James Samuel A/L Sundaraj v Shanta Kumari A/P Ramdass (WA-A72NCvC-2676-06/2024)

Background On 27 July 2024, the Plaintiff filed a Notice of Application (enclosure 6) seeking an order under Order 14 of the ROC for Summary Judgment against the Defendant for a deposit of RM6,500.00 and the return of RM578.00.

This Plaintiff’s application arises from a rental agreement between the Plaintiff and the Defendant, where, in the Plaintiff’s supporting affidavit (enclosure 7), the Plaintiff exhibited a draft rental agreement dated 26.11.2019 as Exhibit J-1. It is noted, however, that the draft rental agreement is unsigned, undated, and incomplete.

The Plaintiff subsequently discovered a complete and signed rental agreement dated 26.11.2019, referred to in the Plaintiff's corrective affidavit and exhibited as Exhibit J-1(A).

In between the filing of all the affidavits from both parties, the previous magistrate had, on 30.07.2024, issued instructions during the case management as follows: Sila patuhi arahan seperti berikut: 30/10/2024 11:37:39

Plaintif menfailkan Jawapan kepada Pembelaan dan Pembelaan kepada Tuntutan Balas pada atau sebelum 9.8.2024;

Defendan menfailkan Balasan kepada Pembelaan kepada Tuntutan Balas pada atau sebelum 23.8.2024;

Penutupan pliding dan pemfailan permohonan interlokutori pada atau sebelum 6.9.2024. Pemfailan selepas tarikh ini akan menyebabkan permohonan tersebut diexpunge. Pada tarikh CM 6.9.2024 tersebut, sila berikan tarikh bicara sekitar bulan Jun 2025 beserta tentatif bilangan saksi yang akan dipanggil Ditangguhkan ke tarikh 06-09-2024 pada masa 9:00AM

The corrective affidavit was filed on 18.09.2024 after both parties had submitted their respective submissions.

During the case management and the hearing date for enclosure 18 on 26.09.2024, both parties argued about the application. The Court decided to dismiss it.

The Court granted a date for the Defendant to file a responding affidavit to the corrective affidavit, which will be submitted by 14.10.2024.

Reasons for dismissing Enclosure 18 Substantive Justice point Order 14 of the ROC empowers the court to grant a summary judgment application if there are no triable issues. In this case, the corrective affidavit filed by the plaintiff does not introduce new facts that would cause injustice to the defendant. Instead, it refines the facts presented to enable the court to make a more accurate and fair decision. Reference to Lian Keow Sdn Bhd & Anor v Overseas Credit Finance (M) Sdn Bhd & Ors [1988] 2 MLJ 449 demonstrates that in summary judgment cases, the affidavits submitted by the parties are essential to determine whether a triable issue exists. Correcting the affidavit in this case is appropriate as it does not alter the basis of the relevant facts on the core issues. Order 41 does not prevent the court from exercising its inherent jurisdiction to allow the filing of corrected or amended affidavits after the filing stage if it aids in adequately determining the case. Relevant Malaysian case law, such as Wan Mohd Fauzi Wan Mohd v Dato' Abdul Hamid Mohd Nasir [2010] 2 MLJ 396, highlights that procedural rules, though mandatory, can be waived or varied by the court when necessary to achieve substantial justice. Reference was made to this court on the position in the UK, whereby the courts adopt a flexible approach to affidavit corrections under the Civil Procedure Rules (CPR). Rule 3.1(1) allows the court to control its procedure. This includes allowing corrections to affidavits to ensure the evidence is clear and accurate. The court can exercise discretion to permit corrections that aid in pursuing justice. Rule 3.1 - General Powers of the Court 3.1(1): "The court may—

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control its own procedure."

3.1(2): "The court may exercise its powers under this rule of its own initiative or on the application of a party." In Singapore, Section 27 of the Oaths and Declarations Act offers similar flexibility in allowing amendments to avoid procedural injustice.

Section 27: Amendment of Affidavits Power of the Court: The court may allow any affidavit to be amended in accordance with the rules of court or the practice of the court.

Application for Amendment: An application for the amendment of an affidavit may be made at any time before the hearing of the matter in respect of which the affidavit was filed.

Conditions for Amendment: The court may impose conditions on the amendment, including requiring the party making the application to provide a reason for the amendment.

No Prejudice to the Defendant The court allowed the defendant to respond to the corrective affidavit by filing an affidavit in reply, which the defendant had filed on 11.10. 2024. This shows that the defendant was given the opportunity to present its case and he was never left without a chance to answer or contest the facts presented in the said application. Therefore, the claim that the defendant has been prejudiced is unfounded. In Wong Thin Min v Foo Nyit Moi [2006] 2 CLJ 186, the court allowed the correction of documents in circumstances where no prejudice arose to the other party. This principle applies here, as the defendant was afforded the appropriate right to respond, and no injustice occurred.

Court’s Discretion in Procedural Matters The case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 (SC) affirms that technical procedures should not obstruct the justice process. The court must ensure that facts are presented clearly and accurately, which the plaintiff has accomplished through the corrective affidavit. In this case, the plaintiff’s correction of the affidavit is part of the court's discretionary power to ensure that relevant facts are fully considered. Conclusion The court's decision to permit the filing of the corrective affidavit is reasonable, as it clarifies and refines previously presented facts without introducing new allegations that could mislead the court or the parties involved. Additionally, the court finds that the defendant has been afforded ample opportunity to respond to the corrective affidavit in order to ensure that neither party are prejudiced by the application if granted. This approach aligns with the principles of substantive justice, focusing on achieving fair outcomes rather than strictly adhering to procedural technicalities. By allowing the corrective affidavit, the court emphasises its judicial discretion to manage procedures in a manner that best serves justice, maintaining access to accurate and complete information necessary for a fair resolution of the case. Ultimately, this decision reflects a commitment to a justice system that prioritises fairness and the precise determination of facts over rigid procedural adherence, ensuring the integrity of the judicial process.

26.09.2024 -signed-Norhanum Hassan