case analysis

1. UUUK3073 Equity & Trust I
Individual Case Assignment
(Equitable Maxim: Equity assist diligent not the tardy)
Name : Intan Noor Asyikin Binti Muhammad
Matrix No. : A147455
Lecturer’s Name : Prof. Madya Dr. Safinaz Bt. Mohd. Hussein

2. Malayan Banking Bhd v. Chong Hin Trading Co Sdn Bhd & Ors
[2012] 3 CLJ 499
FACTS
Appellant was the creditor for the loan granted to the 1st respondent (hereinafter
referred to as “R1”) which the 2nd and 3rd respondents had stood as guarantors.
1996 :Appellant released the monies to the R1 but the R1 subsequently defaulted .
The Appellant applied for summary judgment.
1999 : The appellant’s application for summary judgment was granted.
2001-2004 :Respondents appealed but the appeal ended with dismissal at the Federal
Court. The amount owed by respondent to appellant when the judgment was
recorded was RM4,871,324.63. Appellant unable to apply for the execution of
the judgment because defendants filed a suit against the appellant.
Appellant managed to strike out the suit. Respondents appealed the judgment.
2010 : R1 withdrew the appeal. Upon the withdrawal, the appellant appealed to
execute the judgment obtained on 1999 . However, respondent appealed and it
was accepted by Senior Assistant Registrar (SAR).
The present appeal is applied by the appellant. The appellant submitted that the delay
in executing the judgment obtained on 1999 was reasonable and had been sufficiently
explained for the court to exercise its discretion to allow the appellant’s application for leave
to execute the judgment.
ISSUE
Whether the leave to proceed with the execution of judgment ought to be allowed
after a lapse of more than six years.
DECISION OF THE COURT
The court held in favor of the appellant based on three grounds.

3. 1st ground
The court has a discretion power under Order 46, Rule 3 of the Rules of High
Court to execute judgment which 6 years or more had lapsed from the date of
judgment. In the case of in Tio Chee Hing v. Chung Khiaw Bank Ltd [1981] 1 MLJ 227,
Chan Ming Tat FJ held the discretion power is relevant only when if the curt satisfied that
the appellants has sufficient causes of delay. It means the conferment of power is given
because the statutes of limitation which bar the enforcement of a right by action does not
perish the right completely since they are rules of procedure only as mentioned in the
judgement of Othman & Anor v Mek [1972] 1 LNS 103. Plus, the statute of limitation
should stands as a shield which must be pleaded to obtain the statutory advantage. In other
words, “when the law rails equity may save”- Chow Seck Kai v. Allied Capital Sendirian
Berhad [2010] 1 LNS 201.
In this case, the court found that the appellant had submitted a sufficient and
reasonable causes of appellant’s delay in executing the judgment of 7 July 1999. The causes
were divided into two. Firstly, the appellant did not execute the judgment because the
defendants’ appeal which went up to the Federal Court was still pending. The defendants’
appeal was only disposed of when the defendants’ notice of motion for leave to appeal was
dismissed by the Federal Court on 13 September 2004. The amount owing when the
judgment was recorded was a huge and large sum amounting to RM4,871,324.63.
Secondly, Plaintiff did not execute the judgment because the R1 had filed a suit
against the appellant by using the same cause of action which is the same subject matter in
the present case. This suit is also the R1’s action to hinder and delay the a from executing the
judgment. The plaintiff rightly applied for the suit to be struck out and the High Court agreed
with the plaintiff.
Therefore, these two causes strengthen the appellant’s argument that appellant did not
simply sit on its rights at all material time before and after the judgment lapsed but instead
had shown clear intention to defend and further execute the judgment.
2nd ground
The defendant shall not rely on a statute of limitation if his acts during the
currency of the period have induced the appellant to delay proceedings. This ground is

4. encapsulated in the doctrine of estoppel where Lord Denning in Amalgmated Investment &
Property Co Ltd v. Texas Commerce International Bank Ltd [1982] QB84, held that
“ the court shall not allow the defendants who after having tasted the goodness of
grace, now want to throw the strict requirements of the law upon the plaintiff. …The
defendants are insulting the plaintiff as if 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.”
Therefore, in the present case, the respondents could not rely on the Limitation Act
1953 since it is the respondents’ action in taking the appeal up to the Federal Court and RI
was intentionally took a lengthy time to dispose the suit and have its appeal heard at the
Court of Appeal after a period of almost six years. It is crystal clear now , the respondents
were deliberately induced the appellant to delay the execution proceeding of the judgment.
3rd ground
The appellant did not impose additional interest against the defendants and
therefore there is no injustice or prejudice caused towards the defendants. It means
appellants has followed the requirement in Section 6(3) of the Limitation Act 1953 which
states that no additional interest could be calculated after the period of 6 years from the date
of judgment lapsed.
Conclusion
With respect of the presented grounds, the court allowed the appeal of the appellant
against the decision of the SAR. It is now proven before us that the court has been correctly
uphold one of the equitable maxim, namely, “equity assist the diligent not the tardy”. In this
case, the appellant had been diligent because it showed a constant intention to execute the
summary judgment which the appellant has obtained in 1999 and the appellants has sufficient
causes to prove that the defendants have induced the appellant to delay the execution
proceeding of the judgment. Even though the court did not mentioned exactly that the maxim
of “equity assist diligent not the tardy” was applied , but we can see that the maxim was
applicable when Lee Swee Seng JC in this case quoted a judgment of Automotive Battery
Industries Sdn Bhd v. Phua Cheng Kee [2004] 7 MLJ 595.

5. “the court decided that if a plaintiff allows an action to go to sleep for six years, the
court in its discretion will usually dismiss the case for want of prosecution, unless the
plaintiff can show some good reason why he should be allowed to go on with it.”
The above quote is similar with the underlying concept of “equity assist diligent not
the tardy” which is the ultimate reason for courts to comply with this maxim is to ensure that
if the claimant allows too much time to elapse between the facts giving rise to her claim and
the service of proceedings to protect the claim, the court will not protect his rights. Therefore,
it proven that the court in this case had correctly comply with the maxim of “equity assist
diligent not the tardy.