As the Case May Be

Today's As the Case May Be is about an amendment to a consent order between Husband and Wife, as decided by the Court of Appeal.

Subramaniam a/l P. Govindasamy v Susila a/p S. Sankaran

Civil Appeal No. W-02(W)-889-05/2016

[Link: https://www.kehakiman.gov.my/…/…/file/W-02(W)-889-05-2016.pdf

]1. This concerns the Husband’s appeal against the decision of the High Court who refused to allow the Husband’s application to amend the decree nisi to include the words ‘if found’ in item no. 5 of Annexure A of the Decree Nisi.

2. Parties had hurriedly entered into a consent without having taken proper inventory of the items to be given back to the Wife.

3. The Husband made the application because the Wife made various threats to initiate contempt proceedings for failing to return some items.

4. The learned judge’s refusal was on the grounds that the judge has become functus officio as well as an order of court can only be amended if it subscribes to the slip rule.

5. The Court of Appeal held that:-

(a) the doctrine functus officio will not apply to cases where amendment of order is sought. If that is the case, no order of the court can be amended. The court ought to hear the application on its merits;

(b) on the issue of amending a consent order or terms, the court will not readily entertain the application but to say that the court has no powers to amend the consent order or terms on the grounds of solicitors’ mistake may not be totally correct. It all depends on the facts and justice of the case; and

(c) there are a number of authorities to support the Husband in this case to allow the amendment, though the strict rule is not to intervene with a consent order once it is perfected.