Consent orders are binding on parties properly represented, and frustration cannot be claimed if non-performance is deliberate.

The Background

[1] This appeal has been brought against the order of the High Court at Kuala Terengganu granting a declaration that certain paragraphs of a consent order made in earlier proceedings between the appellant and the second, third and fourth respondents are no longer binding on the respondents. To appreciate the issues raised in this appeal, it is necessary to recite the factual background against which this appeal rests.

[2] The appellant was at all material times the sub-lessee of certain lands ("the said land") in Kerteh, in the state of Terengganu. The exact area of the said land is uncertain, as it has not been surveyed. But it is not in dispute that it is between 15000 and 20000 acres. In the years 1984 and 1986, the Government of the state of Terengganu acquired some 3132 acres of the said land under eight notifications published in the gazette. We will, for convenience refer to these 3132 acres as "the acquired lands". The appellant objected to this acquisition and its objection was, in the usual way, referred to the High Court under the provisions of the Land Acquisition Act 1960 . In the meantime the appellant took out an originating summons No 21(24)-87-94 ("the first action") challenging the acquisition of the acquired lands. The second, third and fourth respondents were cited as defendants in the first action. The state legal adviser represented them.

[3] Following negotiations between the appellant's solicitors and the state legal adviser, the first action was compromised. On 17 November 1991, counsel for the disputants appeared before the judge at the High Court at Kuala Terengganu and recorded the agreement between them in the form of a consent order ("the said consent order"). It contains fourteen paragraphs. They read as follows:

(1) The Menteri Besar, Terengganu, within the meaning of the Menteri Besar (Incorporation) Enactment 1951 (hereinafter called the said Menteri Besar) shall surrender or cause to be surrendered all the Concession land known as the Kerteh Concession, in the District of Kemaman, in the State of Terengganu (hereinafter referred to as the said Kerteh Concession) to the State Authority of Terengganu (hereinafter called the said State Authority), through the Pengarah Tanah dan Galian, Terengganu (hereinafter called the said Pengarah Tanah dan Galian); the said Kerteh Concession comprising of:

(a) all that Concession known as the Kerteh Concession in the Mukim of Kerteh in the District of Kerteh, Terengganu granted by His Royal Highness, the Sultan of Terengganu to the late Tungku Musa bin Tungku Sulaiman.

(b) All that the three (3) Leases dated 16th day of Rabial Akhir 1326 (corresponding to 27th day of April 1909) of 3,500 acres for 99 years; 8th day of Sha'aban 1328 (corresponding to 14th day of August 1910) of an additional area of 3,500 acres for 99 years; and 8th day of Zulakaedah 1329 (corresponding to 30th day of August 1911) of approximately 180 acres for, 99 years of Portions of the said Kerteh Concession from the late Tungku Musa bin Tungku Sulaiman to the East Asiatic Company Limited and the vesting of all the rights interest, title thereof by the said East Asiatic Company Limited to the East Asiatic Industry and Plantation Company Limited by an Agreement made in 1919 and the transfer and/or assignments of the residue then unexpired thereof to the plaintiff, then known as Yee Seng Plantations Limited and now known as Yee Seng Plantations Sdn Berhad by an Indenture dated 16 June 1966.

(c) Two (2) Leases dated 8th day of Sha'aban 1328 (corresponding to the 14th day of August 1910) of 3,500 acres for 99 years and 15th day of Jamudilak