1. ) Tamby Raja A/L Perumal (WA-33JP-534-04/2021)

An application for re-hearing of a cause tried by a judge alone (whether in the High Court or a Sessions Count in West Malaysia or a First Class Magistrate’s Court in East Malaysia), where no error of the court at the hearing is alleged, shall be made to a judge.

Unless otherwise directed, the application shall be made to the judge by whom the cause was tried and shall be heard in open court. 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3

The application shall be made —

in the High Court, by a notice to attend before the judge on a day specified in the notice; and

in the Sessions Court in West Malaysia or a First Class Magistrate’s Court in East Malaysia, by notice, and the notice shall state the grounds of the application.

Unless otherwise directed, the notice must be issued within 6 weeks after the judgement and served on every other party to the cause not less than 14 days before the day fixed for the hearing of the application.

The applicant shall file a certificate that the notice has been duly served on each person required to be served therewith.

The application shall be supported by an affidavit setting out the allegations on which the applicant relies or exhibiting a copy of any pleading which he proposes to file if the application is granted, and a copy of the affidavit shall be served on every other party to the cause.

Not less than 7 days before the application is heard, the applicant shall file a copy of a transcript of so much as is relevant of the judge’s note of the proceedings at the trial. [6] The Petitioner wife, however, submitted that this Application had sought to rescind/ vary the Order pursuant to sections 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), both of which read: Section 83 – Power of court to vary orders for maintenance The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 ****** Section 96 – Power of court to vary orders for custody or maintenance The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances [Emphasis added.] [7] In my view, if this Application was one that sought a re-hearing, it then should be dismissed, as it had not complied with rule 44 of the Divorce and Matrimonial Proceedings Rules. [8] However, if it was one that sought a rescission/ variation pursuant to sections 83 and 96 of the Law Reform (Marriage & Divorce) Act, then it was crucial to state that applications to rescind/ vary can only be entertained if they are in relation only to custody and maintenance. [9] The Petitioner wife insisted that what she had sought to rescind/ vary was in relation to maintenance. However, in my view, it was undeniable that the aspects of the Order that the Petitioner wife had sought to rescind/ vary were in relation to matrimonial assets, which had been addressed at the time of the hearing of the Joint Petition, pursuant to section 76 of the Law Reform (Marriage & Divorce) Act, which reads: Section 76 – Power for court to order division of matrimonial assets

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale. [Emphasis added.] [10] Section 76 of the Law Reform (Marriage & Divorce) Act clearly empowers the Court to decide on the division of matrimonial assets at the time when the divorce is granted. This also provides finality to the issues concerning matrimonial assets, as explained by the Federal Court in Manokaram a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21, where it was stated by Arifin Zakaria FCJ in the following passage: [23] The power of the court to order division of matrimonial assets is governed by s 76 of the Act. Subsection (1) of s 76 relates to assets acquired during the marriage by their joint effort, while sub-s (3) relates to assets acquired during the marriage by the sole effort of one party to the marriage. In both instances it is provided that the court shall have power to make such order 'when granting a decree of divorce', that is, on the date when the decree nisi is made absolute. [Emphasis added.] [11] As such, this Application was flawed, and hence, should be dismissed. However, in the interest of completeness, the issues raised by the Petitioner wife were addressed nevertheless. Whether there was ‘misrepresentation or mistake of fact’ [12] The nub of the Petitioner wife’s contention was that she had no knowledge of the contents of the Joint Petition for divorce, and 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 documents filed pursuant thereto. The issue, therefore was whether the Order was based on any misrepresentation or mistake of fact as stipulated in section 96 of the Law Reform (Marriage & Divorce) Act. [13] Counsel for the Petitioner wife launched into a convoluted history and chronology of the breakdown of the marriage, the filing of the divorce petition, and the relationship between the Petitioner wife and Messrs Loi Tan & Associates. In a nutshell, the Petitioner wife claimed that Messrs Loi Tan & Associates had failed to advise her accordingly, and as a result, she had signed documents containing terms that were unfavourable and detrimental to her interest. [14] It must be noted, however, that both Petitioner wife and Petitioner husband had in fact attended the offices of Messrs Loi Tan & Associates to execute the Joint Petition, and other related documents. They were both informed of the date of the hearing of the Joint Petition, which was eventually granted on 23 June 2021. In July 2021, the Petitioner wife received a copy of the draft order, and in the same month, sought the services of her current solicitors. She then filed this Application in March 2022. [15] Bearing in mind that the Petitioner wife was in fact represented by Messrs Loi Tan & Associates during the filing of the Joint Petition, she was deemed to have known the contents of the Order and related documents that she had signed. To now claim that she was unaware of such contents is unacceptable. [16] The law is trite, as explained by L’Estrange v. F. Graucob Ltd. [1934] 2 KB 394, and Curtis v. Chemical Cleaning & Dyeing Co. Ltd. [1951] 1 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 All ER 631 both of which were referred to and adopted in Ooi Yoke In

(F) & Anor v. Public Finance Berhad [1993] 2 CLJ 464, by Abdul Malik Ishak J, in the following passage: The law is quite clear that when a party signs a contract knowing it to be a contract which governs the relations between them, binding them (so to speak), then, to borrow the words of Denning J. in the case of Curtis v. Chemical Cleaning & Dyeing Co. Ltd. [1951] 1 All ER 631: his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud or misrepresentation. A pertinent point made by Scrutton LJ in L'Estrange v. F. Graucob Ltd. [1934] 2 KB 394 needs mention and that is: When a document containing contractual terms is signed then, in the absence of fraud or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. [Emphasis added.] [17] The Court’s attention was also brought to the case of Grasim Industries Ltd v Agarwal Steel (2010) 1 SCC 83, where it was stated by the Indian Supreme Court, in the following passage: In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the documents properly and understood it and only then he has affixed his signatures thereon; otherwise no signature on a document can ever be accepted… [Emphasis added.] [18] The Petitioner wife further claimed that the Petitioner husband had not provided any evidence that she had agreed to the terms of the Joint 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 Petition. In my view, this contention was untenable as based on the cases alluded to, the presumption was that the Petitioner wife had understood fully the contents of the Joint Petition and the related documents. It was, therefore, the Petitioner wife’s burden to rebut the presumption on a balance of probability that she was unaware of the contents of what she had signed. [19] The Petitioner wife proceeded to submit that her inability to understand the contents of the documents she had signed was due to lack of communication between herself and Messrs Loi Tan & Associates. In my view, the complaints raised by the Petitioner wife against Messrs Loi Tan & Associates could not be entertained by this Court at this stage, as firstly, the allegations had been disputed, and secondly, this was not the forum to address such complaints. [20] In any event, such complaints definitely could not be a basis for rescinding or varying the Order, especially since such issue had arisen only after the Petitioner wife had sought separate advice. I, therefore, had to agree with the Petitioner husband that this Application was an afterthought. [21] On that note, it was crucial to bear in mind that ‘the court should not entertain or encourage any party in an action in court where the parties had agreed and instructed their counsel to record the consent judgment containing the agreed terms, and after obtaining legal advice, to subsequently, upon an afterthought, attempt to challenge or dispute the consent judgment:’ per VT Singham J in Teng Chee Wai v Hock Soon Send Sdn Bhd [2010] 7 MLJ 686. 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 Whether delay was satisfactorily explained [22] Furthermore, if this Application was indeed genuine, it begs the question why the Petitioner wife had waited eight months before filing it, which brings to the forefront the issue of delay. [23] Delay is an important consideration in entertaining any application filed by a litigant. In Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223, the following comments of Gopal Sri Ram JCA are pertinent: It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jura subveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. [Emphasis added.] [24] In the present case, the excuse provided by the Petitioner wife was the ubiquitous one, that the Covid-19 pandemic had prevented her from expediting matters. In my view, this was a feeble excuse, in view of the fact that there was no complete bar to law firms operating between July 2021 and March 2022. 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 Conclusion [25] In the upshot, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, and submissions of both parties, this Application was dismissed with costs. Dated: 21 February 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner wife – Sumita Gnanarajah and Hirasini S Mahandran; Messrs Yahya Anne Associates For the Petitioner husband – Ivanpal Singh Grewal and Pang Li Wei; Messrs AJ Ariffin, Yeo & Harpal 21 February 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 Cases referred to: ➢ Curtis v. Chemical Cleaning & Dyeing Co. Ltd. [1951] 1 All ER 631 ➢ Grasim Industries Ltd v Agarwal Steel (2010) 1 SCC 83 ➢ Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223 ➢ L’Estrange v. F. Graucob Ltd. [1934] 2 KB 394 ➢ Manokaran a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21 ➢ Ooi Yoke In (F) & Anor v. Public Finance Berhad [1993] 2 CLJ 464 ➢ Teng Chee Wai v Hock Soon Send Sdn Bhd [2010] 7 MLJ 686 Legislation referred to: ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 83, 76, 96 ➢ Divorce and Matrimonial Proceedings Rules 1980 – rule 44