Alauddin Mohd Sheriff JCA:

By way of a summons-in-chambers (encl. 140) dated 2 July 1997 the respondent who was the plaintiff in the court below applied to amend its statement of claim. The application was supported by the affidavit of Ong Boon Chak sworn on 28 June 1997 (encl. 141). The application was first heard by the learned senior assistant registrar who allowed the application on

5 August 1997. The appellant then appealed against that decision to the judge in chambers who dismissed the appeal on 15 September 1997. Hence the present appeal before us.

To put it in proper perspective, the matter was originally fixed for full trial before the learned judge on 12-17 June 1997. On the first day of trial ie, 12 June 1997 the appellant (defendant 3) applied for an adjournment so as to amend his defence. The appellant came to the trial with a proposed draft amended defence for the court's perusal. The respondent objected to the adjournment. The learned judge however, allowed the adjournment and ordered costs to be paid to the respondent.

On 2 July 1997 the respondent filed its application to amend its statement of claim. On 30 July 1997, the appellant filed his application to amend his defence in line with the draft amended defence which was given to the court on 12 June 1997.

On 5 August 1997, the respondent's application to amend the statement of claim was allowed by the senior assistant registrar. The appellant appealed against this order. On 15 September 1997, the appellant's appeal was dismissed by the learned judge. On 9 October 1997 he filed his appeal to the Court of Appeal against the judge's order dated 15 September 1997. On 25 September 1992 the appellant's application to amend his defence came up for mention. The appellant took the stand that as the respondent has been given leave to amend, the amendment to his defence would be as of right and therefore there would be no necessity for him to proceed with his application for leave to amend.

On 13 October 1997 the sealed amended statement of claim was served on the appellant's solicitors. On 22 October 1992 the appellant served his amended defence on the respondent's solicitors but reserved his right to proceed with his appeal to the Court of Appeal. The terms of the amended defence was identical to that stated in the appellant's application for leave to amend. Under the circumstances, on 25 May 1998 the appellant withdrew his application to amend his defence.

Before us, learned counsel for the appellant raised only one issue ie, whether the respondent is entitled to amend its statement of claim contrary to the election and representation made to court on 12 June 1997 to the effect that the respondent's claim was based only on the first guarantee and not the second guarantee.

It was further argued by learned counsel that the respondent by their very conduct, as evidenced by the Notes of Evidence (see pp. 165-167 of the AR), is clearly barred by the doctrine of election and estoppel from amending the statement of claim to include the second guarantee.

Further, learned counsel submitted that implicit in their representation to court on 12 June 1997, the respondent effectively abandoned their rights on the second guarantee. This was to a certain extent reiterated by the respondent in their affidavit (see p. 177 AR para 7). Relying on the respondent's election and representation the appellant filed his application to amend the defence but not before the respondent acted inconsistently with their representation made to the court on 12 June 1997. The respondent is therefore not entitled to approbate and reprobate nor 'blow hot and cold' on this issue. Counsel added that the amendment sought by the respondent had prejudiced the appellant, a prejudice that cannot be compensated with costs.

In support of his submission learned counsel cited the following cases:

(i) Meng Leong Development Pte Ltd. v. Jip Hong Trading Co. Pte Ltd [1985] 1 MLJ 7.

(ii) Boustead Trading (19