Amendments to pleadings may be permitted post-judgment if they do not introduce new evidence or alter the cause of action, ensuring that all relevant issues are addressed.

JUDGMENT

(Enclosure 19)

Zaleha Rose Pandin J:

Introduction

[1] This is an application by the Appellant vide Notice of Application in encl 19 for a leave to amend the Defence dated 28 February 2020 filed under suit No BKI-A72NCvC75/2-2020 in the manner as shown in red in the Amended Defence annexed therein, and for the Amended Defence be filed and served within fourteen (14) days from the date of this Order.

[2] Basically, the proposed amendment is to include the following sentences at the end of the 2nd paragraph of encl 6:

The Defendant overlooked that no license can be granted by the Majlis Perbandaran Sandakan for the Marks at the said Outlet because the License Agreement is different from the Defendant's existing business. By reason thereof, the parties are in pari delicto and performance of the License Agreement is illegal

Fact Of The Case

[3] The Respondents (who was the Plaintiff before the trial court) are at all material times Malaysian citizens of full age and trading under the name and style of Gen.z having an address at Ground Floor, Lot 1, Lintas Station, Lorong Lintas Plaza 2, Lintas Plaza, Jalan Lintas, Kota Kinabalu, Sabah, Malaysia.]

[4] The Appellant (who was the Defendant before the trial court) is at all material times Malaysian citizen of full age and having an address at T40H41, Taman Perdana, 88300 Kota Kinabalu, Sabah, Malaysia.

[5] Pursuant to a Licence Agreement dated 1 February 2019 entered into between the Respondents and the Appellant ("the Licence Agreement"), the Respondents as the Grantor have granted to the Appellant a license to operate a licensed business selling all products of "Gen.Z" in an inlinestore (hereinafter referred to as "the said outlet") located at Ground Floor, Lot 1, Block I, Sibuga Jaya Commercial Centre, Mile 8, Jalan Labuk, 90000 Sandakan, Sabah.

[6] However, dispute arose and the parties subsequently found that the Respondent's License Agreement under its own name and brand at the Appellant's premises is not permissible under the trading license rules of the Sandakan Municipal Council.

[7] Consequently, the Respondents have filed an action against the Appellant for special and general damages essentially for breach of contract.

[8] The learned Magistrate, after full trial, delivered oral judgment on 30 August 2022 which allow the Respondent/Plaintiff claim with cost of RM10,000.00 to be paid by the Appellant/Defendant to the Respondent/Plaintiff. However, there was no Ground of Decision made by the learned Magistrate who has now left the judiciary.

[9] Dissatisfied with the decision, hence this present appeal filed by the Appellant.

[10] Both parties have filed in their written submission and reply respectively and the appeal pending hearing by this court.

[11] However, while preparing the written submission, the counsel for the Appellant noticed that there were certain facts which were omitted from the Statement of Defence, to be precise at the end of para 2. Hence the application under encl 19 is filed to seek leave for amendment be made to the said Statement of Defence.

Contentions Of The Parties

[12] Briefly, the counsel for the Appellant relied on O 20 r 5 of the ROC 2012 which allows for amendment of pleading to be made at any stage of proceeding, including during the appeal stage. In addition, the omitted facts were already referred by witnesses, cross-examined, re-examined and submissions were filed by both parties after trial. Thus, the proposed amendments shall not cause prejudice to the Respondents. On the other hand, if this application is not allowed, it will cause a detriment adverse impact on the Appellant.

[13] In contrary, the Respondent had, during e-review on 9 November 2023, raised the following preliminary objection:

(a) The said Application for amendment is bad in law as O 20 of the Rules of 2012 (" ROC ") does not provide for amendment after judgment;

(b) The Federal court which upheld the decision of High court in Hong Leong Finance Bhd v. Low Thiam Hoe and Another App