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Raja Azlan Shah J:
On 27 January 1966 the plaintiffs commenced an action against the defendant by way of specially indorsed writ for a liquidated sum of $33,362.89, particulars whereof are set out in the annexure thereto. The defendant on the other hand only admits owing them a sum of $5,763.30. The action was set down for hearing on 29 June 1967. However, on 22 May 1967 the plaintiffs applied by summons in chambers which was subsequently adjourned to open Court for amendment of their pleadings. The particulars they sought to amend, inter alia, were for the sum of $33,362.89 to read $34,408.89, damages for breach of contract and/or the tort of conversion, and fraud. As the plaintiffs have pleaded fraud for the first time, they must as a matter of necessity apply for a conversion of the specially indorsed writ to a general writ. In this connection I need only refer to the relevant portion of O. 3 r. 6 of the Rules of the Supreme Court, 1957, which reads:
"6. (1) In any action other than one which includes:
(a) ....
(b)a claim by the plaintiff based on an allegation of fraud,
the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim".
Now, as a general rule either party is allowed to make any such amendment as is reasonably necessary for the due presentation of his case, on payment of the costs of and occasioned by the amendment, provided there has been no undue delay on his part, and provided also that the amendment will not injure or affect any vested rights of his opponent. Where the amendment is necessary to enable justice to be done between the parties, it will be allowed on terms even at a late stage. If the application be made mala fide, or if the proposed amendment will cause undue delay, or will in any other way unfairly prejudice the other party, or is irrelevant or useless, or merely raise a technical point, leave to amend will be rejected. There are numerous decided cases on the point but I need only quote the local case of Looi Guan Kway v. Low Lean Bok
(1)There is bona fides on the part of the applicant;
(2)They cause no prejudice to the other side which cannot be compensated by costs; and
(3)They are not such as to turn a suit of one character into a suit of another and inconsistent character.
Apart from what would appear to be some mathematical miscalculation as to the sum owing by the defendant which was discovered by the plaintiffs subsequent to the filing of the writ, I am not unmindful of the fact that the plaintiffs are seeking to introduce a new cause of action in tort in addition to their original cause of action. I am satisfied that the new cause of action does not turn a suit of one character into a suit of another and inconsistent character. It merely adds a new cause of action which concerns the same parties and which involves substantially the same facts and arises, as it seems to me, out of the same transaction inter panes. As was stated by Cotton LJ in the case of Kurtz v. Spence [1887] 36 Ch. D 770, 773.
When by an amendment the real substantial question can be raised between the parties, ought we to refuse to allow the amendment, having regard to the rule, and to the direction in the Judicature Act that as far as possible in any proceeding all questions between the parties shall be decided so as to prevent a multiplicity of actions?
I can see no prejudice caused to the defendant if the application is allowed, as he will in turn be given leave to amend his defence if he so chooses: nor can I find any mala fides on the part of the plaintiffs in wanting to amend their pleadings at this stage.
The only substantial question to be answered is an extremely technical one and it has never yet come for deci
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