JUDGMENT OF THE COURT

The Plaintiff (Respondent in this appeal) vide Summons-in- Chambers filed on 16.4.2003 sought an order to amend their Statement of Claim dated 1.4.2003 ("the Original Statement of Claim") as well as to include an English version of it. The Senior Assistant Registrar (SAR) allowed the Plaintiff's application. On appeal to the Judge-in-Chambers, by order dated 12.10.2004, the High Court Judge dismissed the Defendant's (the Appellant in this appeal) appeal with costs and affirmed the SAR's decision.

On 18.1.07 we affirmed the High Court Judge's decision and dismissed the Defendant's appeal. Our reasons are as follows:-

The Plaintiff's application to amend was made pursuant to O. 20 r. 5(1), (2) and (8) and O. 18 r. 10(1) and (2) of the Rules of the High Court 1980 ("the Rules"). In an application such as this it was incumbent upon the Plaintiff to set out cogent reasons in their supporting affidavit for the Court to exercise its discretion in their favour. The reasons advanced by the Plaintiff which the High Court Judge accepted warranting the exercise of the Court's discretion in their favour were these.

The Plaintiff claimed that their records were not complete when the Original Statement of Claim was filed on 1.4.2003. The subject matter of the suit, Bandar Tasik Selatan Phase 8 Project ("the Project") had been abandoned in 1998. Most of their personnel who had handled the Project had left them. Their documentation had also not been properly kept. Many of the documents and files were misplaced and could not be located.

The Plaintiff's Solicitors averred that after the Defendant served their Bundle of Documents, and upon perusal of the same, they sighted many relevant documents which documents they were unable to locate. They realized many relevant facts had not been pleaded in the Original Statement of Claim. The Plaintiff was of the view that the Defendant would not be prejudiced as the need to move the amendments arose out of documents which had been in the Defendant's possession at all times. The Plaintiff was of the view the proposed amendments was not prejudicial to the Defendant as the facts pleaded were within the Defendant's knowledge. Any prejudice can be compensated by costs.

The proposed amendments would not change the suit into one of a different character. The Plaintiff's claim in the Original Statement of Claim dated 1.4.2003 was for professional fees for the Bandar Tasik Selatan Phase 8 Project. The new alternative claim sought to be introduced remains that for professional fees for the same project. Both arises from the alleged breach by the Defendant of the same contract.

The application to amendment is made bona fide and filed at the earliest possible time. The factual position is that the Defendant was unhappy as the Plaintiff was relying on the Defendant's documents in moving this application to amend.

On the Defendant's contention that the amendments were "futile", the Plaintiff's Counsel argued that the Defendant's Counsel was confused between election of remedies and election of inconsistent rights. A Plaintiff can put forward alternative remedies and need only make an election at the point of judgment.

In the argument before us, the Appellant's Counsel submitted that the Plaintiff ought to have ascertained and located all of their documents before commencing proceedings against the Defendant. The Plaintiff should have made a disclosure of documents in their Affidavit Verifying the List of Documents. The breach of contract claim was included in the Plaintiff's Reply dated 11.7.2003 to the defence where express reference was made to a 'contractual relationship' and repudiation. According to the Appellant's Counsel the Plaintiff lacks bona fides in claiming that they "discovered" the claim in contract after the discovery process. The Plaintiff had not in their supporting affidavit identified which of the documents in the Defendant's list which jolted them from their slumber. He was of

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