CIMB Bank Berhad 1. Ginza Concrete Sdn Bhd & 4 Lagi

CIMB Bank Berhad 1. Ginza Concrete Sdn Bhd & 4 Lagi

Leave to execute was refused because the plaintiff failed to provide sufficient reasons for the delay in enforcing a judgment of more than six years; critical grounds relied upon by the plaintiff (inability to serve bankruptcy documents due to defendant's domicile and personal service requirements) were not pleaded in the notice or supporting affidavit and thus could not be relied upon as afterthoughts; prejudice from the escalation of the debt reinforced that leave should not be granted.

Citation
D9-22-2218-2008 (Mahkamah Tinggi)
Parties
Plaintiff: CIMB Bank Berhad; Defendant: Ginza Concrete Sdn Bhd; Defendant: Ng Leng Cheng; Defendant: Ng Guan Sim; Defendant: Ng Ling Pah; Defendant: Ng Guat Leh
Court
High Court
Jurisdiction
Malaysia
Judgment Date
19 December 2020
Case Number
D9-22-2218-2008 (Mahkamah Tinggi)
Procedural Posture
Commercial Civil Suit for Recovery of Debt and Enforcement of Judgment / Application for Leave to Execute Judgment (order 46 Rule 2(1)(a) Rules of Court 2012)
Outcome
Application for leave to execute dismissed
Legal Topics
Execution of Judgment, Leave to Execute, Bankruptcy Proceedings, Service of Process, Limitation Period, Prejudice From Delay
Source Language
Malay/English
Bankruptcy Civil Procedure Contract Commercial Law Limitation Law Execution of Judgment Leave to Execute Bankruptcy Proceedings +3 more

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Parties

CIMB Bank Berhad

Plaintiff

Ginza Concrete Sdn Bhd

Defendant

Ng Leng Cheng

Defendant

Ng Guan Sim

Defendant

Ng Ling Pah

Defendant

Ng Guat Leh

Defendant

Procedural Posture

Commercial Civil Suit for Recovery of Debt and Enforcement of Judgment / Application for Leave to Execute Judgment (order 46 Rule 2(1)(a) Rules of Court 2012)

Legal Issues

  1. 1 Whether sufficient reason was shown for the delay of six years or more to grant leave to execute
  2. 2 Whether the plaintiff was prevented from serving the Bankruptcy Notice and Creditors Petition due to the third defendant's domicile and personal service requirements
  3. 3 Whether partial settlement by a co-defendant justified plaintiff's delay in executing judgment against the third defendant

Ratio Decidendi

Leave to execute was refused because the plaintiff failed to provide sufficient reasons for the delay in enforcing a judgment of more than six years; critical grounds relied upon by the plaintiff (inability to serve bankruptcy documents due to defendant's domicile and personal service requirements) were not pleaded in the notice or supporting affidavit and thus could not be relied upon as afterthoughts; prejudice from the escalation of the debt reinforced that leave should not be granted.

Court Disposition

Application for leave to execute dismissed

Orders

  • Application dismissed
  • Costs awarded in the sum of RM5,000