A perfected consent judgment cannot be set aside as the court becomes functus officio, and any delay in filing an application to set aside is deemed an abuse of process.

JUDGMENT

Akhtar Tahir J:

Introduction

[1] The Defendant applied to set aside a consent judgment which was recorded with the Plaintiff on 4 February 2016. This application is made by virtue of O 1A, 3(5), 41(13) and 92(4) of the Rules of 2012 ("the Rules").

Background

[2] The dispute between the Plaintiff and the Defendant is with regards to a 2-storey bungalow held under the title HS(D) 64555, Lot No. PT 38591, Kuala Lumpur having the residential address of No. 22 Jalan Tualang Bukit Bandaraya, Kuala Lumpur ("the property").

[3] The Plaintiff in this civil suit filed against the Defendant, one of her 5 children, is for a Declaration that the Defendant holds this property as a trust for the Plaintiff by virtue of a Trust Deed and a Power of Attorney both dated 29 September 2010.

[4] This trust was created to register the property in the name of the Defendant, in order for the Defendant to obtain a loan from the Standard Chartered Bank to finance his business. The transfer of the property from the Plaintiff to the Defendant was on the basis of natural love and affection without any consideration being paid.

[5] The property was charged to the Standard Chartered Bank as a security for a loan taken by the Defendant. The Plaintiff in order to secure her interest over the land had lodged a private caveat over the property.

[6] The Defendant had sometime in September 2014 had filed an Originating Summons to remove the private caveat lodged by the Plaintiff. In the Originating Summons the Defendant contended that the Plaintiff had lodged the private caveat unlawfully to prevent him from selling the property.

[7] The Plaintiff by way of this suit wanted an order from the Court that in the event the property is sold by the Defendant or the Bank as a chargor in the event of default of payment of the instalments by the Defendant, any balance sum remaining of proceeds of the sale be given to her.

[8] This civil suit was settled by way of a consent judgment recorded by the Court on 4 February 2016 in the presence of counsels for both the Plaintiff and the Defendant.

[9] Amongst the terms of the consent judgment were that the Defendant was to sell the property within a year upon a prior written consent given by the Plaintiff at a price agreed by the parties. The proceeds of sale would be after deducting the sums owing to the Bank, be distributed by the Defendant being given a sum of RM1.8 million ("the settlement sum") and the balance of the proceeds to be given to the Plaintiff.

[10] The additional terms of the consent judgment was that if the Plaintiff paid the settlement sum before the sale of the property the Defendant upon receiving the settlement sum would transfer the property to the Plaintiff after which all sums due to the Standard Chartered Bank will be paid by the Plaintiff.

The grounds of the application to set aside the consent judgment

[11] The Defendant after 9 years applies to set aside the consent judgment on the ground that both the Trust Deed and Power of Attorney relied upon by the Plaintiff in obtaining the consent judgment purportedly executed between the Plaintiff and the Defendant was forged as the Defendant had never executed such a document.

[12] The fact that both these documents were forged was decided by the Disciplinary Board of the Bar Council on 12 January 2017. The decision of the Bar council was upheld by both the High Court and the Court of Appeal.

[13] Another ground in applying to set aside the consent judgment is that the Plaintiff had failed to pay the monthly instalments resulting in the Standard Chartered Bank applying to auction off the property.

[14] Another ground for applying to set aside is the non-cooperation from the Plaintiff in agreeing to give a written consent on the price to sell the property and finally the Defendant alleges that the rentals paid by the tenants of the property were unlawfully collected by the Plaintiff without his knowledge or approval.

[15] The Court decided this case after con