Low Kim Hong v Low Shee Kian (WA-22NCC-917-12/2023)

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA (BAHAGIAN DAGANG) GUAMAN NO: WA-22NCC-917-12/2023 ANTARA LOW KIM HONG (No. K/P: 420807-10-5139) …PLAINTIF DAN LOW SHEE KIAN (No. K/P: 700309-10-5271) …DEFENDAN GROUNDS OF JUDGMENT (Enclosures 153 and 166) Introduction

1. On 13-2-2026, this Court heard 2 applications filed after the close of these proceedings. The Defendant moved the Court via Enclosure 153 filed on 8-10-2025 for a declaration that the Consent Judgment recorded on 2-10-2025 is valid and binding. In response, the Plaintiff filed Enclosure 166 on 2-1-2026 to amend the Court minute on 2-10-2025 to reflect otherwise.

2. The question for the Court’s determination was whether the Consent Judgment recorded on 2-10-2025 can be vitiated on 02/03/2026 15:30:03 WA-22NCC-917-12/2023 Kand. 201 **Note : Serial number will be used to verify the originality of this document via eFILING portal grounds of lack of consent by the Plaintiff because he now claims he did not approve the settlement terms that his counsel and representatives had signed after a mediation he participated in, but was not present at when the “agreement” was reached. Background facts

3. The Plaintiff is the Defendant’s father. The underlying claim in this action was filed by the Plaintiff to, inter alia, invalidate a share transfer and certain powers of attorney he had given to the Defendant. The Plaintiff is aged and of poor health. Due to family disputes, he was removed from the care of the Defendant by his other children before this action started in 2023.

4. Both parties were properly represented by solicitors on record. On day 1 of trial fixed on 22-9-2025, 23-9-2025, 1-10-2025, 2-10-2025 and 3-10-2025, parties initiated a Court-assisted mediation. They were reportedly in negotiations all day in Court on 22-9-2025 without success. Although the trial was then scheduled to commence on 23-9-2025, counsel for the Plaintiff fell ill, and the trial was vacated.

5. On 1-10-2025, all parties, including the Plaintiff, were again present in Court, and both counsel again approached the Court to assist in mediating the matter. The parties (the Plaintiff through his other children) had signed a consent and waiver for the learned Judge to step in for active mediation, which she did on 1-10-2025. **Note : Serial number will be used to verify the originality of this document via eFILING portal

6. The mediation continued on 2-10-2025, but the Plaintiff did not attend on that day. He was instead represented by his other children and counsel from the firm of solicitors on record for him (“Former Solicitors”). Later that day, counsel for both parties appeared before the Judge with news of a settlement.

7. A draft Consent Judgment was tendered to the Court, signed by both counsel for the Plaintiff and Defendant, as well as the Defendant and the Plaintiff’s other children who represented him at the mediation. The Plaintiff’s signature block was blank because he was not in Court that day due to poor health.

8. From the Court’s records, the draft Consent Judgment was tendered by counsel for both parties to the Court as the terms of settlement reached in mediation. This was recorded and, in so doing, pronounced by the Court with the following minute: Guok Ngek Seong with CK Ng for plaintiff K Goik for defendant Mediation successful. Parties record Consent Judgment. Consent Judgment marked "A". Trial for tomorrow is hereby vacated. The trial date on 3-10-2025 was, as minuted, vacated, and the matter in the Court Management System was administratively closed.

9. Issues arose because the Plaintiff refused to sign the draft Consent Judgment when his Former Solicitors followed up on it so that it **Note : Serial number will be used to verify the originality of this document via eFILING portal could be filed with complete signatures. Shortly thereafter, the Plaintiff’s Former Solicitors applied to discharge themselves on 6- 10-2025 from further representing the Plaintiff on account of a “misunderstanding.” Analysis and findings

10. The Plaintiff’s entire argument is that he did not agree to the terms of settlement that his Former Solicitors and representatives had agreed to. To succeed, he must prove that, notwithstanding the execution of the draft Consent Judgment by his Former Solicitors, he did not authorise it at the material time.

11. As a preliminary issue, this Court accepts that all affidavits filed in respect of Enclosures 153 and 166 are regular, as objections were raised as to the admissibility of the Plaintiff’s affidavits without the signature of the person who interpreted the contents to him. There is no requirement that the interpreter must also sign the affidavit. The affidavits with the appropriate jurat appeared properly affirmed before the Commissioner for Oaths.

12. As far as the account of events is concerned, it is not seriously disputed that the Plaintiff himself was not present in Court on 2-10- 2025 when the draft Consent Judgment was signed by everyone else and recorded. Plaintiff’s counsel only went to see him in the afternoon of 3-10-2025 to get his signature or thumbprint on the draft so that the document could be e-filed with all signatures. **Note : Serial number will be used to verify the originality of this document via eFILING portal

13. Apparently, the visit was prompted by an unsuccessful follow-up with one of the Plaintiff’s children via WhatsApp for the signed copy to be returned. Based on the messages this Court sighted, it appeared at one point that the Plaintiff had signed the draft Consent Judgment. During the visit, the lawyer tasked to retrieve the signed draft Consent Judgment spent several hours explaining the terms to the Plaintiff to no avail.

14. Now the Plaintiff says that the authority of his counsel was limited and that he was not authorised to compromise and settle the suit on his behalf at the mediation at all. Evidently, said counsel was initially of a different view, although after the fact, counsel affirmed an affidavit stating that the Plaintiff had not consented to the terms. However, he does not explain why the Judge was informed without any reservations that parties had reached a settlement, why the draft Consent Judgment was signed and tendered and why he requested to vacate the remaining trial date.

15. As already noted, the direct evidence in this case showed that the Plaintiff was present and participated in the mediation on 22-9- 2025 and 1-10-2025, he had retained counsel from the firm of his Former Solicitors and he was properly on record to represent the Plaintiff with no known reservation or qualification as to his implied authority. On 2-10-2025, he had informed the Court in no uncertain terms that parties had reached a settlement and handed over the signed draft Consent Judgment to be marked. **Note : Serial number will be used to verify the originality of this document via eFILING portal

16. It is true that there is no account of the Plaintiff being consulted on 2-10-2025 before the draft Consent Judgment was signed by all his children and counsel that he retained. However, this does not directly address the question of what said counsel was authorised to do. On this, there are established and binding principles of law.

17. The Federal Court in The Ka Wah Bank Ltd v Nadinusa Sdn Bhd & Anor [1998] 2 MLJ 350 (“The Ka Wah Bank”) held as follows in a case about an agreement to compromise an action based on an exchange of correspondence between solicitors: . On what the ordinary authority of counsel entails, it is instructive to set out the 2 authorities cited in The Ka Wah Bank.

18. Yap Chee Meng v. Ajinomoto (Malaysia) Berhad [1978] 2 MLJ 249 (“Yap Chee Meng”) turned directly on the issue of a solicitor’s authority to compromise a suit on behalf of a client. In that case, the plaintiff instructed solicitors to file a personal injury action after he was blinded in a workplace accident. The solicitors settled the claim, and the suit was withdrawn, but the plaintiff later repudiated **Note : Serial number will be used to verify the originality of this document via eFILING portal the settlement, alleging inter alia that he never consented to the compromise.

19. The Judge in Yap Chee Meng held that the settlement was prima facie valid, as it was negotiated between solicitors in the usual manner and supported by the plaintiff’s signed discharge. Since the plaintiff had not proven fraud or other vitiating factors, the settlement stood, and the defendants’ application to strike out the new writ was allowed. The Court noted as follows: “It is against public policy to allow settlements concluded between solicitors on behalf of their respective clients in accident cases to be challenged with impunity… But a settlement is a contract and like all contracts it is voidable on specific grounds e.g. undue influence, misrepresentation, fraud or mistake.”

20. The case of Matthews v Munster (1887) 20 QBD 141 (“Matthews”) was an action for malicious prosecution and is directly relevant on the facts. During the trial, while the defendant and his solicitors were absent, the defendant’s counsel, acting on a suggestion from the judge, consented to a verdict for the plaintiffs. When the defendant arrived later, he repudiated the compromise and, like in this case, he applied to set aside the compromise and sought a new trial, arguing that counsel had no authority to bind him without express instructions.

21. The central issue in Matthews was whether counsel, by virtue of his retainer, had authority to compromise the action in his client’s absence. For the Court of Appeal, Lord Esher, M.R. held that: **Note : Serial number will be used to verify the originality of this document via eFILING portal “…once a client retains counsel, he represents to the other side that counsel has authority to act in the usual course, and he must be bound by that representation so long as it continues, so that a secret withdrawal of authority unknown to the other side would not affect the apparent authority of counsel. The request does not mean that counsel is to act in any other character than that of advocate or to do any other act than such as an advocate usually does. The duty of counsel is to advise his client out of court and to act for him in court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.”

22. In this case, there is only the Plaintiff’s affidavit evidence, procured after this Court queried why the Plaintiff himself had not initially filed any affidavits. As it turned out, this Court found the affidavits entirely equivocal on the facts as to whether this is simply a case of the Plaintiff changing his mind, having authorised his counsel and children to represent him at the mediation. Based on the authorities above, it is not open to him to retract his counsel’s ordinary authority ex post facto, regardless of his actual consent or lack thereof.

23. The Plaintiff relied on a Court of Appeal authority in Lagenda Kencana Sdn Bhd v Peter’s Holdings Sdn Bhd & Anor [2012] 4 MLJ 855 (“Lagenda Kencana”) in support of his case. There, solicitors had recorded a consent order to withdraw the Plaintiff’s suit with liberty to refile, except that the Plaintiff’s claim was time-barred. That consent order was set aside by the Court of Appeal on grounds of a lack of authority on the part of the solicitors. **Note : Serial number will be used to verify the originality of this document via eFILING portal However, Lagenda Kencana is distinguishable on the facts because there, the solicitors had no locus standi to record the consent order as they were not solicitors on record. The Court also noted that the Plaintiff had suffered a grave injustice by their actions.

24. On question of injustice, this Court considered the case of Chee Kuan Cheng v Chuo Kong Kah [1967] 2 MLJ 74 (“Chee Kuan Cheng”) where the Federal Court addressed the validity of a settlement reached between counsel on terms agreed to by both parties who did not accompany counsel into chambers when the order was made. Immediately afterwards, the plaintiff complained that he had given his consent under a misapprehension and gave notice to the senior assistant registrar that the order should not be drawn up or entered.

25. The Federal Court in Chee Kuan Cheng allowed the appeal against the decision of the trial Judge to restore the case to trial after concluding that neither the plaintiff nor counsel on his behalf was under any misapprehension as to any of the terms agreed upon, which were embodied in the consent order. Of relevance is the observation of the Federal Court that the terms of the bargain were not only fair, but indeed, of practical advantage to the appellant – if he has the sense to see it – citing Fry L.J. in Matthews: “In the compromise itself there is nothing that is outside the case, nothing which is unjust, or which shocks the conscience of the court, and nothing in the nature of a slip.” **Note : Serial number will be used to verify the originality of this document via eFILING portal

26. In this case, no facts were deposed in the affidavits or any arguments advanced on the question of injustice or prejudice cause by the settlement. As far as this Court could discern, the draft Consent Judgment in effect contained terms for: a) the discontinuance of a separate suit by the Defendant against the Plaintiff, and by Sritama Sdn Bhd and/or the Defendant against one Low Su Kian; b) the Defendant’s access to the Plaintiff and his provision of a sum of money for the maintenance and well-being of the Plaintiff and his wife; and c) an agreed division of the Plaintiff’s assets among his children which, incidentally, all of his children had agreed to by signing off on the draft Consent Judgment. Thus, it cannot be said based on either of the Malaysian authorities cited above, that the draft Consent Judgment ought to be set aside on grounds of any grave injustice to the Plaintiff. Conclusions

27. In conclusion, therefore, this Court found based on the preponderance of authority and on the facts, that counsel for the Plaintiff had both apparent and ostensible authority to settle the suit on behalf of the Plaintiff at the mediation. If in fact, said counsel had no actual authority, it was not proven, and if counsel had acted against the Plaintiff’s instructions or scope of authority, the Plaintiff’s recourse is against his counsel. **Note : Serial number will be used to verify the originality of this document via eFILING portal

28. This is not a case in which the Court was minded to exercise its discretion to allow the reopening of a matter informed to the Court and recorded as settled. For the same reason, there was no reason for the Court to entertain Enclosure 166 to amend the minute of proceedings on 2-10-2025 as it accurately reflects what was conveyed by counsel.

29. In the circumstances, this Court found for the Defendant, allowed Enclosure 153 with costs of RM10,000.00 and dismissed Enclosure 166 with costs of RM5,000.00. Bertarikh: 02 Mac 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Plaintif: Tai Yong Fung (Tan Xuan You bersamanya) Tetuan Kesavan Untuk Defendan: Goik Kenzin Tetuan Goik, Ramesh & Loo **Note : Serial number will be used to verify the originality of this document via eFILING portal