Mohd Noor Ahmad J:

The plaintiff appealed against the decision of the learned Senior Assistant Registrar which granted the defendant leave to amend the defence.

The plaintiff claimed against the defendant, inter alia, a sum of RM50,000 based on an undertaking given by the defendant to the plaintiff. The undertaking arose in this way. Under an agreement, one Dr. R. Perumal purchased a piece of landed property together with a 3-storey shophouse to be constructed thereon from a developer for the sum of RM281,368. For the purpose, the purchaser obtained a loan of RM140,400 from the Malaysian Treasury and another loan of RM50,000 from the defendant to be secured by a first legal charge and second legal charge over the property, respectively. The plaintiff was at all material times the bridging financier for the developer and chargee of the property. In consideration of the defendant undertaking to make payments against the relevant architect's certificate of completion directly to the developer's account with the plaintiff, the plaintiff agreed to discharge the charge over the property and release the document of title to the defendant for the purpose of registering a second legal charge over the property in favour of the defendant. In pursuance of the undertaking the plaintiff discharged the charge and the second legal charge was registered in favour of the defendant. The construction of the shophouse was completed and the certificate of practical completion was issued but no payment was made by the defendant under the undertaking.

The plaintiff pleaded in paras. 6 and 7 of the statement of claim as follows -

6. In consideration of the defendant undertaking to make payments against the relevant Architect's Certificate of Completion directly to the Developer's account with the Plaintiff known as Account No: 02-06290- 8. which account is held in trust for the Plaintiff, the Plaintiff agreed to discharge the Charge over the Property and release the documents of title to the defendant for the purpose of it registering a second legal charge over the Property.

7. Pursuant to the undertaking aforementioned in paragraph 6 herein the Plaintiff discharged the Charge and the Defendant accordingly registered a second legal charge over the Property on or about 12th August 1985.

The defendant stated in para. 3 of its defence as follows -

3. Paragraph 6 and 7 of the Statement of Claim are admitted.

Now, the defendant seeks to amend its defence only in respect of para. 3 as follows -

3. Paragraphs 6 and 7 of the Statement of Claim are denied and the Plaintiff is put to strict proof thereof, safe and except for the following;

3(a) that the Defendant had by a letter dated 7th June 1985 addressed to the Plaintiff confirming its undertaking to release payments to the Developer's account No. 02-06290 maintained with the Plaintiff's Kuala Lumpur main office in accordance to the terms and conditions of the Agreement;

3(b) that the Plaintiff released the document of title and Discharge of Charge of the Plaintiff for the registration of the first legal charge in favour of Perbendaharaan Malaysia and a second legal charge for the Defendant;

3(c) that the Plaintiff had at no occasion given Defendant any notice or indication that the loan sum of Ringgit Malaysia 50,000.00 was in part or in whole to be used or intended to be used as a redemption sum for the (Plaintiff's) Charge;

3(d) that the Defendant gave its undertaking on the understanding that the release of the loan sum of Ringgit Malaysia 50,000.00 was payment of the purchase price to the Developer for its account with the Plaintiff;

3(e) that the Plaintiff's Charge was subject to the interest of the Purchaser pursuant to the Agreement .

The plaintiff objects to the proposed amendment on the grounds that it tantamounts to a withdrawal of the admission made without any reasonable or satisfactory explanation and by such withdrawal the plaintiff will be prejudiced which cannot be compensated by costs. The defen