Judicial discretion in allowing amendments to pleadings must balance procedural fairness and avoidance of res judicata.

[1] This appeal from the Kuala Lumpur High Court is against the order made on 10 October 2016. The High Court had granted an application by the plaintiff there to re-amend its statement of claim. The 1st defendant, in the High Court, is dissatisfied with that decision and has now filed this appeal.

[2] The appeal was heard on 22 June 2017. After having read the written submissions as well as hearing oral arguments on the issues raised, we allowed the appeal in part. Our reasons for so doing now follow. Where convenient, the parties will be referred to as they were in the High Court.

Brief History And Facts

[3] The relevant background facts leading to the filing of the amendment application are set out in the judgment of the learned judge and can be stated as follows. The plaintiff bought two pieces of land from the 2nd defendant. The 2nd defendant, however, transferred the said lands to the 1st defendant. As a consequence, the plaintiff filed an action and obtained judgment in default ("JID") against the 1st and 2nd defendants and recorded a consent judgment against the 3rd defendant on 23 November 2012. This consent order essentially required the 3rd defendant, being the land authority charged with such functions, to cancel and set aside the registration of the lands in the name of the 1st defendant and substitute it with the name of the plaintiff.

[4] Subsequently, the JID entered against the 1st defendant was set aside and another consent order dated 30 January 2015 was entered between the plaintiff and the 1st defendant. This consent order allowed the plaintiff's name to remain as the registered owner pending the disposal of the case and also pending any subsequent appeal.

[5] The trial between the plaintiff and the 1st defendant then proceeded and at its conclusion, the plaintiff's claim against the 1st defendant was dismissed by the High Court. Aggrieved with this decision, the plaintiff filed an appeal to this Court. Meanwhile, before this Court had delivered its decision, the 1st defendant proceeded to transfer to its name the said lands seemingly in contravention of the consent order dated 30 January 2015. Thereafter, on 26 April 2016, this Court allowed the plaintiff's appeal and ordered the case to be retried before another judge.

Decision Of The High Court

[6] Back in the High Court, the plaintiff discovered that the said lands had been transferred to the name of the 1st defendant after the fact of the transfer was disclosed in an affidavit filed in respect of an application (encl 156) to set aside the consent judgment dated 24 November 2012. At the time, the plaintiff had filed an application (encl 154) to re-amend the statement of claim which is now the subject matter of this appeal.

[7] Dealing now with the appeal on the amendment application, the proposed amendments, as set out in the application, can be summarised as follows:

(a) to plead facts pertaining to the 1st defendant's knowledge of the winding up of the 2nd defendant at the time of the transfer of the land from the 2nd defendant.

(b) to plead indefeasibility of title over the land.

(c) to plead facts which came into existence after issuance of the writ and statement of claim, namely, that the land is now being transferred back to the plaintiff in view of the Court of Appeal's Order dated 26 April 2016 and the Consent Order dated 30 January 2015 and registration of the Registrar's Caveat over the land on 14 March 2014 at the application of the 1st defendant.

(d) to amend the particulars of the reliefs sought by the plaintiff in view of the fresh facts.

(e) to plead facts which were discovered during the course of the first trial on 8 July 2015 and 9 July 2015, that is, the 1st defendant's