The doctrine of relation back does not apply to joinder after the limitation period, allowing the defendant to assert the defense of limitation.

Introduction

[1] The appeal before us is against the decision of the Court of Appeal dated 19 September 2013 in allowing the plaintiff's appeal against the decision of the High Court dated 12 October 2011. In this judgment, the appellant will be referred to as the 2nd defendant and the respondent as the plaintiff.

Background Facts

[2] The background facts of the appeal are summarised as follows

(a) the plaintiff at all material times was a manufacturer and dealer of paint and ink dispensing machines as well as other ancillary machines in Malaysia, with businesses established in China, Indonesia, Thailand, Hong Kong and other countries;

(b) the plaintiff was set up by the 1st defendant (who is not a party to the present appeal) in 1998, as a joint venture enterprise with an Italian company known as Inkmaker Italy. The 1st defendant was initially one of the pioneer Directors and shareholders holding 15% equity in the plaintiff;

(c) in March 2000, the 1st defendant resigned as Director of the plaintiff and disposed off his shares in the plaintiff;

(d) thereafter, the 1st defendant signed an agreement dated 27 March 2000 (the first contract of employment) with the plaintiff according to which the 1st defendant was to work for the plaintiff as a Regional Manager, with a fixed salary and sales commission;

(e) the first contract of employment was for the period from 3 January 2000 to 3 April 2001. It was later extended to 1 April 2002;

(f) the contract of employment, as well as its extension, contained a non-competition clause and a confidentiality clause which reads as follows:

"Non-competition clause

You will not without the previous written consent of the company either on your own account or otherwise and whether directly or indirectly, solicit or entice the customer (in relation to goods or services dealt in or provided by any Inkmaker group of company) other than for the benefit of the company at any time during your employment and in the period of two years from the date you cease employment with the company.

You will not without the company's prior written consent, be directly or indirectly engaged or interested in any competing activities, in any capacity (including without limitation through a connected person) during your employment and in the period of two years from the date you cease employment with the company.

The compensation for your agreement to these non-competition terms is included in the above salary.

Confidentiality clause

By accepting these terms and conditions, you will undertake and guarantee not to disclose to any party, the company's business affairs and/or any proprietary information."

(g) the plaintiff alleged that the 1st defendant was absent from work without valid reason or notice and had failed to respond to a warning notice, dated 6 July 2001. In a letter dated 17 July 2001, the plaintiff terminated the 1st defendant's employment with the plaintiff on the basis that the 1st defendant had been absent from office;

(h) the 1st defendant, on the other hand, contended that he was on leave from 28 June 2001 to 28 July 2001 and had not received the warning notice of 6 July 2001 allegedly issued by the plaintiff to him;

(i) on 20 August 2001, the 1st defendant commenced employment with the 2nd defendant, a company carrying on the business, inter alia, of assembling dispensing machines. The 2nd defendant was incorporated on 8 March 2001 and the 1st defendant was appointed as a Director of the 2nd defendant on 18 February 2002;

(j) the plaintiff alleged that while employed with the plaintiff, t