JUDGMENT

Arifin Zakaria CJ (Malaya):

Introduction

(1) This is an appeal against the decision of the Court of Appeal dated 30 October 2008 dismissing the appellants appeal. Leave to appeal was granted by this court on 1 December 2008 on the following questions:

Question 1

Where counterclaims are concerned, whether leave to amend under Order 20 Rule (1), Rules of the High Court 1980 ("RHC") is limited to amendments of existing counterclaims and does not extend to the introduction of a fresh counterclaim by way of amendments.

Question 2

Where counterclaims are concerned, whether the power of a High Court to grant leave to amend pursuant to Order 20 Rule 5(2) is limited to the granting of leave to amend existing counterclaims and does not extend to permitting the introduction of fresh counterclaims by way of amendments.

Question 3

Whether Section 31, Limitation Act 1953 is relevant to the exercise of discretion under Order 20 Rule 5(5), RHC where leave is sought to amend a defence to introduce a fresh counterclaim.

Question 4

Where leave to amend pleadings "in toto", whether such an application is one which prejudices the other party in a manner that cannot be compensated a