Lim Boon Swan v Ong Ting Hua (AB-24NCvC-41-06/2020)

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1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN ORIGINATING SUMMONS NO. AB 24NCVC – 41 – 06/2020 BETWEEN LIM BOON SWAN AND ONG TING HUA 21/07/2022 08:36:32 AB-24NCvC-41-06/2020 Kand. 44 JUDGMENT (Enclosure 21) [1] Enclosure 21 pertains an application by defendant to strike out the writ and statement of claim (SOC) by plaintiff pursuant to O18 r 19 Rules of Court 2012 (ROC) [2] Initially, case against defendant was instituted by way of originating summons (OS), but later converted to a writ pursuant to O28 r 8 ROC vide an order of this court dated 19.7.2021. For record, the said conversion did not take place on the court’s own motion. At inception of hearing of OS, parties were informed, since issues raised relates to setting aside a consent judgment entailing dispute of facts, plaintiff may reconsider the mode of commencement, as writ would be appropriate. Hence, plaintiff applied for conversion and defendant objected. Parties submitted on the issue, and it was decided, the OS be converted to writ. Pivotal consideration by this court was the arising dispute of facts in the case which would require testimonial evidence of both plaintiff and defendant and other witnesses, on the issues pertaining consent judgment to be ventilated in this court and henceforth adjudged. The fact of conversion, signifies there are dispute on facts arising in the case, necessitating adjudication. [3] The affidavits filed in support and against the application pursuant to O28 r 8 ROC, also disclosed disputes of fact that requires inquiry via an open court trial. Hence, to iterate there is conflict of evidence amounting to triable issues in the proceeding necessitating viva voce evidence by witnesses. (See: Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd (1992) 2 MLJ 217 SC). [4] On the claim by plaintiff, he has sued the defendant to set aside a consent judgement entered on 14.1.2019 amongst them. He is dissatisfied with the terms contained in the said judgment. Amongst which, amount specified to be paid by plaintiff pursuant to the judgment is claimed to be exorbitant; terms of payment, to wit, three stages of payment as well as date when the payments are to be made are also disputed. The payments to be made are claimed to be improper and not calculated in accordance to the Advance Payment cum Shareholders Agreement as featured in the writ and statement of claim dated 12.4.2018. Alongside, it is also claimed that counsel for plaintiff at that point of time, did not fully explain to him the said terms of consent judgment, before it was recorded. It came to light only after the present counsel took over conduct of his case and pursued with the OS. [5] Conversely, defendant refuted arguments advanced, stating the consent judgment entered was perfect and according to law. At all material time the plaintiff was legally represented, and he had agreed to the terms of the said judgment. According to the defendant, issues raised now are an afterthought and a devious way to scuttle enforcement of judgment by plaintiff. By virtue of the term in the consent judgment, bankruptcy proceeding had been initiated since 10.6.2019, and defendant had pursued with a bankruptcy petition on 24.12.2019. Meanwhile, plaintiff had filed the current OS on 16.6.2020 to set aside the consent judgment recorded, thus throwing the entire enforcement proceeding into disarray. It is iterated, plaintiff’s intention is to avoid payment due under the consent judgment. [6] This court takes the position that although parties have agreed to settle the dispute amongst them amicably, paving way for a consent judgment to be recorded, thus rendering this court functus officio, it was so, at that point of time. But, the law allows plaintiff to raise issues on veracity and propriety of the consent judgment entered in order to set it aside. (See: Yap Chee Meng v Ajinomoto (Malaysia) Bhd (1978) 2 MLJ 249). But of course, burden of proof is on the plaintiff as he was represented by counsel at the point of entry of consent judgment, thus deemed he had agreed to its terms. The counsel representing him, would not have recorded it, without authority by plaintiff. In law, such implied authority extends to acts necessary for proper conduct of litigation, including making formal admission in the course of proceeding. (See: Elton v Larkins (1832) 1 M & Rob 196). [7] By analogy, in the case of Bank of China v Maria Chia Sook Lan

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(1976) 1 MLJ 41 which went on appeal, reported at (1976) 1 MLJ 49, trial had proceeded for an action and counterclaim to set aside consent judgments, where it was alleged plaintiff did not consent to orders being made in respect of two of her properties to be sold by a bank to enforce guarantees given by her. This authority demonstrates, the law enables plaintiff to institute proceeding to set aside the consent judgments entered, although it was for all intents and purposes a binding agreement between her and the bank. Hence, in law a consent judgment recorded is recognized as a voidable contract which is liable to be set aside. If its voidability is shown, by proof of vitiating factors, such as undue influence, misrepresentation, fraud or mistake, then it behoves the court to interfere for justice to be done. (See again: Yap Chee Meng v Ajinomoto (Malaysia) Bhd. as well as Tong Lee Hwa & Anor v Chin Ah Kwi & Anor (1971) 2 MLJ 75 FC). On all fours, case by plaintiff is such, where an attack is mounted on the terms and conditions of the consent judgment which was purportedly agreed and entered into between him and defendant, thus claiming it to be voidable and liable to be set aside. [8] Back to the issue at hand, facts disputed are on the terms and conditions of the consent judgment recorded and signed by both plaintiff and defendant. As such, originating process by writ is appropriate and not OS. That per se renders case by plaintiff not to be conspicuously unsustainable for it be struck out without an open court trial. During trial, burden of proof lies on plaintiff to prove to the court on a balance of probabilities, that the consent judgment entered is liable to be set aside as the material terms and conditions contained in it was not agreed to by him, thus its legal validity is impaired. [9] In the upshot, application by defendant to strike out the writ and statement of claim against him is dismissed with costs of RM2000. Flowing from that directions for trial are given, with regard to filing and service of pre-trial documents, viz, bundle of pleadings; common bundle of documents, followed by a date for case management before trial. It is a pro-active measure towards preparation of trial, which syncs with the decision made in the case of Du Vernet (M) Sdn Bhd v Anchorage Mall Sdn Bhd (2002) 5 MLJ 345 as well as Fullrise Resources Sdn Bhd v Ng Ah Toh & Anor

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(2004) 6 CLJ 302. [10] Final issue worthy of consideration is, since conversion of OS to writ which would eventually be set down for trial, parties including defendant is still entitled under the law to ventilate his rights and grievance in an open court trial. Thus, his rights are intact and not disposed of as yet. Hence, decision made not to strike out the writ and statement of claim is not an appealable decision pursuant to section 3 of the Courts of Judicature Act 1964 (Act 91). [11] For the record, at point of hearing and decision, I was the Judicial Commissioner at the High Court, Taiping. Application to strike out writ and statement of claim dismissed with costs. Dated 21 July 2022 SGD. Muniandy Kannyappan Judge, High Court Yee Seu Kai of Yee, of Messrs. Yee Nantham Leong & Partners, counsel for plaintiff. Nik Muhammad Syafiq bin Nik Hilmi of Messrs. Krish, Mano and Associates, counsel for defendant.