Shin Wook Soon v Shin MI Ran (BA-24NCvC-391-02/2024)

that the foreign court had no jurisdiction;

that the judgment was obtained by fraud;

that the judgment would be contrary to public policy; and

that the proceedings in which the judgment was obtained were opposed to natural justice. [4] The Plaintiff contended that the conditions are satisfied, that certified copies of the 2015 Korean Judgment in its original Korean text and translations of the same in English are in evidence, that the 2015 Korean Judgment is final and conclusive and that none of the recognized defences against such an action exist on the facts. [5] Various grounds were raised by the Defendant why the Originating Summons should be dismissed. They may be summarised as follows, in the order that this Court will deal with them:

The action is time-barred according to the limitation period in section 6(1)(a) of the Limitation Act 1953 (

The action should otherwise be barred by laches as there is no explanation for the delay in enforcing the 2015 Korean

The 2015 Korean Judgment was obtained in breach of natural justice and its recognition and enforcement in Malaysia would be in breach of Malaysian public policy

By bankruptcy in Korean estate bankruptcy proceedings i) The 2015 Korean Judgment in Korea is not final and conclusive as its execution has been stayed in Korea ii) It is contrary to public policy to allow enforcement of the 2015 Korean Judgment because it allows for undue preference

There is no proof of the 2015 Korean Judgment because the original Korean version is not before this Court and the English

The action cannot be commenced by way of an Originating Summons procedure Statutory time bar [6] The Defendant submitted that the relevant limitation period is 6 years based on section 6(1)(a) of the LA for actions founded on a contract. The Plaintiff submitted that the relevant limitation period is 12 years based on section 6(3) of the LA, which applies to actions on a judgment. This is a threshold issue as the action was filed on 23-2-2024, more than 6 years but less than 12 years after the 2015 Korean Judgment was entered. [7] In support of the view that section 6(3) of the LA applies, the Plaintiff relied on Royal Transport & Building Const. Co. LLC v Tidalmarine Engineering Sdn Bhd [2018] 1 LNS 1014 ( . That was a common law action to enforce a 2017 Judgment from the Fujairah Federal Court of First Instance (which had legally renewed a 2009 Judgment of the same court). [8] In allowing summary judgment, the High Court in Royal Transport rejected the plea of time bar, principally because the action was premised on the 2017 Judgment and was therefore filed well within 6-years from the date of entry of the foreign judgment. However, the High Court also opined that the relevant limitation period is 12 years based on section 6(3) of the LA. [9] Respectfully, this Court would regard the views expressed about the relevant limitation period in Royal Transport to be obiter dicta. There are no other Malaysian precedents on point. However, Pembinaan SPK has affirmed that: At common law, a foreign judgment is treated as an implied obligation to pay a debt, that debt being the sum awarded by the foreign court. Sans REJA, that foreign judgment cannot be enforced as a judgment. That foreign judgment only creates a debt between the same parties. It provides a cause of action on which the debtor can be sued on our shores. It is the judgment that is obtained from our courts and not the foreign judgment that is [10] Following the characterisation of a foreign judgment as an implied obligation to pay a debt, it is treated as a simple contract for purposes of the statute of limitations in the UK. In Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 QB 463 ), it was accepted for this reason that the limitation period was 6 years based on section 2(1)(a) of the Limitation Act 1939 for actions founded on simple contract. [11] The Court of Appeal in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 ( also confirmed that in Singapore, the relevant limitation period for common law actions on foreign judgments is 6 years as provided in section 6(1)(a) of the Limitation Act (Cap 163, 1996 Rev Ed) for actions on a contract, reversing the decision of the High Court that applied section 6(3) because section 6(3) was construed as a reference to both domestic and foreign judgments without any distinction. [12] The relevant provisions of the statute of limitations in Singapore is in pari materia with our section 6 of the LA and as noted in Poh Soon Kiat, similarly originated from the UK statute. As the Federal Court in Pembinaan SPK has affirmed the same common law principles that a foreign judgment is an implied obligation to pay a debt and not a judgment, a principled approach in construing the LA should result in the same conclusion as Berliner and Poh Soon Kiat. It would also be good policy for the limitation period to be consistent with the 6-year time period under section 4(1) of the Reciprocal Enforcement of Judgments Act 1958 to register qualified foreign judgments. [13] Therefore, this Court adopts the views expressed in Berliner and Poh Soon Kiat on the applicable limitation period for common law actions on foreign judgments, and respectfully departs from Royal Transport. [14] To overcome the 6-year limitation period, the Plaintiff argued for the first time in additional submissions that on the facts of this case, there was a fresh accrual of action on an acknowledgment of the debt created by the 2015 Korean Judgment on 28-7-2023 when the Defendant lodged a Report of Change of Creditor List in the Korean estate bankruptcy proceedings, addi [15] The provision for fresh accrual of action on acknowledgment of a debt is section 26(2) of the LA, read together with section 27 of the LA which provide that:

Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment.

Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made. [16] In Canterbury 11 Ors [2016] 4 MLJ 173, the Court of Appeal did not agree that a statement in the financial account of the debtor constituted an acknowledgment of debt which extended the limitation period, noting that section 27(1) of the LA requires every acknowledgment to be in writing and signed by the person making the acknowledgment. [17] The signature requirement was expanded in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 to include an SMS issued by an individual acknowledging a debt because signatures can be any mark, written or otherwise, which identifies the act of the party, including the telephone number representing the caller or the sender. [18] In this case, the Report of Change of Creditor List appears to be an official document submitted on behalf of the Defendant, but there is no document. It is not open to this Court to disregard the mandatory requirement for a signature. Further, it was not established that the said report was submitted to the Plaintiff or his agent. [19] Sections 26(2) and 27 of the LA must be construed strictly and purposively to preserve the integrity of the limitation system. The limitation clock should only be re-set for a stale cause of action when there is a voluntary and unequivocal recognition of the debt and the obligation to pay it. Thus, this Court finds that there is no merit in the argument that the time limit was extended to 6 years from 28-7-2023 by reason of the Report of Change of Creditor List which merely reports the existence of a time-barred claim against an insolvent estate. [20] For completeness, there was also a last ditch attempt to argue that the 12-year limitation period in section 23 of the LA applies because the making a claim as a creditor of the estate. This argument also has no merit as section 23 of the LA deals only with actions in respect of any claim under a will or on intestacy i.e. in the context of administration of the estate. It does not concern other causes of action which statutory time limits are already provided for elsewhere in the LA. Other defences [21] As this Court has found that this action fails on the statutory time-bar ground, it is not necessary to decide on all the grounds raised. a) Delay and laches [22] unexplained delay in the enforcement of the 2015 Korean Judgment, even after it was renewed. The fact that this action to enforce the 2015 Korean Judgment in Malaysia was filed 9 years after the renewal was granted in Korea, and 2 years after the deceased passed away on 9-12-2022 are not disputed facts. [23] However, there is no need to resort to these defences since this equitable jurisdiction is not being invoked by the Plaintiff, and the Defendant has the benefit of the statutory time-bar. b) Non-service of proceedings in Korea [24] he 2015 Korean Judgment was obtained in breach of natural justice and its enforcement in Malaysia would be in breach of public policy here are premised on the assertion that the deceased did not know of the proceedings when they were commenced in Korea, both in 2005 and in 2015. The deceased was apparently served by public notice, presumably an acceptable form of substituted service in Korea that resulted in the 2015 Korean Judgment. [25] All indications are that the 2015 Korean Judgment remains valid and unimpeached in Korea. As the burden of proof is on the Defendant who asserts a defect in the notification of proceedings in Korea, this Court was presented with no evidence sufficient to prove the lack of actual or constructive notice of the Korean proceedings. There is accordingly no reason for this Court to go behind the 2015 Korean Judgement. c) Estate bankruptcy proceedings in Korea [26] The parties are also engaged in litigation in Korea. The Plaintiff obtained a writ of enforcement in Korea on 13-7-2023 and the Defendant placed the estate under bankruptcy administration in Korea since 23-10-

According to the Defendant: a) The 2015 Korean Judgment in Korea is not final and conclusive as its execution has been stayed in Korea b) It is contrary to public policy to allow enforcement of the 2015 Korean Judgment because it allows for undue preference for a creditor [27] This Court disagrees with the Defendant on these points. Recognition and enforcement of a foreign judgment may only be refused on grounds that the judgment is not enforceable in the jurisdiction of its origin on grounds potentially affecting the validity of the judgment, and not because of the debtor y. [28] Following Berliner, German law required a stay of execution until termination of bankruptcy proceedings in Germany but that did not suspend enforcement of it in England based on the following rationale: relied upon for the proposition that the judgment was not final and conclusive if there is a stay of execution in the original court] was contemplating only the normal case in which, after judgment, a general stay of execution is granted pending the hearing of an appeal. We can well understand that in such a case the judgment under appeal would not be regarded as final and conclusive; nor as establishing an implied promise to pay, let alone the existence of a debt presently due and payable. We do not think that Russell L.J. had in mind or had any reason to contemplate an extraordinary case such as the present where there is an unappealable judgment and the creditor is only precluded from enforcing it by levying ankruptcy. The Thus, it was opined in Berliner that the Courts in England may have the discretion to stay execution until conclusion of the bankruptcy proceedings, but there was no reason to refuse to enter Judgment when the conditions for doing so are met. [29] Similarly, the 2015 Korean Judgment was final and conclusive before estate bankruptcy proceedings commenced and remains final and conclusive. [30] To further resist enforcement in Malaysia, it is noted that the Defendant made 2 rather disingenuous arguments around the issue of the estate bankruptcy: a) that the Korean Court had in October 2024, dismissed the b) that for public policy reasons, all assets of the deceased should vest in the trustee appointed by the bankruptcy Court in Korea and be subject to the ongoing liquidation procedure so that no creditor has an undue preference. [31] Apparently, it is not true that the Korean Court dismissed the he October 2024 decision only against the administrator and limited the right of enforcement of the 2015 Korean Judgment to the inherited estate. [32] As for the public policy ground of undue preference, this Court is of the view that the bankruptcy procedures in Korea have no extraterritorial effect as there is no cross border insolvency regime between Korea and Malaysia, The Defendant cannot blow hot and cold by arguing that (i) the assets of the deceased in Malaysia are not subject to the procedures in Korea and at the same time, that enforcement against such assets cannot proceed to avoid any undue preference, and that (ii) the assets of the deceased in Malaysia are subject to inheritance distribution in Malaysia and at the same time, refusing to allow creditor recognition in Malaysia. e) Proof of the 2015 Korean Judgment [33] The Defendant also argued that there is no proof of the 2015 Korean Judgment because the original Korean version is not before this Court and . There is no real dispute about the existence and terms of the 2015 Korean Judgment. Both experts have opined on the same and the Court in Seoul has referred to the same in the bankruptcy proceedings. The facts are distinguishable from Pembinaan SPK and the 2015 Korean Judgment is satisfactorily proved before this Court. f) Mode of proceeding [34] This is a non-issue and can be briefly dealt with. Typically, actions on a foreign judgment are commenced by writ and disposed of by way of summary judgment. Thus, it is perfectly legitimate to commence such an action by way of an Originating Summons if the Plaintiff is confident that no factual disputes are likely to arise. In any case, the Originating Summons can be converted into a writ action. Conclusion [35] The Originating Summons is dismissed with costs of RM25,000.00. Bertarikh : 1 Julai 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Lee Chee Yang (with Low Yu Keen), Messrs Desmond Chan & Jeff Law Untuk Defendan: Chan Mun Fei (with Low Jia Mun), Messrs Chan Lee & Co