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2025 MarsdenLR 4597
HIGH COURT MALAYA SUNGAI PETANI
MANIKUMAR SUBRAMANIAM & ANOR – Appellant
Versus
GANESAN KOLANDAI & ORS – Respondent
[Writ Of Summons No: KB-22NCVC-32-06/2023]
A consent judgment cannot be set aside based on grounds known prior to its recording, and to secure a stay under Order 45 r 11, new matters must be presented that could have prevented the judgment.
Headnote:(A) Rules of Court 2012 - Order 45 r 11 - Application for a stay of execution of a consent judgment - The First and 2nd Defendants sought a stay pending the disposal of a civil suit challenging the consent judgment, contending lack of locus standi for the Plaintiff post liquidation of the Company and asserting non-consensual agreement to terms. (Paras 1-3, 30-31)
(B) Consent Judgments - Legal basis for setting aside - A party must demonstrate new matters prevent compliance with the existing judgment to qualify for a stay of execution under Order 45 r 11. (Paras 25-28)
Facts of the case:
The Plaintiff claimed ownership of machinery, asserting custodianship post-agreement with the First Defendant, which led to its unauthorized sale to the 3rd Defendant. Defendants contested the Plaintiff's locus due to the Company's prior liquidation. (Paras 4-11)
Findings of Court:
The Defendants failed to demonstrate that new circumstances justified a stay of execution since their arguments were based on matters known at the time of the consent judgment. The application was dismissed. (Paras 30-31)
Issues: The key issues were whether the Plaintiff had locus standi post-liquidation and the validity of the consent judgment based on claimed non-consent. (Paras 22-23)
Ratio Decidendi: The court ruled that the dissolution of the Company was a known fact at the time of consent, and thus did not support a new argument for a stay under the relevant rule. (Paras 29-31)
Result: Application to stay the consent judgment is dismissed with costs of RM 3000.00.
| Table of Content |
|---|
| 1. application for stay of execution (Para 1 , 2 , 3) |
| 2. plaintiff's claim and machinery possession (Para 4 , 5 , 6 , 7) |
| 3. defence challenges and counterclaims (Para 8 , 9 , 10 , 11 , 12) |
| 4. case management and court proceedings (Para 13 , 14 , 15) |
| 5. terms of the consent judgment (Para 16) |
| 6. arguments for and against stay application (Para 17 , 18 , 19) |
| 7. issues raised in submissions (Para 20 , 21 , 22 , 23) |
| 8. legal provisions on stay of execution (Para 24 , 25 , 26 , 27 , 28) |
| 9. defendants' grounds for application analyzed (Para 29 , 30) |
| 10. final decision on application (Para 31) |
(Enclosure 49)
Introduction
[1] Enclosure 49 is the First and 2nd Defendants' application for a stay of execution of the consent judgment dated 4 June 2024 pursuant to O 45 r 11 and/or O 92 r 4 Rules of Court 2012 ( ROC ).
[2] The First and 2nd Defendants' were seeking a stay pending the disposal of civil suit no: KB-22NCVC-21 -08/2024 (2024 Suit) instituted to set aside the consent judgment.
[3] After careful consideration of the cause papers and the oral and written submissions of the parties, this Court decided to dismiss the application under encl 49. The following are the reasons for the decision.
Plaintiff's Pleaded Case
[4] The Plaintiffs claim against the Defendants was for a declaration that the Plaintiff remained the rightful custodian of one-unit Mobile Terex Pegson Crusher Model 4242SR Serial No: 420131CADRQ334163 (Machinery), which was in the 3rd Defendant's possession and for damages and costs.
[5] The Plaintiff alleged that he had been appointed custodian of the Machinery by Progressive Global Sdn Bhd (Company). The Plaintiff had appointed the First Defendant to retrieve the Machinery from Felda Bera Selatan 3 as the lease had expired.
[6] The Plaintiff and First Defendant agreed that the First Defendant would be permitted to lease the Machinery to interested parties but nothing materialized.
[7] At the end 2021, the Plaintiff found out that the First Defendant had via the 2nd Defendant, sold the Machinery to the 3rd Defendant for RM 450,000.00.
The Defendants' Defence And The First Defendant's Counterclaim
[8] The Defendants disputed the Plaintiffs locus as the Company's agent as the Company had been wound up in 2016. They only came to find this out in 2022.
[9] The First Defendant had been appointed by the Company to manage their machinery and workers at the mines in Felda Bera Selatan 3 since 2014.
[10] The Company failed to pay the First Defendant for his services and the director, Deva Sudhanshu, agreed that the First Defendant could take over the Machinery in lieu of payment. The directors of the Company also authorized the 2nd Defendant to remove the Machinery from Felda Bera Selatan 3.
[11] The First Defendant sold the Machinery to the 3rd Defendant vide agreement dated 27 September 2020 but maintained that RM 100,000.00 remained unpaid because of the Plaintiffs claim over the Machinery.
[12] The First Defendant alleged that the Company owed him RM 493,209.57 as at 30 November 2022. After setting off the purchase price for the Machinery, RM 43,209.57 was still due and owing to him. Alternatively, if the Machinery was returned to the Plaintiff, then he sought the entire amount with damages, interest and cost.
Cosent Judgment
[13] Case management directions were given and the trial date was fixed. During case management on 28 May 2024, the following was recorded in the notes of proceedings-
"Mahkamah: Mr Yohendra - PGISB has been wound up - does the liquidator know of these proceedings?...
Peguam Plaintif 1: My Lady, the Company was wound up under s 308(3) of the Companies Act 1965 , with no liquidator acting.
Mahkamah: If the company has been wound up, does the Plaintiff still have authority to act as its asset manager/custodian?...
Peguam Plaintif 1: Yes Yang Arif. We will be relying on documents in p 135 and 136 of the encl 31....
Mahkamah: When was the company wound up?
Peguam Plaintif 1: 2016 My lady
Mahkamah:
