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Case Significance

Distinguishes setting aside a consent judgment for a recognised vitiating factor from a collateral challenge, on originating summons, to a coordinate High Court ruling that a binding settlement was reached at mediation.

This High Court decision at Kuala Lumpur concerns an attempt to set aside a sealed consent judgment that had emerged from a court-annexed mediation, and the unusual jurisdictional question that such an application raises. The plaintiff companies had, in earlier intellectual-property litigation, taken part in a mediation session conducted by a judicial commissioner, at which broad terms of settlement were recorded. The parties could not, however, agree on the terms of the draft consent judgment. At a subsequent case management, the judicial commissioner reviewed the audio-visual recording of the mediation and decided that, save for one deletion, the defendants' version of the draft consent judgment reflected what the parties had agreed. The defendants extracted a sealed consent judgment on that basis. The plaintiffs then commenced this originating summons, under Order 42 rule 13 and Order 92 rule 4 of the Rules of Court 2012, to set the consent judgment aside. The individual defendants are natural persons and are referred to here by role.

The court observed that the grounds relied upon were atypical. The recognised bases for setting aside a consent order — fraud, mistake, total failure of consideration, or some other vitiating dispute between the parties to the order — were not the substance of the plaintiffs' complaint. Instead, the plaintiffs' real grievance was directed at the correctness of the judicial commissioner's ruling that a binding settlement had been reached on the defendants' version of the draft.

That reframing exposed a jurisdictional difficulty at the heart of the case: because the subject matter of the application was in truth a ruling made by a judicial commissioner — that is, a decision of the High Court — the court had to ask whether it was within its jurisdiction, sitting at the same level, to set that decision aside on an originating summons rather than by way of appeal. The judgment is a useful illustration of the distinction between impugning a consent judgment for a recognised vitiating factor and mounting what is, in substance, a collateral challenge to a coordinate court's own determination.