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2011 MarsdenLR 2752
HIGH COURT SABAH & SARAWAK, KUCHING
LIEW SIEW JIN – Appellant
Versus
LIU NYONG ANN & ORS – Respondent
[Suit No. 22-44-08-Ii]
Consent judgments cannot be set aside based on a party's change of heart; they require substantive grounds like factual or legal mistakes, along with adherence to strict timelines.
Headnote:(A) Rules of the High Court 1980 - Order 42 Rule 13 - Application for setting aside a consent judgment - Plaintiff claimed damages for loss of virginity, alleging deceit in marriage; defendants counterclaimed for misrepresentation - Consent judgment entered, Plaintiff later sought to set aside, citing emotional distress and misunderstanding of payment terms - Court ruled that consent judgments must not be set aside based solely on change of heart; strict adherence to timelines and justifications for setting aside must be observed. (Paras 1, 6, 11, 14)
Facts of the case:
The plaintiff sought to set aside a consent judgment where she had agreed to withdraw her claim for damages against her former husband and his parents in exchange for RM75,000.00. The plaintiff alleged she was under emotional distress and misled regarding the consent arrangement.
Findings of Court:
The Court emphasized that the plaintiff was out of time to file the application, having failed to act within 30 days of the consent judgment being entered. The claim of misunderstanding was rejected based on evidence of a prior demand for additional payment.
Issues: The primary issues concern whether the plaintiff's application for setting aside the consent judgment was timely and justified based on a change of heart or misunderstanding regarding the judgment terms.
Ratio Decidendi: A consent judgment reflects the finality necessary in legal proceedings, and may only be set aside for valid reasons such as factual or legal errors, not on the basis of a unilateral change of mind. The court emphasized the importance of upholding consent judgments to maintain judicial efficiency.
Result: Application dismissed with costs.
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y A PUAN RHODZARIAH BT. BUJANG
IN CHAMBERS
RULING [Encl. 179]
A consent judgment was entered by me on 30.8.2010 which the plaintiff is now applying to set aside.
She had filed a claim for damages against the 1st defendant who was her then husband and his parents for, inter alia , loss of virginity as she claimed to have been duped into the marriage by the 1st defendant and suffered humiliation, mental torture and anguish at the hands of her in-laws. The defendants alleged that they too were cheated because the plaintiff was no longer a virgin when the marriage was contracted and was unable to bear any children because she has had her uterus removed prior to the marriage, which fact was withheld from them and only discovered after the event.
Given this rather sad and sorry state of affairs between the parties, I heaved a sigh of relief when on the day of trial, after some negotiations between the counsels, the consent judgment was entered. It was in the following terms,
(i) The plaintiff withdraws her claim against the defendants with no order as to cost,
(ii) The defendants withdraw their counterclaim against the plaintiff with no order as to cost,
(iii) The plaintiff and the 1st defendant are to file a joint petition within 3 weeks to be prepared by M/s. Chong Brothers
Advocates and incorporating the following terms:-
(a) There shall be no further claims between the plaintiff and the 1st defendant.
(b) There shall be no liberty to apply.
(iv) The defendants shall pay RM75,000.00 (Ringgit Malaysia seventy five thousand only) to the plaintiff upon execution of the joint petition as full and final settlement of this claim.
(v) The said RM75,000.00 is to be deposited with M/s. Chong Brothers Advocates by 6.9.2010.
(vi) M/s. Chong Brothers Advocates is to withdraw the Civil Appeal No.Q-02-1129-08 and the Civil Appeal No.Q-02-1995-09 with no order as to cost within 2 weeks,
(vii) There shall be no further claim by the plaintiff against all the defendants herein.
Having thought that the parties have moved on with their lives and put this unhappy episode behind them, I was taken aback by this application of the plaintiff to set aside the consent judgment. She said on that day she was deeply distressed, emotionally upset and could not think straight. She had refused to attend the hearing of the joint petition for divorce which has been filed as agreed in the consent judgment. She said she was under the mistaken belief that RM75,000.00 was to be paid by each of the defendants to her and was unhappy that the joint petition did not give a provision for her maintenance. She now wants the defendants to keep the joint petition in abeyance until she received the payment of RM75,000.00 from each of the 3 defendants and RM30,000.00 as her costs.
An application to set aside a consent judgment is still subject to Order 42 rule 13 of the Rules of the High 1980 . It must be done within 30 days from the receipt of the judgment. Reference to the consent order was made to the plaintiff's counsel's letter dated 23.11.2010 in which their client's change of mind was mentioned and her demand for RM100,000.00. Obviously, the order was received by her on or before that date in order for the letter to be issued on the said date. This application was only made on 17.1.2011. She is therefore out of time to make it, said Mr. Alvin Yong, counsel for the defendants. I do think that Mr. Alvin Yong was rather too generous with his computation of the time. This being a consent judgment, I am of the view the receipt of that judgment is the day it was entered for without the parties consent (or the plaintiff in this case), the judgment could not have been entered in the first place. It is therefore not unjust for me to deem that she has knowledge of that consent judgment on 30.8.2010 and her 30 days should actually runs from that day. By filing this application only in January this year, she is, in my view, months out of time.
Further
