CONWELD ENGINEERING SDN BHD LOW TERK CHEN & 2 ORS

CONWELD ENGINEERING SDN BHD LOW TERK CHEN & 2 ORS

The court refused the stay because an appeal does not automatically stay proceedings and the Defendants failed to establish special circumstances: the Leave Order is a precursor to the suit so a successful appeal would not be nugatory in the sense required, potential wasted costs and judicial time do not constitute special circumstances, and there was no irreparable prejudice shown; accordingly the stay application was dismissed and the Defendants were directed to comply with the Leave Order and pursue expedition of their appeal if desired.

Citation
WA-22NCC-108-03/2021 (Mahkamah Tinggi)
Parties
Plaintiff: CONWELD ENGINEERING SDN BHD; Defendant: LOW TERK CHEN; Defendant: LOW MAN FOOK; Defendant: NG WAN WOOI
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 April 2021
Case Number
WA-22NCC-108-03/2021 (Mahkamah Tinggi)
Procedural Posture
Derivative Action (companies Act) / Interlocutory Application to Stay Proceedings Pending Disposal of Appeal
Outcome
Stay application dismissed with costs.
Legal Topics
Derivative Action, Stay of Proceedings, Leave to Commence Derivative Suit, Nugatory Appeal Test, Case Management
Source Language
Malay/English
Company Law Civil Procedure Commercial Litigation Derivative Action Stay of Proceedings Leave to Commence Derivative Suit Nugatory Appeal Test Case Management

Case Brief

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Parties

CONWELD ENGINEERING SDN BHD

Plaintiff

LOW TERK CHEN

Defendant

LOW MAN FOOK

Defendant

NG WAN WOOI

Defendant

Procedural Posture

Derivative Action (companies Act) / Interlocutory Application to Stay Proceedings Pending Disposal of Appeal

Legal Issues

  1. 1 Whether an appeal operates as a stay of proceedings
  2. 2 Whether special circumstances exist to justify a stay pending appeal
  3. 3 Whether the appeal would be rendered nugatory if stay refused

Ratio Decidendi

The court refused the stay because an appeal does not automatically stay proceedings and the Defendants failed to establish special circumstances: the Leave Order is a precursor to the suit so a successful appeal would not be nugatory in the sense required, potential wasted costs and judicial time do not constitute special circumstances, and there was no irreparable prejudice shown; accordingly the stay application was dismissed and the Defendants were directed to comply with the Leave Order and pursue expedition of their appeal if desired.

Court Disposition

Stay application dismissed with costs.

Orders

  • Application to stay proceedings dismissed with costs.