CSPM SDN BHD 1. ) CSPM TECHNOLOGY SDN BHD 2. ) CHIN KWONG WAH 3. ) NG LEE ENG

22NCVC-56-01/2012 Kand. 315 27/10/2022 08:45:10 DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO. 22NCVC-56-01/2012 ANTARA CSPM SDN BHD (No. Syarikat: 114044-M) ….. PLAINTIF DAN 1. CSPM TECHNOLOGY SDN BHD (No. Syarikat: 254862-X) 2. CHIN KWONG WAH (No. K/P: 600514-10-7067/5941462) 3. NG LEE ENG (No. K/P: 650102-08-8109/A0045008 ….. DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN [1] The plaintiff vide Enclosure 256 sought for leave to enforce the judgment dated 26.11.2001 (“Judgment”) against the 3rd defendant pursuant to Order 46 subrule 2(3) of the Rules of Court 2012. Having heard the arguments, I granted the said leave. S/N 7VOsUpsdkqi41Au9e/ZrQ 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal [2] Enclosure 256 was filed on 23.12.21 some twenty years after the Judgment was obtained. The learned counsel argued that the plaintiff had been prevented from enforcing the said Judgment by the defendants. In its affidavit the plaintiff listed out the chronology of events as follows: (a) 19.11.1999 – Attachment Order against the 1st defendant on over its account and property charged to Malayan Banking Bhd (“MBB”); (b) 13.8.2001 – application by the defendants to set aside the Attachment Order was dismissed; (c) 26.11.2001 – the Senior Assistant Registrar (“SAR”) allowed the plaintiff’s application for summary judgment; (d) 11.2.2004 – MBB intervened and successfully varied the Attachment Order where the property belonging to the 1st defendant was released; (e) 11.2.2004 – the High Court allowed the defendants’ application to stay the enforcement of the said Judgment; (f) 4.2.2009 – the Court of Appeal allowed the defendants’ appeal and set aside the Attachment Order and remitted the matter to the High Court to be retried; (g) 13.7.2009 – the High Court dismissed the defendants’ application to set aside the Attachment Order; (h) 28.6.2010 – the Court of Appeal set aside the stay order granted on 11.2.2204 to the defendants; (i) 30.7.2010 – the High Court allowed the defendants’ appeal against the SAR’s decision and set aside the Judgment; (j) 12.10.2010 – the High Court transferred the case to High Court Penang; S/N 7VOsUpsdkqi41Au9e/ZrQ 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal (k) 10.10.2011 – the Court of Appeal set aside the High Court’s decision in allowing the appeal by the defendants against the Judgment and restored the same; (l) 30.10.2012 – the High Court at Penang allowed the plaintiff’s application to execute the Judgment; (m) 24.4.2013 – the Court of Appeal affirmed the High Court’s decision but the claim for interest was limited to 6 years from the date of the Judgment; (n) 5.8.2014 and 13.10.2014 the High Court set aside the bankruptcy notices issued against the 2nd and 3rd defendants respectively.; (o) 25.5.2015 – the defendants withdrew their appeal to the Federal Court and the appeal was struck out; (p) 5.11.2015 – the 1st defendant was wound up but the plaintiff could not make any recovery; (q) 23.8.2017 – the plaintiff obtained leave to execute the Judgment; (r) 21.2.2018 – the High Court Shah Alam set aside the said leave; (s) 27.6.2018 – the plaintiff filed an application to enforce the Judgment against the 2nd and 3rd defendants vide Enclosure 16 which was subsequently amended vide Enclosure 26; (t) 3.5.2019 – the plaintiff filed an application to amend Enclosure 16 vide Enclosure 55; (u) 5.7.2019 – the High Court dismissed Enclosure 55; (v) 17.7.2019 – the plaintiff appealed against the dismissal of Enclosure 55; S/N 7VOsUpsdkqi41Au9e/ZrQ 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal (w) 7.8.2019 – the plaintiff withdrew Enclosure 26 with liberty to file afresh; (x) 3.9.2019 – the 3rd defendant appealed against the order dated 7.8.2019; (y) 17.10.2019 – the plaintiff withdrew the appeal; (z) 14.11.2019 – the plaintiff filed an application to enforce the judgment against the 3rd defendant vide Enclosure 112; (aa) 16.1.2020 – the plaintiff’s application to amend Enclosure 112 was allowed (Enclosure 140); (bb) 25.3.2021 – the Court of Appeal dismissed the 3rd defendant’s appeal; (cc) 9.12.2021 – the High Court heard Enclosure 140 and Enclosure 226 (plaintiff’s application for extension of time to file its written submission) where the High Court allowed Enclosure 226. As regards Enclosure 140, the learned judge directed the plaintiff to file afresh; and (dd) 23.12.2021 – the plaintiff filed this application (Enclosure 259). [3] The learned counsel for the plaintiff submitted that the stay alone had taken up 6 years and 5 months. The Judgement was set aside by the Shah Alam High Court and was restored by the Court of Appeal which the process had taken about 1 year and 3 months. Another 2 more years were lost resulted from the transfer of proceedings from Shah Alam High Court to Penang High Court. The numerous appeals and interlocutory applications in between had taken up several years until this application was filed on 23.12.2021 and the 3rd defendant failed to offer any reasons to show that he was misled or prejudiced. Based on the explanation S/N 7VOsUpsdkqi41Au9e/ZrQ 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal abovementioned the learned counsel urged this Court to exercise its discretion to allow its application. [4] The learned counsel for the 3rd defendant submitted that Enclosure 259 is defective and incompetent for being time barred. Further it was submitted that the plaintiff failed to provide sufficient reasons to explain the delay in making this application. And it was further contended that the 3rd defendant was not at fault for causing the delay. He referred to the following authorities – Seema Development Sdn Bhd v. Mah Kim Chye [2014] 2 MLJ 245; Affin Bank Bhd v. Wan Abdul Rahman bin Wan Ibrahim [2003] 2 MLJ 509; CIMB Bank Bhd v. Teratai Sanjung (M) Sdn Bhd & Anor {2019] MLRAU 273. Decision [5] As regards exercising of the Court’s discretion, the Federal Court in Tio Chee Hing v. Chung Khiaw Bank Ltd. [1981] 1 MLJ 227 speaking through Chang Min Tat FJ at p.227 said: “Where six years have elapsed, Order 42 rule 23 Rules of the Supreme Court 1957 (with certain differences that are of no materiality in the application for leave, now Order 46 rule 2, Rules of the High Court 1980) requires leave of the court to be obtained. The court has a discretion in the matter and may exercise its discretion in favour of the applicant if satisfied that he is entitled to issue execution and with the cause or causes of the delay.”. S/N 7VOsUpsdkqi41Au9e/ZrQ 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal There is no doubt that there is delay on the part of the plaintiff in making this application. However, if the plaintiff can explain the delay the Court will exercise its discretion in the its favour. In Perwira Affin Bank Malaysia Bhd. v. Golden Produce Sdn. Bhd. [1997] 3 CLJ Supp. 365 Abdul Aziz Mohamad J (as His Lordship then was) held that the relevant period which required explanation was the period of six years after the judgment was obtained. [6] I am mindful of what was held by the Court of Appeal in Teratai Sanjung (supra) that merely setting out the chronology of events would not be sufficient to constitute reasons or grounds explaining the delay. In the Judgment the defendants were ordered to pay the plaintiff RM1,506,000.00. Prior to that the plaintiff had successfully attached the 1st defendant’s account in MBB. Subsequently MBB intervened and succeeded in varying the said attachment and the 1st defendant’s account was released. And on the same day the High Court granted the defendants’ application to stay the enforcement of the Judgment. These events took place within the six years after the Judgment was handed down. The stay was only set aside by the Court of Appeal in 2010 and the said Judgment was set aside by the High Court a month later in the same year. It is obvious to me that the plaintiff could not enforce the judgment within the material period. S/N 7VOsUpsdkqi41Au9e/ZrQ 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal [7] Based on the reasons discussed, I decided to exercise my discretion and allowed Enclosure 256 with no order as to costs. (TUN ABD MAJID BIN TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Pulau Pinang Tarikh: 27 Oktober 2022 Peguamcara-Peguamcara:- Peguamcara Pihak Plaintif TETUAN T G LIM & PARTNERS Peguambela dan Peguamcara C-3A-7, Block C Southgate Commercial Complex No. 2 Jalan Dua Off Jalan Chan Sow Lin 55200 KUALA LUMPUR Tel : 03-92247199 Faks : - S/N 7VOsUpsdkqi41Au9e/ZrQ 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal Peguamcara Pihak Defendan Ketiga TETUAN BALWANT SINGH & CO Peguambela dan Peguamcara No. 20-B, (Tingkat Bawah) Penang Street 1020 PULAU PINANG Tel : 04-26179478/04-2732727 Faks : 04-2635454 S/N 7VOsUpsdkqi41Au9e/ZrQ 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal