Che Rahmah Binti Abdullah v Khairul Azlan Bin Abdul Halim (22NCVC-456-10/2014)

The Defendant applied to set aside a consent judgment which was recorded with the Plaintiff on 4/2/2016. This application is made by virtue of Order 1A, 3(5), 41(13) and 92(4) of the Rules of Court 2012 (“the Rules”).

The dispute between the Plaintiff and the Defendant is with regards to a 2-storey bungalow held under the title HS(D) 64555, Lot No. PT 38591, Kuala Lumpur having the residential address of No. 22 Jalan Tualang Bukit Bandaraya, Kuala Lumpur (“the property”).

The Plaintiff in this civil suit filed against the Defendant, one of her 5 children, is for a Declaration that the Defendant holds this property as a trust for the Plaintiff by virtue of a Trust Deed and a Power of Attorney both dated 29/9/2010.

This trust was created to register the property in the name of the Defendant, in order for the Defendant to obtain a loan from the Standard Chartered Bank to finance his business. The transfer of the property from the Plaintiff to the Defendant was on the basis of natural love and affection without any consideration being paid.

The property was charged to the Standard Chartered Bank as a security for a loan taken by the Defendant. The Plaintiff in order to secure her interest over the land had lodged a private caveat over the property.

The Defendant had sometime in September 2014 had filed an Originating Summons to remove the private caveat lodged by the Plaintiff. In the Originating Summons the Defendant contended that the Plaintiff had lodged the private caveat unlawfully to prevent him from selling the property.

The Plaintiff by way of this suit wanted an order from the Court that in the event the property is sold by the Defendant or the Bank as a chargor in the event of default of payment of the instalments by the Defendant, any balance sum remaining of proceeds of the sale be given to her.

This civil suit was settled by way of a consent judgement recorded by the Court on 4/2/2016 in the presence of counsels for both the Plaintiff and the Defendant.

Amongst the terms of the consent judgement were that the Defendant was to sell the property within a year upon a prior written consent given by the Plaintiff at a price agreed by the parties. The proceeds of sale would be after deducting the sums owing to the Bank, be distributed by the Defendant being given a sum of RM1.8 million (“the settlement sum”) and the balance of the proceeds to be given to the Plaintiff.

The additional terms of the consent judgement was that if the Plaintiff paid the settlement sum before the sale of the property the Defendant upon receiving the settlement sum would transfer the property to the Plaintiff after which all sums due to the Standard Chartered Bank will be paid by the Plaintiff. The grounds of the application to set aside the consent judgement

The Defendant after 9 years applies to set aside the consent judgement on the ground that both the Trust Deed and Power of Attorney relied upon by the Plaintiff in obtaining the consent judgment purportedly executed between the Plaintiff and the Defendant was forged as the Defendant had never executed such a document.

The fact that both these documents were forged was decided by the Disciplinary Board of the Bar Council on 12/1/2017. The decision of the Bar council was upheld by both the High Court and the Court of Appeal.

Another ground in applying to set aside the consent judgement is that the Plaintiff had failed to pay the monthly instalments resulting in the Standard Chartered Bank applying to auction off the property.

Another ground for applying to set aside is the non-cooperation from the Plaintiff in agreeing to give a written consent on the price to sell the property and finally the Defendant alleges that the rentals paid by the tenants of the property were unlawfully collected by the Plaintiff without his knowledge or approval.

The Court decided this case after considering the following issues: Inordinate delay

In this case the application to set aside was only filed on 25/11/2024. In the Court’s view the Defendant should have applied immediately to set aside the consent judgement when the Disciplinary Committee had decided that the Trust Deed and Power of Attorney were forged on 12/1/2017.

From the Defendant’s own affidavit, he confirms that he was aware that the decision of the Court of Appeal which was given on 31/5/2018. This is another timeline when the application to set aside could have been filed.

The reason given by the Defendant for his inaction was that he could not afford a lawyer and only finally he appointed a lawyer who agreed to file the application pro bono.

The Defendant also tried to justify the delay by stating the Plaintiff was his mother and he was hoping for an amicable settlement which he now feels that this cannot be achieved and therefore forced to file this application.

In the Court’s view none of the reasons given by the Defendant for the delay in filing this application are justified. The Court therefore rules that there was an inordinate and unjustified delay in the filing of the application. This is a clear abuse of the Court process.

In the case of Khor Cheng Wah V Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396 it was stated “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 dormeintibus jura subvenieunt though having its origins in the Court of Chancery, is of universal application”

The Court also regards the application by the Defendant a ploy to frustrate the rights of Standard Chartered Bank to auction off the property. This is clear from the Defendant’s own admission that he filed this application after coming to know of the auction by Standard Chartered Bank. Functus officio/res judicata

The Court agrees with the submission of the Plaintiff that once the consent judgement is perfected the Court becomes functus officio as was decided in the case of Abdul Razak Sheikh Mahmood & Ors V Amanah Raya Berhad [2018] 3 MLRA 529 as follows: “Once the consent judgment is 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 the judgment”

The same principle was echoed in the Federal Court case of Serac Asia Sdn Bhd V Sepakat Insurance Brokers [2013] 5 MLRA 175 where it was stated: “We conclude by saying that once a regular obtained order or judgment is perfected, the court is functus offcio. The matter as decided vide encl. is thus res judicata and cannot be re-litigated”

Going by the above authorities the Court has no jurisdiction to set aside the consent judgement as the Court is functus officio and the matter is res judicata. Any breach of the consent judgement by the Plaintiff?

The Defendant in his affidavit alleges that the Plaintiff had breached the consent judgement by failing to pay the monthly instalments entitling the Standard Chartered Bank to auction the property.

This allegation is clearly unfounded as the wordings of the consent judgement are clear which states that the Plaintiff will only take over the rights and obligation over the property if the property is transferred to the Plaintiff in the event the Plaintiff pays off the settlement sum. In this case there are no facts to show that the property has been transferred to the Plaintiff.

Even if there is any breach on the part of the Plaintiff in not agreeing to the sale price and breaching the consent judgement, this breach only amounts to a breach of agreement but not a ground to set aside the consent judgement.

In the upshot the Court dismissed the Defendant’s application to set aside the consent judgement with a cost of RM3,000. Dated: 4.2.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Abdul Rahman Zulkhairi Tetuan Rahman Zulkhairi SA-11-13, Tower A, Menara Paragon, Persiaran Bestari, Cyber 11, 63000 Cyberjaya. For the Defendant: Nama Peguamcara: Sivanesan Nadarajah Tetuan Siva Nada & Associates No. 81, Lorong Maarof, Bangsar Park, 59000 Kuala Lumpur.

Abdul Razak Sheikh Mahmood & Ors V Amanah Raya Berhad [2018] 3 MLRA 529;

Khor Cheng Wah V Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396;

Serac Asia Sdn Bhd V Sepakat Insurance Brokers [2013] 5 MLRA 175