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2020 MarsdenLR 2475
HIGH COURT (PULAU PINANG)
AZIZAN MD ARSHAD, JC
Chuah Eng Chang @ Chuah Eng Chong – Plaintiff
Versus
Paya Trubong Estate Sdn Bhd & Anor – Defendant
GUAMAN NO PA-22NCvC-96-06/2020
Lawrence Damian Boudville (Ghazi & Lim) for the plaintiff.
Tan Keng Sim (Teow saw & Assoc) for the first defendant.
Lee Kar Kheng (Presgrave & Matthews) for the second defendant.
The court emphasized the need for amendments to pleadings to be bona fide, relevant, and not change the character of the suit, while highlighting the judicial discretion involved in accepting such amendments, especially regarding timely submissions.
Headnote:(A) Rules of Court 2012 - Order 20 Rule 5 - Amendment of pleadings - Plaintiff's application to amend statement of claim dismissed; Second Defendant's opposition based on lack of relevance of proposed amendments and delay - Court reiterated judicial discretion applicable to amendments, emphasizing that amendments must not change the character of the suit and should be bona fide - Court found proposed amendments relevant for determining the true issues but delayed - Plaintiff's amendment claimed fraud knowledge against Second Defendant, altering the original claim's character. (Paras 47, 57, 60, 78, 100)
(B) Judicial Discretion - Court's discretion to allow amendments to be exercised judiciously, ensuring no injustice to the other party - Delay in application without reasonable explanation may lead to dismissal; any amendment must be to correct pleadings and clarify issues, not to introduce new claims or causes of action. (Paras 47, 91)
| Table of Content |
|---|
| 1. plaintiff's amendment application dismissed. (Para 1 , 2 , 3 , 4 , 5) |
| 2. factual background of property ownership disputed. (Para 6 , 7 , 8 , 9) |
| 3. proposed amendments to statement of claim outlined. (Para 10 , 11 , 12 , 13 , 14) |
| 4. plaintiff's arguments in favor of amendments examined. (Para 24 , 25 , 26) |
| 5. second defendant's objections to amendments discussed. (Para 28 , 29 , 30 , 31) |
| 6. judicial discretion in amending pleadings emphasized. (Para 47 , 48 , 51) |
| 7. court's decision on amendment application delivered. (Para 100) |
Azizan Md Arshad JC:
INTRODUCTION
[1]This is the Appellant’s (Plaintiff) application to amend the statement of claim (Enclosure 15). The Court after hearing this application has dismissed Enclosure 15 with costs in the cause.
[2]The Plaintiff is not satisfied and has appealed to the Court of Appeal against the decision which was delivered on 21.11.2023. The parties are referred to as they were in the High Court.
Cause papers
[3]The Plaintiff filed the following documents:
(a)Notis Permohonan dated 05.10.2020 (the said ‘Application’).
(b)Affidavit in Support affirmed by Chuah Eng Chang @ Chuah Eng Chong on 05.10.2020;
(c)Plaintiff’s Affidavit in Reply affirmed by Chuah Eng Chang @ Chuah Eng Chong on 13.11.2020;
[4]The First Defendant did not oppose the application, but the Second Defendant opposed it and had filed an Affidavit Affirmed by Ooi Boon Ewe on 26.10.2020.
Court’s proceedings
[5]The following actions have taken place before the hearing of this Enclosure 15, which is as follows:
(i)Prior to this Civil Suit being filed by the Plaintiff, the 2nd Defendant has filed a Civil Suit No. PA-22NCVC-118-04/2019 against Yow Hong Soon [Trading as I FULL AUTO CENTRE] for inter alia, vacant possession for Unit 1101-N, Paya Terubong Road, Mukim 13, Ayer ltam, 11060 Pulau Pinang which was erected on part of the said Land.
(ii)However, the Plaintiff intended to intervene in the Civil Suit and alleges ownership of the said Premises which was erected on the said Land on basis of ownership on the said Land by virtue of a Sale and Purchase Agreement dated 10.9.1975 and Deed of Assignment dated 30.11.1992.
(iii)On 3.2.2020, the High Court dismissed the Plaintiff’s application to intervene and subsequently the appeal was withdrawn.
(iv)After the High Court dismissed the Plaintiff’s application to intervene, the Plaintiff then filed the Civil Suit herein on 18.6.2020.
(v)The Plaintiff has also filed a Notice of Motion dated 11.9.2020 in Court of Appeal to adduce fresh evidence ie. the Sale and Purchase Agreement dated 2.10.2014 and it was dismissed by the Court of Appeal on 12.11.2020.
Background facts
[6]The following are the facts of this case filed by the parties which are relevant to this application:
(i)On 19.06.2020, the Plaintiff filed suit against Defendants. The writ together with the statement of claim was served on the Defendants;
(ii)The Second Defendant entered appearance on 26.06.2020. The First Defendant filed their appearance on 08.07.2020;
(iii)On the 30.07.2020, the First Defendant served on the Plaintiff their defence while the Second Defendant served a defence and counter claim on 05.08.2020; and
(iv)The Plaintiff filed a reply to the First Defendant’s Defence and a reply to the Second Defendant’s defence and counter claim on 08.09.2020.
[7]The Plaintiff suspects that the Second Defendant may have kept a copy of the Sales and Purchase Agreement (hereinafter referred to as the “Agreement”) between the Second Defendant and Senitrad Sdn Bhd, the previous owner of the property. known as Lot 7683, Mukim 13, Daerah Timor Laut, Pulau Pinang held under Geran Hakmilik No. 59032 formally known as Holding No. 1874, Mukim 12, Daerah Timor Laut, Pulau Pinang held under Geran (First Grade) Registration No. 889. (hereinafter “the said Land”).
[8]The subject matter of this action is the Land. Before filing for discovery, the Plaintiff’s Solicitor wrote to the Second Defendant’s solicitor, Messrs Presgrave & Matthews on 02.09.
