The Court must balance justice for all parties when considering late applications for amendment of pleadings, especially under the new case management regime.

Introduction

[1] On the eve of trial, which date was fixed by this Court almost a year ago, this Court received a hand-delivered letter from the Defendants lawyers informing us that the Defendant had on the previous day filed an application (Enclosure 74) to amend their Statement of Defence and requested that the trial be adjourned.

[2] Notwithstanding the last-minute application, to ensure justice to all parties, I adjourned the trial and directed the parties to file their respective affidavits and fixed the hearing of encl 74 before me. At the hearing on 26 April 2017, upon considering the respective parties affidavits and hearing the submission of both counsels, I dismissed the Defendants application. My reasons for dismissing the application are as stated herein.

Law

[3] Under O 20 r 5 of the Rules of 2012 (" ROC ") this Court may at any stage of the proceedings allow the parties to amend its pleadings. Order 20 r 5 provides inter alia as follows:-

5. Amendment of writ or pleading with leave

(1) Subject to O 15, rr 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any other party to amend his pleading, on such terms as to costs or otherwise as may be just an in such manner, if any, as it may direct.

[4] The Defendants rely on the Federal Courts decision in Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors, 1983 MarsdenLR 38 ; [1983] CLJ (Rep) 428 to support their application, where the Federal Court held that under the old O 20 of the Rules of the High 1980 ("RHC"), a Judge has the discretion to allow leave to amend pleadings where such amendments would not cause injustice to other parties. Mohamed Azmi FJ in delivering the judgment of the Federal Court said that:-

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 result, (1) whether the application was 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. (See Mallals Supreme Court Practice p 342). If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim.

[5] The decision in Yamaha Motor was made under O 20 RHC, prior to the introduction of O 34 ROC .

[6] Order 34 ROC contains rules dealing with pre-trial case management.

[7] It was introduced by the ROC on 1 August 2012 to facilitate case management in the courts and to replace the previous O 34 RHC, which dealt with the setting down for trial of actions begun by writ. The editors of the Malaysian Civil Procedure 2015 (White Book) commented that:-

The amendments made extensive changes to the procedure to be followed before the trial of an action. They envisage the Court taking a proactive role in setting down time frames and giving directions as to the preparation of each partys case for the preparation of each partys case for the purposes of the trial, while enabling the Court to impose sanctions for non-compliance with those directions..........

[8] Post-introduction of O 34 ROC , the Federal Court in Hong Leong Finance Bhd v. Low Thiam Hoe v. Another Appeal , 2015 Marsd