1. ) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-1-07/2019) (Co. No.: 536187-H) 2. ) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-2-08/2019) (Co. No.: 536187-H) 3. ) KENWISE SDN. BHD. (BA-24C(ARB)-6-09/2019) (Co. No.: 96656

1. ) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-1-07/2019) (Co. No.: 536187-H) 2. ) MAMMOTH EMPIRE CONSTRUCTION SDN. BHD. (BA-24NCC(ARB)-2-08/2019) (Co. No.: 536187-H) 3. ) KENWISE SDN. BHD. (BA-24C(ARB)-6-09/2019) (Co. No.: 96656

Absolute stay refused because the finality of the arbitral award militates against an absolute stay, Mammoth failed to establish special circumstances relating to enforcement and Kenwise demonstrated sufficient commercial viability so that the appeal would not be rendered nugatory; court exercised statutory discretion to grant a conditional stay instead, requiring Mammoth to deposit 80% of the Total Sum into a stakeholder interest-bearing account by 29.12.2020; costs awarded to Kenwise.

Citation
BA-24NCC(ARB)-1-07/2019, BA-24NCC(ARB)-2-08/2019 & BA-24C(ARB)-6-09/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Mammoth Empire Construction Sdn. Bhd.; Defendant: Kenwise Sdn. Bhd.
Court
ARB
Jurisdiction
Malaysia
Judgment Date
13 October 2020
Case Number
BA-24NCC(ARB)-1-07/2019, BA-24NCC(ARB)-2-08/2019 & BA-24C(ARB)-6-09/2019 (Mahkamah Tinggi)
Procedural Posture
Originating Summonses (arbitration Recognition, Enforcement and Setting Aside) / Application (court Enclosure No.35) for Stay of Execution Pending Appeal
Outcome
Absolute stay refused; conditional stay granted subject to deposit of 80% of the Total Sum by 5.00 pm on 29.12.2020; costs RM5,000 plus 5% p.a. interest from 13.10.2020 ordered to be paid by Mammoth to Kenwise.
Legal Topics
Stay of Execution, Recognition and Enforcement of Arbitral Award, Setting Aside Arbitral Award, Finality of Award, Conditional Stay, Costs
Source Language
Malay/English
Arbitration Civil Procedure Enforcement of Judgments Appeals Stay of Execution Recognition and Enforcement of Arbitral Award Setting Aside Arbitral Award Finality of Award +2 more

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Parties

Mammoth Empire Construction Sdn. Bhd.

Plaintiff

Kenwise Sdn. Bhd.

Defendant

Procedural Posture

Originating Summonses (arbitration Recognition, Enforcement and Setting Aside) / Application (court Enclosure No.35) for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether an absolute stay of execution should be granted under s 73 CJA and r 13 RCA
  2. 2 Whether the finality of an arbitral award under s 36 AA affects the grant of a stay
  3. 3 Whether special circumstances exist to justify an absolute stay

Ratio Decidendi

Absolute stay refused because the finality of the arbitral award militates against an absolute stay, Mammoth failed to establish special circumstances relating to enforcement and Kenwise demonstrated sufficient commercial viability so that the appeal would not be rendered nugatory; court exercised statutory discretion to grant a conditional stay instead, requiring Mammoth to deposit 80% of the Total Sum into a stakeholder interest-bearing account by 29.12.2020; costs awarded to Kenwise.

Court Disposition

Absolute stay refused; conditional stay granted subject to deposit of 80% of the Total Sum by 5.00 pm on 29.12.2020; costs RM5,000 plus 5% p.a. interest from 13.10.2020 ordered to be paid by Mammoth to Kenwise.

Orders

  • No absolute stay of execution granted.
  • Conditional stay: execution of the High Court's decision stayed until 5.00 pm on 29.12.2020 provided Mammoth deposits 80% of the Total Sum (being Award Sums, interest up to 13.10.2020, arbitration costs and costs of the three originating summonses) into a stakeholder interest-bearing bank account in the joint names...