JUDGMENT

Vincent Ng J:

Preamble

On 29 August 2003 the learned senior assistant registrar dismissed the defendant's application to reamend her statement of defence. Enclosure 28 is the defendant's appeal against that decision.

Background Facts

I have set out the facts and chronology of events of this case as they are relevant considerations for this appeal.

The plaintiff commenced this suit against the defendant on 9 July 1998 for RM360,860.71 being amounts outstanding, contra losses and commission due under a share trading account.

Though the defendant filed her appearance timeously, she failed to file her defence within the prescribed time frame. On 9 November 1998, the defendant obtained the leave of court to file her defence out of time. The plaintiff did not object to the defendant's application for leave of court.

The defendant, in her statement of defence (encl. 5), denied the plaintiff's claim, putting the plaintiff to strict proof. Although the defendant admitted having a share trading account with the plaintiff, she denied ever trading or authorising another to trade using the account. The defendant maintained that she never received any contract notes, monthly statements or even the letter of demand from the plaintiff. She only found out about the alleged debt she owed the plaintiff in September 1997 when she decided to terminate what she thought was a dormant trading account. The defendant alleged that one Wong Lee Choo, a remisier and the plaintiff's agent, fabricated her particulars in the application form to operate a trading account with the plaintiff. She immediately lodged a police report and despite extending a copy of the same to the plaintiff, the plaintiff failed to investigate her allegations, choosing instead to pursue the claim against her.

The court then gave the necessary directions to the parties to file their documents and get the case ready for hearing. About a year and 1/2 later, the defendant filed an application to amend her defence. The plaintiff did not object to this application and the defendant obtained the leave of court to do so.

The defendant in her amended statement of defence (encl. 10) now included an allegation of negligence and a breach of a duty of care by the plaintiff. She also disputed the plaintiff's right to claim late charges and or default interest on the amounts outstanding. After the requisite case management sessions which extended from August 2001 to March 2002, the parties identified 4 issues to be determined and the court fixed this matter for full trial on 25-27 November 2002. By this time the parties had also complied with the directions to file the statements of agreed facts and facts in dispute, the Bundle of Pleadings and the Common Bundle of Documents (Parts B & C) (encls. 14 and 14).

On the first day of trial, the defendant's solicitor requested that the matter be postponed till 27 November 2002 as parties were negotiating a settlement. The parties had agreed that even if the negotiations fell through, they would try to further reduce the triable issues to only one issue and accordingly prepare their witness statements. On 27 November 2002, the court was told that parties had agreed that the sole issue to be determined was whether the defendant had instructed the plaintiff to buy and sell shares using the trading account. The defendant was unable to secure the attendance of her witness, a remisier, and ask for the matter to be postponed to another date. The ever amiable plaintiff did not object. The next hearing dates were 7-10 April 2003.

On 7 April 2003, the defendant's solicitor referred the court to letter dated 31 March 2003 wherein they had requested for a postponement of the full trial to enable the defendant to obtain information and other related documents from the police, including a chemist report. Apparently there were several police reports against Wong Lee Choo, the remisier; including one by Teh Seng Chay (Teh), the defendant's husband. Teh had alleged that h