U CARE PRODUCTS SDN. BHD. v LIM XIAN KUN

Case Significance

Illustrates the court's calibrated approach to striking out amended pleadings: an amendment made after the defence that changes capacity or introduces a fresh cause of action may be struck out, but the court will preserve the parts of the original claim raising triable facts rather than dismiss the whole action at an interlocutory stage.

This High Court decision at Johor Bahru concerns a partial striking out of amended pleadings in a trademark dispute. The plaintiff company, claiming to be the exclusive licensee of a registered trademark, sued the defendant — a trader operating a baby-goods shop — for trademark infringement and passing off in respect of products bearing that mark. After the defendant had filed its statement of defence, the plaintiff amended its writ and statement of claim under Order 20 rule 3 of the Rules of Court 2012. The defendant then applied to strike out the amended writ and amended statement of claim, contending among other things that the amendments effected a change of capacity and introduced a new cause of action after the defence had already been filed, the defence having raised the crucial point that the plaintiff was not the sole and exclusive distributor in Malaysia of the products bearing the mark. The court allowed the defendant's striking-out application, but only in part and with certain limitations. It struck out the objectionable amended portions while declining to terminate the action as a whole, reasoning that the original suit contained some facts to be deliberated — irrespective of whether they were weak or otherwise — so that it was premature to conclude that the plaintiff's claim in its original form would not succeed. Delivered by Nurulhuda Nur'aini binti Mohamad Nor J, the judgment is a useful illustration of the court's calibrated approach to striking out amended pleadings: an amendment made after the defence that changes the party's capacity or introduces a fresh cause of action may be struck out, but the court will preserve the parts of the original claim that raise triable facts rather than dismiss the whole action at an interlocutory stage. The partial outcome shows the court distinguishing between the offending amendments and the substance of the original pleading, striking out the former for introducing a new capacity and cause of action after the defence while leaving the latter to be tried, consistent with the principle that striking out is a blunt remedy reserved for claims that are plainly unsustainable.