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2022 MarsdenLR 1074
HIGH COURT MALAYA KUALA LUMPUR
LKM MANAGEMENT SERVICES SDN BHD – Appellant
Versus
AU KOK HUEI – Respondent
[Civil Suit No: WA-11ANCVC-150-11-2021]
The court emphasized that amendments to pleadings should be allowed if they do not cause prejudice to the other party and arise from the same or substantially similar facts.
Headnote:(A) Rules of Court 2012 – Order 20 Rule 5 – Amendment of pleadings – The plaintiff's appeal against the Magistrate's decision to allow the defendant’s amendment application was dismissed as the amendments arose from previously pleaded facts and did not change the character of the suit – The court affirms that amendments should be allowed unless they cause injustice. (Paras 10, 22, 31)
(B) Judicial Discretion – Amendments – The court retains discretion to permit amendments, particularly if they do not prejudice the other party and arise from the same facts – Prejudice is assessed based on potential harm balanced against the needs of justice. (Para 22)
Facts of the case: The plaintiff sought repayment of two loans amounting to RM73,000, which the defendant denied, claiming limitation and laches. The Magistrate permitted amendments to the defendant's Defence, which the plaintiff appealed. (Paras 2-4)
Findings of Court: No injustice would result from allowing the defendant's amendments, which were relevant to the issues at trial and did not change the nature of the case. (Para 31)
Issues: Whether the proposed amendments by the defendant changed the character of the suit, affected the plaintiff's rights, or were made mala fide. (Paras 23-24)
Ratio Decidendi: The amendments should be allowed as they did not prejudice the plaintiff and arose from the same facts previously presented by the defendant, ensuring that the true issues of the case could be resolved. (Paras 10, 22)
Result: The plaintiff’s appeal was dismissed, and costs were awarded to the defendant.
JUDGMENT
Introduction
[1] This is an appeal by the plaintiff against the decision of the Magistrate to allow an amendment of the Defence by the defendant. I had dismissed the appeal with costs on 21 February 2022. The plaintiff had appealed to the Court of Appeal. These are my grounds of judgment. The appellant will be referred to as plaintiff. The respondent as the defendant.
Background Facts
[2] It is the plaintiff's case that in 2013 the defendant had requested from the plaintiff two (2) friendly loans totalling RM73,000. The plaintiff alleges that parties had signed two (2) agreements dated 28 August 2013 and 22 September 2013 respectively evidencing the two loans.
[3] The plaintiff contends that despite several demands made and extensions of time given to repay, the defendant had failed to repay. As a result, the plaintiff had filed this suit.
[4] On 14 February 2020, the plaintiff filed its Statement of Claim for repayment of RM73,000, interest and costs. On 3 April 2020 the defendant filed his Defence denying the loans and pleaded the defence of limitation and laches. On 22 April 2020, the plaintiff filed its Reply.
[5] Both the plaintiff and defendant had filed O 14 and O 18 r 19 applications respectively. The O 14 application was dismissed by the Magistrate. No appeal was lodged. The O 18 r 19 application was allowed by the Magistrate but on appeal was set aside by the High Court. No appeal was lodged.
[6] On 3 June 2021, the Magistrate gave directions for the parties to file their pre-trial documents for the purpose of the full trial.
[7] The Magistrate at a case management on 20 September 2021 fixed the suit for trial on 20 April 2022 and 21 April 2022. The reply affidavit at para 6 gave the trial dates as 20 April 2021 and 21 April 2021. This cannot be right as the CM was on 20 September 2021. In his Grounds of Judgment at [13] the Magistrate also stated the trial dates were 20 April 2022 and 21 April 2022.
[8] On 8 September 2021, the defendant had filed an application to amend his Defence under O 20 r 5 and O 92 r 4 of the Rules of 2012 ( ROC ). The amendment application was thus filed about seven months before the trial. A perusal of the proposed amendments shows that the amendments are in respect of facts relating to one Melvin Loh Kok Man/Melvin LKM who had already been pleaded by the defendant in his Defence.
[9] On 12 November 2021 the application was allowed by the Magistrate with cost of RM500.00. The plaintiff then filed an appeal which was dismissed by me as alluded to at (1) above.
A Review Of The Law On Amendment In Malaysia
[10] The law on amendment of writ or pleading in Malaysia is governed by O 20 r 5 of the Rules of 2012 which reads:
Amendment of writ or pleading with leave (O 20, r 5)
5. (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 party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.
...
(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if 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 action by the party applying for leave to make the amendment.
[11] This provision has been construed by a quartet of cases from our higher courts. In chronological order, in 1983 by the Federal Court in Yamaha Motor Co Ltd v. Yamaha (M) Sdn Bhd & Ors, ; [1983] CLJ (Rep) 428 ("Yamaha Motor"), in 2004 by the Court of Appeal in HSBC Bank Malaysia Bhd v. Macquarie Technologies (Malaysia) Sdn Bhd & Another Appeal; [2004] 3 CLJ 121; [2004] 4 AMR 580 ("Macquarie Technologies"), in 2009 by the Court of Appeal in Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal; [2010] 8 CLJ 1 ("Dato' Tan Heng Chew") a
