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2021 MarsdenLR 1746
HIGH COURT MALAYA PULAU PINANG
LOH KUAM HONG – Appellant
Versus
KEWIRA JAYA SDN BHD (ENCL 23) – Respondent
[Suit No: PA-22NCvC-159-07/2019]
Amendments to pleadings are permissible if they are made bona fide, do not cause injustice to the defendant, and do not alter the character of the case.
Headnote:(A) Rules of 2012 – Order 20 Rule 5 – Leave to amend statement of claim – Plaintiff sought to amend statement to include claim for damages for breach of contract as alternative to rescission – Court must decide if amendment is bona fide, without prejudice to defendant and does not change the suit's character – Application allowed as it had merit. (Paras 11, 12, 21, 24, 26)
(B) Legal Principles – The principle in Yamaha Motor Co Ltd v. Yamaha (M) Sdn Bhd governs that amendments should be allowed if they cause no injustice – The amendments do not change the character of the suit from rescission to a new cause. (Paras 12, 25)
(C) Findings of Court – Plaintiff is entitled to seek damages as an alternative to rescission, as original claim was for a breach fundamentally related to the same facts of contaminated water supplied. (Paras 18, 20, 26)
(D)
Issues – Whether the application for leave to amend is made bona fide, if it causes prejudice to the defendant, and if it alters the character of the suit. (Paras 12, 19) (E) Ratio Decidendi – The court concluded that the amendments sought are relevant to the original claim and do not exceed its bounds, allowing for a just outcome. (Paras 21, 25) (F)
Result: Application for amendment allowed.
JUDGMENT
Introduction
[1] The plaintiff filed a notice of application on 6 September 2021 for leave to amend his statement of claim dated 5 July 2019 essentially seeking to include the remedy of damages for breach of contract as an alternative to the remedy of rescission which is presently claimed based on the same pleaded facts (Encl 23).
[2] The application is made pursuant to O 20 r 5 of the Rules of 2012. The plaintiff contends that the proposed amendment: (i) is made bona fide (ii) that the defendant is not prejudiced and if prejudiced can be compensated with costs; (iii) the proposed amendments would not turn the suit from one character into a suit of another and inconsistent character.
[3] The application was opposed by the defendant on the following grounds:
(a) no cogent or reasonable explanation is given by the plaintiff for the delay in making the application to amend some 2 years after the suit was filed;
(b) the amendment is an attempt to introduce a new cause of action of specific performance which is inconsistent with the relief of rescission and therefore will changed the suit from one character into a suit of another and inconsistent character;
(c) the defendant cannot be compensated by costs alone in the present case due to the strain of litigation that such amendment will impose on the defendant; and
(d) the application to amend is a tactical manoeuvre and not made bona fide.
[4] On 18 December 2021, I allowed the application. My reasons for the decision are as follows. For brevity all rules hereinafter stated refer to the Rules of 2012.
The Statement Of Claim
[5] It is pleaded that the plaintiff entered into a sale and purchase agreement dated 17 June 2013 with the defendant for a parcel in a condominium known as Setia Pinnacle. The defendant is the developer of Setia Pinnacle. Vacant possession was delivered to the plaintiff sometime in October 2017.
[6] In December 2017 the plaintiff made a complaint to the defendant that the water supplied to the parcel had a foul odour, dirty and not fit to be used for a housing accommodation. This was followed by a series of complaints concerning the quality of the water. On 17 May 2018 the plaintiff issued a "Defects Inspection Form" provided for under the sale and purchase agreement to the defendant.
[7] The defendant eventually engaged an expert to carry out tests on the water supplied to the condominium and the plaintiff's parcel. The expert, Union Laboratories Sdn Bhd, in its report dated 13 July 2018 stated that the water supplied to the plaintiff's parcel was "fit for human consumption after process of chlorination or boiling". It was pleaded that this finding was contradicted by the plaintiff's expert, Edtech Associates Sdn Bhd, who carried out tests on two different dates and in its ensuing reports dated 20 September 2018 and 28 September 2018 confirmed that that the water supplied to the plaintiff's parcel contained bacteria known as "pseudomonas aeruginosa". The plaintiff then appointed Malaysian Testing Laboratory Sdn Bhd who tested water taken from three different locations in Setia Pinnacle in the presence of the defendant's representatives. This expert confirmed that the water at the tank tower and the water supplied to the plaintiff's parcel was contaminated by bacteria.
[8] It was alleged that the defendant failed to act to remedy the situation even after the three reports were submitted by the plaintiff to the defendant. As a result, the plaintiff sent a notice of demand wherein it was demanded that the defendant buy the parcel back at the same purchase price and other various sums as compensation. When the demand was ignored the present suit was filed claiming for the following reliefs:
(a) for an order to nullify the sale and purchase agreement and that the defendant pay back the purchase price amounting to RM835,900.00 and for renovation works carried out on the parcel amounting to RM100,000.00 within 30 days of this order; and
(b) d
