Mokhtar Sidin JCA:

On 12 May 2000, the applicant/appellant filed a notice of motion praying for the following orders:

(1) that the supplementary record of appeal containing the sealed order of the High Court of Malaya at Kuala Lumpur dated 11 May 1999 filed herein on 13 December 1999 be deemed to be part of the record of appeal filed on 30 June 1999.

(2) in the alternative, that the appellant be at liberty to file and serve a Supplementary Record of Appeal containing a copy of the sealed order of the High Court of Malaya at Kuala Lumpur dated 11 May 1999 within three weeks from the date of this order;

(3) Mid Valley City Sdn Bhd, the appellant abovenamed be at liberty to amend its memorandum of appeal dated 30 June 1999 in the manner shown in red, a copy of which is annexed together with this notice of motion;

(4) Mid Valley City Sdn Bhd, the appellant abovenamed be at liberty to adduce and read in evidence the following important documents and facts contained therein during the hearing of this appeal:

(a) a copy of the approved layout plan dated 17 June 1997;

(b) letter dated 8 December 1998 from Dewan Bandaraya Kuala Lumpur granting approval for development plans;

(c) a copy of a sales brochure containing a pictorial representation of the proposed development;

(d) a copy of the notes of proceedings taken before the High Court of Malaya at Kuala Lumpur in Originating Motion No. R8-25-46-1989;

(e) a copy of the order of the Supreme Court in Supreme Court Civil Appeal No. 02-124-1990 dated 13 November 1990;

(f) an agreement between the appellant and IJM Corporation Bhd (No. 104131-A) and IT & T Engineering and Construction Sdn Bhd (No. 86508-H) for the construction of the development together with attachment three (3) thereof.

At the commencement of the proceedings the learned counsel for the respondent made it clear that he has no objection to either prayer (1) or (2). It is clear to us that the supplementary record as stated in prayers (1) and (2) have not been filed yet and we made the order that prayer (2) be allowed and that the appellant is to file and serve the supplementary record of appeal within two weeks.

As to the other prayers the learned counsel for the respondent made it clear that he is objecting to those prayers. The affidavit in support of the application was affirmed by one Tan Boon Gark, the managing director of the appellant. In his affidavit, Mr. Tan Book Gark stated that the second appellant (IGB Corporation) is not an interested party in this proceedings because the respondent had in the High Court withdrawn the suit against IGB Corporation Bhd. According to the appellant the purpose of the application as found in prayers (3) and (4) are twofold, firstly to adduce fresh evidence and secondly to amend the memorandum of appeal. Together with this application the appellant also filed a copy of the proposed amended memorandum of appeal. (The Bahasa Malaysia version is at pp. 43 to 50 and the English version is found at pp. 51 to 58 of the present application). The documents stated in prayer (4) are exhibited in the application at pp. 60 to 90.

The proposed amendments to the memorandum of appeal depend on our decision in respect of prayer (4). For that reason we will deal with prayer (4) first. The power of this court to amend and admit further evidence is found in s. 69(1), (2) and (3) of the Courts of Judicature Act 1964:

69. Hearing of Appeals

(1) Appeals to the Court of Appeal shall be by way of rehearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(2) The further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is br