XXXX v XXXX (33-95-03/2015)

This was an application (“this Application”) by the Respondent Wife in enclosure 16, seeking leave to issue a writ of possession in respect of the matrimonial home, and for the Respondent and three out of the four children of the marriage to be allowed to live in the matrimonial home.

The Petitioner Husband and Respondent Wife (collectively, “the Parties”) were married in May 1996, and had four children, born in 1998, 1999, 2000, and 2001 respectively.

The marriage deteriorated over time and in March 2015, the Petitioner filed a divorce petition (“the Divorce Petition”), while the Respondent responded in May 2015.

In August 2015, Parties entered into a consent order (“the Consent Order”), stipulating, inter alia, that the Respondent along with three children in her custody will live in the matrimonial home (“the Matrimonial Home”), ‘tanpa sebarang gangguan’. The relevant terms read in verbatim: iii. Responden Isteri bersama dengan 3 orang anak di dalam kustodi Responden Isteri akan berpindah masuk ke dalam rumah di alamat ***** (“Hartanah tersebut”) dan Pempetisyen Suami akan membayar segala utiliti seperti Tenaga Nasional Berhad, Syabas, Indah Water, Cukai Tanah dan Cukai Taksiran bagi Hartanah tersebut dan Pempetisyen Suami akan terus membayar segala utiliti tersebut dimana Responden Isteri dan 3 orang dalam kustodi isteri 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 dibenarkan untuk tinggal di rumah tersebut tanpa sebarang gangguan; iv. Pempetisyen Suami akan membayar ansuran bulanan kepada pihak Bank bagi Hartanah tersebut dan Hartanah tersebut akan dipegang sebagai amanah dalam bahagian yang sama rata bagi 4 orang anak di dalam perkahwinan sehingga anak ke-empat mencapai umur 24 tahun; … [Emphasis added.]

The Petitioner had failed to adhere to the stipulated terms of the Consent Order, prompting the Respondent’s Counsel to issue a written notice in December 2020, urging compliance. The correspondence clearly communicated that failure to comply would necessitate additional legal measures. Despite this, the Petitioner had refused to adhere, subsequently obstructing the Respondent and the three children in her custody from relocating to the Matrimonial Home.

In August 2023, the Respondent filed this Application pursuant to Order 46 of the Rules of Court 2012 (“Rules of Court”), and rules 56 and 72 of the Divorce and Matrimonial Proceedings Rules 1980, all of which read: Rules of Court 2012 Order 46 – Writs of execution - General Rule 2 - When leave to issue any writ of execution is necessary

A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases: 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4

where six years or more have lapsed since the date of the judgment or order;

where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;

where the judgment or order is against the assets of a deceased person coming to the hand of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;

where under the judgment or order any person is entitled to relief subject to the fulfilment of any condition which it is alleged has been fulfilled; and

where any movable property sought to be seized under a writ of execution is in the hands of a receiver appointed by the Court.

Paragraph (1) is without prejudice to any written law or rule by which a person is required to obtain the leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise the enforcement of a judgment or order.

Where the Court grants leave, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such leave, the order shall cease to have effect, without prejudice, however, to the making of a fresh order. ****** Divorce and Matrimonial Proceedings Rules 1980 Rule 56 – Application by petitioner or respondent for ancillary relief

Any application by a petitioner, or by a respondent who files an answer claiming relief, for —

an order for maintenance pending suit; 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5

a property division order, under section 76 of the Act; or

a maintenance order, under section 77 of the Act, shall be made in the petition or answer, as the case may be.

Notwithstanding paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently —

by leave of the court, either by notice in Form 11 or at the trial; or

where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 11.

An application by a petitioner or respondent for ancillary relief, not being an application which is required to be made in the petition or answer shall be made by notice in Form 11. … Rule 72 – Enforcement of order for payment of money, etc

Before any process is issued for the enforcement of an order made in matrimonial proceedings for the payment of money to any person, an affidavit shall be filed verifying the amount due under the order and showing how that amount is arrived at.

Except with the leave of the registrar, no writ of fierifacias or warrant of execution shall be issued to enforce payment of any sum due under an order for ancillary relief where an application for a variation order is pending.

For the purpose of RHC Order 46 (issue of a writ of execution), the divorce registry shall be the appropriate office for the issue of a writ of execution to enforce an order made in matrimonial proceedings in the High Court which are proceedings in that registry. 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 The Issues [7] The issues for consideration for this Court were as follows: (i) the inherent characteristics of a consent order; (ii) the validity of the Petitioner’s justification for refusing to vacate the Matrimonial Home; and (iii) the interpretation of ‘tanpa sebarang gangguan’ in clause (iii) of the Consent Order. [8] This Application was allowed for the following reasons. Contentions, evaluation, and findings The nature of a consent order [9] At the outset, it was crucial to draw attention to the insights shared by Mary Lim JCA (as she then was) in Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 regarding the nature of a consent order. Her observations, as articulated in the following passage, merit careful consideration: 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:Ganapathy Chettiar v. Lum Kum Chum & Ors And Another Appeal [1981] 2 MLJ 145. 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. Such an order remains valid, effective and binding on all the parties involved until and unless the order is set aside for some vitiating reason - see the Federal Court's decision in Tong Lee Hwa & Anor v. Chin Ah Kwi & Another Appeal [1971] 1 LNS 143; [1971] 2 MLJ 75. In fact, until that happens, until and unless the consent order is set aside, the consent order operates as an estoppel disallowing the defendants today from departing from its terms. 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [Emphasis added.] [10] A consent order is akin to a contract with the superadded command of the court: Tan Geok Lan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ

Reference was also made to a plethora of cases including Ganapathy Chettiar v. Lum Kum Chum & Ors And Another Appeal [1981] 1 LNS 59; [1981] 2 MLJ 145; Tong Lee Hwa & Anor v. Chin Ah Kwi & Another Appeal [1971] 1 LNS 143; [1971] 2 MLJ 75; and Kamil Azman Abdul Razak & Ors v. Amanah Raya Bhd & Ors [2019] 6 CLJ 419. Whether the Petitioner’s reasons for refusing to vacate the Matrimonial Home were relevant/ justified [11] The Petitioner put forth a multitude of arguments to justify his continued occupancy of the Matrimonial Home, deviating from the explicit directives outlined in the Consent Order. [12] Initially, he asserted that this Application was time-barred. This contention was followed by the claim that it was the Respondent who had voluntarily vacated the Matrimonial Home, without any coercion from him. Furthermore, he delved into the complexities of his personal circumstances, revealing his involvement in a new marital relationship and the challenges of caring for a child with autism. Alongside these personal challenges, the Petitioner highlighted his low-income status, arguing that financial constraints 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 prevented him from vacating the Matrimonial Home and securing alternative housing. [13] I found the entirety of the Petitioner’s argument untenable. The focal point for this Court centers on whether the Respondent should be granted the right to occupy the Matrimonial Home, in accordance with the terms of the Consent Order. [14] The assertion of a time limitation on the Respondent’s filing was bereft of merit, as this Application for leave falls outside any specified timeframe. Order 46 of the Rules of Court explicitly allows such applications, emphasising that a writ of execution to enforce a judgment or order may not be issued without the leave of the Court where six years or more had lapsed since the date of the judgment or order. Additionally, it was essential to highlight that the Respondent had, through her solicitors, communicated with the Petitioner regarding his non-compliance with the Consent Order. Despite these efforts, the Petitioner had failed to provide a positive response. Consequently, the Petitioner's argument regarding delay was unsustainable given the circumstances. [15] The justifications and excuses presented by the Petitioner in opposing the Respondent’s vacation of the Matrimonial Home were inconsequential and bore no relevance to the crux of this Application, and amounted to an endeavour to re-litigate the terms stipulated in the Consent Order. 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 [16] This Court could not entertain the Petitioner’s reasons and excuses for resisting the evacuation of the Matrimonial Home, particularly given that the pertinent Consent Order had resulted from a mutual agreement between the Parties. Interpretation of ‘tanpa sebarang gangguan’ in clause iii of the Consent Order [17] The nucleus of the Petitioner’s argument revolved around the elucidation of clause iii of the Consent Order, in particular the term ‘tanpa sebarang gangguan’. [18] The Petitioner contended that, although the Respondent and the three Children in her custody were granted the right to occupy the Matrimonial Home “tanpa sebarang gangguan”, pursuant to the Consent Order, there was no explicit order for the Petitioner to vacate the residence. [19] In fact, the Petitioner proposed for the Respondent and the three Children in her custody to relocate to the Matrimonial Home, specifically occupying one of the rooms. However, in this arrangement, the Petitioner insisted that both Parties mutually pledge not to ‘disturb’ each other. [20] I found the Petitioner’s argument to be lacking in merit. Firstly, the term ‘tanpa sebarang gangguan’ carries a broader significance than merely ‘without any disturbance’. [21] The Respondent cited pertinent landlord-tenant cases such as Lee Phak Kong v Bestway Fortune Sdn Bhd & Anor and Other Cases [2023] MLRHU 463 and Kenny v Preen [1962] 3 ALL ER 814, which 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 delved into the notion of ‘quiet enjoyment’. Asserting her entitlement to quiet enjoyment of the Matrimonial Home, the Respondent implied that Petitioner was obliged to permanently vacate the Matrimonial home. [22] While I agreed and recognised the Respondent’s right to quiet enjoyment of the Matrimonial Home, I maintained the view that she deserved additional entitlements, considering the broader implications of the term tanpa sebarang gangguan’ in the Consent Order. [23] The expression ‘quiet enjoyment’ in Bahasa Malaysia is translated as ‘kenikmatan aman sentosa’ while ‘tanpa sebarang gangguan’ carries a broader connotation. Notably, the term gangguan’ is employed within the context of section 103 (Injunctions against molestation) of the Law Reform (Marriage and Divorce Act 1976, as articulated in Bahasa Malaysia as follows: Seksyen 103 – Tegahan terhadap pengganguan Mahkamah adalah berkuasa dalam masa menanti keputusan sesuatu pembicaraan hal ehwal berkahwin atau pada atau selepas pemberian sesuatu dikri perceraian, perpisahan kehakiman atau pembatalan, memerintahkan seseorang supaya jangan memaksa suami isteri atau suami isterinya yang dahulu menerima kehadirannya dan supaya jangan melakukan lain-lain perbuatan gangguan. [Emphasis added.] [24] Given the term ‘tanpa sebarang gangguan’ in the Consent Order carries a broader scope than the concept of ‘quiet enjoyment’, I 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 deemed it essential to reference legal precedents such as Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann [1995] 3 CLJ 846, Vaughan v Vaughan [1973] 3 All ER 449, and Lee Sook Kwan v Yap Woon [2010] 11 MLRH 167. [25] In the case of Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann, where ‘gangguan’ or ‘molestation’ lacked a specific definition in the Law Reform (Marriage and Divorce) Act, the presiding judge, in the absence of statutory guidance, turned to The Britannica World Language Edition of The Oxford Dictionary and referenced the English Court of Appeal case of Vaughan v Vaughan [1973] 3 All ER 449 for elucidation. [26] According to the Britannica World Language Edition of The Oxford Dictionary, "molestation" is defined as “the action of molesting or condition of being molested; annoyance, disturbance, vexation”. In Vaughan v Vaughan, Davies LJ characterised ‘molestation’ as engaging hostilely or injuriously and causing trouble, vexation, annoyance, or inconvenience. [27] It became evident that when the Consent Order was granted, allowing the Respondent and the three Children in her custody to occupy the Matrimonial Home, it inherently implied the obligation for the Petitioner to vacate. Proposing that the Petitioner, his new family, or any of his family members should continue to reside in the Matrimonial Home, not only defied common sense but also contravened the very essence of the Consent Order. 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [28] Drawing guidance from the Federal Court case of Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590, despite its focus on a common-sense approach to interpreting statutes, the underlying principle can be extrapolated to the interpretation of consent orders. [29] Moreover, it was both demeaning and insulting for the Petitioner to suggest that the Respondent and the three Children in her custody should confine themselves to one room in the Matrimonial Home with the caveat that they refrain from interfering with or disturbing Petitioner and his family. Such a proposition undermines the fundamental purpose of the Consent Order and runs counter to the principles of fairness and equity. Conclusion [30] In conclusion, considering the aforementioned reasons and a meticulous examination of all evidence presented, including both oral and documentary, as well as the submissions of the Parties, this Application was allowed with costs. Dated: 18 January 2024 SIGNED 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Lalitha Nagamuthu; Messrs Lalitha & Co For the Respondent – Pramjit Kaur; Messrs Mann & Associates Cases referred to: ➢ Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann [1995] 3 CLJ 846 ➢ Ganapathy Chettiar v. Lum Kum Chum & Ors And Another Appeal [1981] 1 LNS 59; [1981] 2 MLJ 145 ➢ Johnson v. Walton [1990] FCR 568, 1 FLR 350 ➢ Kamil Azman Abdul Razak & Ors v. Amanah Raya Bhd & Ors [2019] 6 CLJ 419. ➢ Kenny v Preen [1962] 3 ALL ER 814 ➢ Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590 ➢ Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 ➢ Lee Phak Kong v Bestway Fortune Sdn Bhd & Anor and Other Cases [2023] MLRHU 463 ➢ Lee Sook Kwan v Yap Woon [2010] 11 MLRH 167 ➢ Tan Geok Lan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465 ➢ Tee Bee Chin (P) v Goh Swee Por (L) [2018] 8 MLJ 590 33-95-03/2015 18 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 ➢ Tong Lee Hwa & Anor v. Chin Ah Kwi & Another Appeal [1971] 1 LNS 143; [1971] 2 MLJ 75 ➢ Vaughan v Vaughan [1973] 3 All ER 449 Legislation referred to: ➢ Divorce and Matrimonial Proceedings Rules 1980 – rules 56, 72 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 48, 96, 103 ➢ Rules of Court 2012 – Order 46 Other sources referred to: ➢ Britannica World Language Edition of The Oxford Dictionary