JUDGMENT

John Lee Kien How @ Mohd Johan Lee J:

[Respondents Application pursuant to O 55 r 16 - Enclosure 53]

Introduction:

[1] This is the Respondents' interlocutory application for stay of execution ('this Application') against the execution of judgment in favour of the Petitioner dated 25 June 2024 ('the Judgment') pursuant to O 55 r 16 and/or O 92 r 4 of the Rules of 2012. Herein are the judgments and the reason for the stay of execution application.

(i) Facts Of The Case

[2] The Petitioner applied for the dissolution of marriage and the petition was duly granted in the judgment dated 25 June 2024 ("the Judgment"). After the three (3) months deadline of the Order in the Judgment expired, the Respondents' filed an application to seek a stay of execution pending appeal of the divorce order.

[3] The Respondents vide encl 53, sought a stay of execution of the Judgment pursuant to O 55 r16 and/or O 92 r 4 of the Rules of 2012.

[4] The affidavits that were filed for the purposes of this Application are as follows:

(i) Respondents' affidavit in support affirmed by Wong Siew Boon & Law Kwai Fun (Encl 54);

(ii) Petitioner's affidavit in reply affirmed by Heng Siew Yuet (Encl 55); and

(iii) Respondents' affidavit in reply affirmed by Wong Siew Boon & Law Kwai Fun on Woon (Encl 56).

[5] Having read all the affidavits and the written submissions filed by the parties and oral submissions thereafter, I dismiss this Application with cost. I furnish below my grounds thereto.

Findings And Decision Of The Court

[6] This Application is made pursuant to O 55 r 16 of the Rules of 2012 for stay of execution:

6. Stay of execution (O 55 r 16 )

(1) An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the Court appeal from or the High Court may order, and any application for stay shall be made in the first instance to the Court appealed from.

(2) the Court appealed from or the High Court may grant an order of stay of execution on such terms as it thinks fit.

The Principles On Stay Of Execution

[7] In exercising my duty, this Court shall consider whether this Applicaties has fulfilled the requirements of O 55 r 16 of the Rules of 2012.

[8] In this Applicaties, the Respondents' submited that the stay application is made pending their appeal of the Judgment.

[9] In essense, the Respondent premised that they are unable and/or financially constraint to comply with the divorce order.

[10] The grant of a stay of execution or stay of proceedings is an exercise of judicial discretion dependent on the specific case adduced in Court . It was held in the case of Structural Concrete Sdn Bhd v. Wing Tiek Holdings Bhd & Ors; [1997] 1 MLJ 581; [1997] 1 CLJ 300; [1997] 1 AMR 598 that:

"....exercises of judicial discretion are not judicial precedent because they are not only authority for the facts of the particular case..."

[11] It is trite law that the burden and onus is on the applicants to prove the special circumstances to justify the grant of stay of execution. It must be explained and/or shown in the affidavit filed in support of the application. Augustine Paul JCA (as he then was) in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 3 CLJ 97 held (at p 17 Para f - g) that:

".... the onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application."

[Emphasis Added]

[12] The Respondents in support of this Application referred to the case of Sigur Ros Sdn Bhd & Anor v. Maybank Islamic Berhad & Anor (Encl 164) where the Court in para [4] quoted the following ratio of Augustine Paul JCA (as he then was) in Kosma (Supra):

"There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one; it is an example of