XXXX v XXXX (JA-12BNCvC-21-09/2017)

This is the Appellant’s application in Enclosure 17 to amend this Court’s Consent Order dated 27.05.2018 (“the Consent Order”) pursuant to Order 20 rule 11, Order 42, Order 92 rule 4 of the Rules of Court 2012 (“ROC 2012”) and/or the inherent jurisdiction of this Court.

The sole amendment sought is to correct the date of the Sessions Court’s Judgment referred to in the Consent Order from “05.09.2017” to “04.09.2017”. No other amendment is sought.

The Appellant, Mail Magna (a partnership), filed a civil suit in the Johor Bahru Sessions Court against the Respondent for repayment of a friendly loan. On 04.09.2017, the Sessions Court dismissed the Appellant’s claim. The Appellant appealed to this Court.

On 27.05.2018, by consent of both parties before this Court, the Sessions Court’s Judgment was set aside subject to additional evidence being heard by the same Sessions Court Judge. Both counsel, Mr. Pang Kong Seng for the Appellant and Mr. Amarjeet Singh a/l Mehar Singh for the Respondent, were present.

However, the Consent Order erroneously recorded the date of the Sessions Court’s Judgment as “05.09.2017” instead of “04.09.2017”. This error was overlooked by both counsel and the Court’s Registrar when the order was drafted and perfected.

The Sessions Court Judge, Puan Sabariah Binti Atan, subsequently passed away. The parties then consented for the 1st Main Suit to be withdrawn with liberty to file afresh. A second Main Suit was filed by the Appellant’s partners in 2022. The date error was only raised by the Respondent’s counsel in October 2025, during the trial of the 2nd Main Suit, after more than seven years.

The issues for determination are –

whether the error in the Consent Order is a clerical mistake amenable to correction under the slip rule;

whether the Appellant has locus standi to bring this application; and

whether the Consent Order has been frustrated or discharged.

The Court analysis and findings are as follows –

The error is a clerical mistake

The evidence is overwhelming. The Sessions Court’s Judgment itself is dated 04.09.2017. The cause list confirms that the Sessions Court had a court session on 04.09.2017 but not on 05.09.2017 for this case. Both counsel confirmed that no judgment dated 05.09.2017 exists. The Statement of Agreed Facts in the 2nd Main Suit expressly records at paragraphs 7 and 9 that the Judgment was dated 04.09.2017 and was set aside by consent on 27.05.2018.

This is precisely the type of error that Order 20 rule 11 ROC 2012 is designed to correct. The provision permits the Court to correct clerical mistakes in judgments or orders, or errors arising from any accidental slip or omission, at any time. The Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 confirmed that correction of clerical errors under the slip rule is a well-recognised exception to the functus officio doctrine.

The English Court of Appeal in Thynne (Marchioness of Bath) v Thynne (Marquess of Bath) [1955] 3 All ER 129, referred to by the Appellant is directly on point. In that case, a decree nisi misstated the date and place of a marriage ceremony. The Court held that it had inherent jurisdiction to correct such errors, observing that the date and place of the marriage were in the nature of recitals and where these are wrongly stated, the court can grant liberty to amend. Similarly, the date of the Sessions Court's Judgment in the Consent Order is in the nature of a recital identifying the judgment being set aside. It is not the operative part of the order.

The Respondent also contended that the prolonged delay of several years in filing this application disentitles the Appellant from seeking the amendment. This Court finds no merit in this objection. The express wording of Order 20 rule 11 ROC 2012 permits the Court to correct clerical mistakes "at any time". There is no limitation period imposed by the rule. The delay, while regrettable, does not extinguish the Court's power to correct its own records. The English Court of Appeal decision in Moore v Buchanan [1967] 1 WLR 1341 relied upon by the Respondent does not assist him, as it concerned a fundamentally different situation and does not override the plain statutory language of Order 20 rule 11 ROC 2012.

The Respondent further argued, relying on Munks v Munks [1985] FLR 576, that the slip rule and inherent jurisdiction cannot be invoked where the Court lacked jurisdiction to make the original order. The Respondent's contention is that because Mail Magna's business registration had expired on 26.01.2018, the Court had no jurisdiction to record the Consent Order on 27.05.2018 and consequently has no jurisdiction to amend it now. I reject this argument. The jurisdiction of this Court as a superior court is conferred by the Courts of Judicature Act 1964 [Act 91] and is not dependent on the registration status of a business entity under the Registration of Businesses Act 1956 [Act 197]. In general, the expiry of business registration does not extinguish the legal existence of a partnership or strip it of standing. Therefore, the premise upon which the Munks principle is invoked, namely that the Court lacked jurisdiction, does not arise on the facts. Munks is therefore distinguishable and inapplicable.

The amendment does not alter the substance or effect of the Consent Order. The Judgment being set aside remains the same Judgment, only the date reference is corrected. The Court’s inherent jurisdiction under Order 92 rule 4 ROC 2012 also supports this correction, as it is necessary to prevent injustice and to ensure the accuracy of judicial records. I draw support from the Court’s decision in Gan Kee Earthwork Sdn Bhd v Lim Ee Kheng [2019] MLJU 469, where the Court allowed correction of a consent order to accurately reflect the terms agreed and recorded by the parties. This is also consistent with the Federal Court's observation in Hock Hua Bank Bhd v Sahari Bin Murid [1981] 1 MLJ 143 that the Court retains the power under the slip rule to correct errors so far as is necessary to express the intention of the court.

The Appellant has locus standi

The Respondent contended that Mail Magna’s business registration expired on 26.01.2018, depriving it of standing. This Court rejects this argument on the following considerations.

First, a partnership is not a company. Registration under the Act 197 does not create a separate legal entity or bring the business into existence. It does not follow that expiry of registration extinguishes the business. As the High Court held in Hasnor Afifah bt Mohd Noor (trading under the name and style of Simfoni Humaira Resources) & Anor v Xfyre (M) Sdn Bhd & Ors [2025] 9 MLJ 268, a registered business does not cease to exist when its business registration expires. The effect of Section 8(1) of Act 197 is to restrict the right to enforce contracts. It does not strip a party of standing to participate in litigation generally, much less to apply for correction of a clerical error in a court order.

As the Federal Court held in Keow Seng & Company v Trustees of Leong San Tong Khoo Kongsi (Penang) Registered [1983] 2 MLJ 103, a partnership firm is not a legal entity in law and the firm name is merely a convenient method of encapsulating the individual partners who constitute the partnership. Similarly, in Alipawpaw Enterprise v Chen Nikki & Anor [2024] MLJU 2312, the Court confirmed that when a partnership sues in its firm name, to all intents and purposes, it is the partners that are the parties in the proceedings. Accordingly, even if Mail Magna's business registration has expired, the partners behind the firm name continue to exist and retain standing.

Second, the Appellant’s partners have already obtained relief against disability under Section 8(1)(a) of Act 197 from the High Court on 09.02.2022. That order was affirmed by the Court of Appeal on 14.11.2022 and the Federal Court on 29.03.2023. Hence, the issue of standing arising from the expired business registration has been conclusively determined against the Respondent by three levels of court. The Respondent is estopped from relitigating this issue. The same conclusion was reached in OSK Construction Sdn Bhd v Anuraadhaa a/p Jeyasingam [2022] MLJU 3310, where the High Court held that Section 8(1) of the Registration of Businesses Act 1956 does not deprive a sole proprietor or partners of standing merely because business registration has expired.

The Respondent also relied on Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd (1996) 2 MLJ 57 for the proposition that the principle of res judicata binds the Appellant. This Court finds this authority to be of no assistance to the Respondent. On the contrary, it is the Respondent who is bound by res judicata. The issue of the Appellant's standing arising from the expired business registration has already been adjudicated upon by the High Court, affirmed by the Court of Appeal and further affirmed by the Federal Court when it dismissed the Respondent's leave application. Applying the doctrine of issue estoppel as expounded by the Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, the Respondent is precluded from relitigating this issue. The Supreme Court in that case held that issue estoppel prevents contradiction of a previous determination and extends not only to issues actually decided but also to issues which might have been but were not brought forward. The standing question has been decided at the highest level. The Respondent cannot be permitted to raise it again through the back door.

Third, this application is not a suit to enforce a contract. It is an application to correct a clerical error in a court order. It is an exercise of the Court’s own power to ensure accuracy of its records. The Arci Enterprise (suing as a firm) v Selinsing Mining Sdn Bhd & Ors [2007] 1 MLJ 110 case relied upon by the Respondent is distinguishable, as there the registration was revoked and no relief order had been obtained. In Arci Enterprise, the firm's registration had been revoked following the bankruptcy of a partner and critically, no relief under Section 8(1)(a) of Act 197 had been obtained. Here, the registration merely expired through inadvertence and the partners have since obtained the necessary relief, affirmed through three levels of court.

Finally, this Court also observed that the Respondent in his submissions in reply reframed the locus standi objection as a question of this Court's jurisdiction, contending that the Court has had no jurisdiction since 26.01.2018. This Court does not accept this recharacterisation. The distinction between jurisdiction and standing is well established. The High Court's jurisdiction to hear civil appeals from the Sessions Court is statutory. Whether a particular party has standing to invoke that jurisdiction is a separate question. Even if there were a defect in standing, which this Court has found there is not, that would not retroactively deprive this Court of its inherent jurisdiction to correct its own records.

The Consent Order has not been frustrated or discharged

The Respondent argued that the demise of the Sessions Court Judge frustrated the settlement contract underlying the Consent Order. This Court finds this argument misconceived.

The operative part of the Consent Order was the setting aside of the Sessions Court’s Judgment. The requirement for the same judge to hear additional evidence was the agreed modality for the fresh hearing, not a condition precedent to the validity of the setting aside itself. There is no provision in the Consent Order for reinstatement of the Judgment if that modality could not be fulfilled.

This Court also noted that the Respondent's argument that an amendment cannot be made to a discharged contract conflates two distinct concepts. The slip rule under Order 20 rule 11 ROC 2012 operates on the court order as a judicial record. It is an exercise of the Court's own power to ensure that its records accurately reflect what was ordered. It does not depend on the continued subsistence of the underlying contractual arrangement between the parties. Even if the settlement contract had been discharged, which this Court has found it has not, the Court would retain the power to correct a clerical error in its own order so that the judicial record speaks the truth.

Moreover, when it became impossible for the same judge to hear the matter, the parties addressed this by mutually consenting to withdraw the 1st Main Suit with liberty to file afresh. The Respondent never suggested at that time that the Judgment should be reinstated. For over seven years, both parties proceeded on the common understanding that the Judgment had been set aside.

The Respondent is estopped from taking an inconsistent position

The Respondent’s conduct is telling. He consented to the Consent Order. He consented to the withdrawal of the 1st Main Suit with liberty to refile. He contested the Reliefs Order through three levels of court. All predicated on the understanding that the 1st Judgment had been set aside. He agreed to a Statement of Agreed Facts recording the Judgment date as 04.09.2017 and its setting aside. He actively litigated the 2nd Main Suit for years. Now, having discovered a one-day discrepancy in a date, he seeks to argue that the Judgment was never set aside at all.

To this Court’s mind, this is a classic case of approbation and reprobation. As the Court of Appeal held in Kerajaan Negeri Selangor dan satu lagi lwn MACH 8 Sdn Bhd [2022] 5 MLJ 168, a party cannot blow hot and cold. The principle is firmly established. As stated by Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320, a party cannot adopt two inconsistent attitudes towards another; having elected to adopt one stance, he cannot thereafter be permitted to go back and adopt an inconsistent stance. The Federal Court in Country Garden Danga Bay Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2022] 5 MLRA 38 and Nabors Drilling (Labuan) Corp v Lembaga Perkhidmatan Kewangan Labuan [2020] 12 MLJ 54 have similarly affirmed that a party may not approbate and reprobate. Therefore, having elected to treat the Judgment as set aside and having derived the benefit of that position, the Respondent cannot now turn around and assert the contrary.

The Respondent’s counter-prayer to set aside the Consent Order

The Respondent sought, in his written submissions, that the Consent Order be set aside entirely. This prayer was not made by way of a formal application with supporting affidavit. In any event, for the reasons stated above, there is no basis to set aside the Consent Order.

For the reasons above, this Court makes the following orders –

The Consent Order dated 27.05.2018 is amended by substituting the date “05.09.2017” with “04.09.2017” as set out in the proposed Amended Order at Lampiran A of Enclosure 17; and

No order as to costs. Dated : 31 March 2026 -signed-Dr Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellant : : Low Song Kuan Messrs. K S Pang & Co. Solicitor for the Respondent : : Amarjeet Singh a/l Mehar Singh Messrs. Zubeda & Amarjeet