Pretip A/L Perumal v Heng Fook Boon (WA-A73KJ-1016-06/2024)

Introduction This matter arises from the Plaintiff's claim against the Defendant concerning an alleged motor vehicle accident. The Defendant has applied to Order 20 of the Rules of Court 2012, seeking leave to amend their Statement of Defence. The proposed amendment asserts that the party genuinely involved in the incident is Roy Azizi, not the Defendant. The Defendant’s application is premised on the findings of their insurer, which purportedly indicate that Roy Azizi is the actual party responsible for the incident.

Issues for Determination The main issue before the Court is whether the Defendant's application to amend their pleadings under Order 20 is appropriate and should be allowed, given the circumstances of the case and the procedural stage of these proceedings.

Decision After carefully considering the facts, submissions by both parties and the applicable legal principles, this Court finds that the Defendant’s application is dismissed. The trial date previously fixed shall remain unchanged. The reasoning for this decision is detailed below.

Grounds for Decision 4.1 The Nature of the Amendment The amendment sought by the Defendant fundamentally pertains to the identity of the party allegedly responsible for the incident. This proposed change involves a material fact central to the Plaintiff’s claim. If the amendment is allowed, it would effectively absolve the Defendant of liability and shift responsibility to an entirely different individual, Roy Azizi, who is not a party to this suit. The Federal Court in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 provided guidance on when amendments should be allowed. It emphasised that amendments must address the real issues in controversy. Allowing amendments that change the essence of a case, especially where they seek to introduce entirely new issues or shift the burden to third parties, undermines this principle. In this case, the proposed amendment would divert the focus from the Defendant's liability to another party's potential responsibility, which is inappropriate at this stage. Similarly, in the case of Chuah Eng Chang @ Chuah Eng Chong v Paya Trubong Estate Sdn Bhd & Anor [2024] 12 MLJ 347, the proposed amendments had to be rejected as it was clear that they added new material and facts to the original claim such as to change the character of the original claim Order 20 of the Rules of Court 2012 provides that amendments to pleadings may be allowed at any stage of proceedings to ensure that all controversial issues are addressed. However, it is a settled principle that amendments must not: a) Introduce a new cause of action inconsistent with the original pleadings. b) Change the essence or character of the case significantly, which fundamentally alters the issues for determination. c) Be allowed if they cause prejudice to the opposing party that costs or adjournments cannot compensate. In Ketua Pengarah Hasil Dalam Negeri v Bandar Nusajaya Development Sdn Bhd [2017] MLJU 655, the court emphasised that amendments close to trial should be viewed cautiously. While amendments are generally permitted to ensure justice, introducing significant changes late in proceedings undermines fairness and procedural efficiency. In this instance, the Defendant’s proposed amendment introduces a new issue entirely—shifting liability to a third party, Roy Azizi. This goes beyond merely refining or clarifying pleadings. Such an amendment is not in line with the purpose of Order 20, which aims to facilitate the resolution of disputes between existing parties. Allowing the amendment would fundamentally alter the case and introduce matters outside the current scope of the pleadings.

4.2 Procedural Misstep The Defendant’s reliance on Order 20 to introduce a new defence at this late stage is procedurally inappropriate. Order 20 is intended for amendments that refine or clarify existing pleadings to facilitate the resolution of disputes between the parties. In contrast, the Defendant’s application seeks to reframe their defence entirely, asserting they are not the proper party to the suit. This situation aligns with the principles discussed in Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia & Anor [2021] MLJU 57, where the Court held that amendments cannot be used to correct procedural missteps or negligence by a party. In this instance, the Defendant failed to utilise appropriate procedures such as applying for misjoinder under Order 18 Rule 19 or substituting under Order 15 Rule

Instead, they attempt to use Order 20 to bypass these requirements, which misuses the amendment mechanism. The Court notes that no exceptional circumstances have been put forward to explain the Defendant’s failure to raise this issue earlier. The insurer’s investigation, while significant, could and should have been completed prior to the filing of the initial defence. The delay is thus unjustified and cannot be overlooked.

4.3 Prejudice to the Plaintiff Allowing this amendment at such a late stage would cause significant prejudice to the Plaintiff. The trial date has already been fixed, and permitting this change would necessitate further delays, requiring the Plaintiff to amend their pleadings or initiate a new action against the correct party. This would result in unnecessary hardship and expenses. Procedural fairness must be maintained, and courts have consistently held that amendments causing significant prejudice to the opposing party should not be allowed. For instance, in Ketua Pengarah Hasil Dalam Negeri v Bandar Nusajaya Development Sdn Bhd [2017] MLJU 655, the court refused a late amendment that would disrupt established trial timelines and disadvantage the other party. Similarly, granting the Defendant's application here would contravene earlier directions prohibiting additional filings and unfairly disadvantage the Plaintiff, undermining the overriding objective under Order 1A of the Rules of Court 2012 to ensure the fair and expeditious resolution of disputes.

4.4 Findings of the Insurer The Defendant’s application is based on findings from their insurer, which purportedly identify Roy Azizi as the party responsible. While these findings may be relevant, they do not justify the Defendant’s delay in raising this issue. The Court finds it significant that such investigations should have been completed before the initial pleadings were filed. The Court is reminded of the principle in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd. It requires parties to present their case promptly and avoid amending pleadings to address facts that could and should have been known earlier. The insurer's findings, while significant, do not excuse the Defendant's delay or justify an amendment that prejudices the Plaintiff and disrupts the trial schedule.

Conclusion The Defendant’s application to amend their Statement of Defence under Order 20 of the Rules of Court 2012 is procedurally flawed and substantively prejudicial to the Plaintiff. The proposed amendment is inappropriate and does not address the real controversial issues. Accordingly, the Defendant’s application is dismissed. The trial date shall remain unchanged. Delivered by: Norhanum Hassan Civil Magistrates’ Court 5, Kuala Lumpur