XXXX v XXXX

Case Significance

Illustrates the rule that leave to execute a judgment after six years will be refused where the judgment creditor offers no satisfactory explanation for its delay, the burden resting on the party who has slept on its rights.

This High Court decision at Shah Alam, delivered by Hazizah binti Kassim JC, concerns an appeal to the judge in chambers arising from the enforcement of a judgment obtained by a bank against a corporate borrower and several guarantors. On 31 March 2016 the plaintiff bank had entered judgment against the defendants for substantial sums — over RM978,000 on a letter-of-credit facility and over RM1,788,000 on a trust-receipt facility. More than six years later the plaintiff sought, and the Registrar granted, leave to execute that judgment against the defendants. The second and fourth defendants — individual guarantors — appealed to the judge in chambers against the Registrar's decision, the plaintiff having in the meantime executed the judgment only against the first defendant.

The controlling principle is that leave is required to execute a judgment after six years, and that the burden lies on the litigant who has delayed to give a satisfactory explanation for the delay; whether an explanation is satisfactory or reasonable depends on the facts of each case, and the discretion is not to be exercised in favour of an indolent litigant. The Court's task was therefore to assess whether the plaintiff had adequately explained why it had waited more than six years before seeking to execute the judgment against the second and fourth defendants.

The Court found that the plaintiff had simply chosen not to explain the reason for the delay in executing the judgment against the second and fourth defendants, and had thereby failed to meet the requirement laid down in the binding authorities. It allowed the appeal by the second and fourth defendants against the Registrar's order and dismissed the plaintiff's application to execute against them, with costs of RM3,000 subject to allocatur. The judgment is a useful illustration of the rule that leave to execute a judgment after six years will be refused where the judgment creditor offers no satisfactory explanation for its delay, the burden resting squarely on the party who has slept on its rights.