(1) 1 Summons-in-chambers dated 10 April 2003 (encl 22) is the plaintiff’s application to amend his writ of summons (encl 2), in particular the name of the first defendant. The plaintiff also applied for the same amendment to be made to his statement of claim.

(2) 2 The plaintiff gave three grounds for the application. First, the amendment is necessary for the purpose of determining the real question in controversy between the parties. Second, it is to save time, cost and multiplicity of proceedings; and third, the amendment does not prejudice the defendant.

(3) 3 The application is supported by an affidavit affirmed by Tai Choi Yu, the plaintiff himself, on 10 April 2003 (‘plaintiff’s affidavit’). The relevant paragraphs of the plaintiff’s affidavit are paragraphs 4, 5, 6 and 7. In particular, paragraph 6 of the plaintiff’s affidavit states that the amendment is necessary because as a result of plaintiff’s search with the Companies Commission of Malaysia (‘CCM’), it was shown that the Defendant is also known as Curtin Malaysia Sdn Bhd (‘CMSB’). The result of the plaintiff’s search with CCM is exhibited as Exh TCY-1 in the plaintiff’s affidavit.

(4) 4 The first defendant objected to the plaintiff’s application and had filed an affidavit in reply (encl 39) affirmed by David Lim Chin Chai on 21 May 2003. The first defendant submitted that there is no nexus established between the first defendant and CMSB. It was submitted that the first defendant is an educational institution which offers courses of studies at university level under a licence from the Ministry of Education Malaysia. Whereas CMSB is a limited company registered with the CCM. It was also submitted on behalf of the first defendant that the plaintiff’s summons-in-chambers did not disclose the plaintiff’s interest to join CMSB as a party. It was contended by the first defendant that the proposed amendment is inconsistent with paragraph 2 of the plaintiff’s statement of claim. In paragraph 2 of his statement of claim, the plaintiff had pleaded that the first defendant is an educational institution established in Perth, Australia and managing and operating a branch of the institution in Sarawak. Learned counsel for the first defendant also submitted that the effect of the amendment is to create embarrassment and it is futile in nature.

(5) 5 It is trite that parties may make amendments to the writ or pleadings at any stage of the proceedings. Amendments to the writ and pleadings may be made without leave of the court once before the close of the pleadings. This is plain from O 20 r 1(1) and r 3(1) Rules of the High Court 1980 (‘the RHC’). But if pleadings are deemed to be closed, then amendments may only be made pursuant to O 20 r 5, that is, with leave of the court. It is then entirely in the discretion of the court whether or not to allow the amendments. However, as regards an amendment to a writ for the purpose of adding, omitting or substituting a party to an action or to alter the capacity of the party to an action O 20 r 1(1) does not apply. Amendments of this nature must be made with leave of the court. In exercising its discretion whether or not to grant the leave to amend, the court exercises it judiciously by taking into consideration several factors.

(6) 6 In Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213 at p 214, Mohamed Azmi FCJ, in delivering the judgment of the Federal Court, said:

The general principle is that the court will allow such amendments as

will cause no injustice to the other parties. Three basic questions

should be considered to determine whether injustice would or would not

result, (1) whether the application is bona fide; (2) whether the

prejudice caused to the other side could be compensated by costs and

(3) whether the amendments would not in effect turn the suit from one

character into a suit of another and inconsistent character.

(7) 7 The above st