PEMPETISYEN Tarani a/p Chellapah Danesh Kumar a/l Kanason

PEMPETISYEN Tarani a/p Chellapah Danesh Kumar a/l Kanason

The Consent Order recorded after mediation was final and conclusive under s76 and established authorities; the respondent failed to come within exceptions permitting variation or setting aside (no fraud, no new evidence that could not have been adduced, was represented at mediation), the challenge was an afterthought and abuse of process, and variation of property division after decree nisi made absolute is impermissible; therefore the strike out application succeeds and the set aside application is struck out.

Citation
WA-33-79-02/2018 (Mahkamah Tinggi)
Parties
Petitioner: Tarani A/P Chellapah; Respondent: Danesh Kumar A/L Kanason
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 September 2022
Case Number
WA-33-79-02/2018 (Mahkamah Tinggi)
Procedural Posture
Divorce Petition / Interlocutory — Application to Strike Out and Application to Set Aside; Judgment Delivered
Outcome
Application to strike out allowed; Application to set aside struck out
Legal Topics
Consent Order, Striking Out, Variation of Consent Order, Matrimonial Asset Division, Section 76 Law Reform (marriage & Divorce) Act, Abuse of Process, Estoppel, Res Judicata
Source Language
Malay/English
Family Law Civil Procedure Property Law Consent Order Striking Out Variation of Consent Order Matrimonial Asset Division Section 76 Law Reform (marriage & Divorce) Act +3 more

Case Brief

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Parties

Tarani A/P Chellapah

Petitioner

Danesh Kumar A/L Kanason

Respondent

Procedural Posture

Divorce Petition / Interlocutory — Application to Strike Out and Application to Set Aside; Judgment Delivered

Legal Issues

  1. 1 Whether the consent order recorded after mediation can be set aside or varied
  2. 2 Whether the respondent's application to set aside is an abuse of process and estopped
  3. 3 Whether post-decree valuation justifies revisiting division of matrimonial assets under s76

Ratio Decidendi

The Consent Order recorded after mediation was final and conclusive under s76 and established authorities; the respondent failed to come within exceptions permitting variation or setting aside (no fraud, no new evidence that could not have been adduced, was represented at mediation), the challenge was an afterthought and abuse of process, and variation of property division after decree nisi made absolute is impermissible; therefore the strike out application succeeds and the set aside application is struck out.

Court Disposition

Application to strike out allowed; Application to set aside struck out

Orders

  • Application to strike out allowed with costs
  • Application in enclosure 76 to set aside/vary the Consent Order struck out as baseless, unsubstantiated and an abuse of process