Ho Joon Sing LAIN-LAIN Goh Fan Si (Pempetisyen)

Ho Joon Sing LAIN-LAIN Goh Fan Si (Pempetisyen)

The court held that an injunction under Order 29 r.1 was a proper and effective procedural vehicle to restrain the Respondent from executing the variation order because the relief sought was a personal in personam restraint aimed at preserving the Petitioner's status quo and the welfare of the children pending appeal; the petitioner was not procedurally barred, the application merited priority and an interim stay was justified. Accordingly the application was allowed and the enforcement of the 26 Aug 2021 order was suspended pending the appeal.

Citation
KA-33-114-07/2018 (Mahkamah Tinggi)
Parties
Petitioner: Goh Fan Si; Respondent: Ho Joon Sing
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 January 1900
Case Number
KA-33-114-07/2018 (Mahkamah Tinggi)
Procedural Posture
Family Law (divorce and Custody) / Interlocutory Application for Injunction to Stay Execution Pending Appeal
Outcome
Application allowed; injunction granted to suspend enforcement of the High Court order dated 26 August 2021 pending appeal; related application (Lampiran 59) declared academic.
Legal Topics
Custody Variation, Stay of Execution, Interim Injunction, Maintenance Variation, Material Change of Circumstances
Source Language
Malay/English
Family Law Civil Procedure Child Welfare Custody Variation Stay of Execution Interim Injunction Maintenance Variation Material Change of Circumstances

Case Brief

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Parties

Goh Fan Si

Petitioner

Ho Joon Sing

Respondent

Procedural Posture

Family Law (divorce and Custody) / Interlocutory Application for Injunction to Stay Execution Pending Appeal

Legal Issues

  1. 1 Whether an injunction under Order 29 r.1 is a proper procedure to suspend enforcement of a variation order pending appeal
  2. 2 Whether Rule 55 r.16 / section 73 CJA is the exclusive route for stay pending appeal
  3. 3 Whether there was a material change in circumstances justifying the variation

Ratio Decidendi

The court held that an injunction under Order 29 r.1 was a proper and effective procedural vehicle to restrain the Respondent from executing the variation order because the relief sought was a personal in personam restraint aimed at preserving the Petitioner's status quo and the welfare of the children pending appeal; the petitioner was not procedurally barred, the application merited priority and an interim stay was justified. Accordingly the application was allowed and the enforcement of the 26 Aug 2021 order was suspended pending the appeal.

Court Disposition

Application allowed; injunction granted to suspend enforcement of the High Court order dated 26 August 2021 pending appeal; related application (Lampiran 59) declared academic.

Orders

  • Grant injunction restraining Respondent from enforcing or executing the order dated 26-08-2021 insofar as it permits removal/replacement of custody of the children pending Civil Appeal K-02(IM)-1712-09/2021
  • Declare application in Lampiran 59 academic and not to be proceeded with