Preamble

This Notice of Motion (Enclosure 20) is an application before me by two opposing contributories, namely Lee Lay Leng and Lee Lay Wee (the Applicants) seeking to set aside the

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consent order dated 18 April 2000 be set aside with costs to be borne by the Petitioner.

Briefly the background facts of this case show that the Petitioner presented a petition to wind up the Respondent pursuant to section 218(1) of the Companies Act 1965. The petition was contested by the Respondent and 6 Opposing Contributories including the Applicants. However, parties reached an amicable settlement and a consent order was recorded on 18 April 2000 before Mr. Justice Dato' Haji Ghazali bin Mohd Yusoff (as he then was), inter alia, allowing the Petitioner to withdraw the petition with liberty to file afresh and providing for the sale of certain assets held by the Petitioner to the Respondent and the Opposing Contributories.

The consent order has yet to be perfected.

The application

The Applicants' subsequent objection to the consent order dated 18 April 2000 is limited to prayer 4 therein. The relevant

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portions of the said consent order are reproduced below for ease of reference:

"... IT IS HEREBY ORDERED BY CONSENT as follows:-

d) ...

(4) The Opposing Contributors shall jointly and severally purchase the Assets from the Petitioner at the total purchase consideration of Ringgit Malaysia Ten Million (RM 10,000,000.00) only (hereinafter referred to as the 'Purchase Price') and shall pay the Purchase Price in the following manner:

(a) Ringgit One Million Five Hundred Thousand (RM1,500,000.00) (hereinafter referred to as the 'Deposit') shall be paid by the Opposing Contributors to the Petitioner on or before 18th June 2000; and

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(b) the balance of Ringgit Eight Million Five Hundred Thousand (RM8,500,000.00) (hereinafter referred to as the 'Balance Sum' shall be paid within thirty (30) months from 18th June 2000 in five (5) equal installments of Ringgit One Million Seven Hundred Thousand (RM1,700,000.00), the first installment to be paid on or before the 18th day of each sixth month,

until full payment of the Purchase Price." The application is premised on 2 grounds:

(i) that Applicants had not authorised their solicitor to enter into any consent order with the petitioner; and

(ii) that the Court had no jurisdiction to grant the consent order.

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It is noteworthy that neither the Respondent nor any of the other Opposing Contributories have any objections to this application.

First ground

The Applicants were represented by the same solicitor who appeared for the Respondent and the other Opposing Contributories in the winding up proceedings.

The Applicants averred that their instruction to the solicitor was limited; merely to opposing the winding up petition. At no time was the solicitor authorised to enter into any consent orders.

I find that this issue is without substance and doomed to failure in the face of evidence to the contrary and the fact that negotiations among all the parties took place over a period of 3 days. Indeed, there is no affidavit from the Applicants' former counsel, solicitor, Respondent or other Contributories as to the lack of authority.

The Applicants' complaint of alleged lack of authority of their counsel and solicitor is without substance, as there is no

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affidavit from their counsel, solicitor, Respondent or other contributories as to the lack of or for misapprehension of his authority. (See Lewis v. Lewis (890) 45 Ch.D. 281.) And, the fact that negotiation took place over a period of 3 days clearly showed that all the contributories had authorised their counsel and solicitor to negotiate and conclude a settlement. Counsel and solicitor in the ordinary course of their retainer have the power to enter into compromise or settle disputes. (See Sourendra Nath Mitra and Others v. Tarubala Dasi [1930] 57 Indian Appeals 133 at pages 138, 139-140, 141, 142 per Lord Atkin; Teh Eok Kee & Anor v. Tan Chiah H