Back
2011 MarsdenLR 1904
COURT OF APPEAL, PUTRAJAYA
LAGENDA KENCANA SDN BHD – Appellant
Versus
PETERS HOLDINGS SDN BHD & ANOR – Respondent
[Civil Appeal No: B-02(IM)-2379-2010]
Consent orders cannot stand if executed without proper authority, particularly where grave injustice to the uninformed party is evident.
Headnote:(A) Rules of the High Court 1980 - Order 64 r 1 - Limitation Act 1953 - Consent order - Validity - Appellant claimed withdrawal of action was unauthorized due to dissolution of prior representation firm - Court emphasized that knowledge of solicitors is attributed to clients and consent orders must carry mutual agreement - Grave injustice deemed caused by the consent order not reflecting true intention of appellant. (Paras 10, 13, 22, 23)
(B) Authority of Counsel - Consent orders - Can be set aside if executed without party's authority - Grave injustice considerations allow courts to set aside even sealed orders - Judicial discretion maintained in cases indicating a lack of legitimate consent. (Paras 11, 12, 20, 21)
Facts of the case:
The appellant initially filed for breach of duty and the subsequent withdrawal, conveyed by a dissolved firm, raised questions regarding authority and consent. The withdrawal was recorded without the appellant's true consent, hindering their ability to refile due to statute limitations (Paras 6-8).
Findings of Court:
The Court found the consent order invalid since it lacked proper authority and adversely affected the appellant's legal rights; the order was to be set aside (Paras 24).
Issues: The primary concerns were whether the consent order was valid given the dissolution of representation, and whether its retention would lead to grave injustice (Paras 6-8, 22-23).
Ratio Decidendi: The Court ruled that consent orders depend on valid representation; without proper authority, such orders are subject to challenge. The appellant's rights were crucial, and retaining the order would serve to unjustly prejudice them (Paras 13-22).
Result: Appeal allowed, consent order set aside, with costs awarded to the appellant.
| Table of Content |
|---|
| 1. establishment of factual background surrounding the case. (Para 1 , 2 , 3 , 4 , 5) |
| 2. appellant's arguments against withdrawal of the action. (Para 6 , 7 , 9) |
| 3. court's reasoning on grave injustice and authority of solicitors. (Para 10 , 14) |
| 4. consent order validity and conditions for setting it aside. (Para 11 , 12) |
| 5. grave injustice consideration (Para 13) |
[1] On 24 April 2002, the appellant (who was the plaintiff in the court below) filed an action against the respondents (who were the defendants in the court below) claiming damages for breach of duty of care and trespassing by the respondents and damages for the loss of rights as the developer for quiet employment of the land in question. The writ and the Statement of Claim were filed by Messrs Scott & Kuhan, as the solicitors acting on behalf of the appellant.
[2] At the close of pleadings, the court fixed 8-10 July 2009 as the trial date for the case. Parties were duly informed of the trial dates.
[3] On 20 January 2009, the said firm of solicitors, Messrs Scott & Kuhan was dissolved and the lawyer who was handling the matter in that firm Mr J Jeyakuhan has since practiced in a new firm known as Messrs Rastam Singa & Co. This was never made known to the appellant at the material time.
[4] When the case came up for trial on 8 July 2009, Mr Jayakuhan claimed to be still acting on behalf of the appellant (even after the said firm of Messrs Scott Kuhan was dissolved on 20 January 2009) had attended court and informed the court that "pihak-pihak bersetuju plaintif menarik balik kes dengan kebebasan untuk memfailkan semula dengan tiada perintah bagi kos" (ie, both parties had agreed for the plaintiff to withdraw the case with liberty to file afresh and with no order as to costs) and the solicitors for the respondents agreed. On that day, the court recorded that "kes dibatalkan dengan kebebasan untuk memfailkan semula dan tiada perintah tentang kos atas persetujuan" (ie, the case is struck out with liberty to file a fresh and with no order as to costs by consent).
[5] On 28 July 2009 Messrs Rastam Singa & Co, had by letter informed the appellant that the action was purportedly withdrawn "upon direction of the court" and not withdrawn by the appellant with liberty to file afresh. From the notes of proceedings available in the court's file, it is clear that, the order was made "by consent of both parties".
[6] The appellant contended that it had never given any instruction or authority to Mr Jeyakuhan or Messrs Rastam Singa & Co to act on its behalf and to withdraw the action with liberty to file afresh. Further, on 8 July 2009, the firm Messrs Scott & Kuhan was already dissolved and there was actually no existing legal firm to represent the appellant in the court at that time. The appellant further claimed that Messrs Rastam & Singa was never appointed by the appellant and the said firm had never filed any notice of change of solicitors to act for the appellant in the said action. In short the appellant claimed that the said Mr Jeyakuhan from Messrs Rastam Singa & Co simply had no locus standi and authority to represent the appellant on 8 July 2009, when the said action was withdrawn with liberty to file a fresh.
[7] The withdrawal of the appellant's claim on 8 July 2009, even with liberty to file afresh, would severely prejudice the appellant. The appellant will not be able to refile the claim afresh against the respondents on the ground that the cause of action in tort would be statute barred as its six years limitation period had lapsed.
[8] The appellant then appointed a new firm of solicitors namely Messrs Sidek Teoh Wong & Dennis to act on its behalf. A notice of change of solicitors was filed in the court. The appellant then filed an application vide encl 27 (summons in chambers dated 22 October 2009) in order to set aside the said consent order recorded on 8 July 2009. On 7 July 2010 the learned High court Judge dismissed the appellant's application (encl 27) w
