SIN YAP EXCAVATING & BUILDING WORKS v 1. ) TAN KIM TIONG 2. ) TAN CHERK YIK

Case Significance

Illustrates when a mid-trial ruling refusing leave to amend pleadings is not a 'decision' capable of appeal under section 28(1)(a) read with section 3 of the Courts of Judicature Act 1964, because it does not finally dispose of the parties' rights.

This High Court decision at Johor Bahru concerns the appealability of a mid-trial ruling refusing leave to amend a statement of claim. The appellant, a building-works business, was the plaintiff in a Sessions Court suit against two defendants who traded as an agricultural-construction partnership, claiming overdue payments of RM982,326.95 arising from six invoices for work performed on a Felda project. During the trial it emerged that the details of the work at one of the two sites had been omitted from the statement of claim, and the plaintiff applied to amend to include them; the Sessions Court refused the amendment, and the plaintiff appealed to the High Court. The court, per Dr Noradura binti Hamzah JC, disposed of the appeal on a preliminary point of appealability. It examined whether the refusal was an appealable decision under section 28(1)(a) of the Courts of Judicature Act 1964, and turned to the definition of a 'decision' in section 3 of that Act, which excludes any ruling made in the course of a trial that does not finally dispose of the rights of the parties. Applying authorities including Asia Pacific Higher Learning, Kempadang Bersatu and the line of cases affirmed by the Federal Court, the court held that a ruling on an application to amend the writ and statement of claim, made midway through the trial after the plaintiff's second witness had testified, is a ruling made during the course of the trial that does not finally dispose of the parties' rights, and so falls within the exclusionary clause of section 3 and is not appealable. It distinguished Hong Leong Finance, where an amendment application on the eve of trial had been treated as appealable because it did not fall within that exclusionary scope. Holding the appeal incompetent in limine, the court dismissed it with costs of RM6,000. The judgment is a clear illustration of when a mid-trial interlocutory ruling is not a 'decision' capable of appeal under the Courts of Judicature Act 1964.