Pleadings, Amendment & Appearance

Amend pleadings before close of pleadings

[Clarepede v Commercial Union] - amendments should be allowed if it can be made without injustice to the other side who can be compensated with costs- affirmed in [Hong Leong Finance v Low]

o20r1 - allowed once without leave (writ)

• o20r1(3) - need to apply for leave of court via NOA + affidavit unless amendment made before service of writ if seek to

  • alter capacity of parties

  • add, omit or substitute parties

  • add/ substitute a new coa

  • amend SOC

o20r3 - allowed once (pleadings) - and serve amended SOC/SOD within 14 days after the amended SOC/SOD is served on him

o20r4 - other party may object within 14 days upon the service of amended writ/ pleadings made without leave (r1 & r3) and apply to court to disallow such amendments

principles in respect of application to amend

[Yamaha Motor]

• whether the application is bona fide in nature

• will it cause any prejudice to the other party?

• will it change the character of the suit?

[Hong Leong Finance v Low]

[Yamaha] is insufficient to deal to application to amend made on the eve of a trial - was decided before pre-trial case management was introduced

• pre-trial case management intends to ensure just, expeditious and economic disposal of an action

• Thus, when application made at the very last stage - Yamaha should not be the sole consideration as:

  • order for compensation by payment of costs may not be adequate remedy and;

  • it will disrupt the administration of justice

test in [Hong Leong Finance v Low]

• applicant could provide cogent and reasonable explanation as to lateness

• application not a tactical maneuver

• proposed amendment must disclose full particulars for the court to ascertain prospects of success

• lateness can be compensated by payment of costs

Amend pleadings after close of pleadings

o20r5 - need to apply for leave of court - under this order - court has discretion to allow amendment at any stage of the proceeding

NOTE: late application - close to the trial

Amendment may not be allowed after close of pleadings if

• to withdraw admission unless the admission was made mistakenly or inadvertently [Hollis v Burton]

  • Eg: if P made the admission in the SOC - SOC prepared by solicitor - indicates due legal service - mostly reject

• to raise a coa which accrued after action commenced [Sio Koon Lin v SB Mehra]

• delay in making the application - refer to HL Finance v Low & Clarepede v Commercial Union

• add new party after expiry of LP

exceptions for application to amend post expiry of LP

o20r5(3) -

• correct name of party [Singh v Atombrook] - D applied to set aside JID on the ground that the name of D was wrongly spelt

Amendment of pleadings to add new party post LP

• power of amendment under o20r5(2) does not extend to amendment of adding a new D after expiry of LP

• [Instantcolor v Inkmaker] - doctrine of relation back does not apply to amendment to join appellant as co-D

• if appellant added as co-D, takes effect on the date of court order adding it as a party

doctrine of relation back

the amendment relates back to the date of the original writ and SOC it amends - takes effect retrospectively - on the date the original writ or pleading was issued, not on the date of amendment

Issue not raised in pleadings

• o18r10 - parties are bound by their pleadings - issues not raised in pleadings cannot be relied on by the parties in the trial to

  • state issue of facts and question of law to be determined

  • give notice to the other parties - prevent element of surprise - [Janagi v Ong]

  • prevent res judicata

Matters which must be specifically pleaded

o18r8

• performance

• release

• fraud

• limitation in any relevant statute

• fact showing illegality which would make any claim or defense unmaintainable

Pleading of Limitation Period

• [Tasja v Golden Approach] - where period of limitation is absolute - the LP expressly stated in specific provision - PAPA1948 - need not be specifically pleaded

[Letchumanan v Secure Plantation]

• fraud is a generic term that covers all manner of cheat, deceit and dishonesty

• forgery is a specific method of fraud

• complaint of forgery = complaint of fraud

circumstance where crt would allow party to rely on issue not raised in pleadings

[Iftikar Ahmed Khan v Perwira Affin Bank] - where the matter or material facts are not pleaded but evidence is led without objection - crt is bound to consider such evidence although it amounts to a departure under o18r10 if the opposite party is not taken by surprise, prejudiced, embarrassed or misled

Why?

it has the effect of curing defect in the pleading

Unless

the evidence represents a radical departure from the pleading - is not just a variation or modification of what has been alleged in the pleading

Can a point not raised in pleading be raised in appeal?

[Lee Ah Chor v Southern Bank] - issues not raised in pleading cannot be raised in appeal

Exception to Lee Ah Chor

[Yong Mok Hin v United Malay States Sugar Industries] -

can raise point of law if

• it raised a question of jurisdiction

• would result in rectification of an erroneous order

[Luggage Distributor v Tan]

• The factors for and against the admission of the new point must be weighed on a balance in the interest of justice

Pleadings should contain facts only not evidence or law

o18r7 - every pleading must contain - statement of material facts on which the parties rely on but not evidence by which those facts are to be proved

• court has discretion to decide what law is applicable

distinguish between pleading law VS raising a point of law

o18r11 - raising a point of law is allowed

[Middlesex v Nathan]

• if a statute is relied on as the foundation of a claim or defense - the facts necessary to bring the case within the statute must be pleaded

pleading law - set out legal principles and their application to the facts of the case

pleading point of law - identifying legal issues that would potentially determine outcome of the case

Material facts

[Bruce v Odhams Press] - those necessary to formulate a complete cause of action

issue not pleaded but was tendered

without objection from another party - can be raised [OCBC v Phillip Wee] - implied consent

with objection - cannot be raised [Superintendent of Lands v Hamit]

require P to furnish more particulars

o18r12 (3) - D may apply to crt and crt may order a party to serve particulars to any claim as the crt thinks just

• before applying - o18r12(6) - D should have sent a letter to P requesting for the particulars - the request must be particular and precise - shall give P some time to furnish the particulars requested

• If P failed to respond to the request - P can apply for order by way of NOA + affidavit stating that he has made request by way of letter and P failed to respond

• If such letter is not sent - crt may refuse to make order unless crt opined that there were sufficient reasons for the letter not being sent

What would the court look into when deciding whether to grant order under o18r12(3)?

• whether P has actually given sufficient particulars in the pleadings

Can the other party refuse to furnish the particulars required?

Yes if:

• no necessity for the request as it is already in the pleadings

• it is a request for evidence

• irrelevant and merely a delay tactic

If application of order made before D served his defense

• o18r12(5) - crt may refuse to make such order unless the court thinks it is necessary and desirable to enable the D to mount his defense

Function of particulars

[DS Dr Ling v Krishna] -

• to inform the other party of the nature of the claim

• to prevent the other party from being taken by surprise

• enable the other side to know the evidence they ought to prepare for the trial

• limit generality of pleadings or evidence

• limit and define the issues to be tried

• to restrain the parties from going into matters not raised

Situation where parties could apply to strike out pleadings

• o18r19 - at any stage before judgment

• even so - prudent to apply promptly, preferably before close of pleadings or it might be seen as a delay tactic and state precisely the nature of the order sought [Hassan v Kang Min]

• Apply via NOA + affidavit on the basis of any of the 4 grounds under o18r19(a)-(d)

• can only strike out part of the pleading

[Bandar Builders v United Malayan Banking]

• only in plain and obvious case - recourse shall only be had if the claim, on the face of it ‘obviously unsustainable’ - because it has the effect of shutting P from pursuing his claim altogether

• if only to strike out part of the pleading - can argue lower threshold under Bandar Builders - need not be plain and obvious case

no reasonable cause of action or defense

cause of action - a factual situation which entitles another person to obtain remedy from the court against another person

Eg: if party absolves his right to litigation by accepting an offer to settlement

[Law v Llewellyn] - an action to sue a judge would be struck out as the judge enjoys immunity - s14 CJA64'’ immunity provided he was acting judicially in good faith - should be able to do his duty with complete independence and free from fear

[Taib Awang v Mohd Abdullah] - brought action for malicious prosecution when his appeal is pending - incomplete coa - struck out

[Evans v London Hospital] - action to sue witness - struck out - immunity

• not for grounds of limitation - [Goh v Hj Mohd Ali] - even though caught by LP - still valid coa - limitation bars the remedy not the right and does not take effect until it is pleaded - can go for (b)/ (d)

• [Re Vernazza] - ought to look at the matter as whole - not to rely on pleadings alone to determine whether there is a coa

(b) scandalous, frivolous or vexatious

© prejudice, embarrass or delay the trial

(d) abuse of court process

(b) scandalous, frivolous or vexatious:

[Pertamina v Kartika] - widow’s defense was that the officers were also corrupt - derogatory statement wholly unnecessary and irrelevant - ought to be struck out

• groundless action with no prospect of success - raised to embarrass or annoy other party to the action

NOTE: if there is a reasonable coa - the pleadings cannot be said to be scandalous, frivolous or vexatious

© prejudice, embarrass or delay the trial

• bare denial - no reasonable defense

(d) abuse of court process

• issue of res judicata

• [Syarikat Sebati v Pengarah Jabatan Perhutanan]

  • the decision was pronounced, final and judicially decided on merits

  • earlier litigation determined the same question as that raised in the later liti

  • parties to the later liti were either parties to the earlier liti or their privy or earlier decision was in rem

• when a matter has been adjudicated - cannot be re-litigated

• [Dato Chong Kok Lim] - wider concept of res judicata - bar all other subject matters which could have been raised - sued on negligence - no new suit on nuisance

• [Benjamin Wong v Genting] - sued agent - another suit to sue principal for the same transaction - barred

Purpose of fiiling MOA and defense

• to inform the P that the D intends to appear before court and dispute the matter

Mode of entering appearance

o12

OS action

o12r12 - no appearance required

Writ action

• o12r1 - by solicitor or in person - in Form 11 - send a copy to P or solicitor

• o12r1(2) - company must enter appearance by solicitor

• o77r4 - partnership - sued in the name of firm- must enter appearance by the partners’ name - cannot enter in the name of firm - but action continues in the name of firm

• o76r3(6) - person under disability - enter by a litigation rep and represented by a solicitor

Can appearance be entered after time limit

o12r5 - if JID has been entered by adverse party - no need leave of court but must only enter defense unless the court orders - if JID entered - need to apply for leave of court

non-compliance

o1A and o2r3

• crt and judge shall have regard to the overriding interest of justice and not only the technical non-compliance of rules unless it has occasioned a substantial miscarriage of justice - which cannot be cured either by amendment or compensation by costs

if D failed to enter appearance within time limit

o13r1 - P entitled to obtain JIDA against D

type of judgment P is able to pray got when entering JID

• Final judgment

  • o13r1 - liquidated damages

  • JID will crystalize in final judgment if D does not apply to set aside within 30 days

• Interlocutory judgment

  • o13r2 - unliquidated damages

  • o13r3 - movable property

  • o13r4 - possession of immovable property

  • cannot enforce judgment unless R has assessed the damages and given an allocator

• o13r5 - mixed claims

mixed claims

there will be ONE judgment in default of appearance to which P will enter both final and interlocutory judgment

Procedure to enter JIDA

• JIDA can be entered as of right - without the need to make any formal application

• file docs in compliance with o13r7

  • Certificate of non-appearance in Form 12 - o13r7

  • affidavit of service in Form 135 - o62r9

  • JID of appearance in Form 75 - o42r5

• cannot enter JID against D if D is represented by solicitor and P did not give notice of intention to enter JID at least 7 days before the date of hearing -r56 LPPER 1978

JID cannot be entered in claim for

o13r6 - equitable relief

• has to file an affidavit or service (o62r9) and proceed as if D entered appearance

• wait for D to enter defense within 14 days after time limited to enter appearance - o18r2

• if D x enter defense - can apply via NOA + affidavit to court for JID in defense under o19r2/r7

• not mere technical non-compliance but fundamental defect - not curable under o1A or o2r3

[Lam Kong v Thong Guan]

JIDA for equitable relief can be set aside

Procedure to enter JIDD

o19r7 - P prepare

• original writ

• affidavit of service - o62r9

• Judgment in Form 75 - o42r5

• P fix hearing date of JIDD with Registrar and serve notice on D informing hearing date

• cannot enter JID against D if D is represented by solicitor and P did not give notice of intention to enter JID at least 7 days before the date of hearing -r56 LPPER 1978

• [Asia Commercial Finance v BBMB] - JIDD may still be valid but it is a misconduct on the part of P’s solicitor so D may set it aside on the grounds of irregularity

• on the day of hearing - Registrar will make JIDD

time limit to enter appearance

• o12r4 - 14 days

when there is more than one D

o13r4(2) - cannot enforce JID on one party only

if P claim for damages and equitable relief

• o13r6 applicable - JID entered is irregular - o13r1 -r5 only apply if the claim is for damages only - wherein P can then enter judgment for damages to be assessed if interlocutory

Assessment of damages

o37 r1

• P apply to Registrar by NOA for directions as to how the assessment proceedings will be conducted within 1 month from the date of JID

• on the hearing of application of direction - R will give directions as to how the assessment proceedings will be conducted (oral testimony or by affidavit)

• P file notice of appointment for assessment for damages in Form 62A and serve the notice on D within 14 days thereafter

• Registrar will hear evidence from both parties and determine the appropriate quantum that best administers justice and certify the amount

Power to set aside JIDA or JIDD

o13r8 - JIDA - o42r13 - 30 days
o19r9 - JIDD - o42r13 - 30 days

if the JID is irregular

Procedure to set aside

• apply via NOA + affidavit stating the grounds to which D is relying to set aside

principles governing whether or not crt should set aside JID

General Rule:

• [Tuan Haji v Arab Malasia Finance] - crt is quite anxious not to enter judgment against any party without giving him an opportunity to be heard

• [Hasil Bumi Perumahan v UMBC] - any judgment given in default - meaning not hearing on merits of the case is always liable to be set aside

to set aside a regular JID

o42r13 - must set aside within 30 days after D received order or judgment

• D can only set aside if he can show merits in his defense - there is triable issue

if application is not made within 30 days - must apply for extension of time under o3r5 then apply to set aside

to set aside an irregular JID

o42r13 - must set aside within 30 days after D received order or judgment

• P has breached rules of court or court order

• can be set aside as of right regardless of merit in defense

if application is not made within 30 days - must apply for extension of time under o3r5 then apply to set aside

In deciding whether to grant extension

crt will consider

• length of delay

• reason of delay

• merit of the application

• whether it would be prejudicial to the opposite party

Must P serve reply to D’s defence?

• joinder of issues

• o18r14 - if no reply to defense - there is an implied joinder of issues on D’s defense and it operates as a denial of every material allegation of the fact made in D’s defense

• conclude- not necessary by virtue of o18r14