Elvin Toh Chen Vin v RHB Bank Berhad (WA-12ANCC-33-04/2018)

This is an appeal against the decision of the Sessions Court Judge granting the Respondent bank leave to execute its judgment dated 21.2.2007 against the Appellant after the expiry of 6 years pursuant to Order 46 r 3 of the Rules of Court 2012. I allowed the appeal. These are the full reasons for my decision.

The parties will be referred to as they appear in the Sessions Court. 2

The Plaintiff bank obtained judgment against the Defendant in the Kuala Lumpur Sessions Court Summons No. S8-52-24990-2006.

The Defendant did not make payment of the judgment sum but the Plaintiff did not execute the judgment against the Defendant then. The Plaintiff auctioned off a piece of property assigned by the Defendant in favour of the Plaintiff.

On 14.12.2015, more than 6 years after the judgment was obtained, the Plaintiff obtained an order from the Sessions Court for leave to execute the judgment against the Defendant. Accordingly, the Plaintiff filed a Bankruptcy Notice against the Defendant on 20.1.2016.

However, on 29.12.2016, the Plaintiff withdrew the bankruptcy proceedings against the Defendant as there was an arrangement for settlement with the Defendant through the programme by the Agensi Kaunseling dan Pengurusan Kredit (AKPK). The settlement arrangement is evidenced in the Plaintiff’s letter to the Defendant dated 7.10.2016. 3

However, the Defendant allegedly defaulted in making payments pursuant to the settlement arrangement and by email dated 15.2.2017 to AKPK, the Plaintiff informed AKPK that the Defendant has failed to comply with the approved monthly repayments and the Plaintiff will resume with further civil action.

AKPK emailed the Plaintiff to confirm that the Plaintiff may proceed with necessary action and to inform AKPK if the Defendant is made a bankrupt.

On 30.3.2017, the Plaintiff filed a Bankruptcy Notice against the Defendant. However, at the hearing of the Creditor’s Petition, the court required the Plaintiff to obtain leave to issue execution proceedings against the judgment, since the previous leave order obtained by the Plaintiff had ceased to have effect.

The court in Duer v Frazer [2001] 1 All E R 249 held that unless it was ‘demonstrably just to do so’, leave to extend time beyond the 6 year period would not be granted. The onus is upon the judgment creditor to 4 establish this requirement to the satisfaction of the court. The criteria for this purpose included all the circumstances of the case including the period of the delay, the reasons for the delay and the extent of prejudice (if any) suffered by the judgment debtor as a result of the delay.

In Wembley Industries Holdings Bhd v RHB Bank Bhd [2012] 1 LNS 505, the Court of Appeal held that: “[7] The granting of leave in respect of an application under O. 46 r. 2 of the rules is in the court’s discretion. It is incumbent upon such an application to furnish the court sufficient reasons as to why the court should exercise its discretion in the applicant’s favour.”

In the case of Malayan Banking Bhd v Chong Hin Trading Co Sdn Bhd & Ors [2013] 3 MLJ 299, where the issue was also whether leave to execute after the expiry of 6 years from the date of the judgment should be given, the court said this: “[24] I find that the plaintiff should not be denied from enjoying the fruits of the plaintiff’s litigation when in fact the plaintiff being considerate towards the defendants and giving them the benefit of their negligence claim had delayed the execution of the judgment to give leeway and latitude to the defendants should they succeed in their appeal. That leeway and latitude given to the 5 defendants should not be taken as a license to now lambast the plaintiff of laches and limitation. [25] The plaintiff further submitted that the defendants had never disputed and denied the plaintiff’s claim under the judgment in their affidavit in reply. … [27] The plaintiff’s counsel also referred to the cases of Poh Geok Sing v HB Enterprise Sdn Bhd [2006] 1 MLJ 617[ [2006] 1 CLJ 765, Golden Vale Golf Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd ( Airport Auto Centre Sdn Bhd & Anor, third party and another appeal) [2008] 4 MLJ 839; [2008] 6 LCJ 31 and Su Wee Lip @ Philip Su v Hj Lassim Abdul Rahman [2009] 1 MLJ 580 wherein it had been held that it is against both the principle and policy of the law to allow the guilty party to take advantage of his own wrong. … [29] Both the dictates of conscience and of morality and the demands of equity and fair play as encapsulated in the doctrine of estoppel referred to by Lord Denning in Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1928] QB 84 cited with approval in Alfred Templeton’s case, would not allow the defendants having tasted the goodness of grace to now taunt the plaintiff with the strict requirement of the 6 law. The magnanimity of the plaintiff bank is being maligned with the mocking of the law in the face of the plaintiff. It is as if the defendants are now taunting the plaintiff for being so foolish as to extend grace to them. The defendants are in effect thumbing their nose at the plaintiff that the plaintiff has only itself to blame for being ensnared by the strategy of the first defendant in allowing its appeal to the Court of Appeal to become stale and with the lapse of six years to now strategically withdraw its appeal.”

In the present case, I am of the view that the delay after the filing of the first bankruptcy proceedings can reasonably be explained because the parties had entered into a settlement arrangement and the second bankruptcy proceeding was filed very soon after the Defendant defaulted in making the monthly payments agreed upon.

However, as for the delay after the judgment was obtained in 2007, the Plaintiff explained that it was due to various internal restructuring by the bank and RHB Islamic Bank Berhad. Specifically, the Plaintiff referred to the restructuring that took place in the years 2007 and 2011 and further said that on 16.1.2012, the whole of the Consumer Credit Monitoring & Collection Centre of the Plaintiff moved from Jalan Medan Pasar to Capital Square Tower, Jalan Munshi Abdullah and there was yet another internal restructuring that took place. 7

I am of the view that this is not an acceptable reason for the delay in enforcing the judgment obtained in 2007. In any event, the move of offices took place in January 2012 and the delay for the period after that date to the date when the first leave order was obtained by the Plaintiff on 14.12.2015 was not explained. There appears to be no reason for that delay. The 6 year period for enforcing the judgment expired on 21.2.2013.

However, the Sessions Court had already granted leave to the Plaintiff to enforce the judgment on 14.12.2015 and that order was never set aside although it lapsed after one year. Whether leave to execute the judgment after 6 years depends on whether I should consider the reasonableness of the delay up until 14.12.2015 or only consider the reasonableness of the delay after that date.

Since the order dated 14.12.2015 has already lapsed, I am of the view that I should take an overall view of the delay since 2007 in considering whether to grant leave to execute the judgment after the expiry of 6 years. Since there were no valid reasons for the delay in executing the judgment since 2007 until after 14.12.2015, I am of the view that leave to execute the judgment should not have been granted. I 8 accordingly allow the appeal with costs of RM1,000.00 subject to allocator. Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Commercial Division Dated: 12th June 2018 9 Solicitors for the Appellant Keshvinjeet Singh Sidhu Messrs Gunaseelan & Associates Advocates & Solicitors Unit B-2-1, VIVA, No. 378 Jalan Ipoh 51200 Kuala Lumpur Tel : 03-4045 3421 / 4045 3091 Fax: 03-4045 3422 Solicitors for the Defendant Debbie Garon Messrs Che Mokhtar & Ling Advocates & Solicitors 15th Floor, Wisma KWSG