JUDGMENT

1. This is the petitioner’s application that the proceedings be stayed until such further order and that the respondent should, within 30 days of this order, furnish a security for costs in the sum of RM60,000.00. This application is supportedby the affidavit of Lina Soo affirmed on 28th May, 1999 and opposed by the affidavit in opposition of Ngu Chu Chiong @ Ngu Choo Chiong affirmed on 18th June, 1999.

2. The petitioner submitted that the respondent had failed to pay costs tothe petitioner in respect of court order dated 28th March, 1994 and 20th February, 1999 respectively. The petitioner testified that the arrears of maintenance at RM3,000 per month for May and June 1999 were paid only on 11th June, 1999 and arrears at RM1,500for 6 months between November 1998 and April 1999 was only paid on 7th May, 1999 after a Writ of Execution was served on the respondent. From the evidence in court it showed that the payment of maintenance was not regularly made and punctually. Thusit is clear that the Respondent had not willingly and promptly paid the monthly maintenance when due as ordered by the court.

3. The petitioner submitted that it is settled law that where a husband is ordered to pay costs to the wife, andif he refuses to do so then all proceedings in the divorce matter between the husband and wife will be stayed. The authorities are Waite v Waite (1916) 32 TLR 432,Leavis v Leavis (1921) P299Kemp-Welch v Kemp-Welch (1910) P233

4. The respondent submitted that the proceedings could not be stayed pending the appeal by the respondentagainst the Court Order dated 20th February, 1999 and there was no law which require the respondent to furnish security for costs in the sum of RM60,000.00. In the former, the appeal does not operate as a stay of proceedings unless the petitioner can show specialcircumstances. It would be unjust to both parties for stay of proceedings as the present petition had dragged on for 8 years.

5. As to costs, the respondent further submitted that O. 23 r. 1 Rules of the High Court 1980 clearly was not applicableto the present case as there is no law stating that a defendant or a respondent should furnish security for costs to defend an action against him. In Williams v Williams (1954) 2 All ER 474, the husband was the petitioner, and the wife respondent opposed the application. The court held that there is no law that require the security for costs for the plaintiff.

6. The issues for the court to determineare whether or not the orders of the court dated 28th March, 1994 and 20th February, 1999 are final orders.

7. The petitioner averred that by the order of court dated 28th March, 1994, the matter was disposed off once and for all in thatthe petitioner’s prayer to proceed with the divorce petition as undefended was not allowed and that the respondent and the co-respondent were ordered to proceed with the hearing of the case. This order was never appealed against by the respondentand co-respondent. Thus, the issue that the dissolution of the marriage on the basis of an undefended suit was finally put to rest.

8. The order of the court dated 20th February, 1999 was a final order, as there is no appeal against the order.The respondent had given evidence in court on 21st June, 1999 that he had no intention to disobey the court order varying the maintenance from RM1,500 to RM3,000 per month. In that respect the respondent had in fact given a standing order to his bank to remita sum of RM3,000 every month to the respondent. Learned counsel for the petitioner submitted that by the respondent’s act in giving a standing instruction to his bank, directing it to remit RM3,000 per month to the respondent, was tantamount to the respondent’sacceptance, and not challenging the variation order. That disposed off the issue once and for all. The appeal therefore is at the very best an academic exercise.

9. Section 47Law Reform (Marriage & Divorce) Act 1976

10. The test of what is an interlocutory order or final order can be