1. ) TEH CHOON HO 2. ) FAR EAST FOAM INDUSTRIES SDN BHD v HOH HOONG KENG

Case Significance

Illustrates the principles governing the amendment of pleadings under Order 20 rule 5(1) of the Rules of Court 2012, allowing amendments so the real questions in controversy can be determined subject to prejudice, good faith and sustainability, and the appellate approach of not lightly disturbing a discretionary decision to grant or refuse leave to amend.

This High Court matter is an appeal against a decision of the Sessions Court at Seremban dismissing an application by the plaintiffs to amend their statement of claim under Order 20 rule 5(1) of the Rules of Court 2012, with costs ordered against them. Order 20 rule 5 confers on the court a discretion to allow a party to amend its pleadings at any stage of the proceedings, on such terms as may be just, and the appeal placed before the High Court the correctness of the Sessions Court's refusal to permit the proposed amendment. An amendment application of this kind engages settled principles: amendments are generally allowed so that the real questions in controversy between the parties can be determined, provided the amendment does not cause the other side an injustice that cannot be compensated by costs, is not made in bad faith, and does not seek to introduce a claim that is time-barred or otherwise unsustainable. The competing consideration is the prejudice to the opposing party and the stage of the proceedings at which the amendment is sought, for the later the application, the greater the scrutiny it attracts. Because the application had been refused below with costs, the High Court's task on the appeal was to consider whether the Sessions judge had exercised the discretion correctly, an exercise with which an appellate court will not lightly interfere unless the discretion was wrongly exercised in principle. The court's approach shows that the discretion to amend is exercised to serve the overriding aim of trying the true dispute on its merits, but that it is not unlimited: an amendment sought late, or one that would work irremediable prejudice or resurrect an unsustainable claim, may properly be refused, and a refusal on such grounds is not readily reopened on appeal. The judgment is a useful illustration of the principles governing the amendment of pleadings under Order 20 rule 5(1) of the Rules of Court 2012, and of the appellate approach to a discretionary decision granting or refusing leave to amend.