(iv) No order as to costs between the Plaintiff and the 2nd Defendant.” 6 [13] When the assessment for damages was called for hearing before the learned SAR, the appellant raised a preliminary objection that the assessment of damages had abated by reason of the fact that the action had been struck out. The preliminary objection was dismissed by the learned SAR on 9.5.2017. [14] Dissatisfied with the learned SAR’s decision, the appellant filed an appeal to the Judge in Chambers. On 29.1.2018, the learned judge affirmed the learned SAR’s decision. It was held by Her Ladyship that as the Consent Order did not expressly refer to the pending assessment of damages, and as the undertaking subsisted independently of the main action, the discontinuance of the main action did not discontinue the assessment of damages on the undertaking. [15] The simple issue before us was whether the assessment of damages pursuant to an undertaking given to the court could still be proceeded with after the originating summons had been discontinued and struck out with no liberty to file afresh. In other words, the question was whether the court retains the jurisdiction to proceed with the assessment of damages when the main suit had ceased to exist and was no longer before the court to whom the undertaking for damages was given. [16] It was the respondent’s contention that the appeal should be dismissed and defended the following pronouncements by the learned judge: “[26] The Court also finds that the Plaintiff’s objection against the assessment of damages proceedings under the same suit totally and utterly unjustifiable. The discontinuance of the main suit does not negate the undertaking for damages. It is utterly preposterous that mere 7 discontinuance or withdrawal of action would tantamount to a relinquishment of liability to pay damages. There is no law or precedent to that effect. [27] The fact remains that the 1st Defendant’s right for an inquiry to be carried out to assess its damages (suffered from the Plaintiff’s ad interim injunction) ought to be maintained considering the Plaintiff’s unequivocal and clear undertaking of damages which was then translated into this Court’s order dated 15.8.2016.” [17] The appellant’s argument on the other hand was that as the discontinuance of the action was made by a Consent Order issued under Order 21 Rule 3 of the Rules without any reservation or stipulation on the pending assessment of damages, the respondent was prohibited from proceeding with the assessment which must also be deemed to have been struck out. [18] We were inclined to agree with the appellant. Since there was no stipulation in the Consent Order that the respondent reserved the right to proceed with the assessment of damages, all proceedings in respect of the originating summons came to an end and with it goes the undertaking and thereby the assessment of any damage. [19] We were unable accede to the respondent’s argument that the assessment of damages survives the discontinuance of the action. That right ought to have been reserved in the Consent Order if in fact the respondent intended it to be reserved. The following passage in The Supreme Court Practice 1997 (1) at page 379 is on point: “The term “discontinuance” appears to be directed to the final termination of the whole action or counterclaim, so that no part of it survives an effective discontinuance;” 8 [20] The respondent was clearly in an advantageous position vis-à-vis the appellant in relation to the pending assessment of damages, yet it chose not to, when entering into the Consent Order, reserve the right to proceed with the assessment. [21] The court must be guided by what is written in the Consent Order. It cannot be open to the parties to stipulate additional terms. If indeed the intention of the parties was to reserve the right to continue with the assessment of damages, the proper course would have been to apply to set aside the Consent Order on the ground of mistake or for a rectification of the order. Order 42 rule 13 of the Rules is relevant and provides as follows: “Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.” [22] In Abdul Razak Sheikh Mahmood & Ors v Amanah Raya Bhd & Ors & Another Appeal [2018] 5 CLJ 273 this court in the judgment delivered by David Wong Dak Wah JCA (now CJSS) held as follows at paragraph 20: “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.” 9 [23] Since there is no term in the Consent Order to reserve the respondent’s right to proceed with assessment of damages and the court is bereft of jurisdiction once the Consent Order had been perfected, the question of proceeding with the assessment of damages does not arise. [24] It was for all the reasons aforesaid that we allowed the appellant’s appeal with costs and set aside the decision of the High Court. As a consequence of our decision, and as agreed by the parties, that the second appeal is dependent on the outcome of the first appeal, the second appeal is struck out with costs following the appellant’s withdrawal of the appeal. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 27 August 2019. For the Appellant: M. David Morais, Simon Hong and Raul Lee Bhaskaran of Messrs Simon Hong. For the Respondent: Vijay Kumar Natarajan and Diana Chee of Messrs Natarajan.