XXXX v Lim Chee Tat

wa-22ncc-77-02-2016 High Court (Mahkamah Tinggi) 12 May 2025 • WA-22NCC-77-02/2016 • 11 min read

4 cases cited (0 SG, 4 foreign)

Outcome

For the above reasons, I grant leave to the Plaintiff in accordance with the orders sought in Enclosure 16. No order as to costs.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (wa-22ncc-77-02-2016). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Limitation Act 1953 (Section 6(3)) – Has Plaintiff shown sufficient reason for delay? – Leave to Enforce Judgment After 6 Years – Delay in Enforcement – Judgment Execution – Can judgment be enforced after 6 years – Order 46 Rule 2 – Plaintiff - Summary judgment - 17 May 2016 for RM 4,283,777.98 plus interest and costs. – Foreclosure proceedings initiated – Property sold only on 11 June 2024 after 10 attempts – Delay justified due to foreclosure and insolvency proceedings – Plaintiff took reasonable steps to recover judgment sum. Bankruptcy Proceedings – Insolvency Act 1967 (Sections 5(4), 105) – Does annulment of bankruptcy affect enforceability? – 1st and 3rd Defendants were wound up in 2016 – Proof of debt filed – Plaintiff claims RM 7.58 million still owed by 2nd Defendant as of January 2025 – Plaintiff initiated bankruptcy proceedings against 2nd Defendant, who had prior bankruptcies annulled under section 105 of the Insolvency Act – Annulment under section 105 does not extinguish debt; unlike discharge under section 35. Prejudice to Defendant – Is the enforcement sum within the guarantee provided by the 2nd Defendant? – Only principal sum and costs can be enforced – Enforcement sum is within the amount guaranteed by 2nd Defendant – No unfair prejudice to 2nd Defendant – Plaintiff not inactive.

Practice Areas

Bankruptcy & Insolvency Limitation Civil Procedure

Judges (1)

Mohd Arief Emran bin Arifin Delivered

Counsel (4)

CM Lai & Partners Firm Sidek Teoh Wong & Dennis Firm Hapizi Bin Hashim Counsel Plaintiff Lai Chee Meng Counsel Defendant

Parties (2)

Lim Chee Tat Defendant Xxxx Plaintiff

Case Significance

Illustrates what amounts to sufficient reason under section 6(3) of the Limitation Act 1953 and Order 46 Rule 2 to obtain leave to execute a stale judgment, where a creditor has actively but slowly pursued recovery through protracted foreclosure and the debtors' insolvency.

This decision of the High Court of Malaya at Kuala Lumpur (Commercial Division) concerns an application under Order 46 Rule 2 of the Rules of Court 2012 for leave to execute a judgment more than six years after it was obtained, engaging section 6(3) of the Limitation Act 1953. The plaintiff bank had obtained summary judgment in 2016 for a sum exceeding RM4.28 million together with interest and costs against three defendants. It had also commenced foreclosure proceedings against a charged property, obtaining an order for sale in 2016; the property was, however, only sold in 2024, after ten separate attempts, for a little over RM2.8 million. Two of the corporate defendants were wound up in 2016, and proofs of debt were filed in the respective liquidations.

The central question was whether the plaintiff had shown sufficient reason for the delay in enforcing the judgment beyond the six-year period, and whether the surrounding foreclosure and insolvency proceedings excused it. The court held that the plaintiff had not been a merely inactive judgment creditor; it had taken reasonable and continuing steps to realise its security, and the protracted foreclosure — culminating in a sale only after ten attempts — together with the winding-up of two defendants adequately explained why enforcement had not been completed within six years. Addressing the guarantor defendant's objections, the court found no prejudice arising from the timing of affidavits and, on the figures, held the plaintiff entitled to enforce the outstanding judgment debt of RM1,478,777.98, a sum falling within the amount that defendant had guaranteed. Distinguishing the position of a successful but inactive litigant, the court granted leave to enforce the judgment against the guarantor defendant. The judgment is a useful illustration of what constitutes sufficient reason to enforce a stale judgment where recovery has been actively but slowly pursued.

On what basis did the court grant leave to enforce a judgment more than six years old?

Applying Order 46 Rule 2 of the Rules of Court 2012 with section 6(3) of the Limitation Act 1953, the court found the plaintiff had shown sufficient reason: it was not an inactive creditor but had actively pursued recovery through foreclosure — selling the charged property only in 2024 after ten attempts — while two corporate defendants had been wound up. That adequately explained the delay, and leave to enforce was granted.

How much was the plaintiff permitted to enforce against the guarantor?

The court held the plaintiff entitled to enforce the outstanding judgment debt of RM1,478,777.98 against the guarantor defendant, a sum falling within the amount that defendant had guaranteed. It found no prejudice from the timing of the affidavits and distinguished the case from that of a successful but inactive litigant.

Statutes Cited

Insolvency Act

s 105 s 105(4) s 35

Insolvency Act 1967 (Cap 360)

Limitation Act 1953 (Cap 254)

Cases Cited (4)

MY (4)

[1981] 1 MLJ 227 [2003] 2 MLJ 509 [2004] 3 MLJ 253 [2021] 5 MLJ 169

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (wa-22ncc-77-02-2016)