9.5 the action between the Plaintiff and the Defendant has been settled before this Court by the recording of this Consent Judgment (“Tindakan di antara Plaintif dan Defendan ini telah diselesaikan di Mahkamah ini dengan cara merakamkan Perintah Persetujuan ini”). [10] From the facts before me, it is undisputed that neither the Plaintiff or the Defendant has commenced either of its claim and counter claim respectively in that CS 5 in the arbitration between Sri Binaraya Sdn Bhd and the Defendant (“SB Arbitration”) or in a separate arbitration which can be heard and consolidated with the arbitration between Sri Binaraya Sdn Bhd and the Defendant. [11] I further hold that a reading of the Consent Judgment does not specify who is to commence the Intended Arbitration but that there has to an arbitration between the Plaintiff and the Defendant which can either be heard on its own or be heard and consolidated with the SB Arbitration. [12] I am of the considered view after examining the Consent Judgement that the Escrow Sum was deposited for the sole and specific purpose of the commencement of either parties claim and counter claim respectively in that CS 5 in the SB Arbitration or in a separate arbitration which can be heard and consolidated with the SB Arbitration. [13] In coming to my decision, I had considered the Plaintiff’s contention that the Consent Judgment was entered into for the purpose of a compromise to enable the parties to arbitrate in the pending arbitration between Sri Binaraya Sdn Bhd and the Defendant due to various allegations of bad faith, conspiracy and fraud allegedly committed by the Plaintiff and Sri Binaraya Sdn Bhd against the Defendant. [14] With respect, I hold that once a Consent Judgment has been entered into between the parties herein, this Court cannot and should not go behind the express terms and wordings in the Consent Judgment when deciding on the issue in Enclosure 99. This Court should only read the Consent Judgement within the confines of the said order i.e within its 4 walls. [15] The alleged reasons for entering into the Consent Judgment is no longer relevant in the matter before me as it is trite that the Consent Judgment is now a contract between the parties and which would in my opinion also overtaken the reasons for CS5 being filed and defended as the Consent Judgment has expressly mentioned that the action between the Plaintiff and the Defendant has been settled before this Court. [16] I therefore agree with counsel for the Defendant that how the parties intended to deal with their disputes as recorded in the Consent Judgment remains as per the terms in the Consent Judgment. [17] There is also the further argument by the Plaintiff that as a result of the above contention there was no liberty to apply clause in the Consent Judgment. I will deal with this aspect later in my grounds herein. [18] There is also an objection to the manner Enclosure 99 was made in that the Plaintiff states that it ought to have been filed as a separate action and this Court therefore has no jurisdiction to entertain the same. The Defendant in return submits that the nature of the order sought is in the form of a consequential order and does not contradict the terms of the Consent Judgment and they are not seeking to amend or modify the existing terms of the Consent Judgment. [19] The Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 9 CLJ 358 had held “ [19] Where is this jurisdiction to amend or supplement the original sealed order found? It is found in the inherent jurisdiction of the courts. The superior courts possess a residual inherent jurisdiction to, inter alia, clarify the terms of an order and to make ancillary orders primarily to give effect to the decision or judgment handed down. It is a necessary jurisdiction to enable a court to ensure that substantive justice between the parties is served, so as to give effect to its primary decision, through the dispensing of procedural justice. [20] That the court has the jurisdiction to dispense ancillary or supplemental orders to augment or substitute the original relief or remedy so as to give effect to the intent and purpose of its original decision is not in doubt. The doctrine of functus officio does not encroach upon that jurisdiction. [21] And the form in which the exercise of such inherent jurisdiction is effected is via the 'liberty to apply' rule. The general principle is that all court orders carry with them the inherent liberty to apply, although this right is often expressly reserved in relation to final orders. The existence of such an inherent right has been expressly recognised in two Malaysian cases. [22] In Sungei Biak Tin Mines Ltd v. Saw Choo Theng & Anor (No 2) [1970] CLJU 150; [1970] 1 LNS 150; [1970] 2 MLJ 226 a decision of the Federal Court, the practical application of the liberty to apply rule is clearly demonstrated. The facts, in summary, are that judgment had been given in favour of the defendant, the appellant in the case, to the effect that the defendant had not been guilty of a breach of a mining sub-lease. [23] Counsel for the appellant then applied for an order that the cancellation of its sub-lease be deleted and that the sub-lease be restored to the register of the land office. However, the court made no decision on that application but advised the appellant to make a formal application. [24] Before the appeal could be heard by the Federal Court, the respondents sub-leased the land to another party for three years and this was endorsed on the register of title by the land office. The appellant then made a formal application for an order that the Collector of Land Revenue should delete the cancellation of the sub-lease. [25] The respondents opposed the application. In the judgment of Suffian LJ (as he then was) it was held as follows: ... It is true that the order of the Federal Court has been perfected and that nowhere in it is mentioned liberty to apply, but in view of what happened immediately after delivery of our judgment it was the clear intention of this court to allow the defendant to make this application. In any event in every order of the court liberty to apply to the court is implied, without its being expressly reserved, Fritz v. Hobson (1880) 14 Ch D 542. [26] The case is authority for the proposition that even where an order of the court has been perfected and does not contain any mention of liberty to apply, it is open to the party to make an application so as to give effect to the intention of the final order. ….. [34] The court went on to examine the principle of finality and concluded that the application did not attract "the rule of res judicata and corollary to it the rule of issue estoppel and functus officio." Importantly, the court pointed out that the application for consequential orders was neither a rehearing nor a re-opening of the case. The judge cited Fritz v. Hobson [1880] 14 Ch D 542, 561, which sets out the fundamental principle expounded by Fry J at p. 561 on liberty to apply in relation to orders of court. It bears repeating here: In the next place, it is said that I have no jurisdiction to amend the judgment or to grant this application, because the Court has no jurisdiction to rehear an action. In my opinion I have jurisdiction to grant this application. In the first place, it is to be borne in mind that an order was made, although it was not drawn up, directing the motion in question to stand until the trial. According to my understanding of the practice (and this is confirmed by what the Master of the Rolls has said) all orders of the Court carry with them in gremio1 liberty to apply to the court.” [20] In light of Stone World Sdn Bhd (supra), I hold that I am entitled to apply Order 92 rule 4 of the Rules of Court 2012 for this matter which provides “For the removal of doubt it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”. [21] Accordingly, I hold that Enclosure 99 is not a rehearing and need not be filed as a separate action as the relief claimed therein is a consequential order to give effect to the Consent Judgment and there is no question of this Court being functus officio as this Court is now having to decide to only make such a consequential order as mentioned and not to vary, substitute or amend the said Consent Judgment. The issue of there being ‘no liberty to apply’ clause and the alleged reasons given by the Plaintiff is not a reason which is sustainable for this Court not to give effect to the Consent Judgment. [22] After considering the facts before me, this Court is convinced that there is a need to give effect to the Consent Judgment in light of the facts prevalent thereafter. I further hold, at the risk of repetition, that this Court is not in any way deciding on the matter of the compromise or the setlement reached in the Consent Judgment as contended by the Plaintiff but this Court is merely giving effect to the Consent Judgment, if any. [23] It has now been almost 7 years since the Consent Judgment was made and recorded by the Court but no action has been taken vis a vis the Intended Arbitration by either side. As the Consent Judgment had also expressly stated the express term that the arbitration was to commence within 1 month of the Consent Judgment and that period has since long passed and expired with no party attempting prior to this to vary or amend the said Consent Judgment in any way, I hold that I must now make the consequential order sought for by the Defendant in Enclosure 99. [24] I further find that neither of the solicitors who act as stakeholders in the Joint Stakeholders Account have a right to further hold on to said Escrow Sum and in the circumstances I do make the order as prayed for in enclosure 99 and grant Order In Terms of prayer (1) within 14 days from the date of this Order and prayer 3 with regards costs. Striking Out of CS 76 (Enclosure 7) [25] Based on my decision for Enclosure 99 above, I am of the view that this will affect in part my decision in Enclosure 7 in CS 76. Be that as it may, I have also looked at Enclosure 7 independently to determine if there is indeed a cause of action by the Plaintiff against the Defendant based on the facts and issues referred to in the Plaintiff’s Statement of Claim thereto. [26] I will therefore now come to look at the application under Enclosure 7 in CS 76 to strike out the plaintiff’s claim therein. For this the Plaintiff had contended that the filing of the fresh suit or action was needed to enforce or implement the terms of the Consent Judgment due to the fact that the Consent Judgment was a new contract of settlement on its own peculiar terms which went beyond the scope of the original action in CS 5 and the reliefs sought. [27] I cannot agree with the Plaintiff’s above said argument as a perusal of the Statement of Claim in CS 76 and especially in prayer 2 therein, shows that the same is in effect an attempt to vary the terms of the Consent Judgment. In law this is not possible without the express consent of the parties. See cases such as Abdul Razak Sheikh Mahmood & Ors v Amanah Raya Bhd & Ors And Anor Appeal [2018] 5 MLJ 125 where the Court of Appeal has, in an unanimous decision delivered by Justice David Wong JCA (later FCJ) held “[20] To recapitulate, issue 1 was concerned with whether there were grounds apparent to us which would allow the appellants to set aside the consent judgment dated 28 July 2010. The law on setting aside consent judgment is more than settled and it is this. 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.” [28] A reading of the Statement of Claim in CS 70 also shows that the Plaintiff was alleging that the Defendant was in breach of the Consent Judgment. I however, as indicated above, have found that the Consent Judgment did not state or impose which party was to commence the Intended Arbitration and from the facts before me, there is no dispute that the Defendant had deposited the Escrow Sum in the Joint Stakeholders Account and as such the Defendant is therefore not in breach of the terms of the Consent Judgment. [29] I further note that the amounts that the Plaintiff is seeking under prayer 3 in the Statement of Claim in CS 70 is dependant on an order for specific performance given by the Court in prayer 2 to enforce the terms of the Consent Judgment. I find that such prayers are in fact contrary to the express terms of the Consent Judgment which I have enumerated above and would tantamount to the Court having to determine the merits of the claims of the parties when in fact CS 5 has been concluded by the entering of the said Consent Judgment. The latter reason is also my ground for rejecting the said prayers 5 and 6 in the Statement of Claim in CS 70. Such prayers sought for in prayers 5 and 6 would also in my view bypass the determination of any merits in the claims between the parties herein solely by adopting the outcome of the Award in the Arbitration between the Defendant and Sri Binaraya Sdn Bhd. [30] I also cannot see any valid cause of action in the alternative prayers claimed in the Statement of Claim in CS 70 that the Defendant’s counter claim in the Consent Judgment be deemed as decided according to the decision in the Award in the SB Arbitration i.e the arbitration between the Defendant and Sri Binaraya Sdn Bhd, as the decision on one Award cannot bind anyone but the parties to it. No Court of law can thus make such a decision as prayed for in the alternative prayers claimed in the Statement of Claim in CS 70. On this I hold that the Plaintiff must go through usual process and let the Court decide on the merits of the case but what the Plaintiff is seeking from the Court herein is to enter judgment on merits without trial. [31] It was also argued by the Plaintiff that from the affidavits filed by both sides in Enclosure 99, the disputes regarding the breach or non conformity of the Consent Judgment are issues which cannot be resolved or determined herein in a summary fashion and thus can only be resolved by the bringing in of new evidence post the Consent Judgment by way of a fresh action and a trial. [32] I cannot agree with such a contention as above stated as I find that there is no need for a fresh cause of action to ventilate any issues or dispute between the parties with regards the enforceability of the terms of the Consent Judgment including any alleged breach of the terms of the Consent Judgment. From the facts before me, I find that the leading of any evidence regarding the breach or non conformity of the Consent Judgment will be of no significance to giving effect to the Consent Judgment. [33] I agree with counsel for the Defendant that the filing of CS 76 is in fact re opening matters which had culminated in the Consent Judgment and thereby resolved between the parties in so far as CS 5 is concerned. This is, at the risk of repetition, embodied in the express words of the Consent Judgment that the matter in CS 5 was now settled. [34] Accordingly, I hold that CS 76 is an abuse of court process which has also resulted in a multiplicity of proceedings and a frivolous and vexatious claim. The Plaintiff’s claim as per CS 76 is in my decision clearly and obviously unsustainable and I therefore allow the prayers in Enclosure 7 and grant Order In Terms of prayers 1, 2 and 3 therein. Dated: 9th day of July 2024 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Amarjeet Singh and Avtar Singh (Messrs Zubeda & Amarjeet (Petaling Jaya)] COUNSEL FOR THE DEFENDANT: Choon Hon Leng and Himin Ng (Messrs Sanjay Mohan]