JUDGMENT

Lim Chong Fong J:

Introduction

[1] This is an application by the Plaintiff to amend the reply and defence to counter-claim at the eve of the trial.

[2] The Plaintiff is a private limited company involved in the building, general and seawall construction business.

[3] The Defendant is also a private limited company involved in the building construction and property development business.

Background And Preliminary

[4] The Defendant appointed the Plaintiff as its sub-subcontractor to carry out and complete the proposed construction of the perimeter bund (Ch. 100.0m - 1150.0m) for Phases 2B and 2C (STP 2) Project at Tg. Tokong Penang ("Works").

[5] Upon completion of the Works, the Plaintiff made its final claim for work done including for variation work which comprised of rectification of slippage of the perimeter bund at Ch. 950.0m - 1050.0m of the Works

[6] The Defendant disputed the Plaintiff's final claim and the Plaintiff hence instituted this suit on 7 September 2020.

[7] The trial of the suit was scheduled to commence on 17 May 2022.

[8] The Plaintiff however on 6 May 2022 applied principally to amend para 60 (ii) of its reply and defence to counterclaim as underlined as follows ("Application"):

"60. As to paras 52 and 53 of the D & C, the Plaintiff avers that:

(i) ...

(ii) in any case, the Plaintiff reiterates that the construction of the entire perimeter bund was carried out pursuant to the method statement/working method approved by the Defendant and the cause of the slippage is not due to the Plaintiff; and

(iii) ..."

[9] The affidavits that were filed for purposes of the Application are as follows:

(i) Plaintiff's affidavit in support affirmed by Nor Azhar bin Marzuki dated 6 May 2022; and

(ii) Defendant's affidavit in reply affirmed by Gan Jui Siang dated 9 May 2022.

[10] The Application was fixed for hearing on an urgent basis before me on 11 May 2022 via zoom. After hearing the oral submissions of counsel, I allowed the Application with costs to be fixed.

[11] The Defendant has on 17 May 2022 lodged its appeal on my decision to the Court of Appeal.

[12] I therefore furnish below the grounds of my decision.

Contentions And Findings

[13] The Plaintiff submitted that the Application is bona fide and does not alter the character of the suit to that of a different and inconsistent character. More pertinently, the Plaintiff submitted that after its review of the documents:- Design Report: Geotechnical Volume 1 - Report for Seri Tanjung Pinang (Phase 11) Development (STP 2), Penang dated February 2015 and Hydraulic Study for Seri Tanjung Pinang (Phase 2) Development dated April 2013 produced by Tanjung Pinang Development Sdn Bhd and Dr Nik & Associates ("Documents") in consequence of my discovery and production order dated 4 April 2022, it became necessary in abundance of caution for the Plaintiff to plead that the slippage of the perimeter bund has not been caused by the Plaintiff. This fact is evident in the Plaintiff's supplementary expert report no 2 of Professor Dr Fauziah Ahmad dated 22 April 2022 after having studied the Documents. Hence, the Application ought to be allowed.

[14] The Defendant however opposed the Application because the amendment sought is not bona fide being the attempt by the Plaintiff to plead design fault that caused the slippage of the perimeter bund. The Plaintiff had only originally pleaded variation to claim for the rectification of the perimeter bund without mentioning that it was due to the design fault of the Defendant. According to the Defendant, it was already evident in Professor Dr Fauziah Ahmad's original expert report no 1 that design aspect was the likely cause of the slippage but the Plaintiff made no attempt to amend its pleadings at the material time.

[15] Additionally, the Defendant submitted that it would be severely prejudiced that is not compensable by costs because its defence comprised only of basic rebuttals premised on the lack of pleading of faulty design of the perimeter bund all alo