1. ) ZAMRI BIN IBRAHIM 2. ) MOHD HANIF BIN ABDUL RAHMAN HONG LEONG BANK BERHAD

1. ) ZAMRI BIN IBRAHIM 2. ) MOHD HANIF BIN ABDUL RAHMAN HONG LEONG BANK BERHAD

Defendant's pleadings admitted liability leaving only quantum; defendant's asserted set-off for auction costs of RM41,672.40 is time‑barred under the Limitation Act 1953 and was raised late; clause 18 of the LACA terminated the agreement on completion of the auction so clause 14(c) could not be relied upon to retain the surplus; solicitors' fees claimed had been paid; therefore defendant had no meritorious defence and the appeals by the plaintiffs succeed.

Citation
RA-12ANCvC-7-03/2022 (Mahkamah Tinggi)
Parties
Appellant Plaintiff: Zamri bin Ibrahim; Appellant Plaintiff: Mohd Hanif bin Abdul Rahman; Respondent Defendant: Hong Leong Bank Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
15 September 2022
Case Number
RA-12ANCvC-7-03/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Appeal to High Court Against Sessions Court Decisions on Summary Judgment and Strike Out Applications
Outcome
Both appeals by the plaintiffs allowed; Sessions Court judge's decisions in relation to Lampiran 69 and Lampiran 72 set aside.
Legal Topics
Summary Judgment, Strike Out/pleading Dismissal, Set Off, Limitation, Mortgage/auction Sale, Interpretation of Loan Agreement
Source Language
Malay/English
Civil Procedure Banking Law Property Law Contract Law Summary Judgment Strike Out/pleading Dismissal Set Off Limitation +2 more

Case Brief

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Parties

Zamri bin Ibrahim

Appellant Plaintiff

Mohd Hanif bin Abdul Rahman

Appellant Plaintiff

Hong Leong Bank Berhad

Respondent Defendant

Procedural Posture

Civil Appeal / Appeal to High Court Against Sessions Court Decisions on Summary Judgment and Strike Out Applications

Legal Issues

  1. 1 Whether summary judgment (Order 14) and striking out pleadings (Order 18 r19) were properly granted/refused
  2. 2 Whether defendant entitled to set-off the auction surplus against auction costs and solicitors' fees under clause 14(c) of the Loan Agreement Cum Assignment (LACA)
  3. 3 Whether defendant's set-off claim is time‑barred under the Limitation Act 1953

Ratio Decidendi

Defendant's pleadings admitted liability leaving only quantum; defendant's asserted set-off for auction costs of RM41,672.40 is time‑barred under the Limitation Act 1953 and was raised late; clause 18 of the LACA terminated the agreement on completion of the auction so clause 14(c) could not be relied upon to retain the surplus; solicitors' fees claimed had been paid; therefore defendant had no meritorious defence and the appeals by the plaintiffs succeed.

Court Disposition

Both appeals by the plaintiffs allowed; Sessions Court judge's decisions in relation to Lampiran 69 and Lampiran 72 set aside.

Orders

  • Set aside the Sessions Court decisions in respect of Lampiran 69 and Lampiran 72
  • Allow plaintiffs' appeals and grant reliefs sought in respect of summary judgment/striking out as set out in judgment