The court asserted that consent orders impacting case management must prioritize judicial efficiency, rejecting any agreements that obstruct the timely progress of related proceedings.

Su Tiang Joo JC:

Query - Under the regime of pre-trial case management where the court no longer left it to the parties to move litigation at their own pace, can the court disallow an agreement to be recorded by way of a consent order for a part of third-party proceedings to be stayed and the effect of which, is likely to impede the resolution of the action as a whole?

Introduction

[1] The Federal court in Syed Omar Syed Mohamed v. Perbadanan Nasional Berhad , [2012] 9 CLJ 557 held that under O 34 of the Rules of High 1980 (and with effect from 1 August 2012, the Rules of 2012 or "ROC") the court no longer left it to the parties to move the litigation at their own pace but assumed the role of setting the time-table for the progress of the case (see para [8] of Syed Omar) and this provided a radical change in approach to the prosecution of a case in court (see para [9] of Syed Omar).

[2]Order 34 ROC contains a non-obstante clause to the effect that notwithstanding anything in the ROC, the court may inter alia at any time after the commencement of proceedings, of its own motion, make such order or give such directions as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

Decision Leading To An Appeal To The court Of Appeal

[3] On 9 May 2022, this court disallowed a draft consent order (encl 125) to be recorded and dismissed the 3rd Third Party's application (encl 115) which, if allowed, would have the effect of staying the defendants' Third Party proceedings in this action against the 3rd Third Party to await the disposal of the civil suit in High court in Sabah and Sarawak Civil Suit No: BKI- 23NCVC-3-8-2022 ("KK Suit").

[4] The main reason for the decision made by this court was that if the Third Party proceedings against the 3rd Third Party were to be stayed pending the resolution of the KK Suit, the progress of this action would most probably be impeded. In other words, in my considered opinion, allowing it would not secure the just, expeditious and economical disposal to the action before this court.

[5] Dissatisfied with this decision, the 3rd Third Party appealed, and this is the ground of judgment.

Background Facts

[6] At the time when the 3rd Third Party's application (encl 115) dated 7 January 2022 was filed, the following inter alia events had taken place in this action:

i) 1 April 2020: Malayan Banking Berhad, the plaintiff filed this action against the three defendants ("D1, D2 and D3") in the High court in Malaya at Kuala Lumpur;

ii) 4 June 2020: All three defendants entered appearance;

iii) 24 June 2020: The defendants filed an application (encl 8) to have the action transferred to the High court in Malaya at Ipoh;

iv) 1 July 2020: The defendants took out a Third Party Notice (encl 10) seeking contribution and indemnity from: (a) DSE Construction Sdn Bhd ("1st Third Party"); (b) Ho Hup Construction Company Bhd ("2nd Third Party"); and (c) Pembinaan Azam Jaya Sdn Bhd ("3rd Third Party");

v) 3 July 2020: The plaintiff filed an application (encl 11) seeking to have summary judgment entered against the three defendants;

vi) 6 July 2020: The defendants filed their Defence and Counterclaim (encl 15);

vii) 7 July 2020: By consent, Ahmad Fairuz Zainol Abidin J ordered for this action to be transferred to the High court at Ipoh;

viii) 21 July 2020: The 1st Third Party entered appearance (encl 22);

ix) 22 July 2020: The 2nd Third Party entered appearance (encl 23);

x) 13 August 2020: The 3rd Third Party entered appearance (encl 24);

xi) 20 October 2020: The defendants took out a Notice for Third Party Directions (encl 27);

xii) 11 November 2020: This court gave directions for the Third Party proceedings;

xiii) 18 November 2020: The plaintiff filed an application (encl 30) to strike out the defendants' Counterclaim;

xiv) 23 December 2020: The 3rd Third Party filed its Defence to D2 and D3's Claim (encl 44);

xv) 11 March 2021: The 3rd Third Party filed its Defence to D1'