A. Andrew A/L J. Alfred v 1. ) Margaret Mary A/P Alfred (PA-22NCvC-101-05/2021)

MARGARET MARY A/P ALFRED

LUCY A/P J. ALFRED (NO K/P: 620618-02-5136) … DEFENDAN-DEFENDAN JUDGMENT (AMENDMENT OF DEFENCE TO INCLUDE DEFENCE OF LIMITATION) PRELUSION [1] This suit is a dispute among siblings, between a brother on the one side, and two sisters on the other side. The dispute is over the ownership of a house. What is in dispute is whether each of them owns 1/3 of the house, or are the sisters’ 2/3rds held on trust for the brother. [2] The brother sued the sisters. The sisters’ counter-sued. After the pleadings were closed, the sisters apply to amend their pleadings to include the defence of limitation. Should their application by allowed? 08/05/2023 09:38:06 PA-22NCvC-101-05/2021 Kand. 34 Page 2 of 10 PLAINTIFF’S PLEADED FACTS [3] The Plaintiff’s pleaded claim includes these facts. [4] In July 1991 (32 years ago), the Plaintiff bought a house for RM70K (Property). [5] In order to facilitate getting a bank loan, he put the Defendants’ (his sisters’) names together with his name as the houseowners. The agreement between the Plaintiff and the Defendants was that the Defendants held a 2/3 undivided share in the Property on trust for the Plaintiff. [6] The Plaintiff got a loan from the bank for RM56K. He alone paid the initial payment of RM14K. And he alone paid all the loan repayments, the quit rent, the assessment and other expenses for the Property. [7] They all lived on the Property, with their other siblings. But in 1993, the 2nd Defendant got married and moved out of the Property. In 1995, the 1st Defendant got married and moved out too. [8] In August 2006, the Plaintiff withdrew his EPF money to redeem the Property from the bank. The EPF directly paid the bank the redemption sum, so that the charge over the Property was discharged. [9] When the Plaintiff wanted to get the Title from the bank, the bank informed him that the Defendants, as co-owners, must sign the required documents. The Plaintiff asked the Defendants to sign the documents but they did not do so. Page 3 of 10 [10] In 2018, the Plaintiff discovered that in March 2017, the Defendants had discharged the charge and had taken the Title. [11] In the 2018 and 2019, the Defendants filed two suits in succession to try to sell the Property. The first suit was withdrawn. The second suit was struck out on the Plaintiff’s application. [12] In October 2020, the Plaintiff entered a caveat to protect his rights over the Property. RELIEFS AND REMEDY SOUGHT [13] The Plaintiff seeks reliefs and remedies that include—

a Declaration that the Plaintiff is the sole owner of the Property;

a Declaration that the Defendants hold 2/3 of the Property as trustees for the Plaintiff;

an Order that the Defendants’ 2/3 share in the Property vests in the Plaintiff;

an Order that the Plaintiff be registered as the sole owner of the Property;

damages. DEFENDANTS’ PLEADED FACTS [14] The Defendants’ pleaded defence and counterclaim include these facts. Page 4 of 10 [15] The decision to buy the Property was made by the Plaintiff and the Defendants together. The agreement among them was that each of them would own a 1/3 share in the Property. [16] They deny that it was the Plaintiff who solely paid the initial RM14K, and the loan repayments. They contributed to the initial payment and the loan repayments. [17] They deny that they held their 2/3 share on trust for the Plaintiff. [18] The agreement among the parties was that as the Plaintiff and his family live on the Property, the Plaintiff would pay rent to the Defendants. RELIEFS AND REMEDY SOUGHT [19] The Defendants seek reliefs and remedies that include—

an Order to sell the Property without vacant possession, by auction or private treaty, at market value; the net proceeds be divided equally among the parties; the Defendants’ solicitors conduct the sale;

the Court Registrars be authorised to sign the necessary documents that relate to the Plaintiff’s 1/3 share in the Property;

the Plaintiff is to pay rent to the Defendants;

alternatively, the Plaintiff is to buy out the Defendants’ 2/3 share in the Property at the current market price, and pay rent, and the Defendants will transfer their share in the Property to the Plaintiff. Page 5 of 10 DEFENDANTS’ APPLICATION TO AMEND THEIR DEFENCE AND COUNTERCLAIM [20] The Defendants filed an Application to amend their Defence And Counterclaim (DACC), to include the defence of limitation. The Defendants propose to merely add to their DACC the following sentence—“The Plaintiff’s claim is barred by the Limitation Act 1953”. [21] The Defendants exhibited their proposed Amended DACC to their Affidavit In Support of the Application. [22] The Plaintiff opposes the Application. PRINCIPLES GOVERNING THE AMENDMENT OF PLEADINGS [23] Order 20 Rule 5 of the Rules Of Court 2012 provide that the Court may permit the parties to amend their pleadings, on such terms as to costs as the Court thinks just. [24] Case law propounds the general principle that amendments to pleadings are allowed if the amendments do not cause injustice to the other parties. The Court is to consider three issues—

whether the application to amend is “bona fide”;

whether “the prejudice caused to the other side can be compensated by costs”;

whether the amendment would “turn the suit from one character into a suit or another and inconsistent character”: see Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] 1 MLJ 213 (FC). Page 6 of 10 [25] The Defendants’ Amendment Application was not made at a late stage of this suit. The parties have not progressed beyond the stage of pleadings. The pre-trial directions involving steps such as the process of discovery and the preparation of other pre-trial documents that are essential for the efficiency of modern litigation such as Agreed Facts and Agreed Issues To Be Tried, have yet to be given. And this suit is not yet fixed for trial. [26] As the Defendants’ Amendment Application was not made late, it is not necessary for me to analyse and apply the case law authorities for the principles and factors that govern an Amendment Application that is made late-in-the-day—case law authorities such as Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC), which cites with approval the House Of Lords judgment on amendments in Ketteman & Ors v Hansel Properties Ltd [1998] 1 All ER 38 (HL). [27] Nevertheless, I will apply the fundamental principle on amendments enunciated in Ketteman (supra), and cited in Hong Leong Finance (supra) at paragraph [19], and that is that whether I grant an amendment to pleadings is a matter for my discretion. And when I exercise this discretion, I should be guided by an “assessment of where justice lies”. REASONS FOR DECISION The Defence of Limitation must be specifically pleaded [28] Section 4 of the Limitation Act 1953 (Limitation Act) provides that if the Defendants asserts that the Plaintiff’s claim is time-barred, the Defendants must “expressly plead” the Limitation Act. Page 7 of 10 [29] Then Order 18 Rule 8(1) of the Rules Of Court 2012 reinforces this procedural law requirement that any statute of limitation which the Defendants contend provides a defence to the Plaintiff’s claim, must be “pleaded specifically”. [30] So, in this regard, I am inclined to exercise my discretion not to prohibit or deny the Defendants from pleading the Limitation Act if they assert that it provides them with a defence to the Plaintiff’s claim. They should be given the opportunity to prove, at trial, that the Plaintiff’s claim is time-barred. I should not deny them that procedural right. The proposed amendments do not introduce new material facts [31] The defence of limitation is facts-centric, that is, it depends on the material facts of the case. The Defendants seek only to plead the Limitation Act. The proposed amendments do not introduce further or new material facts to the Defendants’ DACC. The limitation defence emanates from the same already-pleaded material facts. [32] In this sense, the defence of limitation does not turn the Plaintiff’s suit from one character (which is about the ownership of the Property) into “another and inconsistent character”. The prospect of the Defendants succeeding on the defence of limitation should not be considered now [33] The Plaintiff argues that the Defendants’ limitation defence is futile; that they do not have a good prospect of succeeding. Page 8 of 10 [34] I am of the view, however, that in this Amendment Application proceeding, I should not, at this juncture, consider whether the Defendants have a good prospect of succeeding, or conversely failing, in their limitation defence at trial. [35] In any event, this test—whether the Defendants have a good prospect of succeeding in their proposed defence of limitation—is not the legal test for amendment applications. The Amendment Application is not made bona fide, it is not a tactical manoeuvre, and any prejudice can be compensated by costs [36] The Plaintiff submits that the Defendants’ Amendment Application is not made bona fide, that it is a mere tactical manoeuvre, and that if the proposed amendment is allowed, it will prejudice him. [37] First, I find that there is no evidence or any material that demonstrates that the Defendants’ Amendment Application is not made bona fide, or that it is a tactical manoeuvre. Just by saying that the Amendment Application is not made in good faith, or that it is a tactical manoeuvre—does not make it so. [38] As such, I find that the Amendment Application is made in good faith, and I do not see it as a tactical manoeuvre. [39] Second, I find that whatever procedural prejudice that is caused on the Plaintiff by the Amendment Application can be compensated by an award of costs in the Plaintiff’s favour. Page 9 of 10 [40] The prejudice that may be caused to the Plaintiff is that it may be necessary for him to consequentially amend his Reply And Defence To Counterclaim (RADTCC). I can grant him leave to amend his RADTCC to address the Defendants’ defence of limitation, and I can grant him the costs to perform the amendment to his RADTCC. CONCLUSION [41] For these reasons, I allow the Defendants’ Amendment Application i.e. the Defendants are permitted to amend their DACC according to the Proposed Amended DACC as exhibited in their Affidavit In Support of the Application. [42] I order the Defendants to pay RM5K costs to the Plaintiff by 28.4.2023. Costs are subject to the allocatur. [43] I also give leave and direct the Plaintiff to file and serve his Amended RADTCC. Dated 8 May 2023 signed KENNETH ST JAMES Judicial Commissioner Penang High Court Page 10 of 10 Counsel/Solicitors For the Plaintiff: Annie Santha Subramanyam [Messrs. S. Annie & Associates, Pulau Pinang] For the Defendants: Yeap Chin Pho and Thivyaa A/P Balaraman [Messrs. Geh Cheng Lok, C. P. Yeap & Co., Pulau Pinang] Legislation referred to 1. Section 4 of the Limitation Act 1953.

Order 18 Rule 8(1) & Order 20 Rule 5 of the Rules Of Court 2012. Cases referred to 1. Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] 1

Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC).

Ketteman & Ors v Hansel Properties Ltd [1998] 1 All ER 38 (HL).