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HIGH COURT MALAYA KUALA LUMPUR
CIMB BANK BERHAD – Appellant
Versus
AZIVEST SDN BHD & ORS – Respondent
Key Points: - (!) The court examined whether the 2023 Settlement Agreement superseded the Judgment. - (!) The court held the 2023 Settlement Agreement superseded the Judgment, affecting enforcement rights. - (!) The Judgment was found to be no longer enforceable due to supersession by the 2023 Settlement Agreement. - (!) The relationship between s 6(3) and Order 46 r 2(1)(a) was clarified; s 6(3) concerns actions upon a judgment, not execution. - (!) WT Lamb & Sons and Lowsley principles support that "action" refers to fresh actions, not execution. - (!) The Court of Appeal's reasoning in Pacific Sanctuary supports that a superseded judgment cannot be enforced. - (!) Seema Development discussed leave to execute beyond 12 years and the relevance of s 6(3). - (!) Conclusion: encl 16 (leave to execute) dismissed due to supersession and limitation issues.
JUDGMENT
[1] Can a plaintiff who has entered into a settlement agreement with a defendant in full and final settlement of a judgment obtained against the defendant apply for leave to execute the judgment upon the defendant's default of the settlement agreement? Is the judgment superseded by the settlement agreement? In an application under O 46 r 2(1)(a) of the Rules of 2012 for leave to enforce a judgment after more than 6 years have elapsed since the dateof the judgment, is s 6(3) of the Limitation Act 1953 ("the 1953 Act") relevant and does it constitute an absolute bar after the expiry of 12 years from the date of the judgment? These are the issues dealt with in this judgment.
Background Facts
[2] Enclosure 16 is the Plaintiff's Application filed on 15 March 2024 to obtain leave to execute a summary judgment dated 18 May 2010 made against, inter alia, the 2nd Defendant for various sums in respect of banking facilities granted by the Plaintiff to the 1st Defendant ("the Judgment").
[3] The 1st Defendant had been wound up on 9 July 2019. The 2nd and 3rd Defendants were guarantors for the banking facilities extended by the Plaintiff to the 1st Defendant.
[4] Enclosure
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