Amendments to pleadings should be allowed to ensure justice, provided they do not prejudice the other party and costs can rectify any injustice.

Abdul Malik Ishak J:

Background Facts

A brief chronology of events must be set out in order to understand the case better and these events can conveniently be itemised as follows:

(1) 20 April 1998 - The writ of summons and the statement of claim were filed by the plaintiff and thereafter served on the defendant.

(2) 27 June 1998 - The defendant entered an appearance.

(3) 14 July 1998 - The defendant filed and served the statement of defence and counterclaim dated 13 July 1998.

(4) 30 July 1998 - The plaintiff filed and served the reply and defence to counterclaim dated 27 July 1998. (5) 27 July 1998 - The plaintiff amended the writ of summons and the statement of claim without the leave of the court pursuant to O. 20 r. 1 of the Rules of the High Court 1980 ("RHC") and not O. 1 r. 20 of the RHC as stated in encl. 9.

(6) 11 September 1998 - The amended writ of summons and the amended statement of claim were served on the defendant.

(7) 24 September 1998 - The defendant applied pursuant to O. 20 r. 4 of the RHC to disallow the amendment.

(8) 11 March 1999 - The defendant's application was dismissed by the senior assistant registrar ("SAR") with each party to bear its own costs.

(9) 13 March 1999 - The defendant filed an appeal to the judgein-chambers against the decision of the SAR as seen in encl. 30.

Amendment Of The Writ Without Leave Of The Court

Order20 r. 1(1) of the RHC states as follows:

Subject to paragraph (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings to the action begun by the writ are deemed to be closed.

and this was done by the plaintiff and the plaintiff made the following amendments by deleting items 31, 48, 49, 56, 60, 68, 74, 81 and 86 of the annexure to the statement of claim. The details of these deleted items may be stated as follows:

31 Bayaran Royalti kepada Koperasi 13.5.1994 RM7,426.00

48 Bayaran 'Trip Tax' (April 94 June 94) 31.8.1996 RM1,872.00

49 Bayaran 'Trip Tax' (July 94 August 94) 31.8.1996 RM2,476.00

56 Bayaran kepada Teguh Permata 15.11.1994 RM1,132.00

60 Bayaran kepada Teguh Permata 5.12.1994 RM1,440.00

68 Bayaran kepada Teguh Permata 23.1.1995 RM1,223.00

74 Bayaran kepada Teguh Permata 17.3.1995 RM 635.00

81 Bayaran kepada Teguh Permata 28.4.1995 RM1,215.00

86 Bayaran kepada Teguh Permata 19.6.1995 RM 779.00

The statement of claim was also amended by deleting the total amount of RM477,553.33 to read RM459,355.33. It must be emphasised that minor amendments were also made to items 1, 2, 3, 4, 10, 39, 40, 64 and 65 of the annexure to the statement of claim. These amendments were, however, inconsequential in nature.

The defendant's application to disallow the amendments made without leave under O. 20 r. 4 of the RHC was dismissed by the SAR. Aggrieved by the decision of the SAR, the defendant filed the present appeal as seen in encl. 30 and not encl. 32 as suggested.

General Principles Of Law Together With The Arguments Advanced By The Parties

It is now trite law that the court will always be magnanimous in granting an amendment to pleadings so long as it will not cause an injustice to the other side (Ismail bin Ibrahim & Ors. v. Sum Poh Development Sdn Bhd & Anor 1988 MarsdenLR 761; 1988 MarsdenLR 859 ) and I may add that to cushion the injustice that may be caused to the other side, costs should be awarded as a matter of course. Aitken J enunciated three basic principles to apply in considering an application by the plaintiff to amend the plaint in the case of Looi Guan Kway v. Low Lean Bok & 4 Ors. 1937 MarsdenLR 132, and these three basic principles may be stated as follows:

(1) there is bona fide on the part of the applicant - in this case the plaintiff;

(2) the amendments will not prejudice the other side and readily be compensated by costs;

(3) the proposed amendments must not turn a suit of one