Amanah International Finance Sdn Bhd

[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 1

AMANAH INTERNATIONAL FINANCE SDN BHD

v.
MEDINI SQUARE SDN BHD & ORS

High Court Malaya, Johor Bahru

Evrol Mariette Peters JC
[Civil Suit No: JA-22NCC-34-11/2017]
15 August 2020

Case(s) referred to:

Bank Industri (M) Bhd v. Technopro Corp (M) Bhd & Ors [1998] 4 MLRH 748;
[1998] 6 MLJ 754; [1993] 4 AMR 276 (refd)
CIT International (M) Sdn Bhd (formerly known as Newcourt Group (Malaysia)
Sdn Bhd) v. Exquisite Square Sdn Bhd [2010] 5 MLRH 222 (refd)
Credit Guarantee Corporation Malaysia Berhad (previously known as ERF
Sendirian Berhad) v. Evapark Sdn Bhd & Ors [2011] 3 MLRH 736 (refd)
Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91; [1996] 1
MLJ 223; [1997] 1 CLJ 396 (refd)
Kosma Palm Oil Mill dn Bhd v. Koperasi Makmur Bhd [2003] 1 MLRA 536;
[2004] 1 MLJ 257; [2003] 4 CLJ 1 (refd)
Leong Poh Shee v. Ng Kat Chong [1965] 1 MLRH 542; [1966] 1 MLJ 86 (refd)
Malayan Banking Bhd v. Mahmood Zuhdi Hg Mohd Nor [2001] 2 MLRH 482;
[2001] 6 MLJ 209; [2001] 6 CLJ 171 (refd)
Mirra Sdn Bhd v. The Ayer Molek Rubber Co Bhd [2007] 3 MLRA 438; [2008] 2
MLJ 348; [2008] 3 CLJ 273 (refd)
Muniandy Thamba Kaundan & Anor v. D & C Bank Bhd & Anor [1996] 1
MLRA 171; [1996] 1 MLJ 374; [1996] 2 CLJ 586; [1996] 1 AMR 908 (refd)
Sabah Development Bank Bhd v. SKBS (Sabah) Sdn Bhd & Ors [1991] 1 MLRH
187; [1992] 1 MLJ 454; [1991] 3 CLJ Rep 686 (refd)
Thye Ah Chai (t/a Kent Naga Enterprise) v. Teraju Mercu Construction &
Engineering Sdn Bhd [2013] MLRAU 363; [2014] 1 MLJ 422 (refd)
Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1995] 2
MLRA 155; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215 (refd)

Legislation referred to:

Banking and Financial Institutions Act 1989, ss 2, 19, Third Schedule
Contracts Act 1950, s 24
Courts of Judicature Act 1964 s 73
Financial Services Act 2013, ss 271, 272
Moneylenders Act 1951, s 2A
Rules of Court 2012, O 3 r 5, O 41 r 5, O 42 r 13, O 55

Counsel:
For the plaintiff: K Jeyanthini (together with Pauline Koh); M/s Shearn Delamore
& Co
For the 1st to 3rd sefendants: WS Saw; M/s Ranjit Singh & Yeoh
 Amanah International Finance Sdn Bhd
pg 2 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

[Dismissed the application with costs.]

JUDGMENT

Evrol Mariette Peters JC:

This Application

[1] This is an application ("this Application) by the First to Third Defendants

(collectively "the Defendants") to set aside the Judgments in Default of
Appearance ("the JIDs") dated 20 December 2017 and 6 March 2018, entered
against the First Defendant, and Second and Third Defendants respectively;
and to stay the execution of the JIDs pending disposal of the civil action by the
Defendants in the Kuala Lumpur High Court Suit No WA-22NCC-592-
10/2019 ("KLHC Suit").

The Brief Facts

[2] The Plaintiff is a financial institution whilst the First Defendant, is a

company, both incorporated under the Companies Act 2016 ("the Companies
Act"). The First Defendant was granted a 99-year lease ("the Lease") of a piece
of freehold land (the "Land") by Iskandar Investment Berhad ("Iskandar
Investment"), the registered proprietor of the Land, which it was to develop
into a project known as "Medini Square" (the "Development").

[3] In 2014, pursuant to an agreement ("the Facility Agreement") between the

First Defendant and the Plaintiff, the latter agreed to provide a Term Loan
Facility ("the Facility") to the First Defendant in the total sum of
MYR23,325,803.40, subject to the terms and conditions of the Facility
Agreement.

[4] In order to secure the Facility, interest and all other monies due and owing
under the Facility Agreement, the Plaintiff and the First Defendant
simultaneously executed several security documents in favour of the Plaintiff.
The Second and Third Defendants, who are of Singaporean nationality, were
the guarantors.

[5] In breach of the terms and conditions of the Facility Agreement and the
Guarantees, the Defendants had eventually failed to make payment of arrears
sums, including interest, fees and charges pursuant to the Facility Agreement.

[6] Although the Plaintiff had acceded to the first request by the Defendants
for extension of time to make payment, the second request was denied, and the
Plaintiff proceeded with the necessary demands before commencing this
action. JIDs were entered against the First Defendant on 20 December 2017
and against the Second and Third Defendants on 6 March 2018.

[7] The JID dated 6 March 2018 against the Second and Third Defendants had
been duly registered in the Singapore High Court. An application to set aside
 Amanah International Finance Sdn Bhd
[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 3

the said registration was dismissed by the Singapore High Court on 14 May
2019, with no appeal lodged by the Second and Third Defendants. On 23
October 2019, however, this Application was filed.

[8] This Application was dismissed and the following are my reasons.

Contentions, Evaluation And Findings

Whether The Delay In Setting Aside The Jids Was Satisfactorily Explained

[9] There was no dispute that the JIDs obtained against the Defendants were
regularly entered, in accordance with the rules following proper service of the
Writ of Summons dated 20 November 2017 on the Defendants. The issue,
therefore, was whether the delay by the Defendants, in filing this Application,
was satisfactorily explained.

[10] The JIDs were deemed received by the First Defendant on 28 February
2018, and by the Second and Third Defendants on 28 March 2018. The
Defendants were, therefore, required to file this Application within 30 days
from the date of receipt, as prescribed by O 42 of the Rules of Court 2012
("Rules of Court"), which reads:

Order 42 - Judgment and orders

Rule 13 - Setting aside or varying judgment and orders

Save as otherwise provided in these Rules, where provisions are made

in these Rules for the setting aside or varying of any order or
judgment, a party intending to set aside or to vary such order or
judgment shall make an application to the Court and serve it on the
party who has obtained the order or judgment within thirty days after
the receipt of the order or judgment by him.

[Emphasis Added]

[11] However, this Application was filed only on 23 October 2019, which was
a delay of approximately 18 to 19 months.

[12] The importance of complying with this time-period was underscored in

several cases including the Court of Appeal cases of Mirra Sdn Bhd v. The Ayer
Molek Rubber Co Bhd [2007] 3 MLRA 438; [2008] 2 MLJ 348; [2008] 3 CLJ
273, Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91;
[1996] 1 MLJ 223; [1997] 1 CLJ 396, and Thye Ah Chai (t/a Kent Naga
Enterprise) v. Teraju Mercu Construction & Engineering Sdn Bhd [2013]
MLRAU 363; [2014] 1 MLJ 422; and the High Court case of Malayan Banking
Bhd v. Mahmood Zuhdi Hg Mohd Nor [2001] 2 MLRH 482; [2001] 6 MLJ 209;
[2001] 6 CLJ 171.

[13] In Mirra Sdn Bhd v. The Ayer Molek Rubber Co Bhd [2007] 3 MLRA 438;
[2008] 2 MLJ 348; [2008] 3 CLJ 273, the application to set aside the judgment
 Amanah International Finance Sdn Bhd
pg 4 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

in default was filed four months after it was served on the defendant. The
Court of Appeal acknowledged that delay was an important consideration in
exercising any discretion to set aside a judgment in default, and had
accordingly refused the application.

[14] In Thye Ah Chai (t/a Kent Naga Enterprise) v. Teraju Mercu Construction &
Engineering Sdn Bhd [2013] MLRAU 363; [2014] 1 MLJ 422, it was stated by
the Court of Appeal that O 42 r 13 is mandatory, and an applicant filing an
application beyond the prescribed time limit, is obliged to provide cogent
reasons for any delay. In that case, since the reasons were not satisfactorily
explained, the Court of Appeal allowed the appeal and reinstated the judgment
in default without even considering the merits of the application.

[15] In this case, the delay was for more than 18 months, and the reasons
provided by the Defendants for the delay in filing were unsatisfactory, as they
said it was due to ongoing negotiations for settlement, and that further
consultation with their solicitors was required. This was unacceptable and
thus, in my view, no reasonable explanation was provided for the delay in
filing this Application.

[16] The Defendants in contending that the delay should not defeat their
application to set aside, relied on the cases of Tuan Haji Ahmed Abdul Rahman
v. Arab-Malaysian Finance Bhd [1995] 2 MLRA 155; [1996] 1 MLJ 30; [1996] 1
CLJ 241; [1996] 1 AMR 215, FC and Muniandy Thamba Kaundan & Anor v. D
& C Bank Bhd & Anor [1996] 1 MLRA 171; [1996] 1 MLJ 374; [1996] 2 CLJ
586; [1996] 1 AMR 908, FC. However, it should be noted that in both these
cases, the Federal Court was dealing with irregular judgments. In the present
case, however, it is my view that the JIDs were regular and, therefore, the
issue of delay becomes imperative, but which was not explained.

[17] Furthermore, in the absence of an application for extension of time by the

Defendants, despite a lapse of more than 18 months, this Application was filed
well out of time, and was bad in law. This was emphasised in Malayan
Banking Bhd v. Mahmood Zuhdi Hg Mohd Nor [2001] 2 MLRH 482; [2001] 6
MLJ 209; [2001] 6 CLJ 171, where the Court acknowledged that the 30-day
time frame is a strict one, and that a party would be required to file an
application to extend time under O 3 r 5 of the Rules of Court, which reads:

Order 3 - Time

Rule 5 - Extension of time

(1) The Court may, on such terms as it thinks just, by order extend or
abridge the period within which a person is required or authorized by
these Rules or by any judgment, order or direction, to do any act in
any proceedings.

(2) The Court may extend any such period as referred to in para (1)
although the application for extension is not made until after the
expiration of that period.
 Amanah International Finance Sdn Bhd
[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 5

(3) The period within which a person is required by these Rules, or by

any order or direction, to serve, file or amend any pleading or other
document may be extended by consent in writing without an order of
the Court being made for that purpose.

[18] On this ground alone, this Application has failed. However, the
Defendants contended that the Facility Agreement was illegal and
unenforceable, and thus rendered the JIDs irregular. I am unable to agree with
such argument. First and foremost, even if the JIDs were irregularly obtained,
the Court should not tolerate indolence on the part of the litigant. This was
emphasised in several cases including Khor Cheng Wah v. Sungai Way Leasing
Sdn Bhd [1996] 2 MLRA 91; [1996] 1 MLJ 223; [1997] 1 CLJ 396, and Tuan
Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1995] 2 MLRA
155; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215.

[19] In Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91;
[1996] 1 MLJ 223; [1997] 1 CLJ 396, the following comments of Gopal Sri
Ram JCA are pertinent:

It is a cardinal principle of law, that when a litigant seeks the

intervention of the court in a matter that affects his rights, he must do
so timeously. The maxim vigilantibus, non dormientibus, jura
subveniunt, though having its origins in the Court of Chancery, is of
universal application. Even in cases where a right is exercisable ex
debito justitiae, a court may refuse relief to an indolent litigant.

In all cases in which delay in approaching the court is in issue, the

burden is upon the litigant who has delayed to render a satisfactory
explanation for it.

[Emphasis Added]

[20] The same reminder was administered by Edgar Joseph Jr FCJ in Tuan
Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1995] 2 MLRA
155; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215:

Having said that it should be added that the application to set aside
such a judgment should be made: (a) with reasonable promptitude, in
other words within a reasonable time; and (b) before the defendant has
taken any fresh step after becoming aware of the irregularity.

[21] It is pertinent to note therefore, that an application to set aside a JID must
be made timeously, even where the right is exercisable ex debito justitiae, and
that the Court may refuse relief, especially where the delay is not satisfactorily
explained.

[22] In any event, it is my finding that the JIDs were regularly obtained, and
therefore, the Defendants' argument that the Facility Agreement was illegal
 Amanah International Finance Sdn Bhd
pg 6 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

and unenforceable, went to the Defence and whether there were merits in the
same.

Whether There Was A Defence On Merits

[23] In attempting to set aside the JIDs and to show a defence on merits, the
Defendants argued that the Facility Agreement was illegal, and unenforceable
as the Plaintiff did not have the necessary licence under the Moneylenders Act
1951 ("the Moneylenders Act") to provide such Facility; and having failed to
comply with the provisions of the Moneylenders Act, the Defendants further
contended that the Facility Agreement was void and unenforceable under s 24
of the Contracts Act 1950 ("Contracts Act").

[24] The issue that needed to be addressed, therefore, was whether the
Moneylenders Act applied to the Plaintiff. At this juncture, the relevant
provisions to observe are s 2A(2) and the First Schedule to the Moneylenders
Act, and the Moneylenders Exemption Order (P.U.(B) 219/2005). The
provisions read:

Section 2A - Non-application of Act and exemption therefrom

(1) This Act shall not apply to a person specified in the First Schedule,
and such person shall be subject to any written law governing his
business or activity.

First Schedule

13. Any scheduled institution as defined under the Banking and

Financial Institutions Act 1989.

Ministerial Order (P.U.(B) 219/2005)

Exemption

2. (1) A company shall be exempted from all the provisions of this Act
if-

(a) the company lends a sum of money-

(i) to its related corporation as defined under s 6 of the

Companies Act 1965 [Act 125]; or

(ii) to its director, officer or employee as a benefit

accorded to such person under his terms of
employment;

(b) the company subscribes or purchases debt securities; or

(c) the company-

 Amanah International Finance Sdn Bhd
[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 7

(iii) is a scheduled institution under the Banking and

Financial Institutions Act 1989 [Act 372] carrying on
building credit business, development finance business
or factoring business;

[Emphasis Added]

[25] On the issue of whether the Plaintiff is a scheduled institution under the
Banking and Financial Institutions Act 1989 ("BAFIA"), and therefore exempt
from the provisions of the Moneylenders Act, reference is made to the
provisions of the BAFIA, namely s 2 and the Third Schedule, which read:

Section 2 - Interpretation

"scheduled institution" means a person which carries on a scheduled

business but does not include a co-operative society, a statutory body,
a local authority, a licensed bank, a licensed finance company, or a
licensed merchant bank carrying on a scheduled business

Third Schedule - Sub s 2(1), definition of "scheduled business"

1. Building credit business

2. [Deleted]

3. Development finance business.

4. Factoring business.

5. Leasing business.

[26] The definitions of 'building credit business', 'development finance

business', 'factoring business', and 'leasing business' are provided in s 2 of the
BAFIA, as follows:

Section 2 - Interpretation

"building credit business" means-

(a) the business of providing any credit facilities to any person

for the express purpose of-

(i) the purchase of immovable property; or

(ii) the construction, reconstruction or renovation of

any building or other structure,

for residential, commercial or industrial purposes; or

 Amanah International Finance Sdn Bhd
pg 8 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

(b) such other business as the Bank, with the approval of the
Minister, may prescribe;

"development finance business" means-

(a) the business of providing capital or other credit

facility on terms which would require the same to be
utilised for industrial, agricultural, commercial or
other economic development; and for the purposes of
this definition, "development" includes the
commencement of any new industrial, agricultural,
commercial or other economic venture or the
expansion or improvement of any such existing
venture; or

(b) such other business as the Bank, with the approval

of the Minister, may prescribe;

"factoring business" means-

(a) the business of acquiring debts due to any person;

or

(b) such other business as the Bank, with the approval

of the Minister, may prescribe;

"leasing business" means-

(a) the business of letting or sub-letting movable

property on hire for the purpose of the use of such
property by the hirer or any other person in any
business, trade, profession or occupation or in any
commercial, industrial, agricultural or other economic
enterprise whatsoever and, where the lessor is the
owner of the property, regardless whether the letting is
with or without an option to purchase the property,
but does not include the business of hire-purchase
which is subject to the Hire-Purchase Act 1967; and
for the purpose of this definition, "movable property"
includes any plant, machinery, equipment or other
chattel attached or to be attached to the earth or
fastened or to be fastened, permanently or otherwise
to any thing attached to the earth; or

(b) such other business as the Bank, with the approval

of the Minister, may prescribe;

[27] It is undisputed that the Plaintiff is an entity that has been operating since
 Amanah International Finance Sdn Bhd
[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 9

1985, and has been involved in leasing and hire purchase activities and
provisions of finance, which are categorised as scheduled business.

[28] The Defendants further submitted that the Plaintiff, in holding out as
carrying on scheduled business, had not complied with the requirements of s
19 of the BAFIA, which reads:

Section 19 - Requirements for commencing or carrying on scheduled

business

(1) No person shall after the effective date commence to carry on a

scheduled business unless-

(a) it is a company; and

(b) [Deleted]

(c) it has complied with the requirements of sub s 21(1) and

has obtained a written acknowledgement from the Bank in
respect of such compliance.

(2) Subsection (1) shall not apply to a co-operative society, a statutory

body, a local authority, a licensed bank, a licensed finance company or
a licensed merchant bank.

[Emphasis Added]

[29] I am of the view that the Defendants' submission on this point is

untenable as the acknowledgement from Bank Negara Malaysia ("BNM") is
evidenced by its letter dated 27 December 2010, exhibited as JR5 to the
Plaintiff's Affidavit-In-Reply dated 29 November 2019, affirmed by Johnson
Rudd a/l Sunny Rudd) wherein the Plaintiff's position was referred to by
BNM "As being a scheduled institution registered with BNM"; and the
subsequent letters dated 26 July 2011, 14 October 2011, 22 December 2011, 17
December 2012 (exhibited as JR6-JR8 to the Plaintiff's Further Affidavit dated
22 February 2020, affirmed by Johnson Rudd a/l Sunny Rudd) which referred
to the statistical returns of the Plaintiff.

[30] A perusal of all the relevant provisions in the Moneylenders Act, BAFIA,
Financial Services Act 2013 ("Financial Services Act") and the
correspondences from BNM indicate that the Plaintiff is a scheduled
institution under the BAFIA, and therefore exempted from the Moneylenders
Act, and as such, the Facility Agreement was lawful and enforceable.

[31] The express exemption of a scheduled institution under the BAFIA from
the provisions of the Moneylenders Act has been recognised by several cases
including Credit Guarantee Corporation Malaysia Berhad (previously known as
ERF Sendirian Berhad) v. Evapark Sdn Bhd & Ors [2011] 3 MLRH 736, CIT
International (M) Sdn Bhd (formerly known as Newcourt Group (Malaysia) Sdn
Bhd) v. Exquisite Square Sdn Bhd [2010] 5 MLRH 222, and Bank Industri (M)
 Amanah International Finance Sdn Bhd
pg 10 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

Bhd v. Technopro Corp (M) Bhd & Ors [1998] 4 MLRH 748; [1998] 6 MLJ 754;
[1993] 4 AMR 276.

[32] In addition, the Plaintiff's position as a scheduled institution with BNM

under the BAFIA is fortified by the acceptance and recognition by BNM at all
times, and without challenge. It is therefore inequitable for the Defendants to
now claim otherwise. In Sabah Development Bank Bhd v. SKBS (Sabah) Sdn
Bhd & Ors [1991] 1 MLRH 187; [1992] 1 MLJ 454; [1991] 3 CLJ Rep 686, in a
similar fashion, the defendants as borrowers/ guarantors had challenged the
legality of the facility on the ground that the plaintiff was not a licensed bank
under the Finance Act 1973, which was the predecessor to the BAFIA. That
argument did not hold water as the Court recognised the plaintiff as scheduled
institution under the BAFIA and therefore exempted. Summary judgment
was, therefore, entered against the defendants.

[33] The Defendants further contended that scheduled institutions only existed
under the BAFIA, and since the Financial Services Act came into effect on 30
June 2013, and had repealed the BAFIA, the Plaintiff no longer has any
protection as a scheduled institution.

[34] There is no doubt that the Financial Services Act which came into force
on 30 June 2013 had repealed the BAFIA. However, the saving and
transitional provisions within the Financial Services Act have recognised that,
notwithstanding such repeal, previous positions under the BAFIA shall be
saved and in particular that any right, benefit, privilege acquired under the
BAFIA shall continue to remain in force under the Financial Services Act. The
relevant provisions of the Financial Services Act read:

Section 271 - Repeal

The Banking and Financial Institutions Act 1989, the Exchange

Control Act 1953, the Insurance Act 1996 and the Payment Systems
Act 2003 are repealed.

Section 272 - Savings and transitional

Notwithstanding s 271-

(l) any right, benefit, privilege, obligation or liability acquired,

accrued or incurred under the repealed Acts, shall continue to
remain in force under this Act; and

[35] The Defendants further contended that the Plaintiff had been taking an
inconsistent position in relation to its licensing status of its businesses in three
other different proceedings, namely the Kuala Lumpur High Court Civil Suit
No: WA-22M-556-11/2018 ("Suit 556"), Kuala Lumpur High Court Civil Suit
No: WA-22M-576-11/2018 ("Suit 576") and Kuala Lumpur High Court Civil
Suit No: WA-22M-263-05/2019 ("Suit 263").

[36] I do not find any merit in this argument as in those three suits, the
 Amanah International Finance Sdn Bhd
[2020] MLRHU 937 v. Medini Square Sdn Bhd & Ors pg 11

Defendants' solicitors (who also represented the defendants in the three suits)
were the ones who took the position that the Plaintiff should have been
licensed under the Islamic Financial Services Act 2013 and/or the Financial
Services Act to provide Islamic finance and / or shariah-compliant related
products and services to the defendants in those actions. The Defendants'
solicitors' inconsistent approach was compounded by the fact that the
Defendants had first recognised the Plaintiff's capacity to provide the Facility
and having benefitted from it, and then requested for an extension of time to
reply the same, but now took a different position to claim that the Plaintiff was
not even licensed to provide such Facility.

Whether The Execution Of The JIDs Should Be Stayed

[37] This Application includes a prayer for stay of execution of the JIDs
pending disposal of the KLHC Suit.

[38] The starting point for any application for stay is s 73 of the Courts of
Judicature Act 1964, and O 55 r 16 of the Rules of Court. The provisions read:

Section 73 - Appeal not to operate as stay of execution

An appeal shall not operate as a stay of execution or of proceedings

under the decision appealed from unless the court below or the Court
of Appeal so orders and no intermediate act or proceeding shall be
invalidated except so far as the Court of Appeal may direct.

[Emphasis Added]

Order 55, r 16 - Stay of execution

(1) An appeal shall not operate as a stay of execution under the

decision appealed against

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

[Emphasis Added]

[39] This is an important curtain raiser to any application for stay, as it is not
an automatic right, but rather is left to the discretion of the Court, which is
exercised in favour of the applicant if he can show special circumstances for
granting the stay: Kosma Palm Oil Mill dn Bhd v. Koperasi Makmur Bhd [2003]
1 MLRA 536; [2004] 1 MLJ 257; [2003] 4 CLJ 1. However, whilst doing so,
the Court must have in mind the right of the successful party not to be
deprived of its fruits of litigation.

[40] Special circumstances have been explained to exist where the refusal to
grant a stay would render nugatory pending proceedings or appeal. In the
present case, the Defendants had not provided any averment of any ground or
special circumstances for a stay. The affidavits by the Defendants did not
 Amanah International Finance Sdn Bhd
pg 12 v. Medini Square Sdn Bhd & Ors [2020] MLRHU 937

disclose circumstances that were sufficiently special to warrant a stay. On this

point, I find instructive the case of Leong Poh Shee v. Ng Kat Chong [1965] 1
MLRH 542; [1966] 1 MLJ 86, where it was stated by Raja Azlan Shah J (as he
then was):

Although the court has an unqualified discretion to grant a stay it has

never been the practice to do so unless it is supported by an affidavit of
special circumstances. The law on the point is well settled. I quote a
passage from Halsbury's Laws of England, (3rd Ed), Vol 16, para 51 at
p 35:

The court has an absolute and unfettered discretion as to the

granting or refusing a stay, and as to the terms upon which it
will grant it, and will, as a rule, only grant it if there are special
circumstances, which must be deposed to on affidavit unless
the application is made at the hearing.

[Emphasis Added]

[41] In my view, the circumstances of this case did not warrant a stay as the
JIDs were obtained pursuant to the recovery of a monetary judgment. The fact
that the Defendants had filed the KLHC Suit against the Plaintiff on the issue
of the licence (or lack thereof) under the Moneylenders Act, in my view, was
not sufficient to constitute "special circumstances".

[42] My decision in dismissing the application for stay is fortified by the fact
that the Plaintiff would be severely prejudiced as it would be deprived of the
fruits of the JIDs which were entered accordingly against the Defendants,
following the Defendants' failure to pay the sums due, that were owing on the
Facility, and which had remained outstanding since 2016.

Conclusion

[43] In the upshot, based on the aforesaid reasons, and after judicious scrutiny
of all the evidence before this Court, both oral and documentary, including
submissions of Counsel for both parties, this Application is dismissed with
costs in the sum of MYR6,000 (subject to allocatur fees).