CIVIL PROCEDURE BENCH BOOK 2009

GENERAL STAY OF EXECUTION

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Provision -

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S. 44 , S. 57(1) and S. 73 CJA 1964;

O 55 r 12 RHC.

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1.

STAY OF EXECUTION

The court has an unqualified discretion to grant a

stay of execution. However, the court will only
grant stay if there are special 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 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.
When the
application for stay was made no affidavit in
support was filed. Browne J. said at p 116 that

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2.

...But it is a clear principle that 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. The only ground, so 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
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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 might well be
an important factor to take into
consideration if there were other
grounds...

CIVIL PROCEDURE BENCH BOOK 2009

GENERAL STAY OF EXECUTION

In Re Kong Thai Sawmill [1976] 1 MLJ 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 Malaysia v Jasanusa Sdn Bhd [1995]
2 MLJ 105 and Kerajaan Malaysia v Dato Hj.
Ghani Gilong [1995] 2 MLJ 119 are income tax
cases and in both cases the Federal Court
applied the special circumstances test.

4.

The leading case on stay of execution is Kosma

Palm Oil Mill Sdn Bhd & 2 ors v Koperasi
Serbausaha Makmur Berhad [2003] 5 AMR 758
where the Federal Court made the following
observations :-

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3.

(a)

The merit of a partys case in a stay

application was not a relevant matter for
consideration.

(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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CIVIL PROCEDURE BENCH BOOK 2009

GENERAL STAY OF EXECUTION

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
was wrong and would severely restrict the
grounds on which the applicant might rely.

(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.

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(c)

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

6.

Where 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).

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5.

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