XXXX v XXXX

Case Significance

Illustrates the contractual and final character of a recorded consent order and the principle that a term providing merely for taxation of costs does not, without more, fix liability for those costs on a particular party.

This High Court decision at Kuala Lumpur concerns cross-applications arising from the interpretation of a consent order that had settled an earlier civil action, and it addresses whether such an order can later be amended to create a costs entitlement it does not on its face contain. The parties had reached a full settlement of the original action, which the court recorded as a consent order dated in August 2022, one of whose terms provided simply that costs were to be ditaksirkan oleh Mahkamah (taxed by the court). Almost two years later the plaintiff applied to tax a bill of costs against the defendant on the strength of that order, and also applied to amend the consent order to insert a phrase that costs be dibayar oleh Defendan kepada Plaintif (paid by the defendant to the plaintiff), so as to enable taxation against the defendant. The defendant opposed, contending that there was no clear order in the consent order requiring it to pay costs to the plaintiff, and applied to strike out the plaintiff's notice to tax the bill of costs. The issues for decision were whether the court could allow an amendment to the consent order to insert an order that the defendant pay costs, whether the phrase that costs be taxed by the court, standing alone, entitled the plaintiff to tax a bill of costs against the defendant, and whether there had been any error by the court in approving that phrase. The court dismissed the plaintiff's application to amend the consent order and allowed the defendant's application to set aside the plaintiff's bill of costs notice, awarding costs of both applications to the defendant in the sum of RM1,000.00. It emphasised that a consent order is contractual and final in nature and cannot be unilaterally amended after it has been recorded except in exceptional circumstances, and that a bare direction that costs be taxed does not by itself identify who is to bear them. The judgment is a useful illustration of the contractual and final character of a recorded consent order and of the principle that a term providing merely for taxation of costs does not fix liability for those costs on a particular party.