Edmund Ming Kwan @ Kwan Yee Ming, Edmund v Extra Excel (Malaysia) Sdn Bhd & Ors (2013) MWKAej 1004 [Civil procedure – Stay of proceedings for taxation of costs]

HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)
[ORIGINATING PETITION NO: D-26-56-2004]

EDMUND MING KWAN @ KWAN YEE MING, EDMUND (PETITIONER)

1. EXTRA EXCEL (MALAYSIA) SDN BHD
2. HENDRIK TJANDRA
3. CHEN JAU-FEI
4. LE HUAN-HSIN
5. LAU PAK HENG (RESPONDENTS)

UMI KALTHUM ABD MAJID J
10 APRIL 2013

Civil procedure – Stay of proceedings – Application for partial stay of taxation of costs proceedings under judgment – Whether stay can be granted pending the hearing and disposal of the Petitioner’s appeal and the Respondent’s cross-appeal against the judgment – Whether there were any special circumstances to enable the Court to exercise its discretion to grant the stay – Courts of Judicature Act 1964, s 73 – Rules of Court 2012 

Headnote

This was an application to stay all further proceedings for the taxation of costs ordered under the judgment of the Court dated 29 June 2012, pending the hearing and disposal of the petitioner’s appeal and the respondent’s cross appeal against the said judgment. The petitioner applied for an order to stay such proceedings under s 73 Courts of Judicature Act 1964 and/or the Rules of Court 2012 and/or the inherent jurisdiction of the Court. 

Held, dismissing the petitioner’s application to stay the taxation of costs proceedings with costs at RM3,000.00:

(1) No special circumstances were found to have enabled the Court to exercise its discretion to grant the stay. As such, the respondents should not be deprived of their fruits of litigation. (See para 2(i), (vi));

(2) Notwithstanding the petitioner’s submission that the petitioner’s shareholding in the 1st respondent could be used to off-set the taxed costs in the future, there was no need to differ from the order to provide security for costs under the said judgment. Moreover, the respondents’ financial standing did not merit the stay as they were fully capable of returning the sum of taxed costs in the event the petitioner’s appeal is allowed and/or the respondents’ cross-appeal is dismissed (See para 2(ii), (iii), (iv));

(3) The petitioner’s appeal to the Court of Appeal does not constitute a special circumstance (See para 2(v));

(4) Since the grounds of judgment of the learned trial judge had been duly provided to the parties, its non-availability could not be a ground to grant the stay (See para 2(vi)).

Cases referred to

Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1

Legislation referred to

Courts of Judicature Act 1964, s 73

Rules of Court 2012

Counsel

For the petitioner – Logan Sabapathy; M/s Logan Sabapathy & Co 

For the defendant – Raymond Mah (Selena Kong with him); M/s MahWengKwai & Associates

Judgement

Umi Kalthum Abd Majid J

A. THE APPLICATION:

(1) The petitioner/ applicant applied under section 73 of the Courts of Judicature Act 1964 and/or the Rules of Court 2012 and/or the inherent jurisdiction of the Court for an order that all further proceedings for the taxation of costs be ordered under the judgment of the Court dated 29 June 2012 be stayed pending the hearing and disposal of the petitioner’s appeal against the said Judgment as well as the respondents’ cross appeal against the said Judgment. 

B. THE DECISION:

(2) I dismiss the petitioner’s application for a partial stay of the taxation of costs proceedings in enclosure O-B with costs at RM3,000.00. I do so for the following reasons: 

1. I do not find any special circumstances raised by the petitioner to enable the Court to exercise its discretion to grant the stay; 
2. the petitioner is a foreign litigant with no assets within the jurisdiction of this Court save for the petitioner’s shareholding in the 1st respondent (paragraph 15, Affidavit in Reply dated 23 November 2012, enclosure O-C). This assertion by the Respondents had not been denied/refuted by the petitioner;
3. as for the petitioner’s submission that the petitioner’s shareholding in the 1st respondent could be used to off-set the taxed costs in the future, since this Court found it fit to order on 22 June 2005 the petitioner to provide security for costs to the amount of RM360,000.00, notwithstanding the existence of the petitioner’s shares in the 1st respondent, I do not see the need to differ from it; 
4. the petitioner did not depose anything on whether the respondent’s financial standing merits the stay be granted. Instead, the Respondents vis the 2nd respondent’s Affidavit-in-Reply affirmed on 23  November 2012 (enclosure O-C) stated that they have the means and are fully capable of returning the sum of taxed costs in the event the petitioner’s Court of Appeal is allowed and/or the respondents’ Cross-Appeal is dismissed; 
5. the petitioner’s appeal to the Court of Appeal does not constitute a special circumstance (see Kosma  Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1);
6. the grounds of judgment of the learned trial judge had been duly provided to the parties, and therefore its non-availability cannot be a ground to grant the stay;
7. the respondents should not be deprived of their fruits of litigation. 

Application for partial stay of the taxation of costs proceedings dismissed

Reported by Rachel Goh; Edited by John Chan & Felicia Tang; M/s MahWengKwai & Associates