The court upheld that a conditional stay may be granted if special circumstances are not demonstrated for an absolute stay, upholding the finality of arbitral awards.

JUDGMENT

Wong Kian Kheong J:

A. Background

[1] On 12 June 2019, a final arbitral award (Award) had been delivered by a sole arbitrator, Mr Nahendran Navaratnam, in favour of Kenwise Sdn Bhd (Kenwise) against Mammoth Empire Construction Sdn Bhd (Mammoth).

[2] According to the Award, Mammoth shall pay the following sum to Kenwise (Award Sum):

(1) US$1,100,000.00;

(2) RM1,165,605.78;

(3) arbitral costs in an amount of RM258,879.03; and

(4) interest at the rate of 8% per annum on the above sums from the date of the Award until full payment of those sums

[3] The following three originating summonses (OS) have been filed and heard together regarding the Award:

(1) In OS No: BA-24NCC(ARB)-1-07-2019 filed by Mammoth against Kenwise (Mammoth's Reference OS), Mammoth has referred six questions of law regarding the Award to this court pursuant to s 42(1) of the Arbitration Act 2005 (AA);

(2) Mammoth has also filed OS No: BA-24NCC(ARB)-2-08-2019 against Kenwise to set aside the Award under certain paragraphs in s 37 AA (Mammoth's Setting Aside OS); and

(3) OS No: BA-24C(ARB)-6-09-2019 has been filed by Kenwise against Mammoth for a court order under s 38(1) AA to recognise the Award as binding and enforceable by way of entry as a judgment in terms of the Award (Kenwise's Enforcement OS).

[4] On 14 September 2020, this court has decided as follows, among others (High court's Decision):

(1) Kenwise's preliminary objection against Mammoth's Reference OS was dismissed with costs [Mammoth's Costs (PO)];

(2) Mammoth's Reference OS and Mammoth's Setting Aside OS were refused;

(3) I have allowed Kenwise's Enforcement OS; and

(4) One set of costs for the three OS shall be paid by Mammoth to Kenwise [Kenwise's Costs (Three OS)].

The grounds for the High court's Decision are available at Mammoth Empire Construction Sdn Bhd v. Kenwise Sdn Bhd & Other Cases.

[5] Mammoth has appealed to the court of Appeal against the High court's Decision (Mammoth's Appeal).

B. Mammoth's Application In court Enclosure No 35 (Enclosure 35)

[6] In encl 35, Mammoth has applied for an absolute stay of execution of the High court's Decision pending the disposal of Mammoth's Appeal (Absolute Stay Order Application).

C. Whether court Can Grant Ad Interim Stay Of Enforcement Of The High court's Decision Pending Disposal Of Appeal ?

[7] When encl 35 was first heard by me, Mammoth's learned counsel had applied for an ad interim stay of execution of the High court's Decision pending the disposal of encl 35 by this court (Ad Interim Stay Application).

[8] Kenwise's learned counsel has opposed the Ad Interim Stay Application.

[9] Firstly, the court has power to allow an ad interim stay of execution of any judgment or order (Judgment/Order) pending the disposal of an appeal against the Judgment/Order. This is clear from the following judgment in China Harbour Engineering Company Ltd v. Lunar Shipping Agencies Sdn Bhd , at [13]:

"[13] I dismissed the defendant's learned counsel's objection and granted an Ad Interim Stay. Firstly, I am of the view that the court has the discretionary power to order an Ad Interim Stay under O 92 r 4 RC and the court's inherent jurisdiction. An Ad Interim Stay has been granted by Mohd Noor Ahmed J (as he then was) in the High court case of Citibank NA v. Mrs Nd Chandrasegaran Nee Nirmala Devi P Ratnadurai, [2007] 8 MLJ 149, at paras 1-4 as follows:

"The defendant, by Summons In Chambers (encl 58) applied to set aside my Order which directed an interim stay of the execution of the order of the learned Senior Assistant Registrar (SAR) dated 4 February 1997 (hereinafter referred to as 'the said Order') until the disposal of the Plaintiff's application in enclosure (37). Under the said Order, having assessed damages pursuant to the orders of Anuar J (as he then was) of 5 October 1993 and 1 September 1994, the SAR ordered the plaintiff to pay the defendant RM250,000.00 as damages with interests. In that enclosure, the plaintiff prayed for stay of the execution of the said Order unt