NH Chan JCA:

Under a written contract dated 15 September 1995, the respondent claimed to have rendered service to the appellant by supplying and erecting microwave television towers for the appellant throughout Malaysia. The respondent claimed that they have not been paid and sued the appellant. On 8 July 1997 the respondent had obtained from the deputy registrar an O. 14 judgment against the appellant. On 9 July 1997 the appellant filed a notice of appeal to the judge in chambers. On 18 July 1997 the appellant sent two cheques to the respondent "in full and final satisfaction of the said judgment". The appellant's appeal to the judge below was struck off by the judge on the ground that the whole substratum of the appeal was destroyed by the payment. Hence the appellant's appeal to the Court of Appeal.

Counsel for the respondent relied on Metropolitan Real and General Property Trust Ltd v. Slaters and Bodega Ltd [1941] 1 All ER 310. The headnote is significant and I quote from it, thus (310):

Judgment was given against the defendant for the recovery of a sum of money and leave was given to the plaintiff to proceed to execution.

The defendant thereupon obtained leave to appeal against the latter order, but no stay of execution was directed:

HELD: in such a case, a stay of execution ought to be granted automatically, since, if the debtor is compelled to pay the sum recovered, the basis of the appeal is destroyed. (emphasis added)

There in the Metropolitan case, there was no appeal against the judgment. The appeal there was against the order giving leave to the plaintiff to proceed to execution. Since there was no stay of execution directed against the order which gave leave to execute on the judgment, the basis of the appeal was destroyed by the payment of the judgment amount. The Metropolitan case was distinguished by the House of Lords in Baker v. Turner [1950] 1 All ER 834. This is how Lord Porter put it, at 839:

As to the second case (the Metropolitan case) there was no dispute that the defendants owed a sum of money ordered by the court to be paid, but they applied under the courts (Emergency Powers) Act, 1939, for a stay of execution and resulting postponement of payment. The learned judge, reversing the order of the master, gave the plaintiffs leave to proceed to execution and also granted leave to appeal, but made no order staying execution. Before the appeal was heard, the defendants paid all sums due under the judgment.

In these circumstances, as the only remedy would have been to order the repayment to the defendants of a sum admittedly due and paid, the Court of Appeal held that the basis of the appeal was destroyed. But that decision depended, in my view, on the fact that the sum paid was admittedly due, and the only application before the court was for a temporary stay. (emphasis added).

In Baker v. Turner Lord Porter pointed out that the judgment sum in the Metropolitan case was admittedly due because there was no appeal against the judgment. The only application before the court in that case was for a temporary stay of execution so as to allow the defendant time to pay. The position in the present case is very different from the situation in the Metropolitan case. Here, in the present case, the appellant has appealed against the judgment and under the Courts of Judicature Act 1964 an appeal does not operate as a stay of execution. The lis is not ended by the payment because the decision of the appellate court would have affected the substantive right of the parties. This is what Lord Porter said, ibid at 839:

If, as is the position in this case, the decision of the appellate court would have affected the substantive right of the parties, the decision (in the Metropolitan case) would have been otherwise. The lis is not ended by the levying of execution or by the landlord obtaining possession of the house; he may have achieved his object by a mistaken decision which it is your Lordships' function