Faiza Tamby Chik J:

[1] The Appellant/Plaintiff's (hereinafter referred to as "the Plaintiff") appeal herein is with respect to the part of the decision of the Sessions Court Judge in Kuala Lumpur given on 4 August 1999 which inter alia ordered that the Respondent/Defendant (hereinafter referred to as "the Defendant") be given leave to amend the Statement of Defence dated 23 December 1998.

[2] At all material times, the Plaintiff is a member of the Kuala Lumpur Stock Exchange trading in securities as a company incorporated in Malaysia. The Plaintiff had at the written request of the Defendant opened the trading account for the Defendant under client code No WA 406 in accordance with the written terms and conditions in an Individual Account Application Form dated 18 December 1996. The Plaintiff's suit against the Defendant in the Sessions Court of Kuala Lumpur is for recovery of contra losses of RM130,471.95 together with interest thereon for shares listed in the Kuala Lumpur Stock Exchange purchased based on the instructions from the Defendant. The Plaintiff had on the 8 January 1999 filed an application for summary judgment against the Defendant (which was served on the Defendant's solicitors on 11 January 1999) which was first fixed for hearing on 30 June 1999. At a very late stage on 28 June 1999 ie 2 days before the hearing of the said application for summary judgment, the Plaintiff had filed an application for summary judgment, the Defendant had filed an application vide Notice of Application dated 28 June 1999 which applied for the Defendant to be given leave to amend the Statement of Defence dated 23 December 1998 as per the proposed Amended Statement of Claim as annexed (see pp 44 to 50 of the Record of Appeal). Subsequently, the solicitors for the Defendant had written 2 separate letters to the Registrar of the Sessions Court where:

(a) the first letter dated 28 June 1999 applied for an adjournment of the hearing on 30 June 1999 on the basis that they have "filed an application on 21 June 1999" to amend the Statement of Defence dated 23 December 1998 which hearing date had yet to be fixed (see p 60 of the Record of Appeal); and

(b) the second letter dated 29 June 1999 which applied for an adjournment of the hearing on 30 June 1999 because the lawyer in charge of the matter had an important case in Shah Alam High Court Case No MT4-1568-98 (see p 61 of the Record of Appeal).

It is observed that despite the Plaintiff's objection to the said adjournment because of the late application by the Defendant to amend and that there was no Affidavit in Reply at all from the Defendant to the Plaintiff's application for summary judgment filed, the Sessions Court had on 30 June 1999 adjourned the hearing of the summary judgment pending the hearing of the said application to amend. It is noted that the affidavits relevant to the Defendant's application to amend are as follows:

(a) the Defendant's affidavit in support affirmed by the Defendant on 17 June 1999 (see pp 63 to 65 of the Record of Appeal);

(b) the Plaintiff's Affidavit in Reply affirmed by Ong Eng Leong on 2 July 1999 (see pp 66 to 70 of the Record of Appeal);

(c) the Corrective Affidavit affirmed by the Defendant on 13 July 1999 (see pp 71 to 73 of the Record of Appeal).

The Defendant's said application to amend the Statement of Defence had been fixed for hearing on 4 August 1999 and after submissions by both parties, the Sessions Court had allowed the Defendant's application with costs to be paid by the Defendant. To-date, the application for summary judgment had yet to be heard.

[3] The Plaintiff submitted that the decision of the learned Sessions Court Judge giving leave to amend was erroneous in law and in facts and this appeal ought to be allowed based on the following grounds:

(a) the Defendant's said application is a wrongful attempt by the Defendant to add the allegation of fraud. Even if the said allegations were true the facts with respect to the same were already