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THE HIGH COURT OF MALAYA AT KUALA LUMPUR

 

(CORMMERCIAL DIVISION)

 

SUIT NO: D-22-704-2006

 

PERFECT PLUMBING & CONSTRUCTION SDN. BHD.

 

V

 

TAN HOCK BENG GROUNDS OF JUDGMENT

 

Enclosure 26

 

Enclosure 26 is an appeal by the Defendant against the decision of the Senior Assistant Registrar (SAR) on 21.1.2010 in relation to the Defendant’s application in Enclosure 12 to amend the Statement of Defence. The SAR allowed the Defendant’s application for leave to amend paragraph 2 of the Statement of Defence but dismissed the Defendant’s application to amend paragraphs 4 and 5 of the said Defence.

 

The Plaintiff’s claims against the Defendant:-

 

a) a declaration that the Defendant return and cause the ownership of the motor vehicle; Mercedes Benz WFS 89 and the Proton Wira WDB 1788 to be transferred to and registered under the name of the Plaintiff;

 

b) the return of RM30,000.00 by the Defendant to the Plaintiff;

 

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c) damages to be assessed in respect of paragraphs (a) and (b) above;

 

d) interest;

 

e) solicitor client cost; and

 

f) any further order or relief as the Court deems fit.

 

The application for leave to amend was made by the Defendant on 6.11.2009 as a result of matters arising during case management of the case.

 

The Federal Court in Yamaha Motor Co. Ltd. V. Yamaha Malaysia Sdn. Bhd. & Ors [1983] 1 MLJ 213 had laid down the guidelines applicable when for applications for amendments to pleadings. The general principle is to determine whether the amendments will cause injustice to the other parties if the amendment is allowed. There are three basic questions that 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.

 

The Defendant’s reason for the amendments to the paragraph 4 of the Statement of Defence is because of the Plaintiff’s insistence that all matters pleaded in paragraph 4 of the Statement of Claim is to form part

 

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of the Statement of Agreed Facts. The Defendant seeks to amend as follows:-

 

1) in paragraph 4 to substitute the word ‘admitted’ with ‘denied’; and

 

2) in paragraph 5 to mentioned specifically the car registration number.

 

The proposed amendments are necessary to remove any alleged inconsistency and to clarify the Defence. The amendments proposed are made bona fide and will not prejudice the Plaintiff.

 

The Plaintiff however feels that the amendments sought is highly prejudicial to the Plaintiff and cannot be compensated by costs as it is a substantial change of character and nature of the Defence.

 

In Abdul Johari bin Abdul Rahman v. Lim How Chong [1997]1MLJ

 

629 the Court of Appeal held that,

 

“….the authorities strongly indicate that the courts should lean towards granting applications for amendments even when a new cause of action or line of defence is raised, provided it is based on the same facts or arose out of the same transaction subject, however, to an award of costs to the other party for injustice caused by the amendments.”

 

The proposed amendments do not change the character and nature of the Defence.The Defendant is not disputing that the vehicles were given to him but the capacity in which he received or accepted the vehicles. All this issues can be determined by the trial judge.

 

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As to the delay in seeking application to amend the Defence it is trite law that amendments may be made any stage of the proceedings. In Hock Hua Bank Bhd. V Leong Yew Chin [1987] 1 MLJ 230 the Supreme Court held that

 

“…the court has power to grant an amendment even after the expiry of the limitation period notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, subject to the very important condition, namely that the new cause of action must arise out of the same or substantially the same facts as the cause of action in respect of which relief had already been claimed.”

 

The Defendant’s proposed amendments does not change the character or nature of the Defence and would not cause any prejudice to the Plaintiff. The trial court will be able to determine and adjudicate all the issues raised by the parties.

 

In view of the foregoing I allow the appeal with cost to the Plaintiff.

 

(HASNAH BINTI DATO’ MOHAMMED HASHIM)

 

Judicial Commissioner

 

High Court of Malaya at Kuala Lumpur.

 

13 May 2010

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