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2024 MarsdenLR 436
SESSION COURT SHAH ALAM
TEH AH HONG & ORS – Appellant
Versus
BIG SUPERMART SDN BHD; LIAN BOK SAN (THIRD PARTY) – Respondent
[Criminal Suit No: BA-A52NCVC-74-03/2017]
Consent judgments are binding and can only be set aside on valid grounds; mere difficulty in performance does not constitute illegality.
Headnote:(A) Rules of 2012 - Orders 13 r 8, 42 r 13, and 92 r 4 - Setting aside of consent judgment - Consent judgment entered on 28 January 2019 regarding tenancy agreements - Third Party's application to set aside consent judgment dismissed due to lack of valid grounds and inordinate delay in filing. (Paras 1, 2, 29, 47)
(B) Jurisdiction - Court's jurisdiction to hear applications to set aside consent judgments - Court held it is not functus officio and can hear applications under specific circumstances. (Paras 20, 30)
(C) Legal advice - Claim of lack of proper legal advice by Third Party deemed insufficient to set aside consent judgment - Parties bound by their agreements unless grounds to vitiate free consent are established. (Paras 14, 41)
Facts of the case:
The case involves a tenancy agreement where the Plaintiffs sought vacant possession, compensation for repairs, and double rent from the Defendant. A consent judgment was entered after all parties agreed to terms in court. (Paras 3-12)
Findings of Court:
The Third Party's application to set aside the consent judgment was dismissed due to insufficient grounds and failure to show timely action. (Paras 29, 47)
Issues: The main issues included whether the consent judgment could be set aside and the jurisdiction of the court to entertain such applications. (Paras 20, 29)
Ratio Decidendi: The court found that mere difficulty in performance does not invalidate the consent judgment, and the Third Party failed to demonstrate sufficient grounds for setting it aside. (Paras 31, 32)
Result: Enclosure 99 dismissed with cost, requiring the Third Party to pay RM2000 to the Plaintiffs and Defendant. (Paras 47)
JUDGMENT
(Enclosure 99 Application To Set Aside The Consent Judgment)
A. Introduction
[1] On 25 August 2023, the Third Party vide encl 99 applied for setting aside the consent judgment entered among the parties dated 28 January 2019 pursuant to O 13 r 8 and/or O 42 r 13 and/or O 92 r 4 of the Rules of 2012 (ROC 2012).
[2] On 5 February 2024, I refused the Third Party's application with cost. Hence, this appeal.
B. Salient Facts Of The Case
[3] This is a case concerning tenancy agreement.
[4] Lian Soon Thiam Sdn Bhd is the developer of 9 shop units at Jalan Seroja, Taman Pertama, 45200 Sabak Bernam known as unit no 1, 3, 5, 7, 9, 11, 15, 17 and 19.
[5] At all material times, unit no 1, 5, 7, 15 and 19 are owned by Lian Soon Thiam Sdn Bhd, and unit no 3 is owned by the 1st and 2nd Plaintiffs, unit no 9 is owned by the 3rd to 6th Plaintiffs and unit no 17 is owned by the 7th and 8th Plaintiffs following the Sale and Purchase Agreements and Construction Agreements entered into between Lian Soon Thiam Sdn Bhd and the Plaintiffs for their respective units.
[6] The Plaintiffs have rented their shop units to the Defendants through Tenancy Agreements dated 7 July 2012.
[7] The Plaintiffs have then brought this action against the Defendant, among others, for vacant possession of their respective shops, compensation for repair work and double rent. On 8 March 2017, the Plaintiff filed a Writ and Statement of Claim against the Defendant in this case.
[8] The Defendant then initiated a Third Party action and issued a Third Party Notice against Lian Bok San (director of Lian Soon Thiam Sdn Bhd). On 07 April 2017, a Third Party Notice was filed against the Third Party.
[9] On 31 August 2018, the Third Party filed a Third Party Defence.
[10] After all the pleadings, documents, issues for trial and witness statements have been resolved, the representatives of all the Parties to this case together with their respective lawyers appeared in this Court on 28 January 2019 which has been set for a full hearing.
[11] Before the trial began, ail parties had successfully entered into a full and final settlement, and a draft of the Consent Judgment according to the terms of the settlement agreed upon by all parties was prepared in this Court on the same day.
[12] Further to that, all parties were called into the chamber of the Judge and the terms in the draft Consent Judgment were read again by the previous presiding Judge to all parties, and after being confirmed by all parties, the draft Consent Judgment was signed by all parties in front of the Judge on the same day.
[13] A copy of the draft Consent Judgment approved and signed by all parties, the draft Consent Judgment approved by this Court and the sealed Consent Judgment can be referred to in Exhibit "P-1", p 9 to 20 of the Plaintiffs' Affidavit in Reply (Appendix 102)
C. Third Party's Reasons For The Consent Judgment Date 28 January 2019 To Be Set Aside
[14] The Third Party submitted that the Consent Judgment was entered non-est factum where the Plaintiff's Solicitor failed to provide proper advice to the Plaintiff.
[15] The Third Party contended that the said Consent Judgment was signed by the Plaintiff without proper legal advice. In this regard, it was said that when the Third Party's representative signed the Consent Judgment, he was unaware of the content of the Consent Judgment and/or the implications of the terms of the Consent Judgment.
[16] The learned counsel for the Third Party contended that the Agreement contains conditions and/or terms that are not feasible and/or almost impossible for the Third Party to handle.
[17] The Third Party argued that the Consent Judgment contains terms that are impossible to carry out and/or implement properly by the Third Party based on the following:
i. In order to restore the Plaintiffs' Properties to the agreed state and condition (in the case of this action), each owner of the Premises needs to sign and/or send the Temporary Building Permit Application
