Preamble
Pursuant to the invoices issued by M7, the Defendant was to make payment for the sums stated therein by way of international bank transfer. iv. For the period of June 2009 to October 2013, a total of 137 invoices were issued by M7 to the Defendant for the Goods (the “Invoices”). The total sum under the said invoices is ¥459,965,971. v. The Goods ordered by the Defendant were duly delivered pursuant to the Invoices and Arrangement mentioned above. vi. The Goods were also received by the Defendant without any objections or complaints. The Defendant has also never disputed the Invoices, packing lists and bills of lading. vii. However, up until the date of the filing of the present action, the Defendant has only made partial payments for the Invoices in the sum of ¥334,805,238, the last of which was on 09.10.2012. A sum of ¥125,160,733.00 remains due and owing. The Seizing of the Debts owed by the Defendant to M7 i. On 19.08.2016, the Plaintiff obtained a Payment Petition Claim No. 1283 (RO) 2016 against M7 from the Court located in Matsudo, Japan (the “Payment Petition”). In this regard: a. The Payment Petition required M7 to make payment in the sum of ¥168,424,638 (the “Outstanding Sum”) to the Plaintiff. ii. Despite the issuance of the Payment Petition by the Matsudo Court, M7 did not make any payment to settle the Outstanding Sum owed to the Plaintiff. Page 5 of 12 iii. On 11.05.2018, the Plaintiff successfully obtained the Order to Seize Property No. 328 (RU) 2018 from the District Court in Matsudo, Japan (the “Seizure Order”) which allows the Plaintiff to seize the properties or any debts owed by third parties to M7, for the purpose of satisfying the unpaid sum in the Payment Petition.” Whether the Plaintiff can file this action pursuant to Order to Seize Property No. 328 (RU) 2018 dated 11.05.2018 from Matsudo District Court in Japan. [5] The defendant in its submission said as follows: “Status of Payment Petition, Seizure Order and Relevant Evidence i. It is obvious from the series of events as shown in paragraph 31 of the written submissions that the entire Payment Petition was schemed or devised by the Plaintiff with the sole purpose of then pursuing the Seizure Order against the Defendant. ii. This is especially since SP2 initially had appointed M/s Thomas Philip to act for M7 Co Ltd in issuing a Notice of Demand against the Defendant. iii. However, as the Defendant questioned his authority to act for the Defendant, SP2 did not proceed to file a lawsuit between M7 Co Ltd and the Defendant. Instead he, proceeded to submit the Payment Petition to the Matsudo District Court wherein he represented both the Plaintiff and M7 Co Ltd to admit the debt. iv. It is also suspicious due to the relevant fact that the purported loan was in breach of the letter of undertaking, and it is also suspicious due to the fact that these issues in relation to a loan from 2008 to Page 6 of 12 2015 was not raised whatsoever in the Civil Suit B52NCvC-26- 04/2014 which involved SP2 acting as Taimoku Corporation and Mutiara Motors Sdn Bhd (wherein the majority shareholders are the same as M7 Co Ltd and the Defendant).” [6] The plaintiff cannot enforce the Payment Petition or the Seizure Order against the defendant based on the following: “i. The Defendant was not involved in the proceedings in Japan and was not represented in the proceedings in Japan; ii. As such, the parties in this current suit are not the same parties that were present in the proceedings in Japan; iii. DW1 confirmed multiple times in evidence that in the case of seizure order, the Japanese Court did not make any decision in relation to the claim between M7 Co Ltd and the defendant; iv. This is not a straightforward case wherein parties have fully litigated a claim in foreign court. As such, issue of res judicata and estoppel does not arise; v. The procedure for payment petition and seizure order does not comply with the principles of natural justice as SP2 had represented both the Creditor and Debtor in admitting the debt.” [7] The plaintiff has the burden of proving their claim against the defendant, which it has failed to do. This is not an action under the Reciprocal Enforcement of Judgments Act 1958 where a foreign judgment is applied to be enforced in the Malaysian courts. Page 7 of 12 [8] The Malaysian Civil Procedure (White Book) 2018 edition states: “The Reciprocal Enforcement of Judgments Act 1958 (Act 99) applies to judgments given in the superior courts of reciprocating countries specified in the First Schedule to the Act (s 3(1)). RC 2012 Order 67 “relates to a judgment of a foreign court of a status equal to that local High Court”. Order 67 does not apply to the enforcement of an order for costs awarded by the Privy Council because before its abolition, the Judicial Committee of the Privy Council was the final court of appeal and formed part of the Superior Courts of Judicature of Malaysia: see Re P Suppiah (Tara Rajaratnam, Judgment Creditor) [1989] 2 MLJ 479 at 481; [1989] 2 CLJ (Rep) 532 at 535. The Reciprocal Enforcement of Judgments Act 1958 (Act 99) applies to foreign judgments or orders given or made in any civil proceedings or criminal proceedings for payment of a sum of money in respect of compensation or damages to an injured party and in the case of Commonwealth countries or territories, includes an arbitration award: s 2. A judgment is deemed final and conclusive even if there is an appeal pending against or if it subject to appeal (s 3(4)). A judgment in default is nevertheless a judgment within the Act: see Bank of New Zealand v Wong Kee Tat [1990] 2 MLJ 435; [1990] 1 CLJ 662. The fact of registration does not transform the judgment into a Malaysian judgment so that the court may sit to inquire into its regularity or validity for certainty or the want of it. If the judgment debtor wishes to impeach the judgment for uncertainty or irregularity or non-conformity with the rules of court (granting the judgment), he should proceed to do so in the original court: see Banque Nationale de Paris v Ting Kai Hoon [2002] 2 AMR 1549; [2002] 7 MLJ 703; [2002] 2 CLJ 429, HC; Bank of New Zealand v Wong Kee Tat [1990] 2 MLJ 435; [1990] 1 CLJ 662. For validity of an English judgment which was obtained after leave had been given to enforce an arbitrator’s award see Koninklijke Bunge NV v Sinitrada Co Ltd [1973] 1 MLJ 194. The foreign judgment must be that of a superior court other than a judgment of such a court given on appeal from a court which is not a superior court, and must be final and conclusive between the parties, adjudge that a sum of money (not being a sum payable in respect of taxes, other charges of a like nature or fine or penalty) is payable: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 3(3). The word “penalty” means a sum payable to the state by way of punishment and not a sum payable to a private individual, even Page 8 of 12 though it is payable by way of exemplary damages: per Lord Denning MR in SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] 1 QB 279 at 299–300; [1978] 2 All ER 339, CA (Eng). A registered judgment for all practical purposes, becomes of the same force and effect as if it had been given by the Malaysian court: see Ferdinand Wagner (A Firm) v Laubscher Bros & Co (A Firm) [1970] 2 QB 313; [1970] 2 All ER 174 at 175, CA (Eng). A registered judgment, for the purpose of execution, is of the same force and effect as if the judgment had been a judgment originally given in the Malaysian court. Proceedings may be taken on a registered judgment and a sum for which a judgment is registered shall carry interest: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 4(2). No proceedings, other than proceedings by way of registration shall be entertained by the court: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 7. See Re A Judgment Debtor (No 2176 of 1938) [1939] Ch 601; [1939] 1 All ER 1. See also: The Bank of East Asia Ltd Singapore Branch v Axis Incorporation Bhd (No 2) [2009] 5 AMR 357 at 367; [2009] 6 MLJ 564 at 578; [2009] 5 CLJ 87 at 99–100, HC. A foreign judgment of competent jurisdiction must prima facie be respected, and the Reciprocal Enforcement of Judgments Act 1958 (Act 99) only regulates the manner in which the foreign judgments of reciprocating countries can be registered in Malaysia and gives full force for the purpose of executing the same: Sakuragawa Pump (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] AMEJ 0159; [2007] 7 MLJ 555 at 562. The Reciprocal Enforcement of Judgments Act 1958 (Act 99) does not prohibit the courts from recognising the judgments of foreign courts of competent jurisdiction, in whatever manner they think necessary and fit for the purpose of adjudicating any matter before the court and the court here has powers to declare the convenient forum to adjudicate the dispute: Evidence Act 1950 (Act 56), ss 40 – 44; Sakuragawa Pump