Implied terms in contracts must be necessary for business efficacy and cannot contradict express terms; Consent Orders are binding and cannot have terms implied without clear legal basis.

JUDGMENT

S Nantha Balan JCA:

Introduction

[1] This is an appeal by Ling Boon Huat (defendant in the High Court). The respondent in the appeal is Ding Toh Biew (plaintiff in the High Court). For convenience, we shall refer to the appellant and respondent as "defendant" and "plaintiff". The defendant's appeal is directed at the decision of the learned Judge of the High Court at Ipoh dated 24 February 2023 in allowing the reliefs sought by the plaintiff per the Originating Summons dated 18 August 2022 ("the OS"). The prayers in the OS read as follows:

1. That either one of the following firms below be appointed to prepare a valuation report to ascertain the market value of the land held under Pajakan Negeri 104836, Lot 34919, Mukim Sitiawan, District Manjung Perak with a postal address at No 31, Taman Ilmu, Sitiawan ("Property") as of the date of this order;

1.1 Messrs Muthu and Lee;

1.2 Messrs Rahim & Co International Sdn Bhd; and

1.3 Messrs JB Jurunilai Bersekutu Sdn Bhd.

2. That the costs/fees of engagement of the Court-appointed valuer to prepare a new valuation report be borne by the defendant;

3. An order that if the Property is valued at a sum higher than RM600,000.00, the differential sum between the sum so valued and the sum of RM600,000.00 be forthwith repaid by the defendant to the plaintiff;

4. Costs; and

5. Further and/or other reliefs that this Honourable Court deems fit.

The Issue

[2] The issue that arises for consideration in this appeal is whether, vis-à-vis the Consent Order which was recorded between the plaintiff and defendant in Ipoh Sessions Court Application for Execution No: AA-56-WS-30-12-2015 on 6 February 2017 by which the Property was to be sold/transferred by the plaintiff to the defendant, based on the purchase consideration of RM600,000.00, a term should be implied that the Property should be re-valued to reflect the current market value and that the defendant is to pay the difference, in the event the valuation is higher than RM600,000.00.

Background Facts

[3] The Property is a shophouse. The defendant was the tenant of the Property whilst the plaintiff was the landlord. In 2006, the plaintiff commenced an action against the defendant, in Ipoh Sessions Court Suit No: 52-1571-2006 ("Sessions Court Suit") for breach of a Tenancy Agreement dated 5 November 2003 entered into between the defendant and the plaintiff ("Tenancy Agreement"). Under the Tenancy Agreement, the defendant had agreed to rent the Property at a monthly rent of RM1,500.00 for three (3) years.

[4] The Sessions Court Suit was allowed. The defendant appealed to the High Court against the Sessions Court Judgment, vide Ipoh High Court, Civil Appeal No: 12BNCVC-132-10-2011. Subsequently, after negotiations between parties, a Consent Order dated 23 March 2015 was entered into between parties on the following terms ("2015 Consent Order"):

a. The Property was to be sold to the defendant, with the purchase price to be assessed by a Court-appointed licensed valuer;

b. The defendant was to pay the plaintiff a sum of RM40,500.00 and rent of RM1,500.00 per month calculated from 1 May 2006 until full settlement thereof;

c. The defendant to pay interest of 8% per annum from 27 June 2006 until the full settlement of the total judgment sum; and

d. Parties to bear their respective costs of the appeal.

[5] Pursuant to the 2015 Consent Order, Messrs Jordan Lee & Jaafar Sdn Bhd ("Messrs JLJ") was appointed to prepare a valuation report of the Property in 2015. The report prepared by Messrs JLJ on 8 September 2015 ("2015 Report") valued the Property at RM600,000.00 as at September 2015.

[6] Notwithstanding the preparation of the 2015 Report, the defendant did not comply with the terms of the 2015 Consent Order. He failed to pay any part of the judgment sum and the interest. The plaintiff therefore commenced execution proceedings against the defendant in respect of the 2015 Consent Order, in Ipoh Sessions Court, Execution Application: AA-56-WS-30-12-2015.

[7] The defendant once