Consent Judgments can only be varied by consent of all parties, and allegations of breach of natural justice and conflict of interest require further investigation at trial.

Ruling

[1] Enclosure (13) is the Defendant's application to strike out the Plaintiff's writ and Statement of Claim.

[2] Enclosure (11) is the Defendant's application to set aside the interim in junction that was granted by this court on 30 May 2013.

Background Facts

[3] The Plaintiffs and the Defendants in this present suit had recorded a Consent Judgment on 22 October 2012 with regards to suit 22NCC-695-05/2012 ("695 Suit").

[4] The terms of the Consent Judgment are as follows:-

(i) Pihak-pihak telah bersetuju untuk menyelesaikan perkara ini. Pihak Defendan bersetuju untuk membayar wang RM400,000/- sebagai bayaran principal bagi sijil 16, 17, 18 dan 19 secara ansuran. Ansuran pertama sebanyak RM100,000/- akan dibayar pada atau sebelum 29 October 2012 dan baki bayaran sebanyak RM300,000/- akan dibayar secara 15 ansuran dengan setiap ansuran dibayar sebanyak RM20,000/- sebulan bermula dari 15 November 2012 sehingga 15 January 2014;

(ii) Pihak Defendan juga bersetuju membayar wang retensi sebanyak RM547,682.30 secara ansuran. Setiap ansuran adalah sebanyak RM50,000/- dibayar setiap bulan dari 1 June 2013 hingga 1 March 2014 dan baki 47,682.30 akan dibayar pada 1 April 2014;

(iii) Jika salah satu bayaran tidak dibayar pada masa yang ditetapkan, keseluruhan baki bayaran dikehendaki dibayar dengan serta merta.

[5] On 23 May 2013 the Plaintiff filed this present action to vary or set aside the Consent Judgment dated 22 October 2010.

[6] The Plaintiff submitted that there was a breach of natural justice by Messrs G Gunaseelan & Associates of r 3 and or 4 and or 5 of the Legal Profession Act (Practice & Etiquette) 1978.

[7] In relation to this, the Plaintiff contended that Messrs G Gunaseelan & Associates were the solicitors of the 1st Plaintiff in the drafting of the Novation Agreement between the 1st Plaintiff, the Defendant and That Seng Construction Sdn Bhd.

[8] Vide encl (3) the ex-parte Plaintiff filed an interim in junction to prohibit the Defendants (the Plaintiff in 695 Suit) from demanding and/or to execute the Consent Judgment pending the disposal of this suit.

[9] Vide encl (11) the Defendant filed an application to set aside the ex-parte interim in junction.

Decision

(i) Liability Of The 2nd Plaintiff

[10] In gist the Defendant contended that a Consent Judgment can only be varied by consent of all parties, and the Defendant hereby categorically refuses to any variation of the Consent Judgment dated 22 October 2012.

[11] In relation to this, learned counsel for the Defendant argued that the Consent Judgment recorded was after a thorough negotiation by both the Plaintiffs and Defendant, both of whom were advised by their respective lawyers. It is the Defendant's case that they had foregone some of their strict claims under their original statement of claim in case No. 22 NCC-695-05/2012 in order to facilitate an amicable settlement, in particular, the Defendant had originally claimed more than RM1.3 million but had finally agreed to receive only RM947,682.30 by way of periodic payments.

[12] Learned counsel for the Defendant submitted that it is totally unjust to the Defendant to allow the Plaintiffs to unilaterally remove an important component of the Consent Judgment without any other compensation.

[13] Learned counsel for the Defendant contended that the Consent Judgment was entered willingly with the advice of the Plaintiff's own Solicitors.

[14] However, based on the affidavits filed by the parties, in my view the Plaintiff has raised a bona fide triable issue of whether the 2nd Plaintiff has agreed to be personally liable to pay the sum of RM400,000.00 under the Consent Judgment or it is to be paid by the 1st Plaintiff.

[15] Thi