A.H.T. Syngas Technology NV v Future NRG Sdn Bhd (BA-22NCC-104-08/2021)

The Plaintiff’s claim and the Defendant’s counterclaim were scheduled for a full trial on the following dates: 8 September 2025, 9 September 2025, 30 September 2025, 2 October 2025, 3 October 2025, 27 October 2025, and 31 October 2025.

On the first day of the full trial, the Learned Counsel for the Defendant raised a preliminary issue regarding the Plaintiff’s S/N yih65TWsjkqgVimepdUjeg failure to pay the security for costs of RM100,000.00 as previously agreed and recorded in the Consent Order dated 4 July 2022 (“Consent Order”). According to the Defendant, the Plaintiff’s claim should be dismissed with no liberty to file afresh in accordance with paragraph 3 of the Consent Order.

Since this is an old case registered in 2021, I decided to hear the preliminary issue immediately. After hearing oral submissions from both parties, I dismissed the Plaintiff’s claim in accordance with paragraph 3 of the Consent Order.

Regarding the Defendant’s counterclaim, I directed both parties to proceed with the full trial as scheduled. The full trial of the Defendant’s counterclaim concluded on 2 October 2025, and I had given directions to both parties to file notes of proceedings, written submissions, and written submissions in reply.

On 6 October 2025, the Plaintiff filed an appeal to the Court of Appeal against my decision, which dismissed the Plaintiff’s entire claim.

I will now give my reasons for dismissing the Plaintiff’s claim.

The Defendant filed for security for costs because the Plaintiff is a foreign company incorporated in the Netherlands. S/N yih65TWsjkqgVimepdUjeg

Both parties agreed on the terms of the security for costs and recorded them in the following Consent Order. S/N yih65TWsjkqgVimepdUjeg S/N yih65TWsjkqgVimepdUjeg

Vide the Consent Order, both parties essentially agreed that:

the Plaintiff must deposit a sum of RM100,000.00 into a stakeholders’ account registered with CIMB Bank Berhad (“Stakeholders’ Account”) within thirty days from the date of the Consent Order, which means this must be completed by 3 August 2022 (“First Deadline”) (paragraph 1 of the Consent Order); and

if the Plaintiff fails to deposit RM100,000.00 into the Stakeholders’ Account within six months from the date of the Consent Order, that is, by 4 January 2023 (“Second Deadline”), the Plaintiff’s claim will be dismissed with no liberty to file afresh (paragraph 3 of the Consent Order).

After recording the Consent Order, both parties attended five case managements on 20 July 2022, 4 August 2022, 19 August 2022, 5 September 2022 and 20 September 2022 to update the Court on the deposit of RM100,000.00 into the Stakeholders’ Account.

On 20 September 2022, Rohana Binti Abd Malek JC (as she then was) made the following direction: “Oleh itu, Mahkamah memerintahkan perkara ini diselesaikan selewat-lewatnya Jumaat, 23.09.2022” S/N yih65TWsjkqgVimepdUjeg

On 8 September 2025, the Learned Counsel for the Defendant contended that the Plaintiff still had not complied with the Consent Order. Given these circumstances, the Learned Counsel for the Defendant raised the preliminary issue and made an oral application to this Court for the Plaintiff’s claim to be dismissed with no liberty to file afresh, in accordance with paragraph 3 of the Consent Order.

The main issue is whether the Court should dismiss the Plaintiff’s claim in accordance with paragraph 3 of the Consent Order. The Relevant Law On Consent Order What Is A Consent Order?

I adopt the following views on what constitutes a consent order:

in Khaw Poh Chhuan v. Ng Gaik Peng & Ors [1996] 1 MLJ 761, Peh Swee Chin, FCJ (as he then was), in delivering the decision of the Federal Court, had this to say (at page 784, paragraph C): “…a consent order is an order of court carrying out an agreement between the parties, it has become a command from a court of competent jurisdiction S/N yih65TWsjkqgVimepdUjeg which should either be respected or obeyed.”

in Tan Geok Lan v. La Kuan @ Lian Kuan [2004] 3 MLJ 465, Mohd Noor Ahmad FCJ (as he then was), in delivering the decision of the Federal Court, had this to say (at page 472, paragraph G): “[15] … a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be given its full contractual effect, even if it relates to an interlocutory step in the action (see para 390 @ p 286, Halsbury’s Laws of England, 4th edn vol 37)…”

In this case, the Consent Order includes the terms both parties have agreed upon. The Consent Order also details the consequences of non-compliance. Until and unless the Consent Order is set aside, both parties must respect and obey it (Wee Choo Keong v. MBf Holdings Bhd & Anor And Another Appeal [1993] 1 MLRA 260). S/N yih65TWsjkqgVimepdUjeg

Despite the precise terms of the Consent Order and the Court’s directions to resolve the issue on the deposit of the security for costs by 23 September 2022, the Plaintiff failed to comply with the Consent Order by the First Deadline and Second Deadline.

In this case, the Consent Order has not been challenged or set aside, so it remains valid and binding on both parties. Therefore, neither party can withdraw from complying with the Consent Order. In Lee Heng Moy & Ors v. Pacific Trustees Berhad & Ors [2016] 4 MLRA 529, Mary Lim JCA (as she then was) had this to say (at page 536): “[30] We fully agree with that reasoning. It is fairly settled and trite law that an order of the court reached by consent of the parties involved is in effect a contract between those parties-see Ganapathy Chettiar v. Lum Kum Chum & Ors; Meenachi v. Lum Kum Chum & Ors [1981] 1 MLRA

Such a consent order must therefore be given its full contractual effect - see Tan Geok Lan v. La Kuan [2004] 1 MLRA 165. Such an order remains valid, effective and binding on all the parties involved until and unless the order is set aside for some vitiating reason - see the Federal Court’s decision in Tong Lee Hwa & Anor v. Chin Ah Kwi And Tong Chong Fah v. Chin Ah Kwi [1971] 1 MLRA 882. In fact, until that happens, until and unless the consent order is set aside, the consent order operates S/N yih65TWsjkqgVimepdUjeg as an estoppel disallowing the defendants today from departing from its terms.” (emphasis added)

According to paragraph 1 of the Consent Order, the Plaintiff was required to deposit RM100,000.00 into the Stakeholders’ Account by the First Deadline. The Plaintiff failed to do so (“Breach No.1”).

According to paragraph 3 of the Consent Order, the Plaintiff had until the Second Deadline to comply with paragraph 1, failing which, the Plaintiff’s claim will be dismissed with no liberty to file afresh. Although the deadline was already extended from 3 August 2022 to 4 January 2023, the Plaintiff still failed to deposit the sum of RM100,000.00 into the Stakeholders’ Account (“Breach No.2”).

There has been an inordinate and inexcusable delay on the part of the Plaintiff in complying with the Consent Order, as shown in the following chronology of events:

firstly, the Plaintiff was required to deposit the sum of RM100,000.00 into the Stakeholders’ Account by the First S/N yih65TWsjkqgVimepdUjeg Deadline. Now, more than three years and one month have passed since the First Deadline lapsed (“First

secondly, the Plaintiff did not deposit the sum of RM100,000.00 into the Stakeholder’s Account by the Second Deadline. It has now been over two years and eight months since the Second Deadline lapsed (“Second Inordinate & Inexcusable Delay”).

It is important to note that the Plaintiff did not make any formal application to vary the Consent Order to extend the First Deadline and Second Deadline, which would have allowed for the deposit of security for costs.

Despite the final date set by the Court for the parties to settle the issue of depositing the security for costs by 23 September 2022, and after more than 20 case managements conducted between 4 October 2022 and 2 September 2025, there was still no attempt by the Plaintiff to vary the First Deadline and Second Deadline.

The Court also did not receive any update regarding the Plaintiff’s deposit of the security for costs between 4 October 2022 and 2 September 2025.

No reasonable explanation was provided for the inordinate and inexcusable delays. S/N yih65TWsjkqgVimepdUjeg

The inordinate and inexcusable delays are unacceptable and show a lack of respect for the Consent Order. This is confusing, especially since both parties agreed to the terms, particularly in paragraph 3 of the Consent Order.

When the preliminary issue arose, the Learned Counsel for the Plaintiff responded by providing a solicitor’s undertaking to pay the security for costs. A solicitor’s undertaking is a commitment given by the solicitors in their professional capacity. In Tetuan Kumar Jaspal Quah & Aishah v. Far Legion Sdn Bhd & Anor [2007] 1 MLRA 276, Suryadi Halim Omar JCA (later FCJ) held that: “[4] Such giving of undertaking is quite normal in a solicitor’s world, as situations will arise where solicitors will be called upon to give the solicitors’ undertakings, normally to be accepted by their colleagues. The regime of trust that permeates this profession is the cornerstone of the acceptability of such undertaking. Its enforceability on the other hand must depend on certain prerequisites, eg, that undertaking must be given by the solicitor in the capacity as a solicitor (United Mining and Finance Corporation v. Becher [1910] 2 KB 296; T. Damodaran v. Choe Kuan Him [1979] 1 MLRA 39; [1979] 2 MLJ 267; Oriental Bank Bhd v. Abdul Razak Rouse [1985] 1 MLRH 540; [1986] 1 MLJ 509; [1986] CLJ (Rep) 556). It must be S/N yih65TWsjkqgVimepdUjeg clear, unambiguous and unequivocal (Geoffrey Silver & Drake v. Thomas Anthony Baines [1971] 1 QB 396). Once that undertaking is established as good, even if the client were to die, or the solicitor ordered not to comply with it, or even if the solicitor’s firm were replaced, unless waived it is enforceable. Halsbury's Laws of England (4th edn) Vol 44 at para. 255 had authored: Enforcement of undertakings. Where a solicitor who is acting professionally for a client gives his personal undertaking in that character to the client or to a third person, or gives an undertaking to the court in the course of proceedings, that undertaking may be enforced summarily upon application to the court. Before this remedy can be pursued it must be shown that the undertaking is given by the solicitor personally, and not merely as agent on behalf of his client. The undertaking must also be given by the solicitor, not as an individual, but in his professional capacity as a solicitor ... The undertaking given by the solicitor will be enforced against the solicitor even though, after it is given, the client dies or instructs the solicitor not to perform it, or changes his solicitor. If performance of the undertaking has been waived the undertaking will not be enforced afterwards.” (emphasis added) S/N yih65TWsjkqgVimepdUjeg

During the oral submission, the Learned Counsel for the Defendant stated that:

the Defendant did not agree to accept the Plaintiff’s solicitors’ undertaking to pay the security for costs; and

the Defendant also insisted that the Plaintiff must comply with the Consent Order.

A variation to the Consent Order cannot be made unilaterally. Variation can only be made if all parties involved mutually agree to vary the terms of the Consent Order. In Mega Palm Sdn Bhd v. Hun Tee Siang & Ors [2022] 4 MLRA 200, S Nantha Balan JCA, in delivering the decision of the Court of Appeal (at page 213), had this to say: “[30] In so far as any variation of a Consent Order is concerned, it is also trite that the only possible way in which a consent order could be altered/varied would be by the consent of all the parties. See: the Federal Court’s decision in Ganapathy Chettiar v. Lum Kum Chum & Ors; Meenachi v. Lum Kum Chum & Ors [1981] 1 MLRA 525 (FC) … [31] Thus, a consent order is akin to a contract with the superadded judicial command as emphasised in Tan S/N yih65TWsjkqgVimepdUjeg Geok Lan v. La Kuan. Once a consent judgment had been perfected, the parties are bound by it and the Court is duty bound to enforce the agreed terms of the same. The Court is also not at liberty to vary any of the agreed terms unless with the mutual consent of the parties…” (emphasis added)

I am of the opinion that:

to include the solicitor’s undertaking in the Consent Order, the Plaintiff must first apply to vary the Consent Order;

in this case, the Plaintiff did not make any formal application to vary the Consent Order;

even if the Plaintiff made an application to vary the Consent Order, that application would be otiose for the following reasons:

the Defendant had already indicated their refusal to accept the Plaintiff’s solicitor’s undertaking as a substitute for complying with the Consent Order; and

(ii) the Defendant had also expressed their disagreement to vary the Consent Order to include the solicitor’s undertaking; S/N yih65TWsjkqgVimepdUjeg

without a mutual agreement to vary the Consent Order, the original terms of the Consent Order remain valid and enforceable;

since there was no variation to the Consent Order, both parties had no choice but to comply with its terms;

this Court must also enforce the Consent Order. In Abdul Razak Sheikh Mahmood & Ors v. Amanah Raya Berhad & Ors And Another Appeal [2018] 3 MLRA 529, David Wong Dak Wah JCA (later CJSS), in delivering the decision of the Court of Appeal, had this to say: “[20] … A Consent Judgment is only recorded when the respective litigants had agreed in writing as to how to resolve a legal suit. Once the Consent Judgment had been perfected, the parties are bound by it and the court is duty bound to enforce the agreed terms of the same. The court also cannot vary any of the agreed terms unless with the mutual consent of the parties. Hence, one can say that the court is functus officio or in other words, the court is bereft of jurisdiction to entertain any request to set aside such judgment.” (emphasis added) S/N yih65TWsjkqgVimepdUjeg

based on the above, the solicitor’s undertaking alone does not exempt the Plaintiff from the obligation to comply with the Consent Order.

Based on the foregoing reasons, I dismissed the Plaintiff’s claim on 8 September 2025 in accordance with paragraph 3 of the Consent Order, with costs in the cause to be determined after the conclusion of the Defendant’s counterclaim. Dated 10th October 2025 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiff : Ms Badrina Ibtisam Binti Badrul Hisham (Messrs. Rodney & Co) Counsel for the Defendant : Mr. Jarret Ong Kah Lok (Ms Lee Chia Yee) (Messrs. Ong, Ric & Partners) S/N yih65TWsjkqgVimepdUjeg