Suhaili Bin Ismail V Syarikat Sribima Sdn Bhd


Download PDF Here



CIVIL APPEAL NO. Q-02(NCVC)(W)-1781-10/2014










[In the matter of Bintulu High Court Civil Suit No.22NCVC-4/3-














[1] This was an appeal by the appellant against the High Court’s decision allowing the respondent’s application for amendment of the Writ of Summons and Statement of Claim both dated 27.3. 2014. Having heard arguments on 9.2.2015, we dismissed the appeal with no order as to costs. These are our grounds in brief.


[2] The principle in an application of this nature is well settled. In the oft-cited case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 the Federal Court laid down the following general principle at pages 214-215:




“Under Order 20 of the Rules of the High Court 1980, which is equivalent to Order 28 Rules of the Supreme Court, a Judge has a discretion to allow leave to amend pleadings. Like any other discretion, it must of course be exercised judicially (see Kam Hoy Trading v Kam Fatt Tin Mine [1963] MLJ 248). The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.”.


[3] In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230, the then Supreme Court in granting the application for amendments to the pleadings held at page 232:


“As for the general principles for the granting of leave to amend: It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made ‘for the purpose of determining the real controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’ (see per Jenkins LJ in GL Bakar Ltd v Medway Building & Supplies Ltd [1958]


1 WLR 1216, p 1231; [1958] 3 All ER 540, p 546)


It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exists for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.”




[4] Amendments to pleadings may be sought and granted at any stage of the proceedings: See Bumiputra-Commerce Bank Bhd & Ors v Bumi Warna Indah Sdn Bhd [2004] 4 CLJ 825 where Abdul Malik Ishak J (as he then was) said:


“Indeed reported authorities are abound in the law journals which categorically show that amendments to pleadings are allowed before trial, during trial, before judgment, after judgment and even when there is a pending appeal against a judgment in a situation where the said judgment has been granted premised on the original un-amended pleadings.”


[5] In the case before us, it is undisputed that at the time the application for amendments was made by the respondent, the pleadings had only recently closed and no trial date had been fixed by the court. The appellant in opposing the application contended that the proposed amendments would cause injustice and prejudice to him as the allegations in the proposed amendments related to matters that happened 6 to 8 years preceding the application for amendment. It was further argued that there was a delay on the part of the respondent in alleging the new tort of conspiracy or acting in concert and was therefore an afterthought.


[6] From the grounds of judgment, it is clear that the learned judge accepted the respondent’s explanation that the allegation of conspiracy arose from the same facts or were substantially the same as those already pleaded by them and that the proposed amendments were necessary to be placed before the court so that




all questions in controversy can be finally determined by the court. We have no reason to disagree with the learned judge.


[7] The learned judge cited the decision of the Court of Appeal in YB Datuk Dr Soon Choon Teck v YB Robert Lau Hoi Chew [2009] 3 MLJ 785 where the court made the following observations:


“Even if the proposed amendment gives rise to a new cause of action, but it does not turn the suit from one character into another. It is to be observed that the proposed amendment is inserted in relation to the publication referred to in paragraphs 7 and 8 of the statement of claim. Upon close perusal of the said paragraphs, it is clear to us that the appellant had in fact pleaded therein that the impugned statements or words were understood to infer and refer to him. In our view, even though the proposed amendment appears to be massive but in reality it merely seeks to supplement what has been earlier pleaded in the said paragraphs to show that the words complained of referred to the appellant.”.


[8] It was also the learned judge’s finding that the proposed amendments were bona fide in that they arose as a result of the appellant’s averments in his defence and counter-claim. Also relevant is the fact that the respondent’s application was made expeditiously without delay on 4.7.2014, which was 14 days after the appellant filed his Reply to Defence to the Counterclaim on 30.6.2014.


[9] Having regard to all the circumstances of the case, we were of the view that the learned Judge did not exercise his discretion wrongly in allowing the amendments. Further, no prejudice had been caused to the appellant and in any event this is certainly not a




case where the appellant could not be compensated by an appropriate order of costs. It was for these reasons that we dismissed the appeal.






Court of Appeal Malaysia Dated: 3 September 2015


For the Appellant: Henry Ling Kuong Meng of Messrs Ling &




For the Respondent: Satinder Singh Sandhu of Sandhu & Co.



PDF Source: