The court ruled it lacks authority to stay execution of a declaratory judgment that does not command compliance; furthermore, non-party costs can only be imposed with proper notice.

Gopal Sri Ram FCJ:

[1] This is an application to stay execution on the judgment of this court pending the outcome of an application by the second respondent to have this court review the principal judgment. The background to this application is as follows.

[2] On 16 October 2009, this court allowed the appellant's appeal, reversing the judgments of the courts below and holding that the appellant was the beneficiary under a constructive trust which bound the conscience of the second respondent as trustee. On 27 October 2009, orders were made to protect the subject matter of the trust in specie. On 13 November 2009, the court was advised that the subject matter of the trust had been sold off unilaterally by the second respondent and that it had pocketed the proceeds of the sale. An order in the form of specific relief was then made to give effect to the principal judgment of this court. The order that was made and the reasons for making it are set out in the second judgment issued in this appeal and dated 16 November 2009. (See, Takako Sakao v. Ng Pek Yuen & Anor (No. 2) (Unreported)).

[3] Today, that is to say, on 26 November 2009, we were moved to stay execution of the orders made both in the principal judgment and in the second judgment dated 16 November 2009 on the ground that an application for review under r. 137 of the Rules of the Federal Court 1995 had been filed this morning. Two submissions were made in support of the application. First it was submitted by learned counsel for the second respondent that this court had jurisdiction and power to hear and determine this application and grant a stay pursuant to s. 80 of the Courts of Judicature Act 1964 ("the Act"). That section reads as follows:

(1) In any proceeding pending before the Federal Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Federal Court.

(2) Every application under subsection (1) shall be deemed to be a proceeding in the Federal Court.

(3) Every order made under subsection (1) may, upon application by the aggrieved party made within ten days after the order is served, be affirmed, varied or discharged by the Court.

[4] It was argued the section should be construed widely as to include post judgment applications that seek a stay of execution pending the hearing of an application to review. No authority was cited in support of these submissions.

[5] It is to be noted that s. 80 is in pari materia with s. 44 of the Act, the latter conferring similar power in the Court of Appeal. The latter section has been interpreted as applying to cases where an appeal is pending before that court. See, Silver Concept Sdn Bhd v. Brisdale Rasa Development Sdn Bhd . In our judgment s. 80 should be construed likewise. When viewed in its proper perspective, what s. 80 is designed to address is a situation where there is either an application for leave to appeal or an appeal pending before this court the integrity of which is required to be preserved. It would be futile for an appellant or an intended appellant to prosecute his appeal or application for leave before this court if the subject matter of the appeal is dissipated or otherwise disposed of. Power is necessary in an appellate court, in particular the apex court, to preserve and maintain the status quo until the matter is finally dispo