Pac Lease Berhad v 1. Prompt Dynamics (Bkhicd) Sdn Bhd 2. Yee Kooi Oon 3. Ooi Chye Leng 4. Prompt Dynamics Sdn Bhd (22NCC–215–06/2014)

PROMPT DYNAMICS SDN BHD DEFENDANTS JUDGMENT Introduction [1] The plaintiff had filed an application to amend the judgment entered against the defendants. This judgment was entered in default of the defendants’ appearance. The plaintiff had sought to merely amend its name. The defendants opposed it. The application was heard and allowed by the learned Deputy Registrar. Dissatisfied with the decision, the defendants appealed to a Judge in chambers pursuant to O. 56 r. 1 Rules of Court 2012 (‘RC 2012’). 2 [2] I had after considering the application and submissions by learned counsel for both parties, dismissed the appeal. I will now set out the reasons for the decision. Brief facts [3] The plaintiff had on the 17 July 2014 obtained judgment in default against all the defendants. The judgment was duly perfected and sealed. The plaintiff had recently come to realise that its name had been incorrectly stated in the judgment as ‘Pac Lease Sdn Bhd’, when it should have been ‘Pac Lease Berhad’. [4] In its affidavit in support of the application, the plaintiff claimed that it was a mere clerical error, and highlighted that the name that they sought to change to was the same name that was stated in the writ of summons and statement of claim. The plaintiff also highlighted that the hire purchase agreement and guarantee that formed the basis of its claim, were previously between ‘Pac Lease Sdn Bhd’, and that it had changed its name to ‘Pac Lease Berhad’ on the 6 June 2011. Issues raised by the defendants [5] In opposing the application, the defendants relied on the following grounds:-

The plaintiff’s contention that it was merely a clerical error is misconceived, as it involved changing the capacity and is a major change; 3

The plaintiff’s contention that the hire purchase agreement and guarantees were between ‘Pac Lease Sdn Bhd’ and the defendants, is contrary to what it pleaded under paragraph 4 of the Statement of Claim,

The plaintiff did not plead its change of name, which took effect on 6 June 2011, and that this was an afterthought,

The plaintiff should have firstly amend the Statement of Claim,

The plaintiff’s name appeared as ‘Pac Lease Sdn Bhd’ in its affidavit of service, and

The judgment had been superseded by a scheme of arrangement between the plaintiff and the defendants after the judgment had been entered, and that this scheme had run for two years. [6] The plaintiff had apparently issued to the first defendant, a notice of demand dated 28 February 2017 pursuant to s. 218 Companies Act 1965. This demand was premised on the judgment. The plaintiff had only become aware of the mistake in the name, after the defendants’ solicitors had objected to the notice by highlighting the differences in the name that appeared in the notice and the judgment. [7] In my view, the issues under (a) to (e) can be dealt with simultaneously. 4 Findings The law [8] The general principle is that an order cannot be altered or varied once it has been drawn up and perfected, as the court is deemed functus officio; Scotch Leasing Sdn Bhd v Chee Pok Choy [1997] 2 CLJ 58 (FC). [9] What it means to be functus officio is that the court’s duty or authority has come to a finality. Once a court has pronounced its decision for example, its duty over the case has come to an end. The case cannot be reopened, for there must be finality to litigation. The recourse for a dissatisfied party is to appeal. There are of course some exceptions. [10] One of the exceptions is that a final order may be corrected, if there is an accidental slip or omission. This is commonly known as the ‘slip rule’, and is provided for under O. 20 r. 11 RC 2016, which states as follows:- Amendment of judgment and orders The Court may at any time correct clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, by a notice of application without an appeal. 5 [11] It is important to note that an application to amend under O. 20 r. 11 RC 2012 can only be done through a notice of application. This means the application has to be made by any of the parties to the suit. The accidental slip or omission must arise out of a clerical mistake by officers of the court (In re Gist (A person of Unsound mind) [1904] 1 CH 398), or by the parties to the suit (Armitage v Parsons [1908] 2 KB 410). Similar to the plaintiff in Armitage v Parsons, the plaintiff here has moved the court to amend the judgment. [12] The error or mistake must be accidental or an omission. The amendment sought must be one that the court intended to pronounce, and does not prejudice the other party. [13] The power to amend is not confined to a particular judge, such as the one who pronounced the order or judgment. The Federal Court in Sang Lee Co Sdn Bhd v Munusamy a /l Karuppiah (sole proprietor of MNN Consultancy Services, a firm) [2010] 5 MLJ 285, referred to the English Court of Appeal’s decision in R V Cripps, ex parte Muldoon and others [1984] 1 All ER 705, and held that the power to amend may be exercised by another judge sitting in the same court. A situation where another judge may sit in the court that was previously occupied by another judge is not peculiar, as judges can move from one court to another. The issues raised by the defendants [14] The defendants contend that the proposed amendment will change the capacity of the plaintiff. I fail to see how this is the case. The 6 name that the plaintiff sought to amend to is the same name that it had used in its pleadings. I accept that there was a clerical error on the part of the plaintiff’s solicitors when they drafted the judgment, as they named the plaintiff as ‘Pac Lease Sdn Bhd’ in the judgment, when it should have been ‘Pac Lease Berhad’. The party is the same. There is no change in capacity. The plaintiff is the same entity. It was merely a clerical error on its name. [15] The defendants take issue with the plaintiff’s averment in its affidavit in support, that the hire purchase agreement and guarantees were between the defendants and Pac Lease Sdn Bhd. The defendants highlighted that this averment is contrary to what was pleaded under paragraph 4 of the statement of claim, where it was pleaded that the agreement and guarantees were with Pac Lease Berhad. [16] The defendants must have intended to refer to paragraph 5 of the statement of claim, as paragraph 4 was only in reference to the fourth defendant’s address. Ironically it must have been a clerical error on the defendants’ solicitors’ part. [17] Nonetheless, I find this argument totally devoid of merits too. The plaintiff had clearly stated in its affidavit that it was formerly known as Pac Lease Sdn Bhd, and that it had changed its name to Pac Lease Berhad in 6 June 2011. When the statement of claim was filed, the plaintiff had already changed its name to Pac Lease Berhad. Similar to what I have stated before, the entity remains the same, as only the plaintiff’s name had changed. There is no 7 doubt that the party that had entered into the agreement and guarantees with the defendants were the plaintiff. [18] The defendants’ contention that the plaintiff should have amended its statement of claim is equally without merits. Why would it amend to its previous name, when it has been known by its current name since June 2011. The fact that the plaintiff had erroneously used the name Pac Lease Sdn Bhd in the title to its affidavit of service, is also another clerical error. As I have stated, there is no confusion that irrespective of whether it’s ‘Sdn Bhd’ or ‘Berhad’, the plaintiff is the same entity that had entered into the agreement and guarantees with the defendant. [19] I now come to the issue of the alleged scheme of arrangement between the plaintiff and defendants post judgment. The defendants claimed that the judgment has been superseded by this scheme. The plaintiff did not deny that there was indeed a scheme of payment between the parties post judgment. However, the plaintiff contends that this scheme did not supersede the judgment, and that the defendants had nevertheless defaulted in the payment scheme. The plaintiff contends that it is free to act on the judgment, as there was no agreement for the plaintiff to waive its rights. [20] I accept the plaintiff’s response. The defendants have not presented an iota of evidence that the plaintiff has agreed to waive its rights to the judgment pursuant to the scheme. It is not odd for any party, such as the plaintiff here to allow the defendant to pay what is due under the judgment under a scheme of payment. 8 However, unless parties agree that the plaintiff waived its right to enforce the judgment, there is nothing to stop the plaintiff from acting on the judgment. Conclusion [21] There are simply no merits to the defendants’ objection to the plaintiff’s application. I see no reasons to deny the plaintiff the right to amend the judgment. I therefore dismiss the defendants’ appeal with no order as to costs. Dated: 13 November 2017 -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the appellant Ravin Vello [Messrs Vello & Associates] Counsel for the respondent Chandrasegaran Panjacharam [Messrs B.H. Gan, Nor & Kim]