JUDGMENT

This is an application to vary a consent order to include a purported "consequential order" or alternatively to set aside the said consent order. The application is objected to by the defendants.

Brief Facts

The 1st and 2nd plaintiffs are the appointed agents of Pam Malaysian Sweeps Sdn. Bhd. and Pan Malaysian Pools Sdn Bhd. The business of the 1st and 2nd plaintiffs is connected to the activities of turf clubs in West Malaysia. The 1st and 2nd plaintiffs are very much involved in Number Forecast Totalisator business through Telelink outlets. The 3rd plaintiff was appointed as their Telelink marketer and sub-selling agent. The premises of the 3rd plaintiff were raided by the 1st to 3rd defendants who are officers of the Padawan Municipal Council on 30th May 2009. The 3rd plaintiff was alleged to have operated a Numbers Forecast Totalisator business illegally. The defendants' position was that under the local By-Laws, any business trading as an "agency for the conduct of sale of any licensed lottery" is required to apply for a yearly premise licence from the local council. The instant suit was filed for a declaration that the 3rd plaintiff was legally entitled to operate its business without the said premise licence, for the return of the items seized during the raid and for damages. The 1st and 2nd plaintiff had also filed four other similar suits in the other divisions of the High Court in Sarawak. The 3rd plaintiff in the other suits was the Telelink outlet operator. On 15th September 2011, the parties entered a consent order with the following terms:

1. The plaintiff agreed to withdraw all actions against the defendants including the four other suits.

2. That all the items seized by the Local Authorities' Councils shall be returned to the Plaintiffs.

3. That no action based on similar causes of action shall be filed against the defendants.

4. That this order shall bind the other suits or action in other divisions.

5. That there shall be no order as to costs.

The fair copy of the consent order incorporating the above terms was drawn up and sealed by the plaintiffs' solicitors some two weeks later. On 25th October 2011, the plaintiffs filed the instant Summons in Chambers to vary the judgment to include a purported "consequential order that the plaintiffs shall be allowed to continue their business operation in Sarawak". In the alternative the plaintiffs are applying to set aside the consent order and reinstate the action.

The basis of the application is that there was a total failure of understanding by both parties to constitute any agreement for the consent order to be entered between the parties. The plaintiffs' solicitors had written to the State Attorney General (SAG) on 5th October 2011 to propose that they will be allowed to operate their business without hindrance from the authorities. The letter dated 6th October 2011 from the SAG on the other hand stated "the plaintiffs must not continue with their business operation and activities relating to the NFT". Notwithstanding the fact that the above letters were exchanged after the consent judgment was entered, the plaintiffs' case is that there is clear evidence that there was no meeting of minds between the parties when they entered the consent order. The plaintiffs further submitted that Encik Saferi bin Ali, Counsel for the defendants had made a representation to the Counsel for plaintiffs that the plaintiffs could continue operating the NFT outlets.

Decision

In my opinion, the Court has no power to vary or set aside a validly drawn up and perfected judgment in the same action unless the error sought to be corrected comes within the slip rule. In Hock Hua Bank v. Sahari bin Murid [1981] 1 MLJ 443, which was cited by learned Counsel for defendants, Chang Min Tat FJ at the Federal Court pronounced as follows:

Clearly the Court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an orde