The court upheld that a rejoinder must substantively address allegations and comply with procedural rules based on established case law.

Introduction

[1] This is an application by the Defendant for leave to file a rejoinder to the Plaintiff's statement of reply under O 18, r 14 of the Rules of 2012. At the conclusion of the hearing, I refused leave and highlighted the broad reasons for my decision. This judgment contains the full grounds for the decision.

Key Background Facts

The Parties

[2] The Plaintiff operates a casino resort and hotels in the Macau special administrative region of China. The Defendant attended the casino resort of the Plaintiff at the material time.

The Transaction

[3] It is contended by the Plaintiff that then, upon the Defendant's request, a credit facility had been granted to the Defendant by the Plaintiff in Macau as permitted by the laws of Macau.

The Suit

[4] Given the failure of the Defendant to make repayment of the facility, the Plaintiff commenced the instant writ action against the Defendant to recover the credit facility.

[5] It is a key defence of the Defendant's response, as pleaded in his statement of defence, that the credit extended by the Plaintiff was used for the purpose of gambling at the Plaintiff's casino. This in turn, according to the Defendant would be contrary with the provisions of s 26 of the Civil Law Act 1956 as well as of s 31 of the Contracts Act 1950 , rendering the credit granted by the Plaintiff to be unenforceable and thus irrecoverable in Malaysia.

The Reply Intended To Be Impugned

[6]In its reply to the defence, the Plaintiff sought to address the argument of the Defendant relying on the alleged unenforceability of the credit facility by asserting that s 26 of the Civil Law Act 1956 and s 31 of the Contracts Act 1950 are procedural provisions (see Star City Pty Ltd (formerly known as Sydney Harbour Casino Pty Ltd) v. Tan Hong Woon [2001] 2 SLR (R) 36).

[7] In essence, The Plaintiff argued that equity may be used to deprive a litigant of the benefit of a procedural provision as "equity will not permit statute to be used as an engine of fraud", in the sense of being an unmeritorious and unconscionable conduct (constructive or equitable fraud).

[8] The cases such as in Sia Siew Hong &Ors v. Lim Gim Chian & Anor, [1995] 3 MLJ 141 and Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham (executor of the estate of Loo Cheng Ghee); [1998] 4 MLJ 651; [1998] 4 CLJ 812; [1999] 2 AMR 1236 are asserted to be in support of this principle. If this argument of the Plaintiff is successful, the Defendant would thus be precluded from relying on his principal defences under s 26 of the Civil Law Act 1956 and s 31 of the Contracts Act 1950 .

[9] Specifically, in paras 4.6, 4.9, 4.10, 4.11 and 4.12 of the statement of reply, the Plaintiff pleaded as follows:-

4.6 The Defendant has since 1999 been an active patron and/or gambler at many renowned and/or international casino viz:

(1) Westgate Resorts (United States of America [the Defendant's account was set up there on 19 February 1999]);

(2) Crown Casino (Melbourne, Victoria, Australia [the Defendant's account was set up there on 16 May 2002]);

(3) Bellagio (Las Vegas, Nevada, United States of America [the Defendant's account was set up there on 12 December 2006]);

(4) Wynn Las Vegas/Encore Las Vegas (Las Vegas, Nevada, United States of America [the Defendant's account was set up there on 24 December 2006]);

(5) Casino De Genting (Genting Highlands, Pahang, Malaysia [the Defendant's account was set up there on 7 July 2007]);

(6) The Venetian Macao (Macau [the Defendant's ac