Muhammmad Amin Bin Annuar v 1. Seow Jing Hui (BA-22NCVC-11-01/2021)

SEOW JING HUI [NO. K/P: 860119-14-5216]

THAM CHEE FAI [NO. K/P: 800611-14-5061]

TETUAN LING & THENG BOOK [DISAMAN SEBAGAI SEBUAH FIRMA GUAMAN]

SEOOW JUIN HERNG [NO. DAFTAR PEGUAM: BC/S/3222]

NORIDYANTI BINTI SHAMSUDDIN [NO. K/P: 851015-08-5840] …DEFENDAN-DEFENDAN 2

The Plaintiff applies, by way of enclosure 31 to include a 6th Defendant and to amend the Writ of Summons and Statement of Claim filed by him on 12.1.2021. The Plaintiff’s application is made pursuant to Order 15 rule 6(2) and Order 20 rule 5(1) of the Rules of Court 2012. Background facts

The present suit is premised on the following facts. The Plaintiff is an advocate and solicitor of the High Court of Malaya. The Plaintiff was employed by 3rd Defendant in December 2018. He is suing the Defendants for having induced and misled him into setting up a legal firm in his name in Shah Alam where he was to be the sole proprietor. He was told that should he fail to do so, his employment would be terminated. The Plaintiff’s firm, Tetuan Amin Chambers, was set up on 20.11.2019.

Notwithstanding the establishment of Tetuan Amin Chambers, the Plaintiff continued to be paid by the 3rd Defendant from November 2019 until September 2020. His EPF contributions were also continued by the 3rd Defendant. The 3rd Defendant continued to give him instructions as if he was still in the employment of the 3rd Defendant. 3

The Plaintiff’s case is that the instruction to set up his firm was a ruse on the part of the 1st and 2nd Defendants to transfer some of its clients and certain litigation files to the Plaintiff’s firm whilst continuing to maintain control over the files. This was done to avoid jeopardising the 3rd Defendant’s reputation with some 14 banking institutions currently represented by the 3rd Defendant, as some of its clients were moneylenders. The Plaintiff was promised commission for the litigation and conveyancing files handled by his firm but was the promise was not honoured.

Apart from the foregoing allegations, the Plaintiff also claimed that there was unlawful interference in the management of his firm and misuse of its firm name by the Defendants on the documents of the latter which amounts to fraud and conspiracy to injure the Plaintiff. Specific instances were cited in his Statement of Claim. The reliefs sought in his suit against the Defendants are in the nature of declarations, injunctions, and orders for accounts and damages. The application

6.

The Plaintiff’s application is strenuously opposed by the counsel for the Defendants. The grounds of objection are firstly, the Plaintiff has failed to fulfil the prerequisites of Order 15 rule 4 and rule 6(2) for an order to be granted. Secondly, the application is a clear abuse of the process of the court and made to satisfy the personal vendetta of the Plaintiff. Thirdly, the new facts alleged were only raised in the Affidavit in Reply of the Plaintiff when they could have been raised in the Affidavit in Support of the application. Analysis and decision of this court

The Defendants objection was primarily on the proposed adding of Theng Bok, as the 6th Defendant. However, I am of the view that the application before me should be dealt with by first considering the issue of the proposed amendments.

The relevant provision governing the amendment of pleadings is as follows, Amendment of writ or pleading with leave (O. 20, r. 5)

(1) 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 costs or otherwise as may be just and in such a manner, if any, as it may direct. 5

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 to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

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.

The law pertaining to amendment of pleadings is trite. Amendments are to be allowed if the application is made bona fide, if no prejudice results which cannot be compensated by costs and if the amendments do not turn the suit of one character into another which is inconsistent. (See: Yamaha Motors Co Ltd v Yamaha 6 (M) Sdn Bhd & Ors [1980] 1 MLJ 213, Khairy Jamaluddin v Dato’ Seri Anwar Ibrahim [2015] 3 CLJ 1062, FC.)

The Plaintiff proposes to amend paragraph 16 by including new paragraphs 16A to 16G of the Statement of Claim, spelling out in detail the actions of one Theng Bok, the founder and partner of the 3rd Defendant. He was alleged to be the person calling the shots and the main decision maker giving directions to the other Defendants. The Plaintiff also applies to include sub paragraphs

(a)(i) to (v) of paragraph 28 to provide further facts on his cause of action premised on conspiracy to injure, paragraphs 38 to 43 giving further particulars on his injury resulting from the Defendants’ wrongful acts. As a consequence of the amendments aforementioned, the Plaintiff also applies to amend the reliefs sought.

By providing in greater detail the facts and particulars pertaining to the alleged wrongful acts of the Defendants, I do not consider it to offend the principle laid down that the suit has been turned into an entirely different character from that originally filed. Neither do I consider the fact that the seriousness of the allegations made suggest a lack of bona fides on the part of the Plaintiff. The proposed amendments and the inconvenience resulting therefrom can be compensated by awarding costs to the Defendants.

For these reasons, I allow the proposed amendments.

Having allowed the proposed amendments which include facts pleaded against Theng Bok, I now consider the Plaintiff’s 7 application to add him as a defendant to this suit. The provision governing adding a defendant is found in the following Rules of Court 2012, Misjoinder and non-joinder of parties (O. 15, r. 6)

(1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application—

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely—

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. 8

A plaintiff is prima facie entitled to sue any person he chooses. (See: Malaysian Civil Procedure 2021, Volume 1 page 176, para 15/6/7). In Tajul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143, the Supreme Court held that the court is conferred with a wide discretion to add parties to existing proceedings. It also laid down the following principles in the exercise of the discretion, …we consider that the following general principles as to parties may be distilled from the rules of court and the authorities thereon.

The principle of overriding importance is that all necessary and proper parties, but no others, should be before the court at the same time to enable the effectual and complete determination and adjudication to be made by the court of all questions and issues between the parties which arise for decision. (See O 15 rr 4 and 6 of the RHC.)

To this end, no action will be defeated by reason of mere mis-joinder or non-joinder of any party which is capable of being remedied and is no defence. (See Abonloff v Oppenheimer. 10) The joinder of parties is permitted as of right in a wide area of circumstances or otherwise with the leave of the court. (See O 15 r 4 of the RHC.)

Additionally, the court has extensive discretionary powers – to add, substitute or strike out parties who are not proper or necessary, and for these purposes the court may even act of its own motion. (See O 15 r 6 of the RHC.)

Generally, in common law and chancery matters, a plaintiff who considers that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone and he cannot be 9 forced to pursue his remedy against other persons who he has no wish to sue. (See Per Wynn-Perry J in Dollfus Mieg et Compagnie SA v Bank of England 11.)

Nevertheless, a person who is not a party may be added as a defendant over the objections of the plaintiff on his own intervention or upon the application of the defendant or in some cases by the court of its own motion. (See 1 Supreme Court Practice (1991) at p 193 para 15/6/71.)

But, a defendant against whom no relief is sought by the plaintiff will generally not be added against the wishes of the latter. (See Hood-Bars v Frampton & Co. 12) A third party notice is in such a case usually the proper procedure to adopt though such a defendant can be added in a proper case. (See Dollfus Mieg et Compagnie SA v Bank of England. 11)

Although in the above cited case a co-defendant was sought to be added on the application of the defendant, unlike the case here where the application is made by the Plaintiff, the principles are nonetheless applicable.

The objective of para 2(b)(ii) of Order 15 rule 6 is firstly, to prevent multiplicity of proceedings and to enable the court to determine disputes between all parties to them in one action; and secondly to prevent the same or substantially the same questions or issues being tried all over again with possibly different results (See: Tajul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143).

Theng Bok was pleaded as the partner of the Tetuan Ling and Theng Bok, the 3rd Defendant. There were also specific allegations pleaded against him. It would be expedient for him to be included 10 in this suit and have the disputes determined in this action. The question whether the allegations are meritorious are not to be determined in this application. The strength of the Plaintiff’s case against Theng Bok is irrelevant in considering if Theng Bok ought to be added as a co-Defendant.

There are also reliefs sought against Theng Bok, as pleaded in the amended Statement of Claim, evident from paragraph 44 of the Statement of Claim. The reliefs sought against Theng Bok arise from the facts pleaded in the Statement of Claim. As the allegations against Theng Bok arise from the same facts pleaded against the other Defendants, I consider it expedient for him to be added as a co-Defendant and the issues arising therefrom to be determined in the same action.

Contrary to the objection taken by the Defendants, I find the Plaintiff’s application to have fulfilled the requirements of Order 15 rule 6 (2)(b)(ii). The Defendants claim that application is merely to fulfil the Plaintiff’s personal vendetta against the Defendants. This is an immaterial consideration in an application to include a co-Defendant. In any event, this is an allegation touching on the merits of the case against the Defendants. Lastly, the ground raised by the Defendants that the Plaintiff has raised new and irrelevant points in his affidavit in reply instead of affidavit in support is irrelevant to the question whether Theng Bok ought to be made a 6th Defendant. 11

For the foregoing reasons, I allow the application of the Plaintiff in enclosure 31. The provisions of Order 15 rule 8 is to apply with regard to the addition Theng Bok as the 6th Defendant. In addition, the provisions of RHC 2012 relating to amendment to pleadings is also to apply in relation to the rights of parties to make consequential amendments. I make no order as to costs. Dated : 7th December 2021 ………-sgd-...………. Alice Loke Yee Ching Judicial Commissioner High Court of Malaya at Shah Alam Counsel for the Plaintiff : Mr. Muhammad Amin bin Annuar Tetuan Amin Chambers Counsel for the Defendants : Miss Nabila binti Jamaludin with him)