Chapter 40 - Stay of Execution

Question 1

STAY OF EXECUTION

Overview

Answer 1

1) General rule
2) Jurisdiction to grant stay
3) Application for stay
4) Test to grant stay
5) Procedures to apply for stay

Question 2

STAY OF EXECUTION

General rule

Answer 2

O.55, r.16, O.56, r.1(4), S.102 CJA, r.13 RCA, r.52 FCR.

• An appeal does not operate as a stay of execution;
• Therefore, an appeal, by itself, does not stop the successful party from executing the order or judgment.

Question 3

STAY OF EXECUTION

Jurisdiction to grant stay

Answer 3

1) Jurisdiction of HC - O.55, r.16:
- “An appeal shall not operate as a stay of execution except court appealed from or High Court may order”
2) Jurisdiction of CA - S.73 CJA & r.13 RCA
3) Jurisdiction of FC - S.102 CJA & r.52 RFC

Question 4

STAY OF EXECUTION

Application for stay, where made

Answer 4

O.55, r.16:

• Shall be made in the first instance of the court appealed from.

Question 5

STAY OF EXECUTION

Test to grant stay

Answer 5

1) Rationale for requirement of test - Serangoon Garden Estate Ltd v Ang Keng:
- The Court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it;
2) The test - Kosma Palm Oil Mill Sdn Bhd v Koperasi Setiausaha Makmur Bhd:
i) SPECIAL CIRCUMSTANCES & NUGATORINESS:

• special circumstances is the genus of which nugatoriness is a species.
• If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established.
• Thus, they cannot be treated as separate heads and one cannot be an alternative to the other.

ii) ONUS OF PROOF:
- The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution.
iii) RELATES TO JUDGMENT:

• The reasons or special circumstances must relate to the enforcement of the judgment.
• A stay is granted only for reasons that relate to the enforcement of the judgment.
• It is not granted to give the unsuccessful party time to satisfy the judgment or to alleviate his problems.

Question 6

STAY OF EXECUTION

Procedures to apply for stay

Answer 6

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Question 7

STAY OF EXECUTION

Alternative to stay

Answer 7

Erinford Injunction

Question 8

STAY OF EXECUTION

Example

Answer 8

Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd:

• The grounds relied on by the appellants are nothing more than ‘fear of losing’;
• i.e. fear of losing business, fear of losing customers, fear of losing suppliers, fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the appellant company is wound up.
• All that the applicant has to do to avoid such ‘fears’ is to settle the judgment debt.
• Application for stay of execution is dismissed.

Question 9

STAY OF EXECUTION

Recent example

Answer 9

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