A consent judgment can only be set aside under exceptional circumstances; specific performance requires a valid, enforceable contract, which was not established.

[1] Before us are two appeals, namely W-02(NCC)(W)-541-04-2015 (Appeal 541) and W-02(NCC)(W)-547-04-2015 (Appeal 547) and by consent both appeals were heard together.

[2] Appeal 547 is related to a KL High Court Suit No: 22NCC-650-04-2012 where the appellants were the plaintiffs and had sought for an order of specific performance of a joint venture agreement with the 2nd respondent pursuant to a Consent Order dated 28 July 2010 (Consent Judgment) in respect of two pieces of land in Kampung Baru or in the alternative, the Consent Order to be set aside. In the same suit, the respondents counterclaimed for an order that they be released from the obligations of the purported joint venture agreement. The learned High Court Judge dismissed the appellants' claim and allowed the counterclaim of the respondents.

[3] Appeal 541 culminated from a KL High Court Suit No: 22NCC-1471-10- 2012, where the 3rd respondent in Appeal 547, namely Amanah Raya Capital Sdn Bhd, and the respondent in Appeal 541 sued Abdul Razak bin Sheikh Mahmood and his son Kamil Azman bin Abdul Razak, the 1st and 2nd appellants in Appeal 547 and the appellants in Appeal 541 for the principal sum of RM4,259,2017.69 and RM5,380,142.98 payable under the Consent Order. The learned judge in the High Court sustained the claims of the respondent and the 3rd respondent in Appeal 541.

[4] We heard both appeals and after hearing respective counsel we dismissed the same with costs. We now give our reasons for our decision.

[5] In this judgment, parties for ease of reference will be referred to by their respective names and where appropriate the parties will be referred to as appellants and respondents respectively.

Background Facts

[6] Amanah Raya Capital Sdn Bhd had on or about 17 September 2007 and 19 October 2007 granted a loan to the Abdul Razak bin Sheikh Mahmood (Abdul Razak) and Kamil Azman bin Abdul Razak (Kamil Azman) a sum of RM5,000,000.00 each. Kamil Azman had, on or about 19 October 2007, also executed a Guarantee to guarantee the payment to Amanah Raya Capital Sdn Bhd on demand of all sums of money which may be due and owing by Abdul Razak to Amanah Raya Capital Sdn Bhd.

[7] In another suit, namely No: D-22NCC-375-2009 (Suit 375), a Consent Order was entered into between Abdul Razak, Kamil Azman, Kalsombi binti VK Majid and Excel Beat Sdn Bhd with Amanah Raya Berhad, Amanah Raya Capital Sdn Bhd, Amanah Raya Investment Management Sdn Bhd and Amanah Raya Development Sdn Bhd to compromise the claims therein.

[8] In Suit 375, the claim was related to a claim for, among others, breach of trust and purported mismanagement of the plaintiffs' investments by Amanah Raya Investment Management Sdn Bhd (previously known as Amanah Raya - JMF Asset Management Sdn Bhd).

[9] The Consent Order provides inter alia that:

"3. The 1st and 2nd plaintiffs (Abdul Razak and Kamil Azman) agreed that on the maturity date, which the parties hereby agree to be 27 July 2012, the following sums shall be payable to the 2nd defendant (Amanah Raya Capital Sdn Bhd):

(a) the 1st plaintiff (Abdul Razak) shall pay the 2nd defendant (Amanah Raya Capital) the sum of RM4,226,783.05; and

(b) the 2nd plaintiff (Kamil Azman) shall pay the 2nd defendant (Amanah Raya Capital) the sum of RM RM5,339,184.85."

('Loan Payment')

4. In the event that the above payments are notpaid by the 1st plaintiff and/ or the 2nd plaintiff on 27 July 2012 as stipulated, a default interest at the rate of 8% pa., calculated on a daily rest, will be charged on the total amount due and remaining unpa