JCW

[setting aside of Consent Judgment]   Justin was the counsel for the defendant. The Plaintiff applied to Court to declare that the Consent Judgment entered between parties is amongst others declared as “stands terminated”. The Court dismissed the application and held inter-alia as follows : (i)The Federal Court in Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 decided that a party could seek termination only in a case where time was of the essence and the party in breach had not performed its obligations in its entirety within the time-frame stipulated by the contract or where there had been a total failure of consideration. Applying that principle here, this was not a case of total failure of consideration; nor was time expressed to be of the essence of the consent order. Neither had the defendant refused to perform its contractual obligations or failed to perform its entire promise. It therefore followed that the plaintiff was not entitled to terminate the consent order as the defendant had not refused to perform its contractual obligations. The said decision of the Federal Court was binding upon this court (ii)The consequential relief that the plaintiff sought if termination of the consent order was allowed was for an order that the defendant account for or refund all benefits that it had received under the consent order and for damages to be assessed. It appeared that the plaintiff was seeking restitution and for the consent order to be set aside ab initio. This was contrary to the decisions in Berjaya Times Square Sdn Bhd and Turf Club Auto Emporium Pte Ltd and Others v Yeo Boong Hua and Others and Another Appeal and Other Matters [2017] 2 SLR 12; [2017] SGCA 21 that a contract or consent order could not be discharged or terminated ab initio on the basis of a breach. On the basis of those two cases, the courts were unanimous in deciding that a consent order could only be terminated prospectively and its effect was to release parties from their future performance. (iii) The plaintiff ought to have applied under the ‘liberty to apply’ clause to enforce her rights under the consent order in Suit 627 for an appropriate consequential order if she was of the view that the consent order had been breached. Since the defendant’s application for enforcement of the consent order in Suit 627 was filed first in time and was pending determination, it was more expeditious for the plaintiff to make the necessary application in the suit itself.