McGilligan J:

The plaintiffs have through their advocate applied at this stage, on the day fixed for hearing but before any evidence has been taken, to amend their statement of claim.Para. 3 of the existing statement of claim (that dated 17 September 1964) reads:

3. The second defendant as from the 10 June 1963 stood as guarantor for the first defendant to the extent of $30,000".

The plaintiffs ask to amend by (a) substituting for that para. 3 the following paragraph:

3. By a letter of guarantee in writing dated 10 June 1963 signed by the second defendant, he (the second defendant) stood as a guarantor for the first defendant to the extent of $30,000".

and (b) altering the figure for interest in para. 5(c) from 8% to 12%.

The first defendant does not object to these amendments.

The second defendant, through his advocate, has objected to the first proposed amendment.He does not object to the second.

The Court has heard well reasoned arguments from both advocates, and is indebted to them for their assistance.

The Court has been referred to O. 28 r. 1 and to O. 19 r. 16.

I do not consider that O. 19 r. 16 applies to this case.What it means is that later pleadings, such as a reply, must not be inconsistent with earlier pleadings.It is specifically not applicable where amendments are made, or asked to be made.

The decision here therefore turns on the meaning and effect of O. 28 r. 1. That rule 1 reads as follows:

The Court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings, in such manner and as such terms as may be just and all such amendments shall be made as may be necessary for determining the real questions in controversy between the parties.

In Mallal's 'Supreme Court Practice' at p. 342 the general principle is stated to be that the Court will allow such amendments as will cause no injustice to the other side.It is also said, quoting from the case of Looi Guan Kway v. Low Lean Bok[1939] 1 MLRH 80; [1938] MLJ 35 that to determine whether injustice would or would not result a Court will ask the following three questions:

(1) Is the application for amendment made bona fide?;

(2) Will the amendments asked for cause no prejudice to the other side which cannot be compensated by costs?;

(3) Are the amendments asked for such as to turn a suit of one character into a suit of another and inconsistent character?

I am satisfied that these are the questions a Court should ask itself in such an application as this for amendment of pleadings, and I believe it fair to say that both advocates agree.

First, it is certain that there is no question of mala fides here; and it is not alleged by the second defendant.

Second, the amendment asked for would not, if made, turn this into a suit of a different and inconsistent nature.On the statement of claim as it is the second defendant is being sued as a guarantor; on it as it would be if amended he is also being sued as a guarantor.

Would then, this amendment asked for prejudice the second defendant in a way which cannot be compensated for by costs? Would it (in the words used in para. 72, p. 35, of vol. 30 of the 3rd Edn. of Halsbury) remove an immunity conferred by the earlier omission? (I take it to be the second defendant's basic argument that this amendment would remove such an immunity). Would the proposed amendment, if made, deprive the second defendant of a defence he now has under the Statute of Frauds? In other words, has the second defendant, on para. 3 of the statement of claim as it now stands a defence under the Statute of Frauds of which he could not avail himself if the proposed amendments were made?

If the answer to the last question (to all the questions put in the last paragraph) is YES, the plaintiffs' pleadings, as they stand, must be taken to allege, or imply, only an oral contract of guarantee unsupported by any written agreement or memorandum.

The advocate for the second defendant referred to the following statement in the sam