Johan Daniel Blomberg v Khan Zhi Yan

Mr Johan Daniel Blomberg and Ms Khan Zhi Yan are former spouses involved in proceedings in Singapore and Sweden, including guardianship proceedings in the Family Justice Courts. Mr Blomberg brought DC/PHA 93/2020 under the Protection from Harassment Act (POHA) seeking, among other things, an order stopping Ms Khan from making false accusations or police reports, alleging various acts of harassment. The claim was settled by a consent order dated 10 May 2021. In Paragraph 1, without admission of liability, Ms Khan undertook not to make or file any statement or report about Mr Blomberg in any court or to any local or overseas public authority, with any breach entitling him to a protection order; she could seek the leave of any court to do so if she had at least prima facie evidence. Mr Blomberg in turn undertook not to act on earlier conduct.

On 10 June 2022 Ms Khan applied in PHC/OA 9/2022 to set the consent order aside. The District Judge found no contractual vitiating factor, such as pressure, but held that the order's imprecise terms and wide reach made its legality questionable, and set the whole order aside from the start. Mr Blomberg appealed in Registrar's Appeal (State Courts) No 4 of 2023. The court appointed a Young Independent Counsel, Mr Benny Santoso, to assist.

1. Whether the consent order was a protection order made under s 12(2) of the POHA.
2. Whether, and in what circumstances, a substantive contractual consent order may be set aside ab initio.
3. Whether the consent order should have been set aside, or instead varied under s 12(7) of the POHA.

The judge found the consent order was a protection order under s 12(2): it was made on Mr Blomberg's s 12 application, was titled as a protection order, and gave him protective rights. Making it by consent did not change that.

A contractual consent order can be set aside ab initio only where a recognised contractual vitiating factor, such as mistake, fraud, illegality or duress, exists. Following Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal and other matters [2017] 2 SLR 12, the court has no residual discretion to set aside a substantive contractual consent order to prevent injustice. That decision did not rest on the old inherent-powers rule, so it remained binding under the Rules of Court 2021; the judge suggested, provisionally, that O 3 r 2(2) may be the juridical basis for setting aside where vitiating factors exist. Nothing in the POHA displaced these principles, and s 12(7), which allows variation, suspension, cancellation or extension, does not permit setting aside.

The District Judge rightly found no vitiating factor; Ms Khan had legal advice throughout and there was real agreement. But concerns about imprecise or wide terms are not illegality, as the order was not prohibited by statute or public policy, and setting it aside on that basis was wrong in law. The concerns could instead be met by variation under s 12(7). The judge disagreed that the scope of the prohibition was unclear, but agreed the leave wording was poorly drafted and that the protection-order consequence of breach was unworkable, which Mr Blomberg had conceded.

See Kee Oon J allowed Mr Blomberg's appeal against the setting aside of the consent order, with costs to be determined in his favour. He varied Paragraph 1 so that leave must be sought from the Protection from Harassment Court, a breach entitles Mr Blomberg to commence committal proceedings instead of obtaining a protection order, and the prima facie evidence wording is removed.