Case Note
RISNOBES DEVELOPMENT STRATEGY SDN BHD
V
KOPEEASI MALIMJAYA BERHAD
High Court Ipoh– Civil Suit No. 22-110-2007
Tarmizi bin Abd Rahman JC
22 February 2011
Civil Procedure-Stay of Execution-Summary Judgment-Error in granting Summary Judgment admitted in Grounds of Judgment-Whether a occasion of special circumstances.
Brief Facts
Summary Judgment was entered on 7.12.2009. An appeal was lodged to the Court of Appeal. In the grounds of judgment, the trial judge kindly admitted that the Summary Judgment was granted in error. The learned trial judge proceeded to both identify issues to be tried and under the 2nd limb of RHC O14 r3(1) the existence of some other reason for the trial of the action.
Counsel for the Defendant naturally relied on the grounds and argued that there exists special circumstance to justify a stay of execution pending appeal.
The celebrated High Court decision in Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86 where Raja Azlan Shah J (as his lordship then was) was refereed to, where the following paragraph was commended to the court:-
“Special circumstances, as the circumstances implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something which exceeds or excels in some way that which is usual or common”.
Counsel further submitted that a refusal to grant a stay of execution is akin to issuing a license to the Plaintiff to issue execution based on a Judgment whose propriety is disputed even by the trial Judge.
In reply counsel for the Plaintiff asserted that such error even if true does not constitute an occasion of special circumstance. The Plaintiff relied on the High Court decision in Paranchothi K Ramalingam & Or v Sentul Raya Sdn Bhd [2007] 10 CLJ 421.
In the Paranchoti case, the Judge after granting a Summary Judgment admitted in the grounds that the Judgment was granted in error. The Defendant filed an application to set aside the judgment and/or to in invoking the “slip rule” to amend the Judgment to reflect the opinion expressed by the Judge in the Grounds. The Application was dismissed.
The High Court ruled, correctly, that the slip rule has no application to the facts of the matter. The High Court nonetheless opined that the Grounds of Judgment provides a cogent basis for the Appeal at the Court of Appeal on the existence of issues to be tried.
On the other hand, the High Court accepted the submission by the Plaintiff that even with the admission of error by the learned Judge, it is foreseeable that the Court of Appeal may disagree with the High Court and sustain the Summary Judgment in spite of the Grounds.
The Plaintiff counsel further made a tactical decision not to contest the stay per se but to invite the Court to order a conditional stay on the terms that the entire Judgment debt be paid to the joint account of the Solicitors.
Judgment of Termizi JC
In his lordship’s oral judgment, the High Court ruled that the kind admission of error by the Trial Judge constitute an occasion of special circumstances warranting a stay. The Court also took into account that the short date of the Appeal to the Court of Appeal.
Commentary
It must be noted that the Plaintiff counsel made a tactically sound decision to invite the court to grant a conditional stay and not contest the application outright.
Despite this decision, the Author commends the High Court for ruling that an error in granting a Summary Judgment is an occasion of special circumstance. A look at the journals indicate that this specific point appears not to have been considered before. On one hand, perhaps because it appears too obvious that such error would warrant a stay but nonetheless by this Judgment, the Ipoh High Court has made a ruling as to what constitutes an occasion of special circumstances.
Dated 3 May 2011
Norazali Nordin
Chair
Professional Development Sub-Committee
Perak Bar
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