Khoo Say Lock v 1] Pengarah Tanah dan Galian Selangor (BA-21NCVC-56-09/2017)

This is an application by the Fourth, Fifth, Seventh and Eighth Defendant under Order 20 Rule 5 and/or Order 92 Rule 4 (inherent powers of the Court) of the Rules of Court 2012 (“ROC 2012”) dated 18 December 2017 (enclosure 22) to amend the Statement of Defence and Counterclaim dated 12 October 2017.

The cause papers for this application are as follows:

Writ Summons and Statement of Claim dated 6

The First and Second Defendants’ Statement of Defence dated 8 November 2017;

The Third Defendants’ Statement of Defence dated 26 October 2017;

The Defendants’ Statement of Defence and Counter Claim dated l2 October 2017;

Notice of Application dated 18 December 2017 (“Encl 22”);

Affidavit in Support affirmed by Ch’ng Kok Wa on 19 December 2017;

Affidavit in Reply affirmed by Khoo Say Lock on 8 January 2018; and

Affidavit in Reply affirmed by Ch’ng Kok Wa on 22.01.2018 (“AJD”). THE ESSENTIAL FACT

On 6 September 2017, the Plaintiff had filed a Writ of Summons and 3 Statement of Claim against the above named Defendants. The Plaintiff claims, inter alia, a declaration that the alienation of Lot 5582 is null and void ab initio and that all other titles registered and issues in consequence of the wrongful alienation of Lot 5582, including but not limited to PN 98062, PN 98069, PN 98070, PN 98071, PN 98072, PN 98073 and PN 98074 (“the said lands”) are null and void ab initio.

On the other hand, the Defendants filed the said Statement of Defence and counter claim contending as follows :- i. The Defendants have no knowledge that Grant No. 11649 was transferred from Ong Hock to Khoo Kiew Leng (“the Plaintiffs late father”) for valuable consideration on or about 05.11.1971 and the Plaintiffs late father transferred Grant No. 11649 to the Plaintiff on love and affection on 21.01.1997; ii. The Defendants are bona fide purchasers for valuable consideration for the said lands; iii. The Defendants’ titles for the said lands was obtained rightfully and regularly; iv. The Defendants’ ownership of the said lands are indefeasible; and 4 v. The entry of the private caveat by the Plaintiff on the said lands prevented the Defendants from carrying out any transactions with the said lands thus causing the Defendants to suffer loss, hardship and/or complication.

After referring to the Statement of Defence filed by the First, Second and Third Defendants, the Defendants filed Enclosure 22 on 18 December 2017 to amend the said statement of defence and counter claim as per Enclosure A ie. the proposed Amended Statement of Defence and Counter Claim.

The Plaintiff objected to Enclosure 22 whereas the other Defendants have no objection to Enclosure.

The Defendants’ application to amend the said Statement of Defence and Counter Claim is made under Order 20 Rule 5 and/or Order 92 Rule 4 of the Rules of Court 2012.

Order 20 Rule 5 of the Rules of Court 2012 provides that:- “5 Amendment of writ or pleading with leave

Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ or any party to amend his pleading, on such terms as to 5 costs or otherwise as may be just and in such a manner, if any, as it may direct.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if 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 action by the party applying for leave to make the amendment.

In considering whether the Court should allows leave to amend the pleadings or otherwise, I am guided by the decision in the case of : Yamaha Motor Co. Ltd v. Yamaha (M) Sdn. Bhd. & Ors. (1983) CLJ Rep 428; (1983) 1 CLJ 191 (FC), Mohd Azmi FCJ delivering judgment f the Federal Court : "……….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 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 6 character into a suit from one character into a suit of another and inconsistent character. (See Mallal's Supreme Court Practiced. 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…….”

The Plaintiff’s counsel had opposed to the application on the grounds below :

The allegations of fraud and/or negligence raised by the Defendants in Enclosure A is baseless and/or with no merit and/or based on wrong perception;

The Plaintiff has no knowledge with regard to the transaction of Lot 5582 in the year of 1961 and 1971;

If there is fraud and/or negligence by the First and Second Defendants, this does not involve the Plaintiff directly; 7

There are two (2) new defences and one new defence in the alternative has the effect of changing the nature of the said statement of defence and counter claim; and

Enclosure A is prejudicial to the Plaintiff and he is not able to be compensated by costs FINDING OF THIS COURT

Having scrutinized the above, I shall now consider the rival contentions of the parties. FIRST ISSUE Whether the Defendants’ are genuine and good faith in their application In the beginning, the issue in Lot 5582 has been clearly stated in the First and Second Defendant Statement of Defence whereby the subject matter in a land acquisition under the Land Acquisition Act 1960 for the purpose of Site for Earth Quarry for Rural Development Roads which was gazetted in the Selangor State Government Gazette No. 838 on 30 November 1961. The said lot was gazetted as quarry reserved land in the Selangor State Government Gazette on 5 May1996 for the purpose of earth quarry that is under the control of the Jurutera Kerja Kanan, Jabatan Kerja Raya, Klang. To my mind, the First and Second Defendant has already knew that Lot 5582 was acquired by the government. Nevertheless, they allowed the transfer 8 from the original owner, Ong Hock to the Plaintiff’s late father and later transfer from the Plaintiff’s late father to the Plaintiff. Having that in mind, the Plaintiff would rather had involved either directly or indirectly to this issue.

Having discovered this matter after receiving the First and Second Defendant’s Statement of Defence, the Defendants’ application for Enclosure 22 would only to introduce the allegations of fraud or negligence on the part of First and Second Defendant. It was only issued after they have received the Statement of Defence. The Plaintiff contended that if there is fraud and/or negligence by the First and/or Second Defendant, it is the subject matter between the First and/or Second Defendant and the Defendants and does not involve the Plaintiff directly. As such, it is an abuse of court process. Nevertheless, having said so, to my mind, the allegation of fraud and/ or negligence submitted by the Defendants is not baseless and with merit and justification. SECOND ISSUE If the amendments are allowed, would it change the nature of Statement of Defence and Counter Claim??

It is the Plaintiff’s contention that the Defendants proposed to include new defences in the alternative in the said defence and counter claim which has the effect of changing the nature of the said defence and counter claim. 9

It is to be noted that the proposed amendments to include the allegation of fraud and/or negligence against the Plaintiff, First and/or Second Defendant and the case against the Third Defendant concerns the ownership of the said lands. If it is so, I hardly find anything that can best explain that the Defendants in introducing a new cause of action and change the nature of the said statement of defence and counter claim? To my mind, the ownership of the said lands is the main dispute between the parties and by allowing the proposed amendments it will not affect the main dispute as this has been argued extensively between parties and there is a need for these issues to be fully ventilated at the trial. As such the Defendants had raised this issue in Paragraph 8 of the said Statement of Defence and Counter Claim as follows: “8. If Lot 5582 was transferred to the Plaintiffs late father on 05.11.1971 (which is denied by the Defendants), the Plaintiffs late father and/or the Plaintiff has the knowledge that the transfer of title of Lot 5582 is not valid. As such, the transfer to the document of title for Lot 5582 to the Plaintiffs late father and/or the Plaintiff is wrong, invalid and/or cannot be enforced.”

In the case of China Orient Asset Management Corporation (2017) MLRAU 407, Harminder Singh Dhaliwal JCA delivering the judgment of the Court of Appeal, held that:- “……….(16) Applying these principles to the present case, we find no reason to interfere with the decision of the learned Judge. The amendments are necessary to set out the real 10 nature of the dispute between the parties. We do not see how the appellant is prejudiced by the amendments such that they cannot be compensated by costs. There is also no question of the amendment introducing a new cause of action as contended by the appellant as the action in the main concerns ownership of the disputed lands. The issue as to who is entitled to ownership ought to be allowed to be fully ventilated at the trial………….. ”

Following the case of : Palaniappan v. University Pertanian Malaysia (1995) 1 MLJ353, Visu Sinnadurai J had suggested that to oppose the amendment application, the Defendant must establish the following:- "(a) that a new cause of action is added or substituted; and

that the new cause of action does not arise from the same facts or substantially the same facts as the cause of action in respect of which relief has already been claimed; and

that the proposed amendment will cause injustice to the Defendant………… "(3) Order 20 r 5(5) of the Rules of the High Court 1980 ('the RHC) gives the court the discretion to allow an amendment which introduces a new cause of action after the expiry of the relevant limitation period, provided the new cause of action arises from the same facts or substantially the same facts. Under this rule, the court also has the power to grant leave where the plaintiff seeks to add a new relief or remedy.

In this case, even if the plaintiff were introducing a new 11 cause of action, the new facts were substantially the same as those originally pleaded by the plaintiff. It could not be said that the defendant was taken by surprise as it was aware of the plaintiffs action right from the start;

If the amendments were not allowed. the plaintiff would be deprived of any redress. Greater injustice would be caused to the plaintiff in not allowing the amendments than to the defendant in allowing the amendments. Leave was therefore granted to the plaintiff to amend his pleadings and the defendant was given time to file his amended defence, if necessary……………”

In furtherance, even if the Defendants is including a new defences, these new fences are substantially from the same facts i.e. the document of title for Lot 5582 obtained by the Plaintiff is wrong, invalid and/or cannot be enforced, that originally pleaded by the Defendants as above. Throughout the Statement of Defence and Counter Claim, I noticed that the Defendants maintained the same stand in which the Defendants challenge the ownership of Lot 5582.In the case of Hock Hua Bank Bhd. v. Leong Yew Chin (1986) 1 MLRA 225; (1987) 1 MLJ 230 (SC), Abdul Hamid Omar, Acting LP held that : “……as for the general principles for the granting of leave to amend: IT is a guiding principles of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose of determining real question 12 in controversy between the parties to any proceedings or of correcting any defect or error in any proceeding………….”

Thus, following the above principle, it is my considered view that by allowing the proposed amendments it will not affect the nature of the said Statement of Defence and Counter Claim and rather the proposed amendments will set out the real nature of the dispute and the Court can deal with the real question in controversy between the parties. The new defences to be included in the said Statement of Defence and Counter Claim is not only against the Plaintiff, it also involve the First, Second and Third Defendants. The new defences is originated from the First, Second and Third Defendants’ Statement of Defence. If the amendments are not allowed, the Defendants will suffer greater injustice than the Plaintiff. The proposed amendments does not in any way change the nature of the said Statement of Defence and Counter Claim. THIRD ISSUE The amendments caused Injustice to the Plaintiff?

In the last issue, the Plaintiff contending that the proposed amendments as in Enclosure A will cause prejudice and/or injustice to the Plaintiff. Nevertheless in the proposed amendment, I strongly believe that the Plaintiff will be given an opportunity to reply and/or amend their reply to the proposed amendments if this 13 application is allowed by this Honourable Court. In any way I hardly find anything that can purely caused prejudice to the Plaintiff. In the case of China Orient Asset Management Corporation v. Alexma Corporation Sdn Bhd (supra), Harmindar Singh Dhaliwal J held that :- "…….(14) In this connection, we hasten to observe that although it is quite usual for parties in amendment applications to shout "prejudice", there is a common misappreciation of what "prejudice" means(see ASM Development Sdn Bhd v. Hijjas Kasturi Associates Sdn Bhd [2008] 3 MLRA 290; [2011] 6 MU 228; [2009] 3 CU 1). "Prejudice", in the context of amendment applications, cannot mean that if the amendment is allowed, the chances of success of the litigation of the affected party will be severely diminished. "Prejudice " simply means that if the amendment is allowed, the party affected will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, and which is necessitated by the amendment, is lost or no longer available. In such a case, the prejudice is clearly seen. In every other case, where no such prejudice arises, the party can be compensated with costs…….”

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Fourth, Fifth, Seventh and Eighth Defendant’s application to amend the Defendant’s Statement of Defence and Counter Claim dated 12 October 2017 as in