Amendment applications based on previously known facts must be bona fide; late amendments may be dismissed due to tactical maneuvering.

(1) : The appellant’s/plaintiff’s (‘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 (‘the defendant’) be given leave to amend the statement of defence dated 23 December 1998.

(2) At all material times, the plaintiff was 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 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 two 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 44–50 of the record of appeal). Subsequently, the solicitors for the defendant had written two 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 had ‘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).

(3) 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 63–65 of the record of appeal);

(b) the plaintiff’s affidavit in reply affirmed by Ong Eng Leong on 2 June

1999 (see pp 66 to 70 of the record of appeal); and

(c) the corrective affidavit affirmed by the defendant on 13 June 1999 (see

pp 71–73 of the record of appeal).

(4) 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.

(5) The plaintiff submitted that the decision of the learned sessions court judge giving leave to amend was erroneous in law and in fact, and this appeal ought to be allowed bas