Amendment of pleadings

Miscalculation of amount in a statement of claim; the party who wishes to amend the SOC, he
would be able to once, before the close of pleadings and the SOC must be served thereafter as
pursuant to O.20 r.3 and Den Norske Bank ASA v The Owners of the Ship or Vessel “Forum
Asakasa” [1998] CLJ Supp 10, - ‘It is pertinent to point out that on February 9, 1998, in open
court, Mr. Raj Sativale for the plantiffs orally applied to amend the quantum from RM215,000.00
to "RM40,000.00." There were no objections to this oral amendment and it was granted
forthwith’ Mr.Raj Sativale contended that the first intervenors were bound by their pleadings.
This is indeed true. But there was a failure to mention that the law too provide for an amendment
of pleadings. Order 20, rule 3 (1) of the RHC states as follows: "A party may, without the leave of
the court, amend any pleadings of his once at any time before the pleadings are deemed to be
closed and, where he does so he must serve the amended pleading on the opposite party."
and it allows an amendment to the pleadings to be made once without leave and before the close
of pleadings subject, of course, to certain obligations as to the service of the amended pleadings
and in certain circumstances as to the necessity of amendments by the other party.

Application to amend pleadings is made pursuant to O.20 of the Rules of Court 2012.
Practitioners should be aware of

- O.20 r.3, states a party without the leave of court, amend any pleadings of his ONCE at
any time before the pleadings are deemed to be closed and, where he does so, he shall
serve the amended pleading on the opposite party. As pursuant to O.18 r.20, the pleading
in an action are deemed to be closed at the expiration of fourteen days after service of
the reply or of there is no reply but only defence to a counterclaim, after service of the
defence to the counterclaim; or if neither a reply nor defence to the counterclaim is
served at the expiration of fourteen days after service of the defence.
- O 18 r 20 identifies when pleadings are deemed to be closed: (1) The pleadings in an
action are deemed to be closed — (a) at the expiration of 14 days after service of the reply
or, if there is no reply but only a defence to counterclaim, after service of the defence to
counterclaim; or (b) if neither a reply nor a defence to counterclaim is served, at the
expiration of 14 days after service of the defence.
- O 18 r 20(1) fixes the deemed closure of pleadings with certainty so that it can fulfil its
function as a reference point for the reckoning of time for one-time amendments to the
writ of summons or the pleadings without leave of the court (O 20 rr 1 and 3); for the
 taking out of a summons for directions (O 25 r 1); and for the operation of automatic
directions (O 25 r 8). There is also, at the close of pleadings, an implied joinder of issue
on the pleading last served (O 18 r 14(2)(a)). Also, O 14 r 14: No summons under this
Order shall be filed more than 28 days after the pleadings in the action are deemed to be
closed

Furthermore, Tay J at [34] UNITED ENGINEERS (SINGAPORE) PTE LTD V LEE LIP HIONG AND
OTHERS [2004] SGHC 190 [2004] 4 SLR 305 had set out adequate reasons why amendment of
pleadings should not re-open pleadings afresh, which I concur with: If an amendment is made
with leave of the court after the deemed closure of pleadings and that leads to the
postponement of the deemed closure, we would have the very curious situation of an
amendment requiring leave of the court resulting in the parties again having the liberty to amend
once without leave of the court. Similarly, assuming the plaintiff in an action has already taken
out a summons for directions after pleadings are deemed to be closed and the pleadings are then
amended with leave of the court. If the deemed closure of pleadings is postponed as a result, we
would have an absurd situation where the plaintiff is required to take out another summons for
directions after the second deemed closure.

Held in RAPHAEL PURA v INSAS BHD & ANOR [2003] 1 MLJ 513; [2003] 1 AMR 45; [2003] 1 CLJ
61; The provision relating to amendment of the writ and pleadings is governed by Order 20 rule
5 of the Rules of the High Court 1980. It is trite that amendments can be made at any stage of
the proceedings including at the trial. The general principle is that the court will allow such
amendments as will cause no injustice to the other parties. It is equally trite if the application is
allowed, the opposite party will normally be compensated by way of costs. Be that as it may, the
Federal Court, the apex court of this country, had the occasion to consider and interpret Order
20 rule 5. It is the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors.[1983] 1
CLJ 191; [1983] CLJ (Rep) 428; [1983] 1 MLJ 213 where the Federal Court set out three basic
questions for consideration. As we are here dealing with the application for the amendment of
defence, question (1) above would be relevant for consideration. If it is allowed, if follows that
the other party should be compensated by costs.

This court similarly had considered Order 20 rule 5 Taisho Co. Sdn. Bhd. v. Pan Global Equities
Bhd. [1999] 1 MLJ 359. In Taisho's case,

- the amendments relate to the amendment of the statement of claim.

 - If the application of the appellant, on the facts before the learned judge, showed lack of
bona fide then he fails in his application altogether.

Reference to YAMAHA MOTOR CO LTD v YAMAHA MALAYSIA SDN BHD & ORS [1983] 1 MLJ
213, it was held 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

(a) whether the application was bona fide

(b) whether the prejudice caused to the other side can be compensated by costs and

(c) whether the amendments would not in effect turn the suit from one character into a suit of
another and inconsistent character.

An application to amend pleadings may also be brought after trial, provided there are cogent
reasons for doing so and a suitable award as to costs would satisfactorily compensate the
Respondent for the prejudice caused.

Also, as held in Hong Leong Finance v Low Thiam Hoe [2016] 1 MLJ 301, the Federal Court refines
Yamaha Motor; The principles in Yamaha Motor in our view were laid down in respect of an
application to amend that was made at an early stage of the proceedings in particular before the
trial commences. However, where an application to amend is put in at a very late stage, it would
cause a disruption to the administration of justice which would affect not only the parties but
also the Court and the judicial process as a whole. Considering the above, the Federal Court laid
down the following considerations: ‘the principles in Yamaha Motor applies to cases where the
application to amend the pleadings is made at an early stage of the proceedings’, ‘that there has
to be a cogent and reasonable explanation in the applicant’s affidavit as to why the application
was filed late’.

In an Indian case, of Chander Kanta Bansal V. Rajinder Singh Anand, AIR 2008 SC 2234, the
Hon'ble Supreme Court held that amendments may be allowed liberally but it should not cause
injustice or prejudice of an irremediable nature to the other party. On one hand, where allowing
amendments seems just and reasonable there have been cases in which the parties have sought
to make Amendments with malafide intent, at a belated stage, in the proceedings, so as to either
bring a time-barred cause of action within the statute of limitation or to expand the scope of the
said matter which would otherwise be a distinct and separate cause of action. Hence, over a
period of time, various judgements have been passed wherein the amendments, even though as
a principle being generally permitted, have been rejected in the interest of justice.

In Looi Guan Kway v Low Lean Bok & Ors, the facts here is that before the suit came on for trial,
the plaintiff filed application to amend the plaint (amending the charge). It was held that
notwithstanding the latitude allowed by the courts for amendments in civil suits, the proposed
amendments could not be allowed, that:

1. Though not inconsistent with the character of the suit, they sought to introduce several
new causes of action
2. They would cause an injustice to several of the defendants
3. The belated application was not made bona fide:
- Amendments should always be allowed provided that:
i. There is bona fides on part of applicant
ii. They cause no prejudice to the other side which cannot be compensated by costs; and
iii. They are not such as to turn a suit of one character into a suit of another and
inconsistent character

To amend statement of claim for accident cases, the plaintiff listed his injuries and damages to
be claimed. After the writ was issued, he realized that he suffered right eyes injury but it was not
pleaded in the statement of claim:

- To rely on O.20 r.1(3), the amendment of statement of claim/pleading can be made

without leave under O.20 r.1, after service of writ, because the cause of action for the
eye injury is the same which is the accident
- To rely on O.20 r.5, amendment of statement of claim/pleading can also be made with
leave after service of writ.

In Quality Concrete Holdings Bhd v Classic Gypsum Manufacturing Sdn Bhd & Ors [2012] 2 MLJ
521; The court may at any stage of the proceedings allow the plaintiff to amend its pleading on
such terms as to costs or otherwise as may be just and in such manner as the court may direct. It
must be borne in mind that where the proposed amendment does not change the character of
the dispute and made on a bona fide basis without causing any prejudice to the opposite party
which could be compensated with costs, the court would readily allow the amendment (MGG
Pillai v Tan Sri Dato' Vincent Tan Chee Yioun [2002] 2 MLJ 673 (FC); and Ultra Dimension Sdn
Bhd v Sepadan Tuah Sdn Bhd; Genesis The As Agency Sdn Bhd (Third Party) [2000] 6 CLJ
548).The primary reason to allow an application to amend the pleadings is the need to ensure a
fair trial of the action (Lam Soon Oil and Soap Manufacturing Sdn Bhd & Anor v Whang Tar
Choung & Anor [2002] 2 SLR 395). But the amendment will not be allowed if the resulting
prejudice cannot be compensated in costs (Tan Sri Dato Paduka (Dr) Ting Pek Khing v Hii Chang
Pee @ Hu Chang Pee [2003] 2 MLJ 378). So long as the amendments are crucial for a proper and
fair determination of the disputes between the parties and such amendments would not
prejudice the opposite parties, such amendments would be allowed
(Looi Guan Kway against Low Lean Bok and others [1939] 7 MLJ 35; Yamaha Motor Co Ltd v
Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (FC); and Asia Pacific Land Bhd & Ors v Datuk
Bandar Kuala Lumpur [2006] 2 MLJ 137).

Miscalculation of amount in a statement of claim; the party who wishes to amend the SOC, he
would be able to once, before the close of pleadings and the SOC must be served thereafter as
pursuant to O.20 r.3 and Den Norske Bank ASA v The Owners of the Ship or Vessel “Forum
Asakasa” [1998] CLJ Supp 10, - ‘It is pertinent to point out that on February 9, 1998, in open
court, Mr. Raj Sativale for the plantiffs orally applied to amend the quantum from RM215,000.00
to "RM40,000.00." There were no objections to this oral amendment and it was granted
forthwith’ Mr.Raj Sativale contended that the first intervenors were bound by their pleadings.
This is indeed true. But there was a failure to mention that the law too provide for an amendment
of pleadings. Order 20, rule 3 (1) of the RHC states as follows: "A party may, without the leave of
the court, amend any pleadings of his once at any time before the pleadings are deemed to be
closed and, where he does so he must serve the amended pleading on the opposite party."
and it allows an amendment to the pleadings to be made once without leave and before the close
of pleadings subject, of course, to certain obligations as to the service of the amended pleadings
and in certain circumstances as to the necessity of amendments by the other party.

Raising new allegations unrelated to the original amendment is not making a consequential
amendment – Bacom Enterprises Sdn Bhd v Jong Chuk & Ors [1998] 2 AMR 1641.

An application to amend pleadings is not appealable; Federal Court in Asia Pacific Higher
Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] MLRAU 28 held, by a majority of
3 to 1 (the fifth Judge having retired by the time the decision was delivered) that a decision on
an application to amend pleadings is not appealable. Facts: In that case, an application to amend
the statement of claim was filed by the plaintiff in the High Court in the midst of trial, after 6
witnesses had already given evidence. The amendment application was allowed by the High
Court but the High Court order was subsequently reversed by the Court of Appeal. Dissatisfied
with the Court of Appeal’s decision, the plaintiff appealed to the Federal Court.

Base on the Civil Procedure Rules, a party can amend its statement of case at any time without
the permission of the court before it has been served on any other party. However, under the
(PRACTICE DIRECTION 17 – AMENDMENTS TO STATEMENTS OF CASE, This practice direction
supplements CPR Part 17) the court may disallow amendments which were made without the
court’s permission being required

Looi Guan Kway v Low Lean Bok & Ors

F: before the suit came on for trial, the plaintiff filed application to amend the plaint.
H: notwithstanding latitude allowed by the courts for amendments in civil suits,
the proposed
amendments could not be allowed, that
(1) though not inconsistent with the character of the suit, they sought to introduce several new
causes
of action
(2) they would cause an injustice to several of the defendants