Nikato Enterprise v MC United Resources Development (Group) Sdn. Bhd. (AA-22NCvC-30-04/2025)

(B) Amendment reflects the defence already ventilated at the summary judgment stage 120 [13]. A significant factor in this case is the procedural context. [14]. Summary judgment proceedings may be filed, heard, and disposed of before the Statement of Defence is filed. In such proceedings, the court considers the affidavits and submissions to determine whether triable issues exist. 125 [15]. In the present case, the defendant’s position regarding the existence of an oral construction arrangement was argued and considered during the summary judgment hearing. The dismissal of the summary judgment necessarily meant that the court was satisfied that triable issues existed based on 130 the defendant’s version. [16]. The proposed amendment, therefore, does not introduce a new case. Rather, it seeks to formalise in the pleadings the very defence that was already advanced in court, ventilated, and taken into account by the court at the summary judgment 135 stage. The amendments sought by the defendant are not a "tactical afterthought" but a regularisation of issues already before the court. [17]. In substance, the amendment serves to regularise the Statement of Defence so that it reflects the actual defence 140 considered by the court. In Chung Vun Ket v Georgina Pang Rui Wen & Anor [2024] CLJU 1851; [2024] MLRHU 1499; 2024 MarsdenLR 2578, the court allowed the amendment after the trial because the issues had already been ventilated during the proceedings. Just as in our present case, an oral 145 agreement was considered during the hearing of the summary judgment application. This is what the court said in Chung Vun Ket (supra): "[23] Further it is pivotal to note that the amendment applied for by the Appellant in the instant appeal is related to issue 150 of illegality, which was though not pleaded, but raised at the trial. To reiterate, the issue was already referred to by witnesses, cross-examined and reexamined during the trial, as reflected in the NOP and submissions of the parties at the trial court. 155 … [24] Based on that, the Court is of the view that such amendment is necessary to be placed before this Court in order all questions in controversy can be finally determined by this court..."

(C) Bona fides [18]. In the circumstances, the application cannot properly be characterised as a tactical afterthought. [19]. The amendment is consistent with the defendant’s earlier position and is necessary to ensure that the pleadings 165 accurately reflect the issues for trial. [20]. The court’s function in dealing with amendments is well established. As stated by Lord Justice Bowen in Cropper v Smith (1883) 26 Ch D 700, the object of the court is to decide the rights of the parties and not to punish them for mistakes 170 made in the conduct of their case. Errors or imperfections in pleadings should be corrected where they can be done without injustice to the other party, so that the real questions in controversy between the parties may be properly determined. In that light, the court’s concern is to ensure that 175 the dispute is adjudicated on its true merits rather than defeated by technical deficiencies in pleading. These were the words of Bowen LJ: “Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to 180 punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind 185 of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a 190 matter of favour or of grace. Order XXVIII. rule 1, of the Rules of 1883, which follows previous legislation on the subject, says that, “All such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” It seems to 195 me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right… 200 (underlined is emphasised)

(D) No prejudice to the Plaintiff [21] Any prejudice to the plaintiff can be adequately addressed by: a) granting the plaintiff liberty to file consequential amendments; and 205 b) an appropriate order as to costs. [22]. The action is still at the interlocutory stage, and no trial dates have been fixed. Following Bu Yaw Seng & Anor v Chin Kim Yang & Ors [2021] MLRHU 2348; [2021] CLJU 2474; 210 [2021] MLJU 3131, where trial dates have not been fixed, amendments that merely "fill in the gaps" of an existing defence generally do not cause irreparable prejudice.

(E) Interest of justice [23]. Refusing the amendment would result in a technical 215 divergence between the defence actually relied upon and considered during summary judgment and the defence formally pleaded. [24]. In these circumstances, refusing the amendment would serve no useful purpose and would not assist in resolving the 220 dispute between the parties. On the contrary, allowing the amendment would enable the defendant to properly ventilate its defence and allow the court to determine the real question in controversy between the parties at trial. As recognised in Ramanujam a/l Rengasamy v City Freeholds Sdn 225 Bhd [1997] 7 MLRH 599; [1998] 1 MLJ 481; [1997] CLJU 457, amendments should generally be permitted where they clarify the issues in dispute and do not cause prejudice which cannot be compensated by costs, so that the true matters in controversy between the parties may be properly adjudicated. 230 Conclusion [25]. For the reasons stated above, the court finds that the proposed amendment does not change the character of the action. It merely clarifies and regularises the defendant’s 235 existing defence. The application is made bona fide and not as a tactical manoeuvre. Further, no prejudice will be caused to the plaintiff which cannot be adequately compensated by an order as to costs. Accordingly, Enclosure 40 is allowed. The defendant is granted leave to file and serve the Amended 240 Defence and Counterclaim within 14 days. The plaintiff is granted liberty to file any consequential amendment within 14 days thereafter. I order no costs in the circumstances of this case. 245 Dated : 18 March 2026 250 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 255 Counsel 260 For the Plaintiff : Teo Chung Loong (together with Ong Swee Long) Advocates and Solicitors [Messrs Armiy Rais] 265 Petaling Jaya, Selangor For the Defendant : Magishashini Assogan Advocates and Solicitors [Messrs Rusnah Loh Ng & Co.] 270 Ipoh, Perak HEADNOTES: CIVIL PROCEDURE: Amendment of pleadings – Application to 275 amend Defence and Counterclaim under Order 20 rule 5 – Whether amendment changes the character of the suit – Whether amendment introduces a new cause of action or fundamentally different defence – Whether amendment merely particularises and regularises existing defence – Whether issues already raised, argued and considered 280 during summary judgment proceedings – Whether amendment reflects defence already ventilated at summary judgment stage – Whether application is bona fide or a tactical afterthought – Whether amendment necessary to determine real issues in controversy – Whether allowing amendment ensures real issues determined at trial 285 and does not alter nature of action