JUDGMENT

Helmi Hamzah JC:

(Failure To Comply With The Consent Order)

Introduction

[1] The Plaintiff's claim and the defendant's counterclaim were scheduled for a full trial on the following dates: 8 September 2025, 9 September 2025, 30 September 2025, 2 October 2025, 3 October 2025, 27 October 2025, and 31 October 2025.

Preliminary Issue

[2] On the first day of the full trial, the Learned Counsel for the defendant raised a preliminary issue regarding the plaintiff's failure to pay the security for costs of RM100,000.00 as previously agreed and recorded in the Consent Order dated 4 July 2022 ("Consent Order"). According to the Defendant, the plaintiff's claim should be dismissed with no liberty to file afresh in accordance with para 3 of the Consent Order.

[3] Since this is an old case registered in 2021, I decided to hear the preliminary issue immediately. After hearing oral submissions from both parties, I dismissed the plaintiff's claim in accordance with para 3 of the Consent Order.

[4] Regarding the Defendant's counterclaim, I directed both parties to proceed with the full trial as scheduled. The full trial of the defendant's counterclaim concluded on 2 October 2025, and I had given directions to both parties to file notes of proceedings, written submissions, and written submissions in reply.

[5] On 6 October 2025, the plaintiff filed an appeal to the Court of Appeal against my decision, which dismissed the plaintiff's entire claim.

[6] I will now give my reasons for dismissing the plaintiff's claim.

Background Facts

[7] The Defendant filed for security for costs because the plaintiff is a foreign company incorporated in the Netherlands.

[8] Both parties agreed on the terms of the security for costs and recorded them in the following Consent Order.

[9] Vide the Consent Order, both parties essentially agreed that:

(a) the plaintiff must deposit a sum of RM100,000.00 into a stakeholders' account registered with CIMB Bank Berhad ("Stakeholders' Account") within thirty days from the date of the Consent Order, which means this must be completed by 3 August 2022 ("First Deadline") (para 1 of the Consent Order); and

(b) if the plaintiff fails to deposit RM100,000.00 into the Stakeholders' Account within six months from the date of the Consent Order, that is, by 4 January 2023 ("Second Deadline"), the plaintiff's claim will be dismissed with no liberty to file afresh (para 3 of the Consent Order).

[10] After recording the Consent Order, both parties attended five case managements on 20 July 2022, 4 August 2022, 19 August 2022, 5 September 2022 and 20 September 2022 to update the Court on the deposit of RM100,000.00 into the Stakeholders' Account.

[11] On 20 September 2022, Rohana Binti Abd Malek JC (as she then was) made the following direction:

"Oleh itu, Mahkamah memerintahkan perkara ini diselesaikan selewat-lewatnya Jumaat, 23 September 2022"

[12] On 8 September 2025, the Learned Counsel for the defendant contended that the plaintiff still had not complied with the Consent Order. Given these circumstances, the Learned Counsel for the defendant raised the preliminary issue and made an oral application to this Court for the plaintiff's claim to be dismissed with no liberty to file afresh, in accordance with para 3 of the Consent Order.

The Issue

[13] The main issue is whether the Court should dismiss the plaintiff's claim in accordance with para 3 of the Consent Order.

The Relevant Law On Consent Order

What Is A Consent Order?

[14] I adopt the following views on what constitutes a consent order:

(a) in Khaw Poh Chhuan v. Ng Gaik Peng & Yap Wan Chuan & Ors; [1996] 1 MLJ 761; [1996] 2 CLJ 185; [1996] 1 AMR 1057, Peh Swee Chin, FCJ (as he then was), in delivering the decision of the Federal Court , had this to say (at p 784, para C):

"...a consent order is an order of Court carrying out an agreement between the parties, it has become a command from a Court of competent jurisdiction which should either be respected or obeyed."

(b) in Tan Geok Lan