STAY OF EXECUTION

1) Re Kong Thai Sawmill (Miri) Sdn Bhd: Ling Beng Sung v Kong Thai Sawmill
(Miri) Sdn Bhd & Ors (No.2)

 The court noted that that appeal becomes nugatory as one of the special
circumstances
 “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
hearing”.
 “an appeal which would be nugatory if stay was refused by reason of
the poverty of the respondent would be an example of special
circumstances. See Wilson v Church (No.2)”

2) Leong Poh Hee v Ng Kat Chong [1966] 1 MLJ 86

 The court defines what is special circumstances.

 “Special circumstances, as the phrase implies, must be special under the
circumstances as distinguished from ordinary circumstances. It must be
something exceptional in character, something exceeds or excels in
some way that which is usual or common”

3) Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd
[2000] 6 MLJ 493 (High Court)

 “The court’s absolute and unfettered discretion as to the granting or

refusing stay of execution of an order or judgement should only be
exercised where there exist special circumstances, as an appeal does
not operate as a stay”.

 ”What factors would constitute as special circumstances may vary

according to the circumstances of each particular case. Three essential
ingredianets constituting special circumstances has been propounded as
follows:
(i) Where the balance of convenince is in favour of the applicant
(ii) Where it is apparent that unless a stay is granted an appeal will
be rendered nugatory
(iii) That the applicant has an arguable appeal”
  “The terms in which the court’s jurisdiction is conferred on stay of
execution pending an appeal are general and unlimited. How the
judicial discretion conferred by that jurisdiction should be exercised
must be guided by proper rules founded on principle. The justice of
the case on stay is arrived at by striking a judidicous and equitable
balance between the principle that successful party in the litigation
ought to be allowed to reap the fruits of that litigation and not
obtain a mere barren success, and the countervailing principle
that should the unsuccessful party in litigation be ultimately
successful in his appeal, he ought not to be deprived of the fruits
of his litigations due to the result of his appeal being rendered
nugatory”

 The court in this case also cited in approval of the essential

ingredients to demonstrate an appropriate case to warrant the
exercise of discretion in favour of a stay. The ingredients are as
follows:

1) Where the balance of convenience is in favour of the applicant

2) Where it is apparent that unless a stay is granted an appeal will
be rendered nugatory
3) That the applicant/appellant has an arguable appeal

4) Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380
(Court of Appeal)

 The application was dismissed

 This case, the appeal for stay of execution was dismissed because the
judgement involved was a money judgement and execution is a natural
process after obtaining judgement and winding-up was one of them so it
can be distinguished from our case

 “I agree that in an application for a stay of execution, that the appeal,

if successful, would be rendered nugatory is the “paramount
consideration” or by whatever name it is called. And, I do not think
that it matters whether it is considered under the head of “special
circumstances” or not, so long as it is considered and so long as he
does not go so far as to say that no other factors may be considered
because this is an exercise of discretion, and therefore all the relevant
factors should be considered.”
  “As I understand it, the nugatory test that the courts talk about in an
application for a stay of execution goes to the subject matter of the case,
not the merits of the appeal. In other words, the appeal, if successful, is
worthless because the appellant cannot be put in its former position.”

5) Mohamed Mustafa v Kandasami (No 2) [1979] 2 MLJ 126 (Federal Court)

 The Court granted the stay of execution to maintain the status quo of the
parties.
  “On the question of stay of execution it is I think settled law that the
granting of such a stay is a matter of the court's discretion, and it is true
that the exercise of such discretion must be founded upon established
judicial principles. One of the determining factors that calls for
consideration is whether by not making an order to stay of the execution
it would make the appeal if successful, nugatory in that it would deprive
an appellant of the results of the appeal. How pertinent that factor
would be may vary according to the circumstances of each particular
case.

In the instant case it is the considered judgment of this court that the
respondent ought to be granted stay of execution to maintain the
status quo so as not to deprive him, if successful, the result of his
appeal.”

6) Kosma Palm Oil Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 4
CLJ 1 (Federal Court)
 Can be distinguished as this case it involved lands and there was a risk
that the assets would be disposed if the stay is granted and the allegation
of the existence of such risk were unrebutted

 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 special circumstances. As
nugatoriness is a species of special circumstances, a mere reference to it
is sufficient to convey the correct legal impression, and any attempt to
restrict the grant of a stay to nugatoriness, quite apart from its
impropriety, will severely restrict the grounds upon which an applicant
may rely.