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BETWEEN
AND
JUDGEMENT
summary judgment under O.14 r.2 of the RHC 1980 against the
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iii. the plaintiff has no caveatable interest to maintain the
said private caveat as the property has been
successfully sold to the third defendant (Nirwana
Acedmy Sdn Bhd) through public auction
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4. The grounds of the application (Enclosure 18) is briefly:-
Enclosure 14. This court had also struck out the plaintiffs claim
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yang sama dilakukan, kesemua hak plaintif yang
didapati secara betul melalui Pinjaman Jual Beli
Berarikh 10.12.2009 (PJB) (antara
plaintif/pembeli dan defendan pertama/penjual)
akan digagalkan secara tidak adil, dan menjadi
sia-sia. Ini akan konsisten, dan akan
membenarkan defendan pertama Berjaya dalam
membenarkan melemahkan kuasa secara salah
dan mengelakkan SPA;
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fakulti, menyusun lawatan bagi
pihak berkuasa Kerajaan.
Selanjutnya, ITJ juga telah
menempatkan, membuat bayaran
pendahuluan untuk asrama
pelajar, kemudahan pengangkutan
dan lebih lagi
7. Learned counsel for the plaintiff had, inter alia submitted that:-
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2. Monies were spent in advertising and promoting the
college
8. On the other hand, learned counsel for the second defendant, had,
inter alia submitted that the plaintiff has not disclosed any special
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3. Univein Sdn Bhd v Malaysia Building Society (2003)
4 MLJ 618
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In the meantime, the plaintiff had entered a private
caveat on 31.3.2010 on the property
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i. The plaintiff has a prior legal interest in
the property vis--vis the successful
bidder by reason of the sale and
purchase agreement dated 9.12.2009
(the private treaty) entered into between
the chargor (first defendant) and the
plaintiff
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DECISION
court is:-
appeals from the High Court to the Court of Appeal are found in
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Rule 13 of the Rules of the Court of Appeal 1994
which has the same effect states:-
13. It is clear that S. 73 and Rule 13 clearly confer on the court judicial
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been held to give a discretion, which is
called a judicial discretion, but is still a
discretion.
14. In order for this court to consider the application (Enclosure 31)
for stay against the enforcement of the said orders pending the
plaintiff must show 'special circumstances' for the court to stay the
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successful for any reason like, for instance, the insolvency of the
judicial principles and within the confines of the law. However, the
the instant case, the second defendant putting into operation the
the said order but it does not affect or invalidate the judgment or
judgment. (see Clifton Securities Ltd. v. Huntley And Others [1948] K.B.D.
283 at p.284).
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that there are many factors that may constitute special
they are inter-related (See Teow Guan & Ors v. Kian Joo Holdings Sdn
Bhd & Anor [1997] 2 CLJ 299) could have withstood scrutiny if it had
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been correct if he had said that he was not relying on nugatoriness
this court).
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18. In the circumstances and considering the grounds advanced in the
Affidavit in Support (Enclosure 32) for the stay and applying the
principles adumbrated in Kosma Palm Oil Mills Sdn. Bhd. & Ors., this
court is of the considered view that the plaintiff had failed to show
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In Monk v. Bartram [1891] 1 Q.B 346,:-
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not be deprived of the fruits of his litigation
due to the result of his appeal being
rendered nugatory. Yet, it must always be
borne in mind that a successful party in
litigation has acquired a vested interest in
the outcome of the case whereas the other
party who appeals only has an interest
contingent upon a successful outcome of his
appeal. And, it is primarily for this reason
and the implied caveat that the courts
should discourage parties who lose their
cases upon merits, from wrenching the
fruits of litigation from the successful
parties - by keeping the litigation alive
through spurious appeals without any real
prospect of success and simply in the hope
of gaining some respite against immediate
execution upon the judgment, that the
courts have been and are only moved to
grant such a stay upon a set of certain
requirements which, for want of a more
appropriate term, the courts have been
driven to use, quite rightly, the oft-quoted
expression "special circumstances". Now,
the term "special circumstances" is a term
to denote a combination of certain
determining factors that are usually
demonstrated by affidavit evidence in order
to persuade the court that it is a just and an
appropriate case to grant a stay in the
circumstances".
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19. It is also an established rule via plethora of authorities that the
court will not deprive a successful party of the fruits of its litigation
stay. In the present case, this court is of the considered view that
the grounds advanced by the plaintiff for the stay is not related to
that the plaintiff is seeking the sympathy of this court to grant the
appeal, this court is satisfied that the plaintiff will not be left
wishes to reiterate that the plaintiff has been unable to satisfy this
the plaintiff.
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20. In so far as any detriment that may be caused to the plaintiff, the
defendant.
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c. Thirdly, the plaintiff has not been candid when
otherwise
21. Therefore, the plaintiff must take sole responsibility for exposing
had asked learned counsel for the plaintiff during the submissions
the plaintiff could not raise the money to redeem the property.
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22. In the circumstances, and in accordance with the rules of reason
with costs.
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