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2025 MarsdenLR 6139
HIGH COURT MALAYA KUALA LUMPUR
N2N CONNECT BERHAD & ORS – Appellant
Versus
AHAMD ASHRAF AZMAN & ORS – Respondent
[Originating Summons No: WA-24NCvC-1576-04/2024]
A consent judgment cannot be challenged through an Originating Summons; proper recourse is to appeal the decision to the Court of Appeal, as the court lacks jurisdiction to review its own prior decisions.
Headnote:(A) Civil Procedure - Jurisdiction - Consent Judgment - Plaintiffs sought to set aside a consent judgment through an Originating Summons instead of an appeal to the Court of Appeal - Court found it lacked jurisdiction to hear the matter and ordered the action struck out. (Paras 6, 14, 16)
(B) Consent Orders - Grounds for Setting Aside - Consent orders may be set aside on grounds such as fraud, mistake, or vitiation of consent - The Plaintiffs' grounds were atypical and related to a judicial decision rather than conduct of the opposing party. (Paras 7, 9, 10)
Facts of the case:
Plaintiffs filed an action to set aside a consent judgment from a previous civil suit, claiming errors made by the judicial commissioner in approving the judgment. The consent judgment was disputed due to disagreements over its terms.
Findings of Court:
The court found it had no power to review the decision made by the judicial commissioner and that the correct procedure would have been to appeal the decision to the Court of Appeal.
Issues: Whether the court had jurisdiction to hear the application to set aside the consent judgment and the proper procedure for challenging a judicial decision.
Ratio Decidendi: The court emphasized that the Plaintiffs should have appealed the judicial commissioner's decision rather than filing an Originating Summons, which was outside the court's jurisdiction.
Result: Plaintiffs' action struck out.
Introduction
[1] A certificate of urgency was filed by the Plaintiffs seeking an early hearing date. Due to the vacancy of the bench in High Court at Kuala Lumpur NCvC 10 where the Originating Summons in this action was docketed, it was fixed for hearing in my Court (NCvC 9) on 11 March 2025. Based on the atypical facts of the case concerning a "consent judgment", I decided that this Court has no power to hear the Plaintiffs' application and that they ought to have filed an appeal to the Court of Appeal instead of filing an Originating Summons at the Civil Division of the High Court at Kuala Lumpur. For that reason, I decided that this Court ought to order the Plaintiffs' action to be struck out.
Background Facts
[2] There was a civil suit filed by the Plaintiffs in the IP Division of this Court, registered as Kuala Lumpur High Court Civil Suit No: WA-22IP-16-03/2021 ("IP Suit No 16").
[3] In IP Suit No 16, the Plaintiffs pleaded copyright infringement and breach of confidential information. There was an Anton Piller Order issued by the High Court on 2 April 2021 but it was subsequently set aside by the Court of Appeal. I need not delve into this as it is irrelevant for the purpose of dealing with the Plaintiffs' action in this Court. Instead, I shall set out the chronology of material events at the IP Court (based on the Plaintiffs' affidavit) prior to the filing of this action by the Plaintiffs, as follows:
1 March 2024: Parties attend mediation in IP Suit No 16 before YA Azlan bin Sulaiman JC (as His Lordship then was). Broad terms of settlement was recorded by His Lordship on this date.
7 March 2024: The Plaintiffs' solicitors send their first Draft Consent Judgment to the Defendants' solicitors.
8 March 2024: The Defendants' solicitors respond with their Amended Draft Consent Judgment.
14 March 2024: The Plaintiffs' solicitors inform the Defendants' solicitors that most of the amendments made in the draft Consent Judgment are not agreeable to the Plaintiffs.
15 March 2024: The Defendants' solicitors write to the Court, stating that parties cannot agree on the terms and request a session with YA Azlan Sulaiman for clarification/settlement of issues.
18 March 2024: Counsel of both sides appear before YA Azlan Sulaiman for case management. His Lordship informs counsel that he shall look at both versions of the draft Consent Judgment.
20 March 2024: The Plaintiffs' solicitors write to the IP Court, explaining their disagreement with the Defendants' amendments.
21 March 2024: The IP Court emails both firms of solicitors, informing that the Defendants' version of the Amended Draft Consent Judgment has been approved by His Lordship.
22 March 2024: The Plaintiffs' solicitors write to the IP Court reiterating no consensus ad idem, and to the Defendants' solicitors requesting them to withhold filing the draft Order.
25 March 2024: The Plaintiffs' solicitors revert with an amended version of the "Defendants' "Approved' Draft Consent Judgment".
27 March 2024: Defendants' solicitors write to the IP Court, requesting the Judge allow their version and to disregard the Plaintiffs' amendments.
29 March 2024: A Case Management session was conducted by YA Azlan Sulaiman. His Lordship decided that, based on His Lordship's review of an audio-visual recording, save for one deletion to be made in para 2(b)(ii) of the Defendants' Draft Consent Judgment, it is to be accepted as the consent judgment of the parties.
4 April 2024: The Defendants' solicitors send a clean draft of the Consent Judgment for the Plaintiffs' approval. The Plaintiffs declined to approve the same.
15 April 2024: The Defendants' solicitors serve on the Plaintiffs' solicitors a sealed Consent Judgment.
26 April 2024: The Plaintiffs' solicitors filed an Originating Summons in the Civil Division of this Court to commence this action to set aside the "Consent Judgment".
The Plaintiffs' Prayers In The OS
[4] The Plaintiffs' prayers in this action are as follows:
1. Satu pengisy
