CIVIL PROCEDURE BENCH BOOK 2009

GENERAL STAY OF EXECUTION

STAY OF EXECUTION

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1. Provision -

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AY
S. 44 , S. 57(1) and S. 73 CJA 1964;
O 55 r 12 RHC.

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2. The court has an unqualified discretion to grant a
stay of execution. However, the court will only
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grant stay if there are special circumstances. It is
trite law that the court will not deprive a
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successful party of the fruits of his litigation.
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3. Serangoon Garden Estate Ltd v Ang Keng

[1953] MLJ 116 is a judgment of the High Court
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(Singapore). That case is an appeal from the

district court against an order granting a stay of
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execution in a case where an order for

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possession had been made. When the

application for stay was made no affidavit in
support was filed. Browne J. said at p 116 that
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...But it is a clear principle that the

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Court will not deprive a successful party of

the fruits of his litigation until an appeal is
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determined, unless the unsuccessful party

can show special circumstances to justify
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it. The only ground, so far as appears in

the written grounds for granting this stay,
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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
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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

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until such time as the appeal is

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determined. Such a ground might well be
an important factor to take into

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consideration if there were other
grounds...

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3. In Re Kong Thai Sawmill [1976] 1 MLJ 131 the
Federal Court stated that stay of execution
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pending appeal is granted only where exceptional
circumstances are proved, such as for instance
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where execution would destroy the subject matter
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of the action or deprive the appellant the means

of prosecuting the appeal by reason of poverty.
Kerajaan Malaysia v Jasanusa Sdn Bhd [1995]
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2 MLJ 105 and Kerajaan Malaysia v Dato Hj.

Ghani Gilong [1995] 2 MLJ 119 are income tax
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cases and in both cases the Federal Court

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applied the special circumstances test.

4. The leading case on stay of execution is Kosma
Palm Oil Mill Sdn Bhd & 2 ors v Koperasi
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Serbausaha Makmur Berhad [2003] 5 AMR 758

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where the Federal Court made the following

observations :-
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(a) The merit of a partys case in a stay

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application was not a relevant matter for

consideration.
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(b) The onus was on the applicant to

demonstrate the existence of special
circumstances to justify the grant of a stay
of execution and the reasons must relate to
the enforcement of the judgment of the
appeal.

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GENERAL STAY OF EXECUTION

(c) There were many factors 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 to restrict the
grant of a stay of execution to nugatoriness

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was wrong and would severely restrict the

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grounds on which the applicant might rely.

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(d) As the applicants had not put forward
reasons that related to the enforcement of
judgment of the appeal but instead had

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focused on the problems that the
applicants would encounter if the motion
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were not successful, they failed to raise
special circumstances which warrant a stay
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of execution.
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5. Special circumstances have been defined in

Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ
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86 by Raja Azlan Shah J, as special under the

circumstances as distinguished from ordinary
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circumstances. It must be something exceptional

in character something that exceeds or excels in
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some way that which is usual or commons.

6. Where summary judgment is entered for a
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plaintiff, the court may by order, and subject to

such conditions, if any, as may be just stay
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execution of any judgment given against a

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defendant until after the trial of any counterclaim

made or raised by the defendant in the action (O
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14 r 3(2) RHC).
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