Chapter 17 - Amendment of Pleadings

Question 1

AMENDMENT OF PLEADINGS

Overview

Answer 1

1) Amendment without leave
2) Amendment with leave
3) Post-limitation amendment
4) Amendment by agreement
5) Failure to amend
6) Effect of amendment

Question 2

AMENDMENT WITHOUT LEAVE

Overview

Answer 2

1) Amendment of writ

2) Amendment of pleadings

Question 3

AMENDMENT WITHOUT LEAVE

Amendment of writ

Answer 3

O.20, r.1:

• How many times:
• Amendment after service:
• Not applicable to:
• Exceptions:

Question 4

AMENDMENT WITHOUT LEAVE

Amendment of pleadings

Answer 4

1) The law:
- O.20, r.3
2) Amendment of statement of claim - O.20, r.3(2):

• How many times:
• When:
• Amendment after service:

3) Amendment of defence - O.20, r.3(3):

• How many times:
• When:
• Amendment after service:

Question 5

AMENDMENT WITHOUT LEAVE

xxx

Answer 5

xx

Question 6

AMENDMENT WITHOUT LEAVE

xxx

Answer 6

xx

Question 7

AMENDMENT WITH LEAVE

Overview

Answer 7

1) The law & scope
2) The test
3) Considerations for leave
4) Amendment with leave before trial
5) Amendment with leave on appeal
6) Amendment with leave after judgment has been pronounced
7) Exercise of discretion

Question 8

AMENDMENT WITH LEAVE

The law & scope

Answer 8

O.20, r.5

Question 9

AMENDMENT WITH LEAVE

The test

Answer 9

1) Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd:
- the court will allow such amendments as long as it will cause no injustice to the other parties.
2) cf. Hong Leong Finance Bhd v Low Thiam Hoe:

• the principles in Yamaha Motor were laid down in respect of an application to amend that was made at an early stage of the proceedings;
• i.e. before the trial commences.
• when an application to amend the pleading is made at a very late stage, the principles in Yamaha Motor ought not to be the sole consideration.

Question 10

AMENDMENT WITH LEAVE

Considerations for leave - application made in early stage

Answer 10

Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd:

1) BONA FIDE:
- whether the application is bona fide;
- unless the party applying was acting mala fide, leave to amend ought to be granted;

2) COMPENSATION:

• whether the prejudice caused to other side can be compensated by costs;
• leave to amend ought to be granted unless applicant had done some injury to his opponent which could not be compensated for by costs or otherwise.

3) CHARACTER:
- whether the amendments would not in effect turn the suit from one character into a suit of another & inconsistent character.
4) MERIT OF THE CASE:
- the court SHOULD NOT be concerned with merits of the case.

Question 11

AMENDMENT WITH LEAVE

Considerations for leave - application made in late stage

Answer 11

Hong Leong Finance Bhd v Low Thiam Hoe:

• Additional considerations when an application is made on the day of trial are:
  1) FULL PARTICULARS:
• The proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success.
  2) COGENT & REASONABLE EXPLANATION:
• The applicant will have to provide a cogent and reasonable explanation in its affidavit to explain why the application was filed late.
  3) BURDEN:
• The burden is squarely on the applicant to provide the explanation;
• This is despite the other party not filing an affidavit to oppose the application.

Question 12

AMENDMENT WITH LEAVE

Amendment with leave before trial

Answer 12

Ref. Claraoede v Commercial Union Association:

• However late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.
• There is no injustice if the other side can be compensated by costs.

Question 13

AMENDMENT WITH LEAVE

Amendment with leave on appeal

Answer 13

Ref. Chen CHow Lek v Tan Yew Lai:

• The Federal Court allowed the application as the “amendment is fully covered by evidence in the records and not in any way prejudicial to [D].

Question 14

AMENDMENT WITH LEAVE

Amendment with leave after judgment has been pronounced

Answer 14

The Gladiator:

• P issued a writ for the sum of £5000.
• After trial, the Court granted judgment for the sum of £7500.
• Thereafter, P applied to amend its writ and statement of claim by increasing the amount claimed to £8500 & the Court allowed the application.

Question 15

EXERCISE OF DISCRETION TO GRANT LEAVE

Overview

Answer 15

1) Delay
2) Injustice to opponent
3) Including a counterclaim
4) Withdrawing of admission
5) Prejudice
6) Bona fide
7) Changing character of suit
8) Including a subsequent cause of action
9) Time of amendment

Question 16

EXERCISE OF DISCRETION TO GRANT LEAVE

Delay

Answer 16

1) Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan:
- when a party requires discretion to be exercised in its favour, delay is always a relevant consideration in the grant or withholding of it because a court will only assist the vigilant and not the indolent.
2) Taisho Co Sdn Bhd v Pan Global Equities Bhd:
- The party, who has delayed his application for leave, must explain the delay & must “place some material and advance some cogent reasons to impel the court to lean on its side”.
3) Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd (FC, 2013)

• CA was wrong in reversing the decision of the learned trial judge on the issue of amendment which is sought late.
• Even if the learned trial judge was wrong in refusing the amendment, CA ought to have proceeded to consider the appeal on its merits with the benefit of the amendment which it did not do.
• The learned trial judge in any event was correct in so far as the merits of the case were concerned in refusing the defendant’s application for amendment.

Question 17

EXERCISE OF DISCRETION TO GRANT LEAVE

Injustice to opponent

Answer 17

The Benoi VI:

• It is obvious that graver injustice will be suffered by the defendants if the amendments are allowed on the day of trial.

Question 18

EXERCISE OF DISCRETION TO GRANT LEAVE

Including a counterclaim

Answer 18

1) Ho Yoke Kwei v Ong Eng Hin:

• O.20 allows to include addition of something that was not originally in it;
• This means that a counterclaim could be added to a defence by way of amendment.

2) Alloy Consolidated Sdn Bhd v Dato Hj. Adam Harun (FC):

• based on s.31 LA, the counterclaim was not barred by limitation;
• the counterclaim is deemed to have been commenced on the same date as the action;
• i.e the date of filing of the counterclaim relates back to the date of the original action.

Question 19

EXERCISE OF DISCRETION TO GRANT LEAVE

Withdrawing admission

Answer 19

Hollis v Burton:

• An admission made inadvertently may be withdrawn and the pleading amended accordingly.

Question 20

EXERCISE OF DISCRETION TO GRANT LEAVE

Prejudice

Answer 20

1) Mahan Singh v Government of Malaysia:
- The prejudice referred to is the prejudice that cannot be compensated by costs.
2) Dato’ Tan Heng Chew v Tan Kim Hor (2010):

• CA is of the view that in considering whether any injustice would be caused the position of the plaintiff must be balanced with the interest of the defendant.
• OTF, it is held that whatever prejudice suffered by the defendants, under the circumstances, could be compensated with costs.

Question 21

EXERCISE OF DISCRETION TO GRANT LEAVE

Bona fide

Answer 21

Alwee v Lah Kong Fook:

• The court is of the view that the application to amend made by P is to ask for a new trial;
• On this ground alone, he is held to be making the application mala fide, and therefore should not be given a further chance to prevaricate.

Question 22

EXERCISE OF DISCRETION TO GRANT LEAVE

Changing character of the suit

Answer 22

Chin Kok Kwong Construction v Sunrise Towers Sdn Bhd:

• The circumstances which P sought to add a new cause of action does not arise out of the same facts or substantially the same facts;
• To allow such amendment would turn a suit to another character;
• Accordingly, it is not permissible at all times.

Question 23

EXERCISE OF DISCRETION TO GRANT LEAVE

Including a subsequent cause of action

Answer 23

1) Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction:

• any subsequent amendments to the writ and statement of claim would relate back to or speak from the original date when such writ and statement of claim were filed;
• amendment to include subsequent cause of action arising after the issuance of writ will not be allowed as the new cause of action does not arise on the date of the issuance of writ.

2) Sao Koon Lin v SB Mehra:

• FC held that P did not have a cause of action for certain amount as there were no instalments due.
• This is especially so since the agreement did not contain any clause stating that default of repayment for one instalment will result in other repayments become due & payable, P did not have any cause of action for the amount which is not due.

Question 24

POST-LIMITATION AMENDMENT

Overview

Answer 24

1) The law
2) Rationale to allow amendment
3) Example - correcting name
4) Example - altering capacity
5) Example - add or substitute new cause of action

Question 25

POST-LIMITATION AMENDMENT

The law

Answer 25

• O.20, r.5(2): doctrine of relation back
• O.20, r.5(3): correct name of party
• O.20, r.5(4): alter the capacity
• O.20, r.5(5): add or substitute a new cause of action

Question 26

POST-LIMITATION AMENDMENT

Rationale to allow amendment

Answer 26

Lim Yong Swan v Lim Jee Tee:

• The matters of identity, capacity or cause of action sought be amended are already asserted or implied, from the inception of the writ or the filing of the pleading;
  It is merely a matter of correction to make explicit what is implicit.

Question 27

POST-LIMITATION AMENDMENT

Requirements - correcting name

Answer 27

O.20, r.5(3):

1) Lim Yong Swan v Lim Jee Tee:

• GENUINE MISTAKE: the mistake must be a genuine mistake;
• NOT MISLEADING: the mistake is not misleading such as to cause any reasonable doubt as to the identity of the parties.
• i.e. the other party at all material times knew in fact and in substance who the opposing litigant was.

2) Boss S/O Ramasamy v Penang Port Sdn Bhd:

• GENUINE: there was a genuine mistake in naming the parties;
• NOT MISLEADING: the mistake was not misleading;
• NO REASONABLE DOUBT: the mistake was not such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued;
• JUST: it is just to allow such an amendment.

Question 28

POST-LIMITATION AMENDMENT

Requirements - altering capacity

Answer 28

O.20, r.5(4):

1) Lim Yong Swan v Lim Jee Tee:

• an alteration of the capacity in which a party sues is allowed only if the capacity is the one which he might have sued at the date at which the claim was asserted.
• i.e. the capacity has already existed at the date of issuance of writ.

2) Doctrine of relation back does not apply to adding a new party - Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd (FC, 2017):

• the power of amendment of pleadings in O.20 r.5 does not extend to the amendment of adding a new defendant after the expiry of the relevant limitation period;
• Therefore, the doctrine of relation back as envisaged under r. 5(2) is not applicable to an amendment to join the second defendant as a co-defendant.
• This doctrine is only applicable in amendments specified in r. 5(3), (4) and (5) only.
• Doctrine of relation back DOES NOT apply to situation of adding a party, thus D is completely entitled to rely on the defence of limitation.

3) Application - Mohamed Amin bin Hassan v Govt of Malaysia:

• It is a case of adding a new party to the original suit.
• Amendment to add a new party ought to not be allowed because clearly the court has no power to resuscitate an action which must fail in limine upon a plea of limitation.

Question 29

POST-LIMITATION AMENDMENT

Example - add or substitute new cause of action

Answer 29

1) The law:
- O.20, r.5(5)
2) Existence of new relief - Hock Hua Bank v Leong Yew Chin:

• The fact that a new relief or substantially new relief has arisen out of a new cause of action should not be a bar to the Court’s power to grant leave under r.5.
• Therefore, whether or not amendment to add a new cause of action is sought, a new relief is not a relevant consideration since a relief or a remedy is ancillary to and not separable from a cause of action

3) Subsequent cause of action - Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction:

• any subsequent amendments to the writ and statement of claim would relate back to or speak from the original date when such writ and statement of claim were filed;
• amendment to include subsequent cause of action arising after the issuance of writ will not be allowed as the new cause of action does not arise on the date of the issuance of writ.
• NOTE: cf. with cause of action arising AFTER issuance of writ or adding a subsequent cause of action above.
• i.e. new cause of action which HAVE EXISTED at the time when the writ is issued CAN be added via amendment under r.5;
• new cause of action which SUBSEQUENTLY AROSE after the issuance of writ CANNOT be added (Simetech)

Question 30

AMENDMENT BY AGREEMENT

the law

Answer 30

O.20, r.12

• Whether allowed:
• When is allowed:
• How many times:
• Scope of amendment:

Question 31

FAILURE TO AMEND AFTER ORDER

Overview

Answer 31

1) The law

2) Example

Question 32

FAILURE TO AMEND AFTER ORDER

The law

Answer 32

O.20, r.9:

• When amendment must be made: within period specified.
• Effect of failure to amend within time: the order ceases to have effect.
• Power to extend time: yes, by Court.

Question 33

FAILURE TO AMEND AFTER ORDER

Example

Answer 33

Lim Oh & Ors v Allen & Gledhill:

• filing of the second suit was an abuse of the process of the court since after having filed the second suit and obtained an order for its amendments;
• [P] had admitted that the amendments were effected out of the prescribed period.
• When faced with the application to set aside the first suit, [P] again failed to apply for an extension of time to enable the amendments to be effected.
• This raises the presumption that [P] failed to comply with the rules of court.
• When the order striking out the first suit was made, [P] could have appealed but failed to do so.
• P’s failure to appeal amounted to a deliberate attempt to circumvent the necessary appeal procedure and therefore constituted an abuse of the process of the court.

Question 34

EFFECT OF AMENDMENT

Overview

Answer 34

1) The law
2) Doctrine of relation back
3) Applicability of doctrine of relation back

Question 35

EFFECT OF AMENDMENT

The law

Answer 35

O.20, r.5(2)

Question 36

EFFECT OF AMENDMENT

Doctrine of relation back - meaning

Answer 36

1) Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction:
- any subsequent amendments to the writ and statement of claim would relate back to or speak from the original date when such writ and statement of claim were filed.
2) Alloy Consolidated Sdn Bhd v Dato’ Dr. Hj. Adam Harun (2011):
- the date of filing of the counterclaim relates back to the date of the original action.

Question 37

EFFECT OF AMENDMENT

Doctrine of relation back - specific instances

Answer 37

1) On adding a counterclaim - Alloy Consolidated Sdn Bhd v Dato’ Dr. Hj. Adam Harun (2011):

• Based on S.31 LA, the counterclaim was not barred by limitation because the counterclaim is deemed to have been commenced on the same date as the action i.e 25.6.2001.
• the date of filing of the counterclaim relates back to the date of the original action.

2) On adding a new SUBSEQUENT cause of action - Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction:
- amendment to include subsequent cause of action arising AFTER (i.e. subsequently arising after) the issuance of writ will not be allowed as the subsequent cause of action does not arise on the date of the issuance of writ.
2) On adding a new D - Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd (FC, 2017):

• the power of amendment of pleadings in O.20 r.5 does not extend to the amendment of adding a new defendant after the expiry of the relevant limitation period;
• Therefore, the doctrine of relation back as envisaged under r. 5(2) is not applicable to an amendment to join the second defendant as a co-defendant.
• This doctrine is only applicable in amendments specified in r. 5(3), (4) and (5) only.
• Doctrine of relation back DOES NOT apply to situation of adding a party, thus D is completely entitled to rely on the defence of limitation.