POLYMER CONNECT SDN. BHD (Def 1 Tuntutan Balas) v ADVENT PACKAGING SDN. BHD (Plaintif 1 Tuntutan Balas) PIHAK KETIGA 1. ) Ooi Tse Biing (Def 2 Tuntutan Balas) 2. ) Megan Ong Fong Lee (Plaintif 2 Tuntutan Balas) 3. ) Matthew Ong Xing Ren (Plaintif 3 Tuntutan Balas) 4. ) Ong Qin Kai (Plaintif 4 Tuntutan Balas)

Case Significance

Illustrates the limits of the amendment power under Order 20 rule 5 of the Rules of Court 2012: the court will refuse a late re-amendment that is not bona fide, that seeks to cure pleaded deficiencies by importing a defence to a counterclaim into the main claim, and that would prejudice the opposing party.

This High Court decision at Shah Alam concerns an application to re-amend a statement of claim in the middle of a hard-fought commercial dispute. The plaintiff company had already filed an amended statement of claim against the defendant company, and after the defendant had raised a counterclaim — one that also drew in several individuals connected to the parties — the plaintiff applied under Order 20 rule 5 of the Rules of Court 2012 to re-amend, adding a paragraph said to clarify its cause of action. The defendant objected. The court examined the true purpose of the proposed re-amendment and found it was not bona fide. In substance the plaintiff was seeking to import into its main claim the defence it had raised to the counterclaim, so as to cure defects and deficiencies in its pleaded case, and the plaintiff had in fact admitted that the relevant facts were already pleaded in the main action. The court reasoned that to allow the plaintiff to go back and insert the clarification into the statement of claim would work an injustice to the defendant, because it would in turn entitle the defendant to re-file its defence, unravelling the pleadings. It held that the plaintiff already had the proper avenue open to it — a reply to the defence and counterclaim — through which any clarification could be made, so that re-amendment was unnecessary as well as prejudicial. Finding merit in the defendant's objection, the court dismissed the application with costs of RM3,000 subject to the allocatur fee, and the plaintiff appealed to the Court of Appeal. Delivered by Noor Hayati binti Haji Mat J, the judgment is a useful illustration of the limits of the amendment power under Order 20 rule 5, and of the court's refusal to permit a late re-amendment that is not bona fide and that would prejudice the opposing party.