A party seeking to amend pleadings late must show bona fides, lack of prejudice to others, and the amendments must not change the suit's character or disrupt the administration of justice.

Awg Armadajaya Awg Mahmud JC:

1. Introduction

[1] This is an application to amend the Statement of Defence (encl 26) pursuant to O 20 r 5/O 92 r 4 Rules of 2012 where the Defendant wishes to mention a third party, not previously named in the earlier Statement of Defence.

2. The Cause Papers In This Application

[2] The cause papers are as follows:

(i) Bundle of pleadings that were closed on 2 May 2018

(ii) The Defendants Notice of Application to amend their Defence (encl 26);

(iii) Defendants Affidavit-in-Support dated 8 November 2019;

(iv) Plaintiffs Affidavit-in-Reply dated 22 November 2019;

(v) Defendants Affidavit in Reply dated 5 December 2019;

(vi) Plaintiffs Affidavit in Reply dated 16 December 2019;

(vii) Defendants Supplementary Affidavit dated 21 November 2019;

(viii) Defendants Notice of Application to strike out the Plaintiffs Writ of Summons and Statement of Claim (encl 7) dated 25 May 2018;

(ix) Defendants Affidavit-in-Support, in support of the Defendants striking out application (encl 7) dated 24 May 2018;

(x) Plaintiffs Affidavit-in-Reply dated 24 June 2018;

(xi) Defendants Affidavit-in-Reply dated 24 June 2018;

(xii) The Judgment of Johor Bahru High Court on encl 7 dated 30 September 2018;

(xiii) The Grounds of Judgment of the Johor Bahru High Court dated 31 December 2018;

(xiv) Plaintiffs Notice of Appeal dated 23 October 2018;

(xv) Court of Appeals Decision dated 23 August 2019;

(xvi) Defendants Notice of Motion dated 19 September 2019 to the Federal Court for leave to appeal

3. The Law In Respect Of Amendments To Statement Of Defence

[3] The Provision of law in respect of amendment of pleadings is found in O 20 r 5 Rules of 2012.

[4] The Court has discretion to grant leave to amend pleadings. The Court may at any stage of the proceedings allow:

(a) the Plaintiff to amend his writ, or

(b) any party (to the proceeding) to amend his pleading,

[5] This may be done on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. [O 20 r 5(1) Rules of 2012]

[6] 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 or would not result:

(a) Whether the application is bona fide;

(b) Whether the prejudice caused to the other side can be compensated by costs; and

(c) Whether the amendments would not in effect, turn the defence from one character into a suit of another and inconsistent character.

[7] In Yamaha Motor Co, Ltd v. Yamaha Malaysia Sdn Bhd , ; [1983] CLJ (Rep) 428, the Federal Court succinctly puts it as follow,

"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 the injustice caused by the amendments"

[8] This was also applied in Abdul Johari Bin Abdul Rahman v. Lim How Chong , [1997] 1 MLJ 629, by the Court of Appeal.

[9] However, at the close of pleadings, the rules somewhat change a little. Application to amend pleading made after expiry of the period of limitation [O 20 r 5(3), (4), (5), Rules of 2012].

[10] In this instance, the general principles for the granting of leave to amend are as follows:

(a) All Such Amendments Ought To Be Made for The Purpose Or Determining Real Question In Controversy Between The Parties To Any Proceedings Or Of Correcting Any Defect Or Error In Any Proceedings

[11] Lord Justice Jenkins in GL Bakar Ltd v. Medway Building & Supplies Ltd [1958] 1 WLR 1216, 1231; [1958] 2 ALL AER 540, 546 gave a very instructive insight as follows,

"It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose or determining real question in controversy between the parties to any proceedings or of correcting any defect or error in any procee