One of the exceptional special cases is the effect of a default judgment in subsequent proceedings between the same parties because a default judgment is different from a final judgment on the merits.” [13] Here the Court of Appeal discussed the types of res judicata which are cause of action estoppel and issue estoppel. In the simplest iteration, cause of action estoppel is simply an estoppel against the re-litigation of a cause of action for a remedy which has already been litigated and finally determined by the Court. Issue estoppel 13 is simply an estoppel of the re-litigation or a repeated contention of issue(s) which have already been put to the Court for determination, as well issue(s) which are so clearly at the core of the determination of the subject matter which could have been raised in the previous action. And the Court of Appeal had held that the applicable position in the Malaysian jurisdiction is that issue estoppel applies not only to issues which have been put to the Court for determination but also to issues that could have been put to the Court: “(q) Res judicata for this purpose is therefore not confined to the issues which the court is actually asked to decide, but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them…” [14] Applying the above principles in the present case, it is clear that the 1st Defendant’s case not only re-litigates the same causes of action which were defeated in the 2nd Suit, the Defendant’s case also gives rise to the same issues and facts which were already 14 put forth to the Court for determination in the 2nd Suit. It is this Court’s finding herein that it is patently clear that the 1st Defendant’s defence in its entirety is barred by res judicata. The 1st Defendant has admitted to the validity of the sale and purchase as well as the Consent Judgment [15] It is actually sufficient for this Court to end its deliberation of the Defendant’s after finding that his case is utterly barred by res judicata. However, merely for the sake of completion, and to further unravel the 1st Defendant’s utter absence of case so that he does not further delay the ends of justice, this Court will endeavor to determine the validity of the sale and purchase (and its documents) as well as the Consent Judgment that the 1st Defendant freely, with his own consent and out of his own volition entered into. [16] Firstly, it is trite law that a party should not be allowed to take two contradicting stances at, blowing hot in one breath and cold in another. Similarly so in the present case, in one breath the 1st Defendant had admitted, acknowledged and agreed to the validity of the sale and purchase and its terms by entering into the 15 Consent Judgment on the enforcement of the same sale and purchase. In another breath now, the 1st Defendant denies the validity of the Consent Judgment as well as the sale and purchase of the Property. Parties cannot be allowed to twist about their stance willy-nilly. Similarly, when the 1st Defendant had already admitted to the status quo that the sale and purchase agreement is valid and enforceable, it would be unjust for this Court to allow him to make a u-turn and defeat his own admission. [17] This Court draws guidance from the decision of the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 which had held that: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another : he must elect between them and, having elected to adopt one stance, 16 cannot thereafter be permitted to go back and adopt an inconsistent stance.” [18] This Court refers to the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where the Federal Court referred to Lord Denning’s decision in the case of Amalgamated Investment which had held the following: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need 17 for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” [19] Secondly, this Court must emphasise the sanctity of and sacrosanct nature of an order which was entered into by the Court upon the parties’ consent. A Consent Judgment is a final and binding determination of a litigation that should not, in any manner, be taken lightly. Abdul Malik Ishak J (as he then was) has decided in the case of Phua Beng Chooi @ Koh Kim Kee v Koh Heng Jin @ Koh Heng Leong [2007] 2 MLJ 458 that: “Court orders consented to by the parties with the benefit of legal advice will no longer be obeyed willy-nilly and be sacrosanct but will be disputed and challenged with impunity 18 for the most frivolous reasons. The sanctity of the consent order here must be preserved at all costs. … I must reiterate that the consent order has been perfected and this court is functus officio and it has no inherent power to vary or set aside a perfected order save and except for clerical slips.” [20] So much so, that the preservation and conformity of a consent judgment even goes as far as having the Courts granting consequential orders to give effect to the consent order. It was further held in Phua Beng Chooi that: “In order to give efficacy to the consent order I must make certain consequential orders. I have to direct the senior assistant registrar to do certain things like what other judges before me have done. Thus, in Kok Ek Chooi v Chea Soon Neoh & Anor [1982] 1 MLJ219, the late Arulandom J, directed the senior assistant registrar to execute the necessary transfer of the undivided shares to the land.” 19 [21] Very recently, the same sentiment was reiterated. In fact, the Court has gone as far as to find that a failure or refusal to conform or abide by the consent judgment leads to and causes “extreme hardship, mental stress and losses to the Plaintiffs” with high probability of prejudice against a Plaintiff. (see Karpayah @ Karrupiah Ramasamy & Anor V. My Home Budget Hotel Sdn Bhd [2016] 1 LNS 283) [22] Thus, the sanctity of and sacrosanct nature of the Consent Judgment in the present case should also be preserved. There are no reasons at all furnished to this Court to abandon the preservation of the Consent Judgment. [23] Herein, having the foregoing deliberation in mind, it is this Court’s finding that the Consent Judgment, the sale and purchase agreement together with all its relevant documents signed by the 1st Defendant remains valid, subsisting and enforceable against the 1st Defendant. C. THE 1ST DEFENDANT HAD CONTINUOUSLY REFUSED TO COMPLY WITH THE CONSENT JUDGMENT 20 [24] Upon finding that the Consent Judgment remains valid and enforceable, it is pertinent to appreciate the terms of the Consent Judgment. The salient terms of the Consent Judgment are as follows: i. The 1st Defendant shall return the consideration already paid by the 2nd Plaintiff to the amount of RM1,031,780.05 within three months from 12.9.2013; ii. In case the 1st Defendant fails to make the above payment within time, the 2nd Plaintiff shall have the right to purchase the Property by paying 50% of the net worth value within one month (after deducting interest of 10% per annum on RM1,031,780.05); iii. Both the 1st Defendant and 2nd Plaintiff shall agree that the value of the Property shall be determined by calculating the average value from 2 valuation reports (whereby each party obtains 1 valuation report) within 2 weeks from the date of the Consent Judgment; 21 iv. The 1st Defendant shall ensure that the private caveat presentation No. 2304/2009 is removed by AMG Industries (M) Sdn Bhd; v. The 1st Defendant shall ensure that the Property is free from any private caveats within 7 days after the 2nd Plaintiff makes the payment in paragraph (ii); vi. The 1st Defendant shall deposit the executed form to remove the private caveat with his solicitors within 1 month from 12.9.2013; vii. The 1st Defendant’s solicitors can only release the sum paid by the 2nd Plaintiff in paragraph (ii) after the 2nd Plaintiff is successfully registered as proprietor of the Property; and viii. The 1st Defendant shall pay RM20,000 as costs to the 2nd Plaintiff’s benefit. [25] Astoundingly, the 1st Defendant had not only failed, but outright refused to comply with the terms of the Consent Judgment that he 22 himself earlier had admitted and accepted. Against the 1st Defendant’s obligation to make the payment as well as obtaining a valuation report, the 1st Defendant had admitted the following in its oral testimony during the 2nd Suit: Now, dalam lain perkataan tuan setuju tuan telah memungkiri fasal A dan B perjanjian persetujuan ini. A dari segi tidak membayar dalam tempoh 3 bulan B dari segi tidak mendapat atau memperolehi laporan penilaian dalam tempoh sebulan. Setuju dengan saya kalau saya katakan tuan telah memungkiri berdasarkan perintah? YA: Memungkiri perintah ya? Yes. [26] In blatant consistency, the 1st Defendant also fails to conform to ALL of the terms agreed under the Consent Judgment. The 1st Defendant even has the audacity to admit that he has no interest at all to adhere to the Consent Judgment which he had admitted and agreed to: 23 Pada hari ini adakah awak masih ingin mengikuti perintah ini? Tidak Tak ingin. Walaupun perintah ini telah pun dipersetujui dan dimeteraikan di Mahkamah. Setuju? Setuju. Dan awak tidak ingin mengiktirafkan perintah ini. Setuju? Ya. Walaupun tuan sendiri telah memasuki perintah tersebut? Ya. [27] This Court cannot condone this brazen act of breaches by the 1st Defendant. Even the one and only lame excuse afforded by the 1st Defendant on its refusal to adhere to the Consent judgment is self- 24 contradictory. On one hand the 1st Defendant contends that he has no interest at all to adhere to the Consent Judgment’s terms, and on the other hand, the 1st Defendant contends that his hands are tied to do anything since the Registrar had lodged a Registrar’s caveat upon the land and the police was investigating the matter. This so-called obstacles were the 1st Defendant’s own doing and the 1st Defendant cannot seek defence or refuge from his own audacious acts of breach. All the while the 1st Defendant fails to deliver vacant possession of the Property and proprietorship of the Property, the 1st Defendant had admitted to collecting rents of RM28,000.00 per month from the Property, which most likely would explain the 1st Defendant’s brazen refusal to adhere to the Consent Judgment. [28] Apart from the 1st Defendant’s malicious act of attempting to defeat the Consent Judgment, had the Registrar been informed of the falsity of the 1st Defendant’s allegations of fraud and manipulation, the Registrar would have not exercised its discretion to lodge the Registrar’s caveat under Section 321 of the National Land Code. Accordingly, the Registrar would have on its own motion under Section 321(3)(a) of the same section would have cancelled the caveat. Thus, the Registrar’s caveat ought to be cancelled and 25 removed by this Court. (see Lim Ah Hun v Pendaftar Hakmilik Tanah Pulau Pinang & Anor [1990] 3 MLJ 34) [29] In the meantime, it remains proven with concrete evidences that the 2nd Plaintiff has diligently adhered to the terms of the Consent Judgment. The 2nd Plaintiff has properly obtained a valuation by the firm Raine and Horne within time which had already been tendered during the 2nd Suit. The firm Raine and Horne has valued the Property to the value of RM4.2 million which the same value had been admitted by the 1st Defendant in his evidence. Upon the 1st Defendant’s failure to pay the amount according to the Consent Judgment, the Plaintiff had deposited the amount according to the Consent Judgment to its own solicitors (to be released to the 1st Defendant’s solicitors upon the 1st Defendant’s undertaking to ensure that the Property is free from any and all encumbrances and that the 1st Defendant deliver vacant possession of the Property as well as properly transfer ownership of the Property to the 2nd Plaintiff). The 2nd Plaintiff’s depositing of monies were duly informed to the 1st Defendant’s solicitors (with no reply by the 1st Defendant or the 1st Defendant’s solicitors) by the issuance of the 2nd Plaintiff’s letter dated 27.1.2016 by the 2nd Plaintiff to the 1st Defendant’s solicitors. Thus, even if there was a failure to deposit 26 the monies to the 1st Defendant’s solicitors, the failure was brought upon by the 1st Defendant’s own failure to respond to the 2nd Plaintiff’s willingness and readiness to have the monies deposited to the 1st Defendant’s solicitors. [30] Thus, it is this Court’s finding that the 1st Defendant had all times inexcusably breached the terms of the Consent Judgment. D.