WA-12AM-2-07/2022 (Mahkamah Tinggi)

WA-12AM-2-07/2022 (Mahkamah Tinggi)

The appeal is allowed and the Sessions Court's grant of leave and Writ of Execution is set aside because the Respondent failed to provide the mandatory and sufficient explanation for its failure to execute the Judgment within the six‑year period (specifically failed to explain the period August–December 2021), and the short post‑lapse filing delay was held reasonable in the circumstances (COVID emergency), making the 1st‑tier explanation decisive and absent.

Citation
WA-12AM-2-07/2022 (Mahkamah Tinggi)
Parties
Appellant/defendant: Lim Kian Liong; Respondent/plaintiff: Bank Islam Malaysia Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 November 2022
Case Number
WA-12AM-2-07/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (leave to Execute Judgment) / Judgment on Appeal at High Court
Outcome
Appeal allowed; Sessions Court's grant of leave and Writ of Execution set aside; costs awarded to Appellant
Legal Topics
Order 46 Rules, Leave to Execute, Limitation Period, Causes of Delay, Judicial Notice (emergency/covid 19)
Source Language
Malay/English
Civil Procedure Banking Law Execution of Judgment Insolvency/bankruptcy Order 46 Rules Leave to Execute Limitation Period Causes of Delay +1 more

Case Brief

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Parties

Lim Kian Liong

Appellant/defendant

Bank Islam Malaysia Berhad

Respondent/plaintiff

Procedural Posture

Civil Appeal (leave to Execute Judgment) / Judgment on Appeal at High Court

Legal Issues

  1. 1 Whether the Sessions Court erred in granting leave to issue a writ of execution under Order 46 despite delays
  2. 2 Whether the Respondent adequately explained the delay in executing the Judgment within the six‑year period (1st‑tier)
  3. 3 Whether the brief delay in filing for leave after the six‑year period was reasonable (2nd‑tier)

Ratio Decidendi

The appeal is allowed and the Sessions Court's grant of leave and Writ of Execution is set aside because the Respondent failed to provide the mandatory and sufficient explanation for its failure to execute the Judgment within the six‑year period (specifically failed to explain the period August–December 2021), and the short post‑lapse filing delay was held reasonable in the circumstances (COVID emergency), making the 1st‑tier explanation decisive and absent.

Court Disposition

Appeal allowed; Sessions Court's grant of leave and Writ of Execution set aside; costs awarded to Appellant

Orders

  • Appeal allowed
  • Leave granted by Sessions Court set aside