1. ) BA-24C-103-10/2019 ENCORP ISKANDAR DEVELOPMENT SDN. BHD. (Co. No.: 890165-W) 2. ) BA-24C-121-12/2019 KONSORTIUM IPMINES MERZ SDN. BHD. (Co. No.: 1116110-U) 1. ) KONSORTIUM IPMINES MERZ SDN. BHD. (Co. No.: 1116110-U) 2. ) ENCORP ISKANDA

1. ) BA-24C-103-10/2019 ENCORP ISKANDAR DEVELOPMENT SDN. BHD. (Co. No.: 890165-W) 2. ) BA-24C-121-12/2019 KONSORTIUM IPMINES MERZ SDN. BHD. (Co. No.: 1116110-U) 1. ) KONSORTIUM IPMINES MERZ SDN. BHD. (Co. No.: 1116110-U) 2. ) ENCORP ISKANDA

The stay application (enclosure 9) was dismissed because the applicant's grounds for stay on appeal were substantially the same as those earlier advanced and rejected in the s16(1)(b) CIPAA stay application; the applicant failed to satisfy the lower View Esteem test and therefore could not meet the higher 'special circumstances' threshold required for a stay pending appeal, compounded by CIPAA's objective to protect cashflow and lack of evidence of respondent's commercial insolvency.

Citation
BA-24C-103-10/2019 & BA-24C-121-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff (originating Summons BA 24 C 103 10/2019); Defendant (originating Summons BA 24 C 121 12/2019): Encorp Iskandar Development Sdn. Bhd.; Defendant (originating Summons BA 24 C 103 10/2019); Plaintiff (originating Summons BA 24 C 121 12/2019): Konsortium Ipmines Merz Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 April 2021
Case Number
BA-24C-103-10/2019 & BA-24C-121-12/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses Concerning Enforcement of Adjudication Decision Under CIPAA and Related Stay Applications / Application to Stay Execution of High Court Enforcement Order Pending Disposal of Appeal to Court of Appeal (enclosure 9) Decided by High Court Judgment
Outcome
Enc. 9 (application to stay execution of Enforcement Order pending appeal) dismissed with costs; earlier Encorp applications to set aside adjudication decision and s16(1)(b) stay dismissed; Konsortium's enforcement application allowed.
Legal Topics
Enforcement of Adjudication Decision, Stay of Execution Pending Appeal, CIPAA S16 Stay, Special Circumstances Test Under S73 CJA and R13 RCA, Evidence of Insolvency
Source Language
Malay/English
Construction Law Civil Procedure Arbitration Law Company/insolvency Law Enforcement of Adjudication Decision Stay of Execution Pending Appeal CIPAA S16 Stay Special Circumstances Test Under S73 CJA and R13 RCA +1 more

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Parties

Encorp Iskandar Development Sdn. Bhd.

Plaintiff (originating Summons BA 24 C 103 10/2019); Defendant (originating Summons BA 24 C 121 12/2019)

Konsortium Ipmines Merz Sdn. Bhd.

Defendant (originating Summons BA 24 C 103 10/2019); Plaintiff (originating Summons BA 24 C 121 12/2019)

Procedural Posture

Originating Summonses Concerning Enforcement of Adjudication Decision Under CIPAA and Related Stay Applications / Application to Stay Execution of High Court Enforcement Order Pending Disposal of Appeal to Court of Appeal (enclosure 9) Decided by High Court Judgment

Legal Issues

  1. 1 Whether the High Court should grant a stay of execution of an enforcement order pending appeal under s73 Courts of Judicature Act and r13 Rules of the Court of Appeal
  2. 2 Whether the special circumstances test for a stay on appeal must be tempered by the object of CIPAA to protect cash flow of successful adjudication parties
  3. 3 Whether a prior dismissal of a Section 16(1)(b) CIPAA stay by the same court on lower View Esteem grounds precludes a subsequent stay on appeal when grounds are substantially similar

Ratio Decidendi

The stay application (enclosure 9) was dismissed because the applicant's grounds for stay on appeal were substantially the same as those earlier advanced and rejected in the s16(1)(b) CIPAA stay application; the applicant failed to satisfy the lower View Esteem test and therefore could not meet the higher 'special circumstances' threshold required for a stay pending appeal, compounded by CIPAA's objective to protect cashflow and lack of evidence of respondent's commercial insolvency.

Court Disposition

Enc. 9 (application to stay execution of Enforcement Order pending appeal) dismissed with costs; earlier Encorp applications to set aside adjudication decision and s16(1)(b) stay dismissed; Konsortium's enforcement application allowed.

Orders

  • Encorp's Setting Aside Application dismissed
  • Encorp's Section 16(1)(b) stay application dismissed