Sunday, February 13, 2011

LAW GOVERNING AMENDMENT OF PLEADINGS

THE BASIC LAW GOVERNING AMENDMENT OF PLEADINGS

Order 20 of the Rules of the High Court 1980

1. Grounds for Amendment

1.1 It is the duty of counsel who applies at the trial for leave to amend his pleading to formulate and state in writing the exact amendment for which he ask as per Farwell LJ in Hyams v Stuart King [1908] 2 KB 696 and also in the case of Chung Khiaw Bank Ltd v Multidev Sdn Bhd & Ors [1977] 1 LNS 23.

[Kindly refer Malaysian High Court Practice Abridged Edition]

1.2 The grounds ventilated by the applicant who seeking for amendment of the pleadings is as follows:

(i) The proposed amendment is anchored on issues solely with the allegations raised by the respondent for the first time in his defence and will avert the respondent being taken by surprise during the trial.

(ii) The proposed amendment is only a mere elaboration of the claimant’s case and would not transform the suit into one of another and inconsistent character as alleged by the company.

(iii) In particular, the proposed amendment seeks to elucidate/explain the relief prayed throughout the claims enunciated in the pre-amended statement of case.

(iv) The proposed amendment will, for all practical purposes determine matters in dispute during the trial.

(v) The proposed amendment is to identify issue arising out of the same facts in the original pleadings.

(vi) There are other proposed additions to the existing paragraphs in the statement of case which are minor and an amplification of the existing paragraphs some of which are typo error.

2. The law on amendments

2.1 The definitive case on the amendment to the pleading is can be found in the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors [1983] CLJ 428 and the governing rule is Order 20 of the Rules of the High Court 1980 (“the RHC 1980”) which provides that an amendment of the pleading can be done anytime before judgment, even if it does add or substitute a new cause of action as long as the new cause of action arose out of the same facts or substantially the same facts.

2.2 Further Mohamed Azmi F.J. in the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors [1983] CLJ 428 laid down the following general principle –

“The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. [See Mallal’s Supreme Court Practice page 342]. If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim.”

2.3 It is to be highlighted the Supreme Court’s case of Hock Hua Bank Bhd v. Leong Yew Chin [1987] CLJ (Rep) 126 which approved the principle that amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings” and that the courts should not punish parties for the mistakes they made in the conduct of their cases.

2.4 Whereas the Court of Appeal in the case of HSBC Bank Malaysia Bhd v. Macquarie Technologies (Malaysia) Sdn. Bhd. [2004] 3 CLJ 121 where the court held that a party may plead any matter which has arisen at any time whether before or since the issuance of the writ.

2.5 Where in the case of Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 CLJ 361 Abdul Malek Ahmad JCA said that:-

“The authorities had strongly indicated that the courts should lean towards granting applications for amendments even when a new cause of action or line of defence was raised provided that it was based on the same facts or arose out of the same transaction subject to an award of costs to the other party for the injustices caused by the amendments. On these considerations, the judge in the court below was right in allowing the appeals as there was no basic departure in the amended pleadings from the original pleadings and thus, the appellant could not be said to be really prejudiced if the amendments were allowed.”

2.6 It is therefore, the amendments to the pleadings are important for both parties and the Court to identify the issues in dispute.

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