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2017 MarsdenLR 1311
SESSIONS COURT (MIRI)
STEVE RITIKOS, J
Tang Foo Ying @ Poh Ying (F) – Plaintiff
Versus
Joseph Anak Unggu and another – Defendant
SUIT NOS MYY-B52NCvC-8/5 OF 2016 (SC), MYY-A52-NCvC-18/5 OF 2016 (SC) AND MYY-A52NCvC-19/5 OF 2016 (SC)
Kalveet Singh Sandhu (Sandhu & Co) for the plaintiff.
Rajesh Jethi (Jethi & Assoc) for the defendant.
Amendments to a defense are permissible when made in good faith, do not alter the character of the case, and any resulting prejudice can be compensated through costs.
Headnote:(A) Rules of Court 2012 - Order 20 Rule 5 - Application to amend Statement of Defence - Consideration of amendments made under bona fide, prejudice to opposing party, and change of character - Amendments allowed as they do not alter the original defence's character nor cause uncompensable prejudice to the plaintiff. (Paras 6, 25, 31)
(B) Legal Principles - The court allows amendments that do not result in injustice to the other parties, provided the application is made in good faith and any prejudice can be compensated with costs. (Paras 34, 36)
(C) Case Reference - The court leans towards granting amendments even with new lines of defence if based on the same facts, reaffirming the principle that cases should be fairly tried. (Paras 40, 41)
Facts of the case:
The defendant sought to amend the Statement of Defence across three consolidated suits, claiming that the original defence lacked substance and was based on allegations of misrepresentation by the plaintiff regarding state land applications. The plaintiff opposed the amendments, suggesting they were tactical maneuvers designed to delay the trial and cause prejudice.
Findings of Court:
The defendant's amendment application was allowed as it was found to be made bona fide, did not change the character of the defence, and did not cause undue prejudice to the plaintiff. (Para 54)
Issues: The legality of the amendment, delay in making the application, potential prejudice to the plaintiff, and the change in nature of the defendant's original defence.
Ratio Decidendi: The amendments were ruled necessary to present all material facts relevant to the litigation, adhering to procedural fairness and the objective of justice in adjudicating the disputes at trial.
Result: Defendant's application allowed.
Steve Ritikos J:
GROUNDS OF DECISION
(In respect of all three applications in these three consolidated Suits)
Introduction
There are 3 applications in each of these suits. All are of the same nature. All these three suits were consolidated by Court Order dated 14.11.2016. These suits are:
i)MYY-A52NCvC-8/5-2016
ii)MYY-A52NCvC-18/5-2016; and
iii)MYY-A52NCvC-19/5-2016
Each of these application is in respect of the Defendant’s Notice of Application to amend the defendant’s Statement of Defence. In respect of SUIT NO. MYY- A52NCvC-18/5-2016, the Notice of Application is in enclosure 22, in SUIT NO. MYY-A52NCvC-19/5-2016, it is enclosure 22 and in SUIT NO. MYY- A52NCvC-8/5-2016, it is in enclosure 42.
In Enclosures 42, 22 and 22, the parties have filed and exchanged the following Affidavits namely:-
(a)the Defendant’s Affidavit in Support 1 of his amendment application of Joseph anak Unggu affirmed on 28.03.2017;
(b)the Plaintiff’s Affidavit in Opposition 1 of Tang Foo Ying @ Poh Ying affirmed on 14.04.2017;
(c)the Defendant’s Affidavit in Reply I of Joseph anak Unggu affirmed on 26.04.2017;
(d)the Plaintiff’s Affidavit in Opposition II of Tang Foo Ying @ Poh Ying affirmed on 09.05.2017; and
(e)the Defendant’s Affidavit in Reply II of Joseph anak Unggu affirmed on 22.05.2017.
In order to avoid repetition, this Grounds shall be in respect of all three Suits.
The Application
This is the Defendant application (in enclosures 42, 22 and 22) under Order 20 rule 5 and/or Order 92 rule 4 of the Rules of Court 2012
(a)that the Defendant’s Statement of Defence dated 21.06.2016 be amended in the manner underlined in red in the Proposed Amended Statement of Defence annexed to the Affidavit in Support of JOSEPH ANAK UNGGU supporting this application;
(b)all further proceedings in this action be stayed pending the determination of this application;
(c)cost in the cause of the trial; and
(d)any further relief and/or remedy that this Honourable Court deems fit and proper to grant.
The amendment sought by the Defendant can be seen from the Proposed Statement of Amended Defence which was annexed as Exhibit JAU-1 in Joseph anak Unggu’s Affidavit in Support 1.
The learned Counsel for the Defendant had set out the background facts leading to the present amendment application by the Defendant at paragraphs 6 to 10 of the Defendant’s Written Submission which I do not need to repeat herein but which I find of assistance in setting out the chronology of this present application.
The Plaintiff opposed the Defendant’s amendment applications based on the following grounds namely:-
(a)the amendments were not made bona fide as they amounted to a tactical manouvre to delay the trial under the guise of non availability of documents kept by the Defendant’s previous advocate;
(b)that there was a delay in making those amendments;
(c)the amendments would cause prejudice to the Plaintiff for which the Plaintiff cannot be compensated with costs; and
(d)the amendments are wholesale and would change the character of the Defendant’s original defences under the actions above.
The Law on Amendments
Order 20 Rule 5 Rules of Court 2012
“
(1)Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the 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 manner, if any, as it may direct.
(2)……
(3)An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to identity of the person intending to sue or, as the case may be, intended to be sued.
(4)An amendment to alter the capacity in which a party sues (whether as Plaintiff or as Defendant by counterclaim) may be allowed under paragra
