Lee Sian Hee (trading as Lee Sian Hee Pork Trader) v Oh Kheng Soon (trading as Ban Hon Trading Enterprise)

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 30 November 1991
• Neutral Citation: [1991] SGCA 43
• Docket Number: Civil Appeal No 43 of 1991
• Date: 30 November 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Ravindra Samuel (S Nabham)
• Citation: [1991] SGCA 43
• Defendant Counsel: Tan May Tee (Leong Tan & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Stay of proceedings,Likelihood of success of appeal,Special circumstances,Stay of execution pending appeal,Civil Procedure

Cur Adv Vult

This was an application for a stay of execution of the order of Goh Phai Cheng JC made on 14 February 1991 until the appeal from that decision is heard. We have dismissed the appeal and now give our reasons.

The claim against the applicant was for $240,403 for the price of live pigs sold and delivered to the applicant. The applicant had previously drawn six bearer cheques between 11 August 1988 and 26 September 1989 for the full amount and had delivered the cheques to the respondent. The cheques were subsequently all dishonoured. On an application by the respondent for summary judgment, the senior assistant registrar on 11 May 1990 gave the applicant unconditional leave to defend the claim. On appeal, Goh Phai Cheng JC on 14 February 1991 allowed the applicant conditional leave to defend subject to his furnishing within four weeks a banker`s guarantee for $185,803 being the full amount claimed of $240,403 less a sum of $54,600 which the applicant claimed that he had paid to the respondent. The applicant having failed to provide the banker`s guarantee as ordered, the respondent entered final judgment for the full amount on 11 April 1991. An application for a stay of execution was heard before Goh Phai Cheng JC on 22 April 1991 when the application was dismissed with costs which had not to date been paid.

An appeal does not operate as a stay of execution. This is made clear by both s 41 of the Supreme Court of Judicature Act (Cap 322) and O 57 r 15(1) of the Rules of the Supreme Court 1970 which is in pari materia with O 59 r 13 of the United Kingdom Supreme Court Practice. The Supreme Court of Judicature Act provides that:

41 An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.

Order 57 r 15(1) of the Rules of the Supreme Court 1970 provides that:

15(1) Except so far as the court below or the Court of Appeal may otherwise direct:

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

(b) no intermediate act or proceedings shall be invalidated by an appeal.

While the court has power to grant a stay, and this is entirely in the discretion of the court, the discretion must be exercised in accordance with well established principles ( Lee Kuan Yew v JB Jeyaretnam [1991] 1 MLJ 83 ). First, as a general proposition, the court does not deprive a successful litigant of the fruits of his litigation, and lock up funds to which prima facie he is entitled, pending an appeal ( `The Annot Lyle` [1886] 11 PD 114 at p 116). However, when a party is exercising his undoubted right of appeal, the court ought...