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2025 MarsdenLR 1730
HIGH COURT MALAYA KUALA LUMPUR
YAP TEAK SING & ORS – Appellant
Versus
HIEW FOOK SANG @ FOOK HIEW SANG & ORS (ENCLS 50 52 & 54) – Respondent
[Civil Suit No: WA-23NCVC-7-02/2023]
The court emphasized that amendments should be allowed to determine the real controversy between parties, provided they do not cause significant prejudice or alter the suit's character.
Headnote:(A) Rules of Court - Order 20 r 5 - Amendment of pleadings - The Court allowed amendments to the defence and counterclaim, finding them to be bona fide, and that no significant prejudice would be caused to the Plaintiffs, as the amendments derive from the same facts and issues. (Paras 9, 10, 18, 20)
(B) Defamation - The action centered on alleged false information and defamation in a Notice issued by the first Defendant regarding the Plaintiffs' alleged wrongdoings. (Paras 5, 6, 8)
Facts of the case:
The Plaintiffs, former committee members, claimed defamation by the Defendants through a Notice that listed alleged offences such as abuse of power and unlawful legal actions. They sought substantial damages and an injunction. (Paras 2, 4, 8)
Findings of Court:
The Court found the amendment applications valid, asserting that allowing amendments is essential to determining the real controversy and correcting errors without unjust consequences. (Paras 11, 18, 20)
Issues: The key issues involved the validity of the defamation claims, the motive behind the amendments to the defence, and the potential impact on the Plaintiffs' case. (Paras 10, 15)
Ratio Decidendi: The Court ruled that the amendments were justified to ensure that the real issues were addressed, and that minor delays do not equate to bad faith if they do not prejudice the other party's ability to defend the case. (Paras 9, 17, 21)
Result: Applications for amendment allowed with costs.
| Table of Content |
|---|
| 1. defendants' application for defense amendment allowed. (Para 2 , 3 , 4 , 5 , 6 , 7) |
| 2. plaintiffs argue defendants' delay and character change. (Para 8 , 13) |
| 3. court's rationale for allowing amendments. (Para 9 , 10 , 11 , 14 , 16 , 17 , 18 , 19 , 20) |
(Enclosures 50, 52 & 54)
Introduction
[1] These applications are filed by the Defendants for leave to amend their defence and counterclaim. The applications are filed in encl 50 (1st Defendant), encl 52 (2nd Defendant) and encl 54 (3rd Defendant). This Court allows all the applications. The reasons are as deliberated.
Brief Facts
[2] The Plaintiffs were previous members of the Suria Stonor Management Committee known as Perbadanan Pengurusan Suria Stonor (PPSS) of Suria Stonor Condominium (Condominium) for the year 2019/2020 and 2020/2021.
[3] The Defendants were committee members of PPSS elected on 17 December 2022.
[4] The Plaintiffs' claims revolve on a notice published by PPSS on 20 January 2023 'to address the issues and provide clarity pertaining to a petition that has been circulated to convene an Extraordinary General Meeting which was issued to all the proprietors of the Condominium (Notice).
[5] At para 15 of the Statement of Claim (SOC), the Plaintiffs pleaded that in the Notice, the 1st Defendant (D1)'has stated the list of offences and non compliance committed by the Plaintiffs':
"...List of Wrongdoings and non-compliant actions that are under further investigation including but not limited:
a. Great expense of engaging a forensic consultant to produce a rather bias report based on the information provided by "a few individuals" with no justifiable reasons and benefits to Suria Stonor, an act of abuse of power.
b. Giving go-head on a great expenditure exceeding RM100,000.00 without the proprietors' approval at AGM/EGM.
c. Contravene Suria Stonor by-law for commencing legal action against proprietors without exhausting all avenues for remedial action and negotiation."
[6] Further, at para 16 of the SOC, the Plaintiffs pleaded that the Second Defendant (D2) and the Third Defendant (D3) had given D1 'false information and incited and/or caused the issuance and/or publication of the Notice to defame the Plaintiffs.'. The details were as pleaded in the SOC.
[7] Therefore, the Plaintiffs' claims against the Defendants, jointly and severably for the following reliefs:
(1) general damages of RM27 million;
(2) aggravated and exemplary damages; and
(3) injunction to restrain the Defendants from defaming the Plaintiffs.
[8] In these applications, the Defendants are seeking, amongst others, to include that:
(1) The Plaintiffs' Writ and SOC are defective due to the Plaintiffs' failure to produce the Purported Impugned Statements in verbatim;
(2) The Plaintiffs do not have locus to bring this action against the Defendants; and
(3) The defence of qualified privilege, fair comment and/or justification.
Analysis And Findings
Amendment Of Pleadings
[9] Order 20 r 5 of ROC provides that "the Court may at any stage of proceedings allow"amendments made by parties "...in such a manner, if any, as it may direct." Order 20 r 5(1) states:
"(1) Subject to O 15, rr 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct."
[10] The law on amendment of pleadings are settled (Yamaha Motor Co Ltd v. Yamaha (m) Sdn Bhd & Ors [1982] 1 MLRA 417; ; [1983] CLJ (Rep) 428 FC and Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal ; ). In summary, the Court should consider the following when deciding on amendment of pleadings:
(a) Whether the application is bona fide.
(b) Whether prejudice (if any) caused to the other side can be compensated with costs.
(c) Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsisten
