XXXX v XXXX

Case Significance

Illustrates that leave to execute a judgment more than six years old under Order 46 rule 2 read with rule 3 of the Rules of Court 2012 will be refused where the judgment has been superseded or extinguished by a later settlement agreement, since there is then no subsisting order left to enforce.

This High Court decision at Kuala Lumpur, delivered by Judge Leong Wai Hong, concerns an application by a judgment creditor for leave to execute a judgment after the lapse of six years, and the effect of a subsequent settlement on the right to execute. Under the Rules of Court 2012, where six years or more have passed since the date of a judgment or order, a judgment creditor who wishes to enforce it must first obtain the court's leave, the governing provisions being Order 46 rule 2 read with Order 46 rule 3(1) and (2). The plaintiff, a corporate judgment creditor that had taken over the rights, assets and liabilities of a development bank, applied for such leave against the corporate judgment debtor and the individuals who had stood behind the debt, more than six years after the original judgment.

The court refused leave. Its central reasoning was that leave to execute will not be granted where there is no longer any subsisting judgment or order left to enforce, because the judgment has been superseded or extinguished by a settlement agreement subsequently reached between the parties. On the material before it, the court was satisfied that the original judgment had been overtaken in this way, so that there was nothing left to execute and the discretion under Order 46 rule 3 could not properly be exercised in the applicant's favour. It accordingly dismissed the leave application, making no order as to costs. The court's approach reflects the principle that the leave requirement for stale judgments is not a mere formality but a safeguard: it invites the court to ask whether it remains just to permit execution after so long, and a judgment that the parties have themselves compromised away no longer answers that description. The judgment is a useful illustration of two connected points: that execution of a stale judgment more than six years old requires leave under Order 46 of the Rules of Court 2012, and that leave will be withheld where the underlying judgment has been displaced by a compromise, leaving no enforceable order in existence.