D-22NCC-590-2009 (Mahkamah Tinggi)

D-22NCC-590-2009 (Mahkamah Tinggi)

The application for leave was dismissed because the 2023 settlement agreement, which recorded acceptance of RM350,000 as full and final settlement, superseded and extinguished the earlier judgment leaving no judgment to enforce; alternatively, even if leave could be relevant, actions upon a judgment (such as bankruptcy proceedings) are subject to the 12-year absolute bar under s.6(3) Limitation Act 1953 such that a fresh action after more than 12 years would be statute-barred.

Citation
D-22NCC-590-2009 (Mahkamah Tinggi)
Parties
Plaintiff: CIMB Bank Berhad; 1st Defendant: Azivest Sdn Bhd; 2nd Defendant (guarantor): Ahmed Tauzan bin Abdul Ghani; 3rd Defendant (guarantor): Mohamad Azman bin Ibrahim
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 April 2024
Case Number
D-22NCC-590-2009 (Mahkamah Tinggi)
Procedural Posture
Commercial Suit Enforcement of Judgment / Bankruptcy / Application for Leave to Execute Judgment Under Order 46 R.2 of the Rules of Court 2012 (enclosure 16)
Outcome
Enclosure 16 dismissed
Legal Topics
Leave to Execute Judgment, Effect of Settlement Agreement on Judgment, Limitation Period for Actions Upon Judgment, Acknowledgement/part Payment Under Limitation Act, Estoppel Clause in Settlement
Source Language
Malay/English
Civil Procedure Limitation Law Bankruptcy/insolvency Contract/settlement Leave to Execute Judgment Effect of Settlement Agreement on Judgment Limitation Period for Actions Upon Judgment Acknowledgement/part Payment Under Limitation Act +1 more

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Parties

CIMB Bank Berhad

Plaintiff

Azivest Sdn Bhd

1st Defendant

Ahmed Tauzan bin Abdul Ghani

2nd Defendant (guarantor)

Mohamad Azman bin Ibrahim

3rd Defendant (guarantor)

Procedural Posture

Commercial Suit Enforcement of Judgment / Bankruptcy / Application for Leave to Execute Judgment Under Order 46 R.2 of the Rules of Court 2012 (enclosure 16)

Legal Issues

  1. 1 Whether a plaintiff who entered into a full and final settlement of a judgment can later apply for leave to execute that judgment upon defendant's default
  2. 2 Whether a settlement agreement supersedes and extinguishes a prior judgment such that the judgment is no longer enforceable
  3. 3 Whether section 6(3) Limitation Act 1953 operates as an absolute bar after 12 years to enforce a judgment and how it interacts with Order 46 r.2 ROC 2012

Ratio Decidendi

The application for leave was dismissed because the 2023 settlement agreement, which recorded acceptance of RM350,000 as full and final settlement, superseded and extinguished the earlier judgment leaving no judgment to enforce; alternatively, even if leave could be relevant, actions upon a judgment (such as bankruptcy proceedings) are subject to the 12-year absolute bar under s.6(3) Limitation Act 1953 such that a fresh action after more than 12 years would be statute-barred.

Court Disposition

Enclosure 16 dismissed

Orders

  • Application for leave to execute the summary judgment dated 18.5.2010 (Enclosure 16) is dismissed