A Defendant's failure to comply with a Consent Judgment can result in committal proceedings, even absent a penal notice on the order, emphasizing the court's authority to enforce compliance.

[1] This is the Plaintiff's Notice of Application ("Application") under O 52 of the Rules of 2012 (" ROC ") for an Order of Committal against the Defendant for non-compliance with and failure to comply with the Consent Judgment dated 22 October 2011 (" or the Consent Order") which was previously granted by the Kuala Lumpur High Court.

Brief Facts

[2] On 22 October 2011 a Consent Judgment was recorded by the Court for the dispute between the Plaintiff and Defendant in this action as follows:

(a) The Defendant is required to redeem the property known as No. 43, Jalan Manja 5, Villa Manja, Sunway SPK Damansara, Bandar Manjalara, Kuala Lumpur ("the Property") from Ambank (M) Berhad ("Ambank"); and

(b) the Defendant is required to complete the transfer of title within the period of 12 months from the date of the Court Judgment.

[3] By way of a background, the Plaintiff, an Indonesian national, had previously appointed the Defendant, as his trustee, to buy the Property from the Developer, Sunway Homes Sdn. Bhd., with cash of RM2,376,000.00 (exhibit MSA-1 of Plaintiff's Statement in enclosure 28 for Application for leave in enclosure 27). The Defendant was required to transfer the title of the Property to the Plaintiff. On 5 December 2008 the Defendant entered into a Sale and Purchase Agreement with the Developer and purchased the Property in his name for RM2,376,000.00. The Defendant later charged the property to Ambank for loan facilities and failed to take any steps to transfer the title of the Property to the Plaintiff.

[4] The Plaintiff was shocked when he discovered that the Property was to auctioned off by Ambank on 22 August 2013. Vide Civil Suit No. 22NCVC-492-08/2013 in the Kuala Lumpur High Court, the Plaintiff obtained an ex parte injunction on 21 August 2013 (enclosure 2) and subsequently, after inter-partes hearing on 4 September 2013 (enclosure 00), a Consent Order for an injunction against Ambank, the 1st Defendant therein, to stop the auction of the Property by Ambank until the outcome of the committal proceedings in the present case. The Plaintiff stated that the Defendant had failed to comply with the terms of the Consent Judgment and until the day of the committal proceedings, the Defendant still had not transferred the Property to the Plaintiff.

Court's Decision Given On 17 October 2013 Regarding Enclosure 31

[5] The Application of the Plaintiff is allowed. The Court has found that the Defendant has not complied with the Consent Judgment dated 22 October 2011 and therefore liable to committal proceedings. The Court orders that the Defendant pays a fine of RM100,000.00 in default 7 months' imprisonment. Costs of RM5,000.00 are to be paid by the Defendant to the Plaintiff forthwith.

Grounds For The Court's Decision

[6] Counsel for the Defendant submitted that this Application ought to be dismissed on the main ground that the Consent Order dated 22 October 2011 that was served on the Defendant was not endorsed with a penal notice. This is contrary to O 45 r 7(4)(a) of the ROC which makes it mandatory for the penal notice to be given. He relied on Tiger Powerhitz Sdn Bhd v. Guinness Anchor Marketing Sdn Bhd , , M Cheng Construction Sdn Bhd v. Hasman Jalil & Anor; and a previous decision given by me in Tan Bee Ang v. Siew Chee Choong .

[7]Order 45 r 7(1), (2), (3) and (4)(a) of the ROC provide:

"Service of copy of judgment or order prerequisite to enforcement under rule 5 (O 45, r 7)

7.(1) In this rule, references to an order shall be construed as including references to a judgment.

(2) Subject to O 26, r 7(3), and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless:-

(a) a copy of the order had been served personally on the person required to do o