(b) stating, where the case falls within rule 2(1)(a), the reasons for the delay in enforcing the judgment or order;” [19] In Affin Bank Bhd v. Wan Abdul Rahman Wan Ibrahim [2003] 1 CLJ 826 where the appellant as the Plaintiff in the Court below applied pursuant to Order 46 rule 2(1) of the old Rules of the High Court 1980 (in pari materia with 0.46 r. 2(1) of the ROC 2012) for leave to commence execution proceedings against the Defendant after six years had lapsed from the date of judgment. The application was dismissed by the trial judge on the basis that the appellant failed to furnish cogent and acceptable reasons for the grant of leave. In dismissing the Plaintiff’s appeal, this Court through Arifin Zakaria, JCA (as he then was) stated that: “It is trite that the grant of leave under O.46 r.2 is in the court’s discretion. Order 46 r.3 states that an application under O.46 r.2(1) must be supported by and affidavit stating, when the case falls within r. 2(1)(a), the reasons for the delay in enforcing the judgment or order. Therefore, it is incumbent upon the applicant to furnish the court with sufficient reason in support of such an application. What is sufficient reason? This naturally will vary from case to case. It is not possible for this court to provide an exhaustive list of what is considered to be sufficient reason.” Rayuan Sivil No: S-02(IM)-2016-10/2018 10 [20] We had perused the affidavit in support of the Plaintiff’s leave application at pages 19-22 of the Appeal Record Part B and we could not find any explanation as to the reasons for the delay in enforcing the judgments and/or order offered by the Plaintiff. On this ground alone, in our view, there was sufficient ground for the learned JC to decline to exercising his discretion to grant leave to the Plaintiff to proceed with the execution against the Defendant. Since there was no explanation given by the Plaintiff for the delay, it is thus clear that the Plaintiff has failed to satisfy the requirements stipulated under Order 46 rule 3 ROC 2012. [21] Another point is that we agree with the learned counsel for the Defendant submission that the learned JC had erred in law and in fact in granting leave to the Plaintiff for failure by the learned JC to take into consideration that there is no longer any pending judgment and/or order of the court to be enforced as the said judgments and/or order have been superseded or extinguished by the Settlement Agreement entered between the parties on 28.5.2012. The Settlement Agreement constitutes a new and independent agreement for good consideration. Its effect in law is to supersede the original cause of action altogether and put an end to the proceedings, which are thereby spent and exhausted. The parties are therefore precluded from taking any further steps in the action. [22] We observed that the learned JC relied on Clause 3 of the Settlement Agreement to execute the judgments and/or order which in our view was plainly wrong and misconceived in law and in fact due to the undisputed fact that the cash payment of RM5,000,000.00 was honoured by the Defendant. Clause 3 is only applicable in circumstances where any one of the post-dated cheques totaling RM5,000,000.00 is returned dishonoured. Rayuan Sivil No: S-02(IM)-2016-10/2018 11 [23] The position taken by the Plaintiff was that the Defendant had breached the Settlement Agreement in particular Clause 5 which stated that balance payment by the contra of and transferring of 10 units of clean and unencumbered properties under construction over the project land. The Plaintiff alleged that the Defendant had breached the said Settlement Agreement by wrongful taking a bridging loan and changing and encumbering the contra properties to the Bank. [24] The Defendant’s counsel submitted and to which we are in agreement with, that by taking a bridging loan to finance the project and to build the 10 property units does not amount to a breach of the said clause. The 10 units were still under construction and Clause 8 of the Settlement Agreement allowed the Defendant to charge the project land for bridging financing or loan. Clause 8 is in the following words: “8. The First Party shall be entitled to assign transfer or charge any or all of the Contra Units to a third party or third parties. The Second Party hereby agrees to give its consent to such assignment transfer or charge and to undertake to deliver the subsidiary or strata title(s) to the assignee transferee or chargee as and when required by the First Party.” [25] It is crystal clear to us from Clause 8 above that the Plaintiff had consented to the contra units to be assigned, transferred or charged to third party or third parties including the Bank for the purpose as collateral for the bridging loan. The issue of free from encumbrances raised by the Plaintiff was therefore a nonstarter and not a live issue. Rayuan Sivil No: S-02(IM)-2016-10/2018 12 [26] We further agreed with the Defendant that even if the Defendant had defaulted in the payments under the Settlement Agreement which is denied by the Defendant, the Plaintiff’s remedy is confined to taking a fresh action to enforce the Settlement Agreement and not by way to execute the judgments and/or order which was rendered otiose by the Settlement Agreement. [27] The Singapore Court of Appeal in Indian Overseas Bank v. Motorcycle Industries [1973] Pte Ltd and others [1992] 3 SLR (R) 841 held: “13 The effect of a settlement or compromise agreement is stated in Halsbury’s Laws of England vol 37 (4th Ed) at para 391 as follows: Where the parties settle or compromise pending proceedings, whether before, at or during the trial, the settlement or compromise constitutes a new and independent agreement between them made for good consideration. Its effects are (1) to put an end to the proceedings, for they are thereby spent and exhausted; (2) to preclude the parties from taking any further steps in the action, except where they have provided for liberty to apply to enforce the agreed terms; and (3) to supersede the original cause of action altogether…. An agreement for a compromise may be enforced or set aside on the same grounds and in the same way as any other contract…” [28] With due respect to the learned JC, we are of the view that His Lordship erred in law in holding that this case is distinguishable on its own facts. In arriving at the above decision, the Singapore Court of Appeal Rayuan Sivil No: S-02(IM)-2016-10/2018 13 applied the principles stated by the English Court of Queen’s Bench Division in Green v. Rozen [1995] 1 WLR 741. The facts were as follows: The plaintiff had brought an action to recover £500 money lent by him to the defendants jointly, and a further sum of £50, alleged to have been due from the first defendant as consideration for making the loan to the three defendants. When the action came on for hearing, Counsel informed the Court that the action had been settled and what the terms of settlement were. By the agreed terms, which were set out on the backs of Counsel’s briefs and signed by Counsel for both parties, the defendants were to pay to the plaintiff a sum of £450 by instalments, on the dates stated, and the taxed or agreed cost with the final instalment. If any instalment was in arrear, the whole debt and costs became due and payable at once. The defendants having failed to pay the last instalment and the costs, the plaintiff made an application in the original action asking for judgment for the amount of the final instalment and an order for the costs. Slade J held that the application must be refused because, the Court have made no order in the action, the agreement compromising the action between the parties completely superseded the original cause of action and the Court had no further jurisdiction in respect of that cause of action. His Lordship went on the say that if the terms of the new agreement were not complied with, then the injured party must seek his remedy on the new agreement. In other words, the plaintiff’s only remedy was to bring an action on the agreement of compromise. [29] The principles laid down in the Indian Overseas Bank (supra) was applied by the Singapore Court of Appeal in Turf Club Auto Emporium Rayuan Sivil No: S-02(IM)-2016-10/2018 14 Pte Ltd and others v. Yeo Boong Hua and others and another appeal and other matters [2017] 2 SLR 12 where the Court held inter alia, that a settlement agreement which had been entered into for good consideration had the following effects: (a) it would put an end to the proceedings, which would thereby be spent and exhausted; (b) it would preclude the parties from taking any further steps in the action, except where they had provided in the settlement agreement for liberty to apply, in the same action, for the purpose of enforcing the agreed terms; and (c) it would supersede the original cause of action altogether [30] In Sambu (M) Sdn Bhd v. Stone World Sdn Bhd & Anor [1996] 2 CLJ 523, Abdul Malik Ishak J (later as JCA) held that where the parties had settled or compromised pending proceedings, the settlement would put an end to the proceedings, preclude the parties from taking further steps in the action and supersede the original cause of action. Conclusion [31] For the reasons above, we find merits in the appeal. The appeal was allowed with cost of RM7,000.00 subject to payment of allocatur fee. We set aside the decision of the High Court. Dated: 31 January 2020. signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Rayuan Sivil No: S-02(IM)-2016-10/2018 15 Parties For the Appellant/Defendant: Norbert Yapp Eow Ee Pei (with him) Messrs Norbert Yapp & Associates 1st Floor, Shop No. 1, Block A Alamesra Plaza Permai Jalan Sulaman 88400 Kota Kinabalu Sabah For the Respondent/Plaintiff: Baldev Singh Messrs Baldev Gan & Associates 57, Taman Orchid, Mile 2½ Off Penampang Road 88300 Kota Kinabalu Sabah