The court ruled that new evidence pertaining to clerical errors was not admissible as the plaintiff failed to exercise reasonable diligence to rectify known issues before trial.

Headnote:(A) Rules of the Court of Appeal 1994 - Rule 7(3A) - Admission of new evidence in appeal - Appellant sought to admit documents confirming clerical errors but failed to satisfy requirements of rule regarding due diligence prior to trial - Court concluded the plaintiff did not exercise reasonable diligence to rectify identified clerical errors before trial and failed to call witnesses listed by the respondent. (Paras 3, 13, 21, 23)

(B) Evidence - New evidence - Court found that the letters confirming errors did not constitute new evidence as the appellant was aware of the clerical mistakes before the trial and had means to address them. (Paras 21, 23)

Facts of the case:
Legal dispute over a sale and purchase agreement for land between parties where the plaintiff claims errors in documentation led to dismissal of their claim. The defendant denied any agreement with the plaintiff. (Paras 6-8)

Findings of Court:
Plaintiff failed to demonstrate the new evidence was unavailable at trial and did not exercise reasonable diligence to rectify clerical errors, resulting in dismissal of the motion. (Paras 23, 24)

Issues: Whether the new evidence regarding clerical errors could be admitted and if reasonable diligence to obtain corrections was observed by the plaintiff. (Paras 3, 17, 23)

Ratio Decidendi: The court determined that the plaintiff's prior knowledge of the errors and lack of action to rectify them precluded the admission of new evidence, noting that the obligation lies with the plaintiff to correct clerical errors before presenting their case. (Paras 21, 23)

Result: Motion dismissed with costs.

Table of Content
1. motion for new evidence admission procedure. (Para 1 , 2 , 3 , 4)
2. background and parties in the dispute. (Para 5 , 6 , 7 , 8 , 9 , 10)
3. plaintiff's arguments for new evidence. (Para 11 , 12 , 15 , 16)
4. court's evaluation of evidence availability and diligence. (Para 13 , 17 , 18 , 19 , 21 , 22)
5. legal requirements for admitting further evidence. (Para 14)
6. assessment of plaintiff's diligence and opportunities. (Para 20)
7. final decision on the new evidence. (Para 23)

[1] This is a notice of motion filed by the appellant/applicant to adduce the following documents as new evidence at the hearing of the appeal. The date of hearing of the appeal is yet to be fixed.

[2] The documents are as follows:

(1) A letter from Messrs Gan & Lim (the solicitors of the appellant/ plaintiff) dated 17 July 2012 to the Economic Planning Unit, Prime Minister's Department ('the EPU'), pointing out that the EPU's letter of 27 March 2006 notifying the approval of the Foreign Investment Committee (FIC) had stated the date of the Sale and Purchase Agreement ('the SPA') to be '24 February 2006', whereas the actual date of the SPA was 24 February 2003. The letter sought a confirmation from the EPU that there was a typographical error in the EPU's letter.

(2) A reply letter from EPU dated 9 August 2012 to Messrs Gan & Lim confirming that the date as stated in the SPA was '24 February 2003' and not '24 February 2006' as stated in the EPU's letter (implying that there was a clerical error in the EPU's letter).

(3) A letter from Messrs Gan & Lim dated 14 August 2012 to the Director of Lands and Mines, Johor, pointing out that the Director's letter notifying the State Authority's consent (pursuant to s 433B of the National Land Code) dated 20 January 2009 had stated the name of their client (the appellant/plaintiff) to be 'Komoco Holdings Pte Ltd', whereas the name should have been typed 'Komoco Motors Pte Ltd'.

(4) A letter of reply dated 4 October 2012 from the Director of Lands and Mines Johor to Messrs Gan & Lim confirming that there had been a typographical error and that the letter of consent was meant for 'Komoco Motors Pte Ltd' and not for 'Komoco Holdings Pte Ltd'.

[3] This application (under the motion) is made pursuant to r 7(3A)(a) of the Rules of the Court of Appeal 1994 that states:

Power of Court to amend, admit further evidence, or draw inferences of fact

(3A) At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that:

(a) at the hearing before the High Court or the subordinate Court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made so available.

[4] The respondent/defendant opposed the application.

[5] In order to appreciate the nature of the documents and the reason for the application, we need to go into the background facts.

[6] It is not disputed that the appellant/plaintiff (after this the appellant/ plaintiff shall be referred to as 'the plaintiff ') is a company incorporated in Singapore and that the respondent/defendant (after this the respondent/ defendant shall be referred to as 'the defendant') is a Singapore citizen and is the registered owner of a piece of land in Johor Bahru.

[7] There is a legal dispute between the plaintiff and the defendant, resulting in the present writ action. The dispute is this. The plaintiff claims that the defendant had sold her land to the plaintiff by way of a sale and purchase agreement dated 24 February 2003; and that, being a foreign entity, it had obtained the approval of the Foreign Investment Committee (FIC) (an administrative requirement of the Malaysian Government imposed on foreigners desirous of owning lands in Malaysia) and the consent of the State Authority of Johor for the purpose of the purchase (a statutory requirement under s 433B of the National Land Code imposed on foreigners desirous of owning lands in Malaysia). In its writ action for specif

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2013 MarsdenLR 1493

COURT OF APPEAL PUTRAJAYAKOMOCO MOTORS PTE LTD – AppellantVersusFARIDAH ABDULLAH – Respondent[Civil Appeal No: J-02(NCVC)(W)-1182-05-2012]

The court ruled that new evidence pertaining to clerical errors was not admissible as the plaintiff failed to exercise reasonable diligence to rectify known issues before trial.

COURT OF APPEAL PUTRAJAYA
KOMOCO MOTORS PTE LTD – Appellant
Versus
FARIDAH ABDULLAH – Respondent
[Civil Appeal No: J-02(NCVC)(W)-1182-05-2012]