that the D4 suit has been scheduled for hearing on the following dates. On 13 June 2007 and on 14 June 2007. Again, on 30 July 2007 and on 31 July 2007. Finally, on 1 August 2007 and on 2 August 2007. But, unfortunately, the plaintiff's affidavits did not reflect nor show the hearing dates scheduled by the D4 Court as alleged.
[4] An affidavit plays a vital role in an interlocutory application. The affidavit usually sets out the facts on which the party relies upon (Yamamori (Hong Kong) Ltd v. Davidson, [1990] 3 CLJ (Rep) 367 ; [1992] 2 MLJ 410, 420). It was, unfortunately, not the case here. Nothing was mentioned in the affidavits about the hearing dates of the D4 suit. What was told to me was entirely done at the bar.
[5] Even if it was true that the hearing dates have been set by the learned judge of the D4 suit as stated by the plaintiff, that cannot be the reason to stay the present proceedings. With respect, the trial of the D4 suit may proceed as scheduled without affecting the progress of the present proceedings.
[6] As matter of law, a stay of proceedings will not be granted simply because there is an appeal to the Court of Appeal. No prejudice has been occasioned to the plaintiff or to the individual directors of the plaintiff if this Court were to hear the S4 suit. The plaintiff has also failed to show how the continuance of the present proceedings would work an injustice in that it would be oppressive or vexatious to the plaintiff or that it would be an abuse of the process of the Court - and the burden to prove all these lies squarely with the plaintiff. The plaintiff's stay application is simply a tactical ploy to delay the determination of the S6 suit and, consequently, the S4 suit.
[7] The law relating to the granting of a stay of proceedings is settled. The Court must exercise its discretion as to what is the fairest mode, after taking into consideration all the relevant matters, which exist between the parties. Put differently, the Court may exercise its discretion whenever it is just and reasonable to do so, so as to ensure that justice is done to both the parties. It is entirely an exercise of discretion, pure and simple. These principles of law are reflected in Halsbury's Laws of England , 4th edn, reissue, vol. 37 at p. 290 at para. 926:
In general a stay of proceedings arises under an order of the Court which puts a stop or 'stay' on the further conduct of the proceedings in that Court at the stage which they have then reached, so that the parties are precluded thereafter from taking any further step in the proceedings. The object of the or
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