Long delays in amending pleadings can be prejudicial and justified explanations are necessary to allow such amendments.

[1] This is an appeal against the decision of the High Court of Kuala Lumpur of 28 February 2011 dismissing the appellant's application to amend its statement of claim to add a new cause of action.

[2] The appellant is the plaintiff at the High Court. The appellant's writ action and statement of claim was filed on 28 February 2002. In the writ and statement of claim, the appellant cites a company called 'Cherating Development Sdn Bhd' ('Cherating Development') as the first defendant. Cherating Development is not a party to this appeal. The respondent, Woolley Development Sdn Bhd is cited as the 2nd defendant in the writ action. The 1st defendant, Cherating Development, is the owner of several parcels of land in Butterworth. Around 1996/1997 the first defendant developed the parcels of land, constructing several shop offices in a project called 'Raja Uda Commercial Centre'. The appellant alleges that it had entered into 212 sale and purchase agreements with the 1st defendant on 6 January 1997 to purchase the shop offices. It is also alleged in the statement of claim that it is a term in the sale and purchase agreements that the agreements shall be binding upon the successors in title and/or permitted assigns of the 1st defendant. It is further averred in the statement of claim that the appellant agrees to pay the 1st defendant the full purchase price of the shop offices without waiting for their construction, in consideration of the first defendant giving the appellant a discount in the form of 16 free shop offices.

[3] The original claim of the appellant against the respondent was, firstly, for the tort of conspiracy to defraud, in that the respondent conspired with the 1st defendant to defraud the appellant; and, secondly, for breach of trust.

[4] The respondent's statement of defence was filed on 2 April 2002. The respondent denies the appellant's allegations.

[5] On 11 August 2004, after a series of case management dates, the appellant entered a 'default judgment' against the respondent. It is not clear from the order drawn up (and also from the Appeal Record) as to pursuant to which provision of law was the 'default judgment' applied for and obtained. Be that as it may, the 'default judgment' order of 11 August 2004 was eventually set aside by the High Court on 3 June 2010 (see the appellant's own affidavit at para 7.1 of the affidavit of Tan Aik Teck, a Director of the appellant company, affirmed on 8 December 2010 which can be found at p 292 vol 2(1) of the Appeal Record).

[6] The application to amend the statement of claim via summons in chambers was filed subsequently on 2 November 2010.

[7] On 28 February 2011, upon hearing the application to amend, the learned High Court Judge allowed certain proposals to amend; but refused to allow the remaining proposals. The present appeal before us only concerns the certain proposals to amend that were not allowed by the learned High Court Judge, in particular, the proposals:

(a) to add paras 12C and 12D; and

(b) to add new prayers in para 19, namely, prayers (3)(a), (3)(d)(i) and (3)(d)(ii).

[8] In this judgment, we shall focus mainly on the proposal to add the two new paragraphs to the statement of claim, namely, paras 12C and 12D, rather than on the proposal to amend para 19 of the same (to add the new prayers (3)(a), (3)(d)(i) and (3)(d)(ii)). This is because the proposal to amend the prayers at para 19 is only consequential to the proposal to add paras 12C and 12D. If the application to add paras 12C and 12D should be allowed, then, the application to amend the prayers at para 19 should also be allowed; and vice versa.

[9] The proposed new paras 12C and 12D read as follows:

12C. The 2nd