Indra Nehru Savandiah J:

Introductions

[1] This is an application by the defendant for a stay of execution following the plaintiff's claim being allowed with costs and the defendant's counter-claim being dismissed with costs.

[2] The application was allowed with costs; consequently, this appeal is filed by the plaintiff.

Background Facts

[3] Upon the completion of a full trial, this Court allowed the plaintiff's claim and disallowed the defendant's counterclaim. The subject matter in this cause of action is land held under the following titles:

(i) No HS(D) 43230, PT4089, Mukim Batu, Daerah Kuala Langat, Negeri Selangor,

(ii) No HSD(D) 43231, PT4090, Mukim Batu, Daerah Kuala Langat, Negeri Selangor,

(iii) No HSD(D) 43232, PT4091, Mukim Batu, Daerah Kuala Langat, Negeri Selangor,

(iv) No HSD(D) 43233, PT4093, Mukim Batu, Daerah Kuala Langat, Negeri Selangor,

(v) No HSD(D) 43234 PT 4095, Mukim Batu, Daerah Kuala Langat, Negeri Selangor.

[4] This Court has ordered, among others, that the original titles held by the defendant be returned to the plaintiff and that the defendant's power of attorney be revoked.

[5] The defendant has filed an appeal and submitted a notice of application for a stay of execution of proceedings pending the disposal of the appeal at the Court of Appeal.

Issue

[6] Whether there are special circumstances justifying a stay of proceedings in this case.

Decision Of This Court

[7] The legal stance concerning stay of execution proceedings is well- established in the decision of the Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd; [2004] 1 MLJ 257; [2003] 4 CLJ 1; [2003] 5 AMR 758.

[8] In Merityield Sdn Bhd v. Syarikat Kerjasama Perkembangan Tanah Tingkayu Sdn Bhd & Ors, the Court held as follows:

"[7] [a] I agree with counsel for the 2nd and 3rd defendants' contention that the said Land, being landed property has special value and is a relevant consideration in the application of the special circumstances test,

[b] In coming to this conclusion, I am guided by the following cases:

(i) In Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd; [1994] 3 MLJ 777 at p 792; [1995] 1 CLJ 15; [1995] 1 AMR 41 where Edgar Joseph Jr SCJ (as he then was) delivering the Judgment of the Federal Court :

[SK22-217 of 2006] "...not forgetting the land is always deemed in law to have a special value and is in the nature of things..absolutely limited..."

(ii) In Tan Ah Chim & Sons Sdn Bhd v. Ooi Bee Tat & Anor ; [1993] 3 MLJ 633; [1993] 4 CLJ 476 Edger Joseph Jr SCJ (as he was then) sitting a High Court Judge held that:

"... land is always deemed to have a special value of loss which may not be adequately compensated by damages."

(iii) In Kho Ah Soon v. Ooi Kar Seng (Properties) Sdn Bhd; [1995] 3 MLJ 293; [1995] 3 CLJ 812; [1995] 3 AMR 2720 Shaik Daud JCA (as he was then) delivering the judgment of the Court of Appeal said at p 300:

"Land being a valuable and special commodity, once lost, may not adequately be compensated by damages."

(iv) In Perwira Affin Bank Bhd v. Ki Production Sdn Bhd; [2000] 4 MLJ 652; [2000] 4 CLJ 482; [2004] 1 AMR 442. Kamalanathan Ratnam Jr (as he was then) relying on the decisions of Edger Joseph Jr SCJ (as he then was) in Tan Sri Khoo Teck Puat v. Plenitude Holdings Sdn Bhd (supra) and Tan Ah Chim & Sons Sdn Bhd v. Ooi Bee Tat & Anor (supra) and [SK22-217 of 2006) agreeing with the defendant's argument that special circumstances particular to that case is that since land has a special value it would render nugatory the decision of the Court of Appeal if a stay was refused, proceeded to grant a stay pending appeal by stating categorically at p 654:

"Therefore there is no doubt that the Federal Court has expressed its view that land has a special values of loss which may not be adequately compensated by damages. On this ground, I am convinced that the defendant's application ought to be seriously considered by this Court . However, the plaintiff submitted that