UUUK 4063

CIVIL PROCEDURE

SHAHNAZ & ASSOCIATES

(FIRM 8)

AZALEA SHARMEEN BT ZAIZAN (A153639)

KIRTHANA A/P SARANGAPANY (A153830)
FOO FANG LEONG (A156397)
IZYUANDI BIN IZHAM (A152534)
NOOR SYAFIQAH NAFISAH BINTI AGOESTONO (A156109)
STAY PENDING APPEAL: CASE ANALYSIS

ANANDA KUMAR A/L KRISHNAN V NG CHIN TAI

(T/A LEAN SEH FISHERY) & ANOR
(TESCO STORES (MALAYSIA) SDB BHD,
INTERVENER)
[2016] MLJU 924
HIGH COURT (PULAU PINANG))
MATERIAL FACTS

This is an application
by the
Against Tesco stores
Garnishee/Defendant Ammounting RM
to be stayed until
for Garnishee Trial 3,179,014.47 together
after the full and final
(‘Tesco Stores’) for all with cost of RM
disposal of the appeal
execution proceedings 10,000 (“said
in the Court of
of the Garnishee judgment’)
Appeal.
Order Absolute dated
21/7/2016.
GARNISHEE’S (TESCO STORES)
SUBMISSION

Ptf, being an individual, highly probable, may not be able to refund the said
judgment.

There are special circumstances as high risk of total dissipation by the Ptf of
the total amount of the said judgment in the event Tesco Stores’ appeal is
allowed.

Ptf is a stranger / third party to Tesco Stores. They do not maintain any
contractual relationship and nexus between one another.

Ptf is not likely to be able to repay the total amount and thus render the
Garnishee’s appeal nugatory if he stay was refused.

Dft’s appeal against the judgment forms the basis of the garnishee proceedings.
PLAINTIFF SUBMISSION
• There is no proof which suggest that a serious/irreparable injury w
ould result to Tesco Stores.
• Ptf would be gravely prejudiced as it took approximately 10 years to
obtain judgment against the Defendants.
• Thus, the Plaintiff should not be denied the fruit of his litigation.
• Plaintiff is a prominent businessman. Tesco Stores has not shown any
proof to prove that the Plaintiff is insolvent.

• The Plaintiff was awarded a judgment of RM19,266,746.16 and cost of

RM30,000.00 on 11.9.2015 against the Defendants
• Proof that Plaintiffs net worth is multiple times the quantum of the said
Judgment sum.
• Tesco Stores argument on this issue is a baseless, unsubstantiated and
speculative claim.
• Tesco's audited accounts shows that Tesco incurred a huge and material
loss of RM289,016,000.00 and Tesco has deferred tax of RM83,016,000
• If a stay is granted, there is very real risk that Tesco may dispose of its
assets thereby leaving the Plaintiff with a "paper judgment".
ISSUE
Whether the Defendants showed special circumstances
to justify a stay?
JUDGMENT
• S. 73 CJA 1964 provides that an appeal
does not operate as a stay.
• The onus is on the applicants to
demonstrate the existence of special
circumstances to justify the grant of a
stay of execution.
• Kosma Palm Oil Mill Sdn Bhd & Ors V
Koperasi Serbausaha Makmur Bhd
[2003] 4 CLJ 1; Mohd Kamaruzzaman
Mustaffa V Aerotree Defence & Services
Sdn Bhd & Ors [2015] 3 Clj 390
• 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 that exceeds or
excels in some way that which is usual
or common.
• Leong Poh Shee v Ng Kat Chong
[1966] 1 MLJ 86
JUDGMENT
Federal Court set the test for special circumstances which would justify a stay and the main
factor is the concept of 'nugatoriness’. [Kosma Palm Oil Mill Sdn Bhd & Ors V Koperasi
Serbausaha Makmur Bhd [2003] 4 CLJ 1].

For example, an appeal which would be nugatory if stay was refused by reason of the poverty of
the respondent. [Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v Kong Thai Sawmill
(Miri) Sdn Bhd & Ors (No. 2) [1974] 1 LNS 136; [1976] 1 MLJ 131].

CONCLUSION
• There is an imminent possibility that the Plaintiff will not be able
to return the sums paid if the Defendant’s appeal allowed.

• Hence, the stay is allowed on condition that within seven days

the Garnishee had to deposit the amount of RM3,179,014.47
into this Honorable court.