Chan Sok May Siaw Ching Cheng

IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO.: BA-22NCvC-264-07/2022 _________________________________________________________ BETWEEN CHAN SOK MAY (NO. K/P: 750708-01-6036) ….. PLAINTIFF AND SIAW CHING CHENG (NO. K/P: 720414-05-5489) ….. DEFENDANT GROUNDS OF JUDGMENT (O.18 r.19 ROC 2012) Introduction 1. The present suit is filed by the Plaintiff-wife is an attempt to set aside the entirety of the consent judgment and decree absolute in a joint divorce petition. 2. The consent judgment in the joint divorce petition contained several items including the decree of divorce, joint custody of child, joint responsibility for maintenance and education of the child, transfer of shares in a business firm to one party, transfer of condominium unit to the other party, and no maintenance as between the parties. 3. The present suit relates to the condominium unit which the Defendant-husband agreed to transfer to the Plaintiff-wife pursuant to the terms of the consent judgment. Before the commencement of this suit, there was also a Sessions Court filed by the Defendant- husband against the Plaintiff-wife for payment of the monetary consideration for the transfer of shares in the business firm pursuant to another term of the consent judgment. That other Sessions Court suit is pending trial in the Sessions Court. 4. The complaint of the Plaintiff-wife in the present suit is that there was allegedly misrepresentation as to the redemption sum for the condominium unit and that the Defendant-husband made a 1 withdrawal of RM111,025.00 as Refund Excess Payment from the condominium housing account. 5. By Enclosure 5 the Defendant-husband applied to this Court to strike out the Plaintiff’s suit under O.18 r.19 of the Rules of Court 2012 (“ROC 2012”). 6. On 8 November 2022 this Court allowed the application and struck out the Plaintiff’s suit with liberty for the Plaintiff to raise and contest the issue of alleged misrepresentation and/or withdrawal of RM111,025.00 in the pending suit by the Defendant/Siaw(H) in the Session Court or by way of a separate suit. 7. Dissatisfied with the said decision of this Court, the Plaintiff has appealed to the Court of Appeal. Law on striking out and setting aside consent judgment 8. O.18 r. 19 striking out of a plaintiff’s suit is only to be resorted to in clear and obvious case where the plaintiff’s action is frivolous, vexatious, or an abuse of the process. Where the plaintiff’s action is obviously unsustainable or has no chance of success, the plaintiff’s action is frivolous, vexatious, or an abuse of the process and can be summarily struck out. 9. Where the remedies and reliefs which the Plaintiff prays for are clearly unsustainable in law even if the pleaded factual allegations in the Statement of Claim are assumed to be true, the Plaintiff’s action would be obviously unsustainable and/or has no chance of success. 10. In the case of In re Yamamoto Ryoji & Anor [2020] 10 CLJ 75 Hayatul Akmar J has succinctly summarised the law on setting aside consent judgment in the following words: “[13] The law on setting aside consent order is trite where once the consent judgment had been perfected, the parties are bound by it and the court is duty-bound to enforce the agreed terms of the same. There are plethora of cases that holds a consent order must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the court and the burden is on the applicant to prove on balance of probabilities that the need to vary legally existed. In the case of Ng Say Chuan v. Lim Szu Ling [2010] 2 10 CLJ 371 where Yeoh Wee Siam J held that a consent order must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the court. In Badiaddin v. Arab Malaysian Finance Berhad (supra ), the Federal Court held that it is settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. In Abdul Razak Sheikh Mahmood & Ors v. Amanah Raya Bhd & Ors And Another Appeal [2018] 5 CLJ 273, Court of Appeal held: The law on setting aside consent judgment is more than settled and it is this. A consent judgment is only recorded when the respective litigants had agreed in writing as to how to resolve a legal suit. Once the consent judgment had been perfected, the parties are bound by it and the Court is duty bound to enforce the agreed terms of the same. The Court cannot vary any of the agreed terms unless with the mutual consent of the parties. Hence, one can say that the Court is functus officio or in other words, the Court is bereft of jurisdiction to entertain any request to set aside such judgment. [14] The law on setting aside consent order and/or variation of such order is legally settled: (i) Once the consent judgment had been perfected, the parties are bound by it and the court is duty-bound to enforce the agreed terms between the parties. (ii) There are a plethora of authorities that hold a consent order must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the court. (iii) The burden is on the applicant to prove on the balance of probabilities that exceptional circumstances are present to justify the court's intervention (see Ng Say Chuan v. Lim Szu Ling (supra ); Khaw Poh Chhuan v. Ng Gaik Peng & Yap Wan Chuan & Ors [1996] 2 CLJ 185; [1996] 1 AMR 909; [1996] 1 MLJ 761 SC; Badiaddin v. Arab Malaysian Finance Berhad (supra ) (iv) The Court of Appeal in Macquarie (Malaysia) Sdn Bhd v. HSBC Bank Malaysia Bhd & Anor And Another Appeal [2007] 6 CLJ 176; [2007] 6 AMR 188 CA; [2007] 7 MLJ 139 CA, in consonance with the findings of Hock Hua Bank Bhd v. Sahari Murid [1980] 1 LNS 92; [1981] 1 MLJ 143, FC; Badiaddin v. Arab Malaysian Finance Berhad (supra ) and Selvam Holdings (Malaysia) Sdn Bhd v. Grant Kenyon & Eckhardt Sdn Bhd; BSN Commercial Bank Malaysia & Ors (Intervenors) [2003] 1 CLJ 465; [2003] 1 AMR 439; 3 [2003] 1 MLJ 251; Chow Chuan Fat v. Yeo Chai Seng & Ors [2016] 1 LNS 1407; [2017] 1 AMR 676; that the jurisdiction to set aside such a judgment is not to be exercised as a matter of course but in limited circumstances. It is only to be used where: (a) Breach of the rules of natural justice; (b) Lack of jurisdiction; (c) Illegality, ie, contravention of a substantive statutory provision; (d) Serious defects; or (e) Fraud. The burden lies on the applicant to satisfy the court that the matter comes within any of the ambit of those aforesaid circumstances. (v) As for the issue of delay in complying with O. 42 r. 13 RC 2012 (setting aside/varying judgment and orders), the Federal Court had suggested that delay is never fatal in cases where the judgment obtained in irregular as to render it a nullity (see Tuan Haji Ahmed Abdul Rahman v. Arab Malaysian Finance Bhd [1996] 1 CLJ 241; [1996] 1 AMR 215; [1996] 1 MLJ 30 FC; Perwira Habib Bank Malaysia Bhd v. Lum Choon Realty Sdn Bhd [2005] 4 CLJ 345; [2006] 6 AMR 105; [2006] 5 MLJ 21 FC); time is not a bar to an application to set aside a judgment that is so fundamentally flawed and/or illegally and/or irregularly obtained. This is further amplified in the Court of Appeal ruling in Teoh Ah Mooi v. Causeway Bay Plantations Sdn Bhd [2014] 5 CLJ 466; [2014] 1 MLJ 263, CA; that where an order of the court is a nullity, an application can be made to set it aside at any time. Judgment in default obtained 12 years prior was set aside as being a nullity (see also Eu Finance Bhd v. Lim Yoke Foo [1982] 1 LNS 21; [1982] 2 MLJ 37, FC). (vi) In Lagenda Kencana Sdn Bhd v. Peter's Holding Sdn Bhd & Anor [2012] 3 CLJ 824, CA; the Court of Appeal ruled that the issue of grave injustice is an important consideration in an application to set aside a consent order. If it can be shown that the said judgment/order had caused grave injustice to the aggrieved party, then such judgment/order may be set aside. (vii) The legal position is settled that where an order of the court has not been regularly obtained, any party is entitled as of right to have it set aside, ie, ex debito justitiae, irrespective of the merits and without any terms. Such power of court is 4 inherent and need not be derived from any statutory provision.” Analysis of the pleadings and undisputed facts 11. In the joint divorce petition, the Plaintiff-wife [“Chan(W)”)] and the Defendant-husband [“Siaw(H))”] entered into a court judgment dated 21.9.2021 (sealed by the court and signed by the parties’ respective solicitors) on mutually agreed terms including: (i) dissolution of their marriage; (ii) the decree nisi shall become decree absolute upon the expiry of 3 months; (iii) joint custody of the children, whereby the female child shall stay with Chan(W), while Siaw(H) has unlimited right of access to the child, and the son who has attained the age of majority shall have the right to make his choice; (iv) joint responsibility for children’s maintenance and education; (v) Chan(W) shall transfer her undivided share in the double storey terraced house at Taman Mutiara Puchong to Siaw(H); (vi) Siaw(H) shall transfer the Hijuan Peteri Condominium to Chan(W) in exchange for payment of RM70,000 by Chan(W) to Siaw(H); (vii) Siaw(H) agreed to sell and Chan(W) agreed to purchase Siaw(H)’s shares in Home Smart Paint & Hardware PLT at a price of RM300,000 and Siaw(H) shall resign as partner of the firm within 7 days; and (viii) no claim for maintenance [see Exhibit “A” to Siaw(H)’s Affidavit-in-Support in Encl. 6 at pdf pages 41 – 46]. 12. By Court Order dated 28.12.2021, the decree nisi dated 21.9.2021 became order absolute [see Exhibit “A” to Siaw(H)’s Affidavit-in- 5 Support in Encl. 6 at pdf pages 39 – 40]. 13. At least some of the terms of the decree nisi dated 21.9.2021 have since been implemented by the parties. These implemented terms included dissolution of marriage, custody of children, joint responsibility for children’s maintenance and education, the resignation of Siaw(H) as partner of the business firm Home Smart Paint & Hardware PLT [para. 5 of Statement in Sessions Court suit; para. 8.5 of Sessions Court suit at pdf pages 70 and 81 in Encl. 6]. 14. After 4 written demands in early December 2021 until early March 2022 for payment of RM300,000 in respect of the shares in Home Smart Paint & Hardware PLT were ignored by Chan(W) [see Exhibit “B” to Siaw(H)’s Affidavit-in-Support in Encl. 6 at pdf pages 48 – 61], Siaw(H) filed the Sessions Court suit to claim for the said RM300,000 plus another amount of about RM37,000 from Chan(W) on 24.3.2022 [Siaw(H)’s Affidavit-in-Support in Encl. 6 at pdf pages 63 – 90] 15. After Siaw(H)’s filing of the said Sessions Court suit to claim for payment of the agreed price for the shares in Home Smart Paint & Hardware PLT, for the first time Chan(W) raised the argument and/or allegation that Siaw(H) misrepresented to her regarding the amount of redemption sum for Hijuan Peteri Condominium being about RM100,000 but it turned out to be RM177,771.02. The redemption payment became RM293,935.56 after Siaw(H) subsequently withdrew about RM111,025.00 as Refund Excess Payment from the housing loan account of the Hijauan Puteri Condominium [para. 12(b) of Siaw(H)’s Reply to Defence in the Sessions Court suit, encl. 6 pdf pages 91 - 92]. 16. In our present suit, as the Decree dated 21.9.2021 has been partly implemented and has become absolute on 28.12.2021, the parties by conduct has affirmed the Decree dated 21.9.2021 or at least a substantial part thereof and therefore neither party can apply to the Court to set aside the entirety of the Decree dated 21.9.2021. 17. Chan(W)’s complaints against Siaw(H)’s alleged misrepresentation as to the redemption sum for the condominium unit and the withdrawal of RM111,025.00 as Refund Excess Payment from the condominium housing account should be subject-matters for counterclaim, set-off, trial and decision in the Sessions Court suit but cannot be the subject-matter for another fresh suit to impugn the 6 entirety of the Decree dated 21.9.2021. Even if Chan(W) thinks it fit to impugn the part of the Decree dated 21.9.2021 pertaining to the consideration for the transfer of Siaw(H)’s share in the condominium to her, it should be the subject of an application to amend or alter that item of the Decree dated 21.9.2021 in the divorce petition proceeding in the Sessions Court and cannot form the ground for challenging the entirety of the Decree dated 21.9.2021 in a new suit in the High Court. 18. In the circumstances of the present case, the Plaintiff/Chan(W)’s case does not fall within any of the exceptional circumstances summarised in Re Yamamoto Ryoji (supra) for setting aside the entirety of the consent judgment in the joint divorce petition. 19. In the premises, it is clear and obvious that Chan(W) suit as pleaded by the Plaintiff coupled with the prayer for setting aside the entirety of the Decree dated 21.9.2021 is obviously unsustainable and is bound to fail. 20. In the circumstances, this is a suitable case for summarily striking out the action under O.18 r.19. 21. In the circumstances here where Siaw(H), subsequent to the date of the Decree dated 21.9.2021, withdrew RM111,025.00 as Refund Excess Payment from the condominium housing account without the prior knowledge or consent of Chan(W), the fair order as to costs is that the costs of this application in Enclosure 5 should be costs in the cause of the issues on alleged misrepresentation and withdrawal of fund to be tried in either the other Sessions Court suit or in another separate proceeding in the Sessions Court, as the case may be. Conclusion 22. In conclusion this Court 8 November 2022 allowed the Defendant’s application in Enclosure 5 and struck out the Plaintiff’s suit with liberty for the Plaintiff to raise and contest the issue of alleged misrepresentation and/or withdrawal of RM111,025.00 in the pending suit by the Defendant/Siaw(H) in the Session Court or by way of a separate suit in the Sessions Court. Each party is to bear his/her own costs of this action and application. 7 23. The value of the amount in dispute in respect of the alleged misrepresentation and the withdrawal from Excess Payment Fund is clearly less than RM1,000,000 and it is not a dispute as to the title of immovable property. As such, any such dispute ought to be filed and decided in the Sessions Court. Dated this : 7h December 2022. Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors: 1. For the Plaintiff : Amila Huda binti Ahmad Messrs Ganesh & Co. (Kuala Lumpur) 2. For the Defendant : See Shu Min Tetuan Chih-Jen & Associates (Kuala Lumpur) 8