Faiza Tamby Chik J:

[1] In this case, the defendant husband is raising the issue that a breach of a consent order dated 12 November 2003 made voluntarily between the defendant husband and the plaintiff wife through their respective counsels and recorded as such by the court cannot amount to a contempt of court. Leave was granted ex parte on 26 January 2005 (encl 44). The notes of evidence showing the recording of the consent order by the court on 12 November 2003 read as follows:

NOTA KETERANGAN

Catitan daripada Buku 3 Mahkamah Terbuka

Mukasurat 303

33-11-01

Lim Chau Leng - Plaintif

Wong Chee Chong - Defendan

Lampiran (1)

Yogan bagi pihak Plaintif Isteri

PA Selvi bagi pihak Defendan Suami

Kedua-dua pihak hadir

Yogan: Resolved.

To record Consent Order.

PA Selvi: I confirm.

Shown

Consent Order

Marked

Lampiran (30)

Mahkamah: Terma-terma dalam Lampiran (30) diluluskan.

On the first issue, which is related to question (1), a consent judgment or order is non the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derivers from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. A consent order must be given its full contractual effect, even if it relates to an interlocutory step in the action (see para 390 at p 286, Halsbury's Law of England (4th Ed) Vol 37). We gather from this proposition that: (i) the agreement on the terms reached between the parties at the interlocutory state of an action is a contract between the parties; and (ii) the consent judgment or order arising out of that contract is also a contract between the parties except that the latter is superadded by the command of the court. In short, there are two contracts, one, before the court makes the order and two, after the order is made. After the order is made the first contract is merged into the second contract.

It is undisputed by parties that the decree nisi by consent dated 12 November 2003 was recorded by a court of competent jurisdiction. However what is in dispute is the consequence of breaching or disobeying the said decree nisi. Is the defendant guilty of contempt of court if he breaches or disobeys the said decree nisi? A perusal of the statement pursuant to O 52 r 2(2) of the Rules of the High 1980 accompanying the notice of motion (encl 40) stipulates three purported breaches of the terms in the decree nisi. These are the charges levied at the defendant. They are found at paras 5, 6 and 7. It is important that I reproduce below the relevant terms of the decree nisi dated 12 November 2003 marked as encl (30) which are said to have been breached or disobeyed by the defendant:

(i) Para (d) - Responden membayar nafkah bulanan sebanyak RM650 mulai dari bulan Januari 2001 sebagai peruntukan kewangan untuk anak Timothy Wong Chee Khang pada tiap-tiap 1 haribulan dan peruntukan ini berterusan sehingga Timothy Wong Chee Khang mencapai umur 18 tahun;

(ii) Para (e) - Responden perlu membuat peruntukan kewangan selanjutnya untuk menanggung perbelanjaan pendidikan dengan penuh untuk Timothy Wong Chee Khang dari tadika sehingga pengajiannya ke Kolej dan Universiti;

(iii) Para (g) - Responden dihalang sama sekali pergi atau hadir di Unit 06C, Type No C, Floor 13A, Bloc