Soh Phei Ching v WM Wellmax Marketing Sdn Bhd (PA-24NCC-21-05/2025)

WM WELLMAX MARKETING SDN BHD (NO. SYARIKAT: 201601005207 [1176133-D])

HENG HUA KIAN

HENG SENG SOO (NO. K/P: 550723-10-5591) … DEFENDAN-DENFENDAN GROUND OF JUDGMENT A.

This is an application by the Defendant at Enclosure 24 to amend the terms of the Consent Judgement dated 29 July 2025 S/N n94dyQq020KwpAzkYHZinA entered before YA Quay Chew Soon as recorded in Enclosure 21. The Defendants seek, through this application, inter alia to remove the Plaintiff as director of the 1st Defendant company without first complying with the mandatory pre-conditions set out in paragraphs

(i), (m), and (n) of the Consent Order. The Plaintiff opposes the application, asserting that the Consent Order represents a final and binding settlement, voluntarily executed by all parties and duly recorded before the Court. B. SUMMARY OF PLAINTIFF’S OPPOSITION

The Plaintiff submits that the variation sought is not a mere clarification of the existing terms but a substantive alteration of the parties’ agreement. Evidence demonstrates that the Defendants have themselves failed to perform key obligations, acted in breach of the Consent Order, and even convened an Extraordinary General Meeting in defiance of an ad interim injunction.

In effect, the Defendants seek to excuse their own non-compliance, legitimise unlawful conduct, and obtain rights they never contracted for. Such an attempt is legally impermissible and inconsistent with the finality and sanctity of consent judgments. The Plaintiff therefore submits that the application should be dismissed. C. ANALYSIS AND FINDINGS S/N n94dyQq020KwpAzkYHZinA

It is trite law that the only way a consent order may be altered or varied is by the consent of all the parties. This principle was affirmed by the Federal Court in Ganapathy Chettiar v. Lum Kum Chum & Ors; Meenachi v. Lum Kum Chum [1981] CLJU 59; [1981] 1 LNS 59; [1981] 2 MLJ 145 (at p. 146). The status of a consent order was further explained in Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 (CA), where the Court stated: “It is fairly settled and trite law that an order of the court reached by consent of the parties involved is in effect a contract between those parties—see Ganapathy Chettiar v. Lum Kum Chum & Ors. Such a consent order must therefore be given its full contractual effect—see Tan Geok Lan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465.

Accordingly, a consent order remains valid, effective, and binding on all parties until and unless it is set aside for some recognised vitiating reason such as fraud, misrepresentation, mutual mistake, or coercion/undue influence. Until such time, the consent order operates as an estoppel, preventing the defendants from departing from its terms. The Court’s jurisdiction to intervene is strictly limited; a party cannot unilaterally seek variation merely because the agreed terms have become difficult or undesirable to perform. A judgment by consent creates an estoppel, aiming to bring litigation to an end. see Tong Lee Hwa & Anor v. Chin Ah S/N n94dyQq020KwpAzkYHZinA Kwi & Another Appeal [1971] CLJU 143 (FC); [1971] 1 LNS 143; [1971] 2 MLJ 75.

Consent Orders are binding and final settlements. The legal principles governing their variation are well-established. A consent judgment operates as a contract between the parties, and the Court may only vary its terms in limited circumstances, including fraud, misrepresentation, mutual mistake, or duress. None of these factors have been pleaded or proven in the present case.

The Plaintiff affirms that the Consent Order was voluntarily entered into, with full participation and legal advice, and was signed in the presence of solicitors. The recorded settlement represents the final resolution of the dispute. It is trite law that a consent order cannot be varied without the mutual consent of the parties. The Plaintiff does not consent, and the Defendants cannot ask the Court to impose a new bargain that the Plaintiff never agreed to.

In Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368, the Court of Appeal confirmed that It is a settled legal principle that a court order reached by consent of the parties involved is effectively a contract between those parties. Such a consent order must be given its full contractual effect and remains valid, effective, and binding on all parties until and unless the order is set aside for some vitiating reason. This principle was reaffirmed S/N n94dyQq020KwpAzkYHZinA in Mega Palm Sdn Bhd & Anor v. Hun Tee Siang (Menyaman Atas Kapasitinya Sebagai Pemegang Jawatan Di Persatuan Penduduk Country Heights Damansara, Kuala Lumpur) & Ors [2022] 4 CLJ 248 (CA), where the Court of Appeal emphasised that

The Defendants’ application goes far beyond any permissible variation. They are not seeking clarification or enforcement; they are seeking substantive amendments to remove the Plaintiff as director, directly contradicting paragraph (n) of the Consent Order. Their reliance on paragraph (t), the liberty-to-apply clause, is misconceived, as it allows only applications to give effect to existing terms, not to rewrite them.

Applying these principles, the Defendants are attempting exactly what the Court has prohibited. There is no allegation or S/N n94dyQq020KwpAzkYHZinA proof of mistake, ambiguity, or impossibility in the Consent Order. They knowingly agreed that the Plaintiff would resign only upon completion of paragraphs (a) to (m). The Defendants’ attempt to circumvent this through paragraph (t) constitutes an abuse of process.

The Defendants have not complied with their obligations under paragraphs (i) and (m), yet they now seek to vary the Consent Order to suit their preferred outcome. A party in breach of a consent judgment cannot invoke equitable relief. Their unlawful convening of an EGM on 7 October 2025, in breach of an ad interim injunction, further taints their application. Allegations of material change in circumstances are unproven and irrelevant, and dissatisfaction with contractual obligations is not a legal ground to vary a consent judgment.

Upon reviewing the affidavits and evidence, this Court finds that the Defendants has failed to provide any basis to disturb the Consent Judgment. There is no evidence of fraud, misrepresentation, or mistake. The proposed variation constitutes a substantive change to the core terms, not a clerical correction.

The Plaintiff has expressly withheld consent, and the Court cannot rewrite a contract authored by the parties themselves. The sanctity of a Consent Judgment must be upheld to ensure the S/N n94dyQq020KwpAzkYHZinA finality of litigation. Allowing unilateral variations whenever circumstances change would undermine the purpose of settlements. The Defendants have failed to meet the high legal threshold required to disturb a Consent Judgment.

The application to vary the Consent Judgment dated 29 July 2025 is hereby dismissed. Costs to the Plaintiff in the sum of RM2000.00. Bertarikh 19 Mac 2026 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Plaintif : Jason Cheong Kah Lok Tetuan Kah Sheng & Co. S/N n94dyQq020KwpAzkYHZinA Peguam bagi pihak Defendan: Koay Chun Hian Tetuan Ghandi S/N n94dyQq020KwpAzkYHZinA