The High Court possesses jurisdiction to extend time for compliance with a Consent Order without altering its original terms, particularly when delays are due to extraneous circumstances.

JUDGMENT

See Mee Chun JCA:

Introduction

[1] The Respondent (LSS) and the Appellant (OML) were husband and wife. OML had filed a petition to wind up a company, Little Cravings Sdn Bhd (the Company) which was the 1st Respondent with LSS as the 2nd Respondent. The Company owns food and beverage outlets under the brand name of "Nyonya Colours". A Consent Order dated 14 November 2019 (CO) was recorded and the petition to wind up was struck out with no order as to costs.

Application To Amend CO

[2] LSS then filed an application for extension of time for a period of one month to comply with para 2(i) of the CO The application was allowed by the learned High Court Judge (HCJ).

Appeal To The Court Of Appeal

[3] OML filed an appeal against the decision of the HCJ. We dismissed the appeal and our reasons are as follows.

Decision Of HCJ

[4] The HCJ found he had the necessary jurisdiction under O 3 r 5 of the Rules of 2012 (RC 2012) to allow the amendment. It was held the determination to allow the extension was after having taken into consideration the circumstances that had caused the delay of the transfer and the conduct of parties. It was further stated the settlement will fail if the extension of time is not granted. The extension of time would give efficacy to the CO; facilitate the completion of the settlement and was not intended to alter, vary or amend the CO Refer to paragraphs (a) to (e) of the findings of the Court (RCB/15-17).

Submissions Of The Appellant

[5] It was submitted that parties are bound by the CO which is a contract in nature, thereby leaving no room for LSS to seek any extension of time. Any extension of the agreed time frame has the effect of altering, varying or amending the CO The High Court is functus officio and has no jurisdiction to entertain the application. Further, there is no liberty to apply clause. The delay was caused by LSS who should not be allowed to benefit from his own wrong. Lastly it was said there is a liquidated damages clause in the CO

Submissions Of The Respondent

[6] On the other hand, it was submitted by the Respondent that the High Court has the power to extend time pursuant to O 3 r 5, O 42 r 6(1) read together with O 45 r 6(1) and O 92 r 4 RC 2012. The extension being sought is for the sole purpose of giving efficacy to the CO to complete the settlement by both parties. The High Court is not functus officio where a liberty to apply clause can be implied to give effect to the CO The delay was in fact not attributed to LSS, but rather to OML. The liquidated damages clause was never raised in the High Court and in any event, is not relevant as the default was on the part of OML.

Our Decision The CO

[7] In order to understand the nature of the application, the relevant terms of the CO are set out. Under the Terms of Settlement in Appendix A of the CO (RCB/7-8), the parties agreed as follows:

"TERMS OF SETTLEMENT

SETTLEMENT SUM

(1) Ong Mei Lean, the petitioner ("OML"), shall pay a total settlement sum of RM21 million ("the Settlement Sum") to Loh Sim Seng ("LSS").

(2) The Settlement Sum shall be satisfied by OML in the following manner:

(i) the lands held under GM 1710 Lot 511 and GM1110 Lot 512 both at Mukim Jeram Batu, Negeri ("Johor Lands") with a total market value of RM10.62 million shall be redeemed by the 1st Respondent, Little Cravings Sdn Bhd ("Company") and transferred to LSS free from all encumbrances within 2 months from the date of the Consent Order or such extended time as may be mutually agreed upon between OML and LSS;

(ii) OML shall upon the transfer of the Johor Lands pay to LSS a sum of RM2.1 million in cash;

...

LSS OBLIGATIONS

(4) LSS will immediately take steps to cause the Company to redeem the Johor Lands which should be completed within 2 months from the date of Consent Order or such extended time as may be mutually agreed upon between OML and LSS. LSS shall on the date of the Consent Order cause the Company to write to the relevant financier to seek the redemption statements in respect o