transcripción de la sección armónica de la versión en vivo
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transcripción de la sección armónica de la versión en vivo
CIVIL PROCEDURE BENCH BOOK
2009
GENERAL – STAY OF EXECUTION
STAY OF EXECUTION
A I S Y A L A M N A A J A R E K K I L I M K A H 1.
Provision -
S. 44 , S. 57(1) and S. 73 CJA 1964; O 55 r 12 RHC.
2.
The court has an unqualified discretion to grant a stay of execution. However, the court will only grant stay if there are are special special circumstances. circumstances. It is trite law that the court will not deprive a successful party of the fruits of his litigation.
3.
Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116 116 is a judgment of the High Court (Singapore). That case is an appeal from the district court against an order granting a stay of execution in a case where an ‘order for possession’ had been made. W hen the application for stay was made no affidavit in support was filed. Browne J. said at p 116 116 that – “...But it is a clear principle that the Court will not deprive a successful successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. The only only ground, so far far as appears in the written grounds for granting this stay, is that if the defendant succeeded in his appeal he could not be restored to the same position as before because the plaintiffs would have removed his pig-sty. That ground, standing alone, in my opinion cannot be a sufficient ground on which to grant a stay of execution. It 97
CIVIL PROCEDURE BENCH BOOK
2009
GENERAL – STAY OF EXECUTION
seems to me that to hold otherwise would be to establish a precedent, and in effect to lay down a rule of practice, that in all cases where the defendant cannot be restored to his original position if his appeal succeeds, a successful litigant is to be deprived of the fruits of his litigation until such time as the appeal is determined. Such a ground ground might well be be an important factor to take into consideration if there were other grounds...”
A I S Y A L A M N A A J A R E K K I L I M K A H 3.
In Re Kong Thai Sawmill [1976] 1 MLJ 131 the 131 the Federal Court stated that stay of execution pending appeal is granted only where exceptional circumstances are proved, such as for instance where execution would destroy the subject matter of the action or deprive the appellant the means of prosecuting the appeal by reason of poverty. Kerajaan Kerajaan Malaysi Malaysi a v Jasanusa J asanusa Sdn Sdn Bhd [1995] [1995] 2 MLJ 105 105 and Kerajaan Malaysia v Dato’ Hj. Ghani Gilong [1995] 2 MLJ 119 are 119 are income tax cases and in both cases the Federal Court applied the ‘special ‘special circumstances’ test.
4.
The leading case on stay of execution is Kosma Palm Oil Mill Sdn Bhd & 2 ors v Koperasi Serb Serbausaha ausaha Makm Makmur ur Berhad Ber had [20 [ 2003 03]] 5 AMR 758 758 where the Federal Court made the following observations :(a)
The merit of a party’s case in a stay application was not a relevant matter for consideration.
(b)
The onus was on the applicant applica nt to demonstrate the existence of special circumstances to justify the grant of a stay of execution and the reasons must must relate to the enforcement of the judgment of the appeal. 98
CIVIL PROCEDURE BENCH BOOK
2009
GENERAL – STAY OF EXECUTION
(c)
There were many factors factor s that might constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay were refused was the most common example of special circumstances. Any attempt attempt to restrict the grant of a stay of execution to nugatoriness was wrong and would severely restrict the grounds on which the applicant might rely.
A I S Y A L A M N A A J A R E K K I L I M K A H (d)
As the applicants had not put forward reasons that related to the enforcement of judgment of the appeal but instead had focused on the problems that the applicants would encounter if the motion were not successful, they failed to raise special circumstances which warrant a stay of execution.
5.
“Special circumstances” circumstances” have been defined in Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86 by Raja Azlan Shah J, as “special under the circumstances as distinguished from ordinary circumstances. It must must be something exceptional exceptional in character something that exceeds or excels in some way that which is usual or commons”. commons”.
6.
Where summary summary judgment is entered for a plaintiff, the court may by order, and subject to such conditions, if any, as may be just stay execution of any judgment given against a defendant until after the trial of any counterclaim made or raised by the defendant in the action (O 14 r 3(2) RHC) RHC).
