Haidar Mohd Noor JCA:

The appellant ("plaintiff') filed an application before the senior assistant registrar for amendment of para. 5 of its statement of claim. The application was dismissed. The appellant appealed to the judge-in-chambers. The learned judge dismissed the appeal. The appellant filed an appeal to this court against the decision of the learned judge.

The application for amendment of para. 5 of the statement of claim was made pursuant to O. 20 r. 5 of the Rules of the High Court 1980 ('RHC'). The proposed amendment reads:

The said loans and the interest payable thereon were acknowledged by the First and the Second Defendants as late as April 1987.

Before considering the issue as to whether the application was properly dismissed, it would be appropriate to set out the background facts that led to the application by the appellant.

Background

The appellant filed this action on 29 May 1991. This action relates to loans of RM1,060,000 to the first respondent and RM500,000 to the second respondent. As at 31 December 1990, the first respondent was indebted to the appellant in the sum of RM3,688,370.90 and the second respondent was indebted in the sum of RM1,822,276.44, both inclusive of interest. It seemed the appellant is an associate company of the respondents by reason of being a minor shareholder.

On 16 September 1992 the appellant filed a summons-in-chambers to strike out the defence of the respondents pursuant to O. 18 r. 19 of RHC. It was allowed. The respondents appealed to this court. The appeal was allowed on 27 October 1994 (Civil Appeal No. P-02-168-94) though counsel for the appellant contended that the date was wrongly stated by the learned judge and the correct date should be 4 May 1995.

On 5 May 1995, the appellant filed an application to amend para. 5 of its statement of claim. It was dismissed by the senior assistant registrar and on appeal to the judge-in-chambers, the order of the senior assistant registrar was affirmed. Hence the present appeal before us.

The Amendment

According to the learned judge, in spite of the defence of limitation, he still allowed the application of the appellant to strike out the defence and gave judgment to the appellant. However, on appeal, this court set aside the order of the learned judge. In other words, the action should proceed to trial.

It seemed clear, according to the learned judge, that the amendment was to add a new cause of action to overcome the defence of limitation, the ground on which it earlier failed in the appeal before this court (see p. 18 of the Appeal Record).

The learned judge stated that the application to amend was filed four years after this action was filed and the "acknowledgement" said to have been made at the latest on April 1987, was four years before proceeding to file this action. In the circumstances the learned judge was of the view that it was not in the interest of justice to allow the application to amend and dismissed it with costs.

The issue hinges on the interpretation of O. 20 r. 5. This rule is in pari materia with the English rule of court and similar to the Singapore rule of court and reads:

5. Amendment of writ or pleading with leave (O. 20 r. 5)

(1) Subject to Order 15 rules 6, 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 party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendments mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the eff