(Chap 13) Pleadings, Amendment & Striking-Out Res Judicata

[13] Pleadings, Amendment & Striking-Out
CHAPTER 13
Pleadings, Amendment & Striking-Out
A. GENERAL PRINCIPLES
1. The Basic Pleadings
2. Parties are bound by their pleadings
3. Specific pleas
4. An unpleaded point that is raised and argued
B. AMENDMENT TO PLEADINGS
1. Exercise of Discretion
2. Post limitation amendment
3. Failure to amend
C. STRIKING-OUT
1. The principles
2. Delay
3. Election between O14 and O18 r19
4. The 4 limbs
Ravindran on Civil Procedure (2018) 1

A. GENERAL PRINCIPLES
[13.01] The function of pleadings is neatly summed up in the following passage in

Esso Petroleum Co Ltd v Southport Corp1 where Lord Radcliffe said:
“… they should help to define the issues and to indicate to the party who asks for them how
much of the range of his possible evidence will be relevant and how much irrelevant to those
issues. Proper use of them shortens the hearing and reduces costs.” (emphasis added)
1. The Basic Pleadings2
[13.02] P begins the pleading process by serving his Statement of Claim which is a
statement, in a summary form, of the material facts on which P relies upon to found his
cause of action.3 D responds by serving a Defence by which he informs P the extent to
which he intends to challenge P’s case and state the facts on which D will rely on to
resist P’s claim. D may also raise additional matters in his Defence. So for example, he
might justify non-performance of a contract on the grounds of illegality, frustration,
duress or come other defence.4 If P disagrees with D’s contentions, he does have to
respond. This is so because he is deemed to have denied D’s allegation and put them
in issue. This is the principle of Joinder of Issues.5 However, if P intends to raise e
issues which must be specifically pleaded, he must serve a Reply.6 For example, if P,
in a libel action, intends to challenge the defences of fair comment and qualified
privilege on the basis that D made the defamatory statements maliciously, he would
have to serve a Reply alleging that malice.7
The Statement of Claim, the Defence and the Reply are sufficient to set-out the areas
of dispute and prepare the parties for trial. The policy of the ROC is not to allow the
exchange of pleadings to go indefinitely. Therefore, the parties are not allowed to
serve any pleading subsequent to a Reply (or a Defence to Counterclaim) without
leave of court.8
[13.03] Pleadings are deemed to be to be closed after the expiration of 14 days from
the date of service of the last pleading.9
1
[1956] AC 218. Referred to with approval by the Supreme Court in Lee Ah Chor v Southern Bank Bhd
[1991] 1 MLJ 428.
2
Jeffrey Pinsler SC, Principles of Civil Procedure (2013) at pp 535-536.
3
O18 r7, which was explained in Re The Estate of Lee Siew Kow [1951] MLJ 224 to mean that “the
pleading should state those facts which will put the defendants on their guard and tell them what they
have to meet.”
4
O18 r8
5
O18 r14
6
O18 r8
7
O78 r3(3)
8
O18 r4
9
O18 r20

2. Parties are bound by their pleadings
[13.04] In Janagi v Ong Boon Kiat10, Sharma J said:
“A statement of claim and the defence (together with the reply, if any) constitute the
pleadings in a civil action. It is on the examination of the pleadings that the court notices the
differences which exist between the contentions of the parties to the action. In the words the
matters on which the parties are at issue are determinable by an examination of the
pleadings. An issue arises when a material proposition of law or fact is affirmed by one party
and denied by the other. The court is not entitled to decide a suit on a matter on which no
issue has been raised by the parties. It is not the duty of the court to make out a case for
one of the parties when the party concerned does not raise or wish to raise the point. In
disposing of a suit or matter involving a disputed question of fact it is not proper for the court
to displace the case made by a party in its pleadings and give effect to an entirely new case
which the party had not made out in its own pleadings. The trial of a suit should be confined
to the pleadings on which the parties are at variance .. It was not open to the learned
magistrate to fly off at a tangent as it were and disregard the pleadings in order to reach a
11
conclusion that he might have thought was just and proper .. A judgment should be based
upon the issues which arise in the suit and if such a judgment does not dispose of the
questions as presented by the parties it renders itself liable not only to grave criticism but
also to a miscarriage of justice. It becomes worse and is unsustainable if it goes outside the
issues. Such a judgment cannot be said to be in accordance with the law and the rules of
12
procedure ...” (emphasis added)
[13.05] There are 2 recent Federal Court decisions that deal with this principle. In
Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih13 the Federal Court held
that D’s failure to plead frustration as defence meant that the Court was precluded
from considering that defence. Zaki Tun Azmi CJ said:
“The nature of our system is adversarial. This means that the judge has to listen to
submissions or cases put by each party to an action. He then decides the case based on
evidence and submissions put by both parties .. The claimant has to plead his case in the
statement of claim while the defendant pleads in his statement of defence (sic). In short,
both parties are aware of the other party's case. In fact, both parties would know the facts
but also the documents, if any, that are going to be relied upon by his opposite party.
The facts pleaded will inadvertently be related to the legal principles that the party will be
relying upon. It is not for the court to decide on what principle a party should plead. It should
be left to the parties to identify it themselves.
10
[1971] 2 MLJ 196. In The Chartered Bank v Yong Chan [1974] 1 MLJ 157, Raja Azlan Shah FJ (as he
then was) held that “an erroneous direction on the pleadings is ground for ordering a new trial .. since the
trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside
and a new trial ordered.”
11
In Blay v Pollard & Morris [1930] 1 KB 628, Scrutton LJ said: “Cases must be decided on the issues
on record; and if it is desired to raise other issues they must be placed on the record by amendment. In
the present case the issue on which the judge decided was raised by himself without amending the
pleadings and in my opinion he was not entitled to take such a course.”
12
In Farrel v Secretary of State [1980] 1 All ER 166 Lord Edmund-Davies made clear that to shrug off a
criticism as ‘a mere pleading point’ is “bad law and bad practice.”
13
[2009] 6 MLJ 293

The court also decides a case after considering the evidence adduced by each party and
documents produced by them. Neither party should be taken by surprise. Even in respect of
law, whether it is the court at first instance or the appellate court, judges rely heavily on the
submissions put forward by the respective counsel. A good counsel is one who produces
authorities to support the statement of law he is relying upon .. In fact, according to etiquette,
he is supposed to even bring to the attention of the court authorities which favour his
opponent's case. Of course in such an instance, he would then distinguish the facts of the
case before the court to the case in the authority. It is therefore dangerous and totally
unadvisable, for the court, on its own accord, to consider any point without reliance on any
pleadings or submission by counsel appearing before them. If the learned judge thinks there
are any points which are relevant to the case before him and which was not raised by either
party, it is his duty to highlight that to the parties before him. He must then give an
14
opportunity for both parties to further submit on that particular point. There have been
instances where a judge may already form some opinion on certain issues, legal or
otherwise, but after hearing submissions and views expressed by a party, he may conclude
differently.
The effect of a judge making a decision on an issue not based on the pleadings and without
hearing the parties on that particular issue would be in breach of the latin maxim audi
alteram partem, which literally means, to hear the other side, a basic principle of natural
justice.
It is trite that in pleading frustration, particulars which give rise to frustration must be
15
provided specifically in the pleadings. The parties in this case had not pleaded or
submitted that the contract in question had been frustrated. Thus, the defendants were
16
highly prejudiced when the Court of Appeal decided on the issue of frustration.”
In Saiman Umar v Lembaga Pertubuhan Peladang17 P issued proceedings against

D for unlawful dismissal. The issue in the Federal Court was whether an investigation
committee had been established by the disciplinary committee, pursuant to Reg 28(4)
of the Peraturan-peraturan Pegawai Lembaga Pertubuhan Peladang (Kelakuan dan
Tatatertib) 1994, for the purpose of obtaining further clarification. The issue turned on
the pleaded cases of the parties.
P, in para 22 of the Statement of Claim, pleaded: “Plaintif menyatakan bahawa

tindakan Defendan telah melanggar peruntukan 28 Peraturan-Peraturan Pegawai LPP
(Kelakuan Tatatertib 1994) iaitu Defendan gagal menubuhkan jawatankuasa siasatan
dan gagal memanggil saksi-saksi untuk diperiksa dan disoal balas.”
14
Hoecheng Products Co. Ltd. v Cargill Hong Kong Ltd [1995] 1 WLR 404
15
Bullen & Leake & Jacob's Precedents of Pleadings, (13th edn, 1990) at p. 1102
16
Haji Mohamed Dom v Sakiman [1956] MLJ 45 concerned a claim for specific performance of an
agreement for the sale of land. The defence was that the agreement was a forgery. There was evidence
during the trial that the agreement for sale was part of a loan transaction. The trial Judge came to the
conclusion that the agreement was not a contract for the sale of land but was a contract connected with a
loan made by P either to D or to somebody else for whom D stood surety. On appeal, Mathew CJ said:
“Nowhere in the pleadings is it alleged that the agreement was in the nature of a document of loan, and
the case never proceeded on that basis. In my view, once he had found that the agreement for sale was a
genuine document, the learned trial Judge had no alternative but to order specific performance of the
agreement or to award damages. I think it is clear that a Judge is bound to decide a case on the issues on
the record and that if there are other questions they must be placed on the record, which in this case they
were not …”
17
[2015] 9 CLJ 153

In paras 8.1 and 8.2 of the Defence, D pleaded: “8.1. Tambahan kepada itu, Defendan
menyatakan bahawa Encik Madzlan bin Abdul Rahman telah juga diminta untuk hadir
untuk memberi keterangan berkenaan dengan surat akuan bersumpah yang kononnya
telah ditandatangani olehnya pada 9.9.2000 dan surat bertarikh 6.9.2000 tetapi beliau
telah enggan untuk berbuat demikian. 8.2. Walau baqaimanapun, Encik Madzlan bin
Abdul Rahman telah enggan untuk hadir dan memberi pengesahan sama ada beliau
telah menandatangani surat dan surat akuan tersebut walaupun cukup notis telah
diberi kepadanya.” In para 5 of his Reply, P pleaded: “Melainkan apa yang telah
sebelum ini diakui, Plaintif menafikan setiap satu dan semua tuduhan yang terkandung
di dalam Pernyataan Pembelaan.”
D argued that P’s pleaded claim was that D had breached Reg 28(4) when it failed to
establish an investigation committee but his position in court was that an investigation
committee under Reg 28 was established and that he was not called upon to attend it.
P argued that D had made an admission in his Defence regarding the formation of the
investigation committee. On the basis of this admission, P argued that the investigation
committee was in fact established but he was not notified of the date and time of the
inquiry before the investigation committee and accordingly, he was not given the
opportunity to be present at the hearing and was deprived of the right to cross-examine
the witnesses and also to produce any witnesses or evidence to rebut, contradict or
explain further to the investigation committee. As a result, P argued, the disciplinary
proceedings had infringed the Disciplinary Rules. The High Court made a factual
finding that “there is no evidence to show that an investigation committee was
appointed”. In the Federal Court, Azahar Mohamed FCJ, after reiterating the principle
that parties are bound by their pleadings18 and referring O18 r13, said:
“[47] .. a traverse operates to deny an allegation of fact .. the effect of a general traverse is
to deny each and every factual allegation raised by the opposing party .. the obvious
consequence of the general traverse contained in para. 5 of the plaintiff's [Reply] was to
deny the defendant's factual allegation that an investigation committee was in fact
established. It has to be pointed out that the plaintiff's denial of the establishment of the
investigation committee was in direct contradiction of its present contention that an
investigation committee was in fact formed under reg. 28(4) of the Disciplinary Rules.
[48] .. [P submitted] that as a result of the general traverse, the onus of proof had shifted to
the defendant to prove that the investigation committee was in fact established for the
purpose of obtaining further clarification by way of examining witnesses. With respect, we
are not persuaded with this line of arguments. For the purposes of this appeal, it is
necessary to bear in mind that from the outset it was upon the plaintiff himself, and certainly
not the defendant, to discharge the overall burden of proving his case and satisfy the court
on a balance of probabilities that his claim as pleaded in the statement of claim was well
founded before the court could grant judgment in his favour ..
18
“It is a well-settled legal principle that the court should not decide on an issue that was not pleaded by
the parties as had been decided in [Janagi] .. We should remind ourselves that parties to an action are
bound by their own pleadings. It is therefore necessary to make the point that the court is also bound by
the pleadings in as much as the parties themselves. The most important purpose of pleadings is to plead
reasonable cause of action, define the issues of fact and questions of law to be determined by the court. It
is a valid argument to make that the court is constrained to decide an action on which no issue has been
raised by the parties in their respective pleadings ..”

The stand taken by the defendant not to prove the said averments was of the defendant's
19
choice. However, that did not absolve the plaintiff from discharging the overall burden of
proving his claim.
[49] Even more significantly, as submitted by the defendant's learned counsel, the plaintiff in
his [Reply] did not make any admission against the facts averred in the defendant's
[Defence]. To be more specific, the plaintiff did not admit paras. 8.1 and 8.2 of the [Defence]
to support his contention that an investigation committee was in fact established and that he
was not called for the hearing. We should also note that it would be a different thing if the
plaintiff admitted to those paragraphs in his [Reply]. But most problematically, and it gets
worse for the plaintiff when he denied the said paras. 8.1 and 8.2. The contradiction was
never fully resolved. To be sure, what all the [Reply] contained was merely a series of
denials and a general traverse clause at the end. In truth, the tenor and thrust of the
plaintiff's [Reply] is a total rejection of the defendant's factual averments.
[50] In our judgment, the defendant's averments in paras. 8.1 and 8.2 of the [Defence]
ultimately have no bearing on the plaintiff's case. The fact that the defendant pleaded in that
fashion did not alter the fact that the plaintiff's pleaded case was his dissatisfaction with the
non-formation of the investigation committee. Now, before this court, the plaintiff was trying
to argue something quite different from his pleaded case even without the support of
evidence. But as we have said earlier, the law is trite that the court should not decide an
issue, which was not pleaded by the parties.”
2. Specific Pleas
[13.06] The following are examples of matters that must be specifically pleaded.
2.1 Admissions
[13.07] You would recall the Federal Court decision in Yam Kong Seng, which was
discussed in Part [2.10]. The other issue before the Federal Court was: “whether an
admission by a party in a pleading that he is ready and willing to repay a debt is a
judicial admission of his liability in respect of such debt?” In answering the question in
the affirmative, Suriyadi FCJ said:
“[15] To enable us to ascertain whether there was a judicial admission we need to refer to
para 8 of the defence. It reads as follows: ‘8 … Further Defendants 1 & 2 aver that the
Defendants were ready and willing at all material time to settle the said amount within six
months hut as there was no mutual agreement as to a fixed rate of interest or whether there
was any interest at all, the date of breach was not fixed, and lack of a unequivocal written
demand all of which put the whole outstanding sum for repayment in dispute ..’
[16] The above averment was in response to para 12 of the statement of claim wherein the
appellants averred that the company and the respondent had confirmed in writing of the
amount owing and payable to them. It is trite law that a judicial admission made in a
pleading stands on a higher footing than evidentiary admission (Sarkar's Law of
19
The principle is that a person who asserts the existence of any fact must prove that the fact exists -
Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ
1037. It is based on the Latin maxim ei incubit probatio qui dicit non qui negat (he who asserts must
prove).

Evidence) with the respondent's admission therein be made the foundation of the rights of
the parties (Satish Mohan Bilal v State of UP AIR 1986 All 126, at p 128 1985 All CJ 507).
Any failure on the part of the respondent to rebut the admission to avoid the legal
consequences of his admission would entitle the appellants to enter judgment against him.
[17] Having perused the defence in particular para 8, we find that there is clear judicial
admission of the debt owed. The question that must follow would be whether the respondent
20
was avoiding responsibility to pay up .. [18] Having scrutinised the defence we find that the
respondent has failed to avoid legal liability. With there being judicial admission by the
respondent sufficient to hold him liable to the amount claimed the answer to the first
question of law in this appeal must be answered in the positive.”
2.2 Nuisance and/or negligence
[13.07] In Wisma Punca Emas Sdn Bhd v Dr Donal R O’Holohan21 the Supreme
Court had to deal with the difficult question of pleading nuisance and/or negligence
arising from the same set of facts. P and D were owners of adjoining properties. As a
result of development works carried out on D’s land, P suffered damage. He sued in
negligence only i.e he did not plead nuisance. The trial judge however found D liable
for nuisance and gave judgment in favour of P. Wan Suleiman SCJ said: “ .. it is clear
beyond per adventure that [D] was not caught by surprise and his defence was in
answer to what was alleged in the statement of claim .. I can see no conceivable
prejudice to [D] in this case that the word “nuisance” has not been expressly set out in
the statement of claim.”22
2.3 Fraud and forgery
[13.08] The following important points emerge from the Federal Court decision in
Letchumanan Chettiar Alagappan (as Executor to Sl Alameloo Achi (Deceased))
& Anor v Secure Plantation Sdn Bhd23:
(i) Given that “fraud is infinite in variety”24, the Federal Court did not hazard a
definition but explained that fraud “is a generic term which also covers all manner of
cheat, deceit and dishonesty” and that “an action in fraud will usually include a number
of distinct causes of action.”25
20
In Jacob and Goldrein's Pleadings: Principles and Practice [1990] in dealing with confession and
avoidance, the learned authors say: “The term 'confession and avoidance' is the description of a plea in
the defence which, while expressly or impliedly admitting or confessing or assuming the truth of the
material facts alleged in the statement of claim, seeks at the same time to avoid or destroy the legal
consequences of those facts. The plea is invoked by alleging fresh or additional facts to establish some
legal justification or excuse, or some other ground for avoiding or escaping legal liability. The defendant,
as it were, confesses the truth of what is alleged against him but proceed immediately to 'avoid' the effect
of such allegations.”
21
[1987] 1 MLJ 393
22
Wan Hamzah SCJ said: “In my opinion averment of nuisance can be perceived from the allegations of
the facts contained in the Statement of Claim although the word “nuisance” is not stated.”
23
[2017] 5 CLJ 418.
24
Reddaway v Banham [1896] AC 199
25
Bullen & Leake & Jacobs Precedents of Pleadings 18th edn, vol. 2 at 57-01

(ii) The fraud referred to in O14 r1(2)(b) is narrowly construed and limited to fraud
within the meaning of Derry v Peek.26
(iii) O18 r8, read together with r12(a) require a specific plea of fraud as well as the
particulars of fraud. It is trite that bare allegations of fraud without particulars will be
disregarded by court.27 However, it is not necessary to plead the word 'fraud'.
(iv) The plaintiff had pleaded forgery of the Power of Attorney but did not plead
fraud. Jeffrey Tan FCJ said:
“ .. given that 'forgery' was pleaded, could it therefore be said that 'fraud' was not pleaded at
all? 'Fraud' and 'forgery' are not the same. Those two words could not be equated nor
interchanged, as 'fraud' is not confined to deception by 'forgery'. 'Forgery' is a specific
method of fraud. But 'forgery' is nonetheless 'fraud' in every sense of the word. The word
'fraud' in the generic sense was not pleaded. But 'fraud' in the specific sense of 'forgery' was
pleaded. Given that the specific fraud was pleaded, whether the word 'fraud' was specifically
pleaded was a semantic detail of no significance whatsoever from the standpoint of
pleadings as the correct test for a valid plea of fraud is whether or not the facts which make
the conduct fraudulent are pleaded .. Forgery was alleged and the [defendant] could not
28
have been taken by surprise .. Given that the specific fraud, namely forgery, was pleaded,
there was no basis to say that fraud was not pleaded.” (emphasis added)
2.4 Legal Consequence
[13.09] A party is only required to provide “a statement in a summary form of the

material facts on which the party pleading relies for his claim or defence” (O18 r7) and
although he may “raise any point of law” (O18 r11), he is not required to plead the legal
consequence or terminology. This principle has been explained by the Federal Court in
2 cases.
26
(1889) 12 App Cas 377 ie when it is shown that a false representation has been made knowingly or
without belief in its truth or recklessly, careless whether it be true or false. In Vincent Tan See Yin v
Noone [1995] 2 CLJ 195, the court held that "since the statement of claim did not contain the ingredients
for fraud as set out in Derry v. Peek, the claimant's claim did not fall within r. 1(2)(b)" It therefore follows
that a claim based on fraud not within the meaning in Derry v. Peek will not fall within r. 1(2)(b) (and the
entry of summary judgment is not prevented by that rule.
27
In Wallingford v Mutual Society (1880) 5 App Cas 685, Lord Selborne said: “ .. if there be any
principle which is perfectly well settled, it is that general allegations, however strong may be the words in
which they are stated, are insufficient even to amount to an averment of fraud ..”
28
In Tay Tho Bok v Segar Oil Palm Estate Sdn Bhd [1996] 3 MLJ 181 Mohamed Ghazali J (as he then
was) said: "I would agree that there is no mention of the word 'fraud' in the said para. 6 of the statement of
claim, but then, what is fraud? Basically, fraud is dishonesty... It is my view that although the word 'fraud'
does not appear in the said para. 6 of the statement of claim, I would tend to agree... that that paragraph
contains an averment of dishonesty and particulars of the dishonest acts... and I do not for once think that
the defendant was taken by surprise”.

In Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd &
Ors29 Jeffrey Tan FCJ said, in the context of fraud,:
“[24] .. The party need not use the word 'fraud' if he pleads, in unambiguous language, acts
which amount in law to fraud (Myddleton v Lord Kenyon (1794) 2 Ves 391 at p 412) .. [34] ..
'Conclusions of law, or of mixed law and fact, are no longer to be pleaded. It is for the court
to declare the law arising from the facts proved before it' .. What was required of the
pleadings was that the appellants had adequate notice of the case to meet. The pleading of
fraud with particulars was enough for the appellants to know what to answer. With those
particulars, there was notice of the kind of fraud alleged. It is not the label to it, but the
pleaded facts that determine the ultimate classification of the kind of fraud. Whether it is
actual, constructive or equitable fraud is not for the pleader but for the trier to find.”
(emphasis added)
In Boustead Trading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd30, Gopal Sri
Ram JCA (as he then was), whilst recognizing that there was authority that estoppel
has to be specifically pleaded,31 nonetheless held that the requirements of rr7(1) and
8(1) are “sufficiently met if the material facts giving rise to the estoppel are sufficiently
pleaded without actually using the term ‘estopped’” and that whilst it is “desirable for
the pleader to use that term .. it is not fatal if he does not.” In short, “what requires to
be pleaded are the relevant facts which the litigant claims to give rise to an estoppel
and not any special formula in staccato”.32
2.5 Contributory Negligence
[13.10] Is it necessary for D to plead contributory negligence? Anuar bin Mat Amin v
Abdullah bin Mohd Zain33 concerned a motor vehicle accident. The trial judge gave
judgment to P and held that P was 70% contributorily negligent, although D had never
pleaded contributory negligence against P. KC Vohrah J (as he then was) said:
“ .. the learned judge should not have taken into account the contributory negligence of [P].
Once it was shown that there was negligence on the part of [D] the learned judge had to
disregard any fault on the part of [P]. At no stage of the proceedings in the court below was
29
[2014] 2 MLJ 799
30
[1995] 3 MLJ 331
31
Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3
MLJ 287
32
In Tay Choo Foo v Tengku Mohd Saad [2009] 1 MLJ 289, the Court of Appeal quoted the following
passage from Re Vandervell ’s Trusts (No 2) [1974] Ch 269, where Lord Denning MR said: “Mr
Balcombe .. stressed that the points taken by Mr Mills were not covered by the pleadings. He said time
and again: 'This way of putting the case was not pleaded.' 'No such trust was pleaded'. And so forth. The
more he argued, the more technical he became. I began to think we were back in the bad old days .. when
pleadings had to state the legal result; and a case could be lost by the omission of a single averment .. All
that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state
the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He
can present, in argument, any legal consequence of which the facts permits. The pleadings in this case
contained all the material facts. It does appear Mr Mills put the case before us differently from the way in
which it was put before the judge: but this did not entail any difference in the facts, only a difference in
stating the legal consequences. So it was quite open to him.”
33
[1989] 3 MLJ 313

there an application for leave to amend the defence to include a plea of contributory
negligence .. [In fact] [D]’s counsel in his submission before the judge of the sessions court
categorically argued that [P] was wholly to blame for the accident and he never at all
touched on the issue of contributory negligence .. In my view the learned judge of the
sessions court .. was wrong in considering contributory negligence in the case when
contributory negligence was not pleaded nor otherwise properly made an issue of during the
course of the trial. Since she did find [D] to blame for the accident she should not have paid
regard to any fault on the part of [P] ..”
2.6 Illegality
[13.11] Whilst facts giving rise to illegality must be specifically pleaded34 nonetheless,
even where the illegality is not pleaded, a court of equity will not enforce a contract
which is illegal or arises out of an illegal transaction. This principle was recently
reiterated in Merong Mahawangsa Sdn Bhd v Dato’ Shazryl Eskay bin Abdullah35
where the Federal Court endorsed the following statement of law by Hamid Sultan JCA
in China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd36: “At the
outset we must say that the trial courts must be vigilant not to provide any relief on
contracts which is void on the grounds of public policy, or illegality … whether or not it
is the pleaded case of the parties or whether the issue was raised during the trial.”37
2.7 Limitation
[13.12] D, who wishes to rely on limitation, must specifically take the plea in his
Defence.38 The choice lies with D. If he wishes to avail himself of the statutory defence,
it must be pleaded. D may not wish to rely on a defence of limitation and prefer to
contest the issue on the merits. If no plea of limitation is raised in the defence, P is
entitled to assume that D does not wish to rely upon the defence but prefers the court
to adjudicate the issues on its merits. It thus becomes an issue of waiver.39
Can D apply to strike-out P’s claim, pursuant to O18 r19, without delivering a Defence
in which the plea of limitation is taken? In Kuan Hip Peng40 the defendants, before
delivering their Defence, took out an application to strike out the plaintiff's claim for
being frivolous and vexatious and an abuse of the courts process since it was not
brought within 3 years of the deceased's death. The Federal Court allowed the
application. Thompson LP whilst recognizing that, as a general rule, one cannot strike
out a claim without pleading limitation for reason that the plaintiff may be able to show
34
O18 r8
35
[2015] 5 MLJ 619.
36
[2014] 5 MLJ 1
37
See also Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 3 CLJ 1667 and Narayanan v
Kannamah [1993] 3 MLJ
38
s.4 LA and O18 r8. In Tham Kok Onn v Perwira Habib Bank Malaysia Bhd [2004] 4 CLJ 818 the
Court of Appeal held that s.4 LA did not apply to an originating summons because by definition (in O1 r4
RHC 1980) "pleading" did not include a petition, summons or preliminary act and that the requirement to
plead the statute of limitation as a defence, as contained in O18 r8, related only to a writ action. It is
doubtful whether this decision is still applicable given the new definition of “pleading” in O1 r4 RC 2012.
39
Commonwealth of Australia v Mewett [1995] 59 FCR 391. In short, P’s cause of action is not time-
barred until D takes the plea - Kennett v Brown [1988] 1 WLR 582.
40
supra, Para 2.17

that he is entitled to bring the action notwithstanding the limitation period has set in by
reason of one of the exceptions set out in the Limitation Act (which is not absolute) and
that until the statute is pleaded there is no opportunity for the plaintiff to raise this point,
nonetheless went on to say:
“The terms of section 7(5) of the Civil Law Ordinance are absolute and contain no
exceptions .. There is no room for doubt as to when it begins to run. It runs from the death of
the person of whose support the plaintiff has been deprived. The cause of action arises on
death .. there can be no question of importing into the matter any of the saving provisions of
the Limitation Ordinance by any process of construction for by section 3 of that Ordinance it
‘shall not apply to any action... for which a period of limitation is prescribed by any other
written law’.”
This approach was confirmed in Tasja Sdn Bhd v Golden Approach Sdn Bhd41
where James Foong FCJ said:
“.. in an application for striking out under O. 18 r. 19(1) RHC on the ground of limitation to
bring an action, a distinction must be made as to which provision of the law is used to
ground such application. If it is based on s. 2(a) of PAPA or s. 7(5) of the Civil Law Act,
where the period of limitation is absolute then .. such application should be granted without
having to plead such a defence. However, in a situation where limitation is not absolute, like
in a case under the Limitation Act, such application for striking out should not be allowed
42
until and unless limitation is pleaded as required under s. 4 of the Limitation Act.”
41
[2011] 3 CLJ 751
42
This approach is consistent with Lay Kee Tee supra, Para 4.13 where Nik Hashim FCJ said: “[22] .. the
[plaintiffs’] pleadings reveal that the claim is .. relates to specific acts or omissions, namely: failing to take
steps to determine the cause of the outbreak of the virus; acting on erroneous assumptions; failing to give
consideration to virologist, Jane Cardoza; failing to refer or send samples to the right experts for
examination; implementing unsuitable measures to manage and control the virus .. [which] happened
earlier than 1 March 1999 .. Therefore, since the suit was filed on 20 March 2002, the action was clearly
time barred as it was filed out of time .. [26] .. in the present action, it was clear that the [defendants] were
going to rely on limitation and there was no way that the [plaintiffs] could have escaped from it. Thus, a
defendant on an application to strike out pleadings and indorsements under O 18 r 19(1) of the RHC is
entitled to raise limitation of action without pleading a defence and filing it to that effect. Similarly, in the
present case, the [defendants] were entitled to do the same, and since the [plaintiffs’] action was clearly
statute-barred, the action was therefore properly struck out.” A approach was taken by the Court of Appeal
in Machinchang (supra, Para 2.15)

2. An unpleaded point that is raised and argued
[13.13] In OCBC v Philip Wee Kee Puan43 D, in a suit by P for a debt, took the
defence of limitation. P, who never pleaded acknowledgment of the debt44 either in its
statement of claim or reply, nonetheless led evidence at trial, without objection, of the
acknowledgement in the form of a letter from D. On appeal in the Federal Court, D took
the point, which was accepted, that P was not entitled to rely on the letter as an
acknowledgement of the debt because it had not been pleaded. On appeal to the Privy
Council, Lord Bridge said:
“the only time when objection could have been taken to the admission in evidence of [D’s]
letter .. on the ground that the acknowledgement had not been pleaded, was when the
evidence was tendered .. The letter became part of the total material on which the judge had
45
to decide the case ..”
The principle was carefully explained by Peh Swee Chin SCJ in Superintendent of
Lands and Surveys v Hamit:46
“If a party is taken by surprise, he must object then and there at the point of time when such
evidence emerges, for such evidence to be disregarded by the court, and the court will then
uphold such timely objection. The court will generally, however, grant an adjournment if
requested, on suitable terms as to costs, etc, for the pleading to be amended by the party
seeking to adduce such evidence.
Generally, in civil cases only, both parties can validate any mode of adducing evidence by
consent, express or inferred, even when such mode is irregular, for any irregularity is
deemed to be waived by such consent. Technical rules of evidence can be to a limited
extent, even dispensed with by a court without such consent, similarly with technical rules of
procedure. Therefore, when such evidence represents a departure from pleadings, it should
be objected to as when and where it is adduced, and it will be too late when it only objected
to later on, as in the final submission at the close of evidence in the instant appeal. In these
circumstances, the party facing such evidence at variance from the pleadings, by failing to
object, cannot be said to be taken by surprise, prejudiced, misled or embarrassed.
Otherwise, the other side of the coin would be, in the event of such an objection raised at
the stage of final submission being accepted by the court, that the party adducing such
evidence may face the great risk of being denied leave to amend his pleadings in question
at that stage.
43
[1984] 2 MLJ 1
44
s.26 Limitation Act 1953
45
This is consistent with KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10 where, on a similar
issue, Raja Azlan Shah CJ (Malaya) (as he then was) said “this aspect of the case has been satisfactorily
presented and developed in the proceedings before the High Court and we think there are materials on
the record from which a decision to that effect could be arrived at. As one of the objects of modern
pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by
surprise.”
46
[1994] 3 MLJ 185

Such evidence, when given without any objection by the opposing party, will further have the
effect of curing the absence of such plea .. There is, however, at least one important
exception to such curing of defect of pleading by evidence departing from such pleading
without objection then and there to such evidence. The exception is when such evidence
represents a radical departure from the pleadings, and is not just a variation, modification or
development of what has been alleged in the pleading in question .. Therefore, a court
inevitably ought to enquire, when there is failure to object to such evidence when it is
adduced, whether it is such a radical departure, if not, it is a mere variation, modification or a
development, then the impropriety of admission of such evidence at variance with the
pleadings is deemed to be waived and the defect in such pleadings cured.” (emphasis
added)
B. AMENDMENT TO PLEADINGS
[13.14] Pleadings are intended to bind the parties so that there is certainty over the
scope of dispute ad to avoid the introduction of new issue at trial which may surprise
and prejudice the other party, and compromise the administrations of injustice as a
result of ensuing delays. However the parties are entitled to amend their pleadings if it
is appropriate to do so. An amendment may be necessary where circumstances
change, new evidence arises or a new position is taken.
[13.15] The rules of procedure distinguish between amendments by agreement,

amendments which are permissible as of right and amendments which may only
effected with leave of court.
(i) O20 r12 introduces a new procedure whereby, subject to the limitation in
r12(3), parties may, by written agreement, amend their pleadings before trial.
(ii) O20 r1 and r3 allow the writ and a pleadings to be amended without leave
subject to the conditions set-out therein.
(iii) In all other cases, leave is required to amend the writ or a pleading. This is
plain from O20 r5. In Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd47
Mohamed Azmi FJ explained the principles upon which the court exercises its
discretion in respect of an application for leave to amend the pleadings under O20 r5.
“Under O 20 … a Judge has a discretion to allow leave to amend pleadings. Like any other
discretion, it must of course be exercised judicially … The general principle is that the court
will allow such amendments as will cause no injustice to the other parties. Three basic
questions should be considered to determine whether injustice would or would not result,
(i) whether the application is bona fide;

(ii) whether the prejudice caused to the other side can be compensated by costs and
(iii) whether the amendments would not in effect turn the suit from one character into a suit
of another and inconsistent character.
47
[1983] 1 MLJ 213

If the answers are in the affirmative, an application for amendment should be allowed at any
stage of the proceedings particularly before trial, even if the effect of the amendment would
be to add or substitute a new cause of action, provided the new cause of action arises out of
the same facts or substantially the same facts as a cause of action in respect of which relief
has already been claimed in the original statement of claim .. At this stage of the
proceedings the court is not concerned with the merit of the [plaintiffs’] case. Even after
amendment, the [defendants] have the right to take necessary steps to strike out the whole
claim if the Statement of Claim, as amended, does not disclose any cause of action or is
48
found to be frivolous and vexatious and an abuse of process of the court ..”
1. Exercise of Discretion
[13.16] It is critical to remember that the court exercises a discretion when

considering a leave application. The following are some examples of how the
discretion is exercised.
1.1 Delay
[13.17] O20 r5 allows the Court to grant leave to amend “at any stage of the
proceedings”. This phrase has been given a literal interpretation. Therefore, a party
may be granted leave to amend after judgment has been pronounced and even on
appeal. Two cases illustrate the point.
(i) In The Gladiator49, the plaintiff issued a writ for the sum of 5000l. After trial, the
Court granted judgment to the plaintiff for the sum of 7500l. Thereafter, the
plaintiff applied to amend its writ and statement of claim by increasing the
amount claimed to 8500l. The Court allowed the application.
(ii) In Chen Chow Lek v Tan Yew Lai50 the plaintiff, at the hearing of his appeal in
the Supreme Court, applied to amend his Statement of Claim by adding a new
sub-paragraph. The Federal Court allowed the application as the “amendment is
fully covered by evidence in the records and not in any way prejudicial to the
respondent.”
48
A succinct statement of the principle is found in Tildesley v Harper (1878) 10 Ch D 393 where
Bramwell LJ said: ’My practice has always been to give leave to amend unless I have been satisfied that
the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent
which could not be compensated for by costs or otherwise” and in Clarapede v Commercial Union
Association [1883] 32 WR 262 where by Brett MR said: “However negligent or careless may have been
the first omission, and however late the proposed amendment, the amendment should be allowed if it can
be made without injustice to the other side. There is no injustice if the other side can be compensated by
costs.”
49
[1892] P 64
50
[1983] 1 MLJ 170

In Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan51 Clement Skinner JC (as
he then was) said:
“Counsel for [P] submits that the court should not concern itself too much with the question
of delay because an amendment may be made at any stage of the proceedings. The
submission of counsel overlooks one important factor, it is this: after pleadings are deemed
to be closed, an amendment can be made only with leave of the court; it becomes a matter
at the discretion of the court and when a party requires discretion to be exercised in its
favour, delay is always a relevant consideration in the grant or withholding of it because a
court will only assist the vigilant and not the indolent … The pleadings have long closed in
all these cases and [P] has waited for some 12 years in applying for amendments without
any explanation why they have not come sooner, and must accordingly be a factor to be
given some weight when considering the overall question of whether or not an amendment
should be allowed.” (emphasis added)
[13.18]52 In Hong Leong Finance Bhd v Low Thiam Hoe53 the Federal Court was
asked to consider whether the principles in Yamaha Motor were the sole
consideration in deciding an application, made on the day of the trial, to amend
pleadings to introduce a new case. The Federal Court held that:
(i) Yamaha Motor was not concerned with an amendment made on the day of the
trial (as was done in the present case). The principles in Yamaha Motor were laid
down in respect of an application to amend that was made at an early stage of the
proceedings, in particular before the trial commences.
(ii) When an application to amend the pleading is made at a very late stage (as was
done in the present case), the principles in Yamaha Motor ought not to be the sole
consideration. This is because an order for compensation by payment of costs in such
a case may not be an adequate remedy and it would also disrupt the administration of
justice which affects the courts, the parties and the other users of the judicial process.
(iii) The proposed amendment must disclose full particulars for the court to
ascertain if there is a real prospect of success in proving the same.
(iv) The applicant will have to provide a cogent and reasonable explanation in its
affidavit to explain why the application was filed late.54 The burden is squarely on the
applicant to provide the explanation. This is despite the other party not filing an
affidavit to oppose the application.
51
[1999] 6 MLJ 622
52
See Q6(c) Aug 2016
53
[2016] 1 MLJ 301
54
Delay always weighs heavily against P, who has carriage of the case. In The Benoi VI [1980] 2 MLJ
265, P sought to amend the statement of claim on the morning of the trial. TS Sinnathuray J said: “the
plaintiff who commenced the action has had the conduct of the action. He sets the timing of the action. He
calls the tune. My duty now is to weigh which party will suffer graver injustice. In my judgment it is obvious
that graver injustice will be suffered by the defendants if the amendments are allowed.” The party, who
has delayed his application for leave, must explain the delay. He must “place some material and advance
some cogent reasons to impel the court to lean on its side” (Taisho Co Sdn Bhd v Pan Global Equities
Bhd & Anor [1999] 1 MLJ 359).

Zulkefli CJ (Malaya) said:
“[30] .. [D’s] affidavit in support failed to adduce an explanation for the delay in filing the said
application. The Court of Appeal however held that the plaintiff should have filed an affidavit
to oppose the application to amend which the plaintiff failed to do. With respect in our view
the Court of Appeal erred on this point again. This is because the defendant’s affidavit in
support of its application to amend contained nothing more than a bare assertion. A bare
55
assertion carries no evidential value and hence, there is nothing to reply .. The defendant’s
affidavit also did not discharge the ‘heavy onus’ imposed on the amending party as the
defendant did not disclose any ‘material and cogent reasons’ to explain the inordinate
delay.”
The English courts have taken a similar position. In Ketteman v Hansel Properties
Ltd56 Lord Brandon explained why the courts are generally reluctant to exercise its
discretion in favour of a late application:
“Whether an amendment should be granted is a matter for the discretion of the trial judge
and he should be guided in the exercise of the discretion by his assessment of where justice
lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it
possible to enumerate them all or wise to attempt to do so. But justice cannot always be
measured in terms of money and in my view a judge is entitled to weigh in the balance the
strain the litigation imposes on litigants, particularly if they are personal litigants rather than
business corporations, the anxieties occasioned by facing new issues, the raising of false
hopes, and the legitimate expectation that the trial will determine the issues one way or the
other. Furthermore, to allow an amendment before a trial begins is quite different from
allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity
to renew the fight on an entirely different defence.
Another factor that a judge must weigh in the balance is the pressure on the courts caused
by the great increase in litigation and the consequent necessity that, in the interests of the
whole community, legal business should be conducted efficiently. We can no longer afford to
show the same indulgence towards the negligent conduct of litigation as was perhaps
possible in a more leisured age. There will be cases in which justice will be better served by
allowing the consequences of the negligence of the lawyers to fall upon their own heads
57
rather than by allowing an amendment at a very late stage of the proceedings.” (emphasis
58
added)
55
Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri & Ors [1993] 1 MLJ 12
56
[1987] AC 189.
57
This passage was quoted with approval by the Court of Appeal in Skrine v MBf Capital Bhd [1998] 3
MLJ 649. See Charlesworth v Relay Roads Ltd [1999] 4 All ER 397 in respect of the principles to be
applied when a party applies to amend his pleadings and introduce fresh evidence after the trial had been
completed and judgment handed down but before the judgment had been drawn up.
58
In Worldwide Corporation Limited v GPT Limited [1998] EWCA Civ 1894 the claimant sought to
amend its claim, 11 days before the trial commenced, to introduce a new case after realising that it could
not succeed based on its pleaded case. Waller LJ said: “ .. in previous eras it was more readily assumed
that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation
to that opponent. In the modern era it is more readily recognised that in truth the payment of costs of an
adjournment may well not adequately compensate someone who is desirous of being rid of a piece of
litigation which has been hanging over his head for some time, and may not adequately compensate him
for being totally (and we are afraid there are no better words for it) ‘mucked around’’ at the last moment.
Furthermore, the courts are now more conscious that in assessing the justice of a particular case the
disruption caused to other litigants by last minute adjournments and last minute applications have also to
be brought into the scales .. Where a party has had many months to consider how he wants to put his

1.2 Prejudice
[13.19] This is how Sharma J dealt the prejudice argument in Mahan Singh v
Government of Malaysia59
“The argument that the plaintiff may be in a position to succeed if the new amendment is
allowed is frail and feeble .. If the amendment is permissible and the law allows the
amendment at this stage it is irrelevant that the Government may not be able to find a
defence to the new pleading. All I have got to consider is whether this plea should be
allowed to be taken at this stage or not .. The prejudice referred to in the decided cases is
the prejudice whereby the position of a party may be so altered that it cannot be
compensated by costs ..”
1.3 Bona fide
[13.20] In Alwee v Lai Kong Fook60 the High Court dismissed P’s claim for specific
performance of an oral agreement. On appeal to the Federal Court, P applied to
amend the statement of claim. Chang Min Tat FJ said:
“It is perhaps in the realization that we will refuse to differ from the trial judge, especially
where there is, as in this case, an abundance of evidence on a critical analysis thereof, for
the findings, that Mr Devadas, who appeared as counsel at the appeal, prefaced his appeal
with a motion to amend the statement of claim. We heard Mr Devadas at length but very
obviously, the terms of the amendment merely sought to comply with the rules of pleadings
and to avoid the criticism of the evidence departing from the pleadings but they could not
and did not explain the numerous variations and resilements in the appellant’s oral evidence
which branded him in the view of the trial judge as a totally unreliable witness. The appellant
could not therefore hope to succeed on these amendments, if allowed, and for this reason,
the motion must be and was refused .. We observed, not without interest that Mr Devadas
pleaded, in as many words, for a new trial. That was obviously the real purpose for the
amendments sought, but nothing is clearer than that the appellant should not be given a
further chance to prevaricate.”
case and where it is not by virtue of some new factor appearing from some disclosure only recently made,
why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is
concerned and why should he be entitled to cause inconvenience to other litigants? The only answer
which can be given and which .. applies in the instant case is that without the amendment a serious
injustice may be done because the new case is the only way the case can be argued, and it raises the
true issue between the parties which justice requires should be decided. We accept that at the end of the
day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and
thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy
one on the amending party to show the strength of the new case and why justice both to him, his
opponent and other litigants, requires him to be able to pursue it.”
59
[1973] 2 MLJ 149
60
[1981] 2 MLJ 82

1.4 Changing the character of the suit
[13.21] In Chin Kok Kwong Construction v Sunrise Towers Sdn Bhd61 P sued D
for the return of the deposit under a Sale and Purchase Agreement which the parties
had agreed to rescind. P then applied to amend the Statement of Claim to add a new
cause of action against D – the recovery of monies allegedly due and payable by D for
works carried out by P which arose from a separate agreement entered into by P, as
contractor and D, as employer. Edgar Joseph Jr J (as he then was), in refusing leave,
said:
“I fail to see how in the circumstances it could be said that the new cause of action arises
out of the same facts or substantially the same facts as the cause of action for the return of
the deposit for the purchase of the apartment in respect of which relief had already been
claimed in the Writ and Statement of Claim. To allow such an amendment would turn a suit
of one character into a suit of another and inconsistent character. Manifestly, this is not
permissible.”
1.5 To include a subsequent cause of action
[13.22] In Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd62 P
instituted an action against D on 18.2.1987, claiming a sum of $48,618.40 being the
amount certified by the architect as due for payment. On 1.11.1988, P applied to
amend the statement of claim to include the sum of $17,3659.25, based on two
certificates subsequently issued by the architect. Lim Beng Choon J said:
“Bearing in mind the general principle that any subsequent amendments to the writ and
statement of claim would relate back to or speak from the original date when such writ and
statement of claim were filed .. there is no doubt in my mind that the plaintiff is not entitled to
claim the additional sum of $173,659.25 which became due and payable to the plaintiff only
after the date of the issue of the writ and statement of claim ..”
In Sao Koon Lin v S B Mehra63 P and D entered into an agreement whereby P was to
be provided with the accounts of a company and was to be paid the sum of $100,000
in the following manner: (i) $15,000 on the execution of an agreement; (ii) $35,000 on
or before 12.10.1972 and (iii) the balance of $50,000 by monthly instalments of
$10,000 each on the 12th day of each month. By 7.10.1972, D had not produced the
accounts. So P issued a writ asking for delivery of the account books and payment of
the balance sum of $85,000. The Federal Court held that P did not have any cause of
action in respect of the $85,000 or any part thereof, as no installments were then
due.64 It is critical to note that that the agreement did not contain a default clause
stating that should there be default in the payment of any one installment, the
remaining installments would become immediately due and payable. Chang Min Tat FJ
tersely observed that “this is yet again another example of the effect of having the
same solicitor draft agreements between parties with conflicting interest.”
61
[1986] 2 MLJ 41
62
[1992] 1 MLJ 11
63
[1981] 1 MLJ 225
64
A similar conclusion as reached in in Eshelby v Federated European Bank Ltd [1932] 1 KB 254

1.6 Withdrawing an admission
[13.23] An admission made inadvertently may be withdrawn and the pleading

amended accordingly.65
1.7 Including a Counterclaim
[13.24] Whilst O15 r2 requires a Counterclaim to be added to the Defence, O20 is

silent as to whether D can amend his Defence to include a Counterclaim. In Ho Yoke
Kwei & Ong Eng Hin66, Augustine Paul J (as he then was) held that O20 allows an
amendment to a pleading to include the addition of something that was originally not in
it. This means that a counterclaim could be added to a defence by way of amendment.
In accordance with O20 it can be done without leave of Court before pleadings are
closed and with leave after close of pleadings.
[13.25] In Alloy Consolidated Sdn Bhd v Dato’ Hj Adam Harun67 D applied to

amend its Defence to inter alia include a counterclaim. P took objection to the inclusion
of the counterclaim on the ground that it was filed outside of the relevant limitation
period.68 The Federal Court held that based on s.31 of the Limitation Act, the
counterclaim was not barred by limitation because the counterclaim is deemed to have
been commenced on the same date as the action i.e 25.6.2001.69
This is how Lord Denning MR explained the principle in Henriksens Rederi A/S v P H
Z Rolimpex70:
“I would state the effect of [s.31] in this way: Where the plaintiff owes the defendant a debt
arising from a separate transaction, the defendant can raise it by way of set-off. If it is time-
barred at the date when the plaintiff issues his writ, it is time-barred still. But if it is not time-
barred at the time when the plaintiff issues his writ, the defendant can raise it in opposition
to the plaintiff's claim without being affected by any intervening running of time .. Where the
defendant has a cross-claim for damages arising from a separate transaction, he can either
bring a separate action for it: in which case he is subject to the ordinary time-bar.
Alternatively, he can raise it by way of counterclaim .. by [s.31] a counterclaim, which arises
out of a separate transaction, is on the same footing as a set-off. If it is not time-bared at the
time when the plaintiff issues his writ, the defendant can raise it in opposition to the plaintiff's
claim without being affected by any intervening running of time.”
65
Hollis v Burton [1892] 3 Ch 226
66
[1997] 1 CLJ 603
67
[2011] 5 CLJ 705
68
The counterclaim concerned a claim in contract – the limitation was therefore 6 years from February
1998 (the date P alleged that the breach occurred). The counterclaim was filed on 9 July 2004. Therefore,
had D filed a fresh action, it would have been barred by limitation.
69
Arifin Zakaria CJ (Malaya) (as he then was) said: “ .. the date of filing of the counterclaim relates back to
the date of the original action. Thus, taking the cause of action as accruing in February 1998, as pleaded
by [P], [D] was well within the six years period on the date this action was commenced by [P]. Therefore,
the counterclaim cannot be said to be time-barred.”
70
[1973] 3 All ER 589

2. Post limitation amendment
[13.26] Paragraphs (2) to (5) of O20 r5 allow amendments after the expiry of limitation
in the circumstances spelt out in paras (3) to (5).71 This is a drastic provision as it
deprives D of his defence of limitation which he would be entitled to rely on should a
new action be filed against him. However attempts to challenge the validity of these
provision have failed.72
[13.27] In Lim Yong Swan v Lim Jee Tee73 Yong Pung How CJ explained the
common theme of these paragraphs:
“What is common in all three paragraphs is this. For an application to come within any of the
paragraphs, there must already be asserted in the writ or the pleading a set of allegations
which, in spite of the expiry of the limitation period, reasonably identify the party suing or
sued, which is capable of conveying the capacity of the party to sue or which permits the
addition or substitution of another cause of action. In other words, the matters of identity,
capacity or cause of action are already asserted or implied, from the inception of the writ or
the filing of the pleading and it is merely a matter of correction to make explicit what is
implicit.”
2.1 Paragraph (3)
[13.28] In Lim Yong Swan (supra), Yong Pung How CJ said:
“[r5(3)] deals with a mistake over the description of the identity of a party to the proceedings.
Two conditions have to be satisfied to trigger its operation. First, the mistake must be a
genuine mistake. That should be an easy question to decide. Secondly, the mistake is not
misleading or such as to cause any reasonable doubt as to the identity of the person as a
plaintiff or a defendant. The underlying thrust of the paragraph is that in truth and in
substance the litigant is known, although there is a nominal defect in form. If an amendment
is allowed, even if allowed after any relevant period of limitation .. what has been done is in
effect a mere correction of the nomenclature with which the party is labelled. The other party
71
The amendments can only be allowed in these circumstances and not under the general discretion
under r5(1). The courts have rejected Lord Denning MR’s approach in Chatsworth Investments Ltd v
Cussins (Contractors) Ltd [1969] 1 All ER 143: “The courts should give O 20 r 5(1) its full width. They
should allow an amendment whenever it is just so to do, even though it may deprive the defendant of a
defence under the Statute of Limitations.”
72
Rodriguez v Parker [1967] 1 QB 116 and Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703.
The principle is that if the action, from the beginning, had been properly constituted in the circumstances
set-out in paras (3), (4) or (5), the defence of limitation would not have been available to D. So when the
court grants leave, it allows for those defects to be cured ab initio, so that D is not being deprived of the
defence of limitation which he never had if the suit had been properly constituted from the start – see
Pontin v Wood [1962] 1 QB 594.
73
[1992] 3 SLR 940.

74
at all material times knew in fact and in substance who the opposing litigant was.”
75
(emphasis added)
2.2 Paragraph (4)
[13.29] In Lim Yong Swan (supra), Yong Pung How CJ said:
“ .. [r5(4)] allows an alteration of the capacity in which a party sues if the capacity in which, if
the amendment is made, the party will sue is one in which he might have sued at the date at
which the claim was asserted.”
[13.30] You would recall that in Mohamed Amin bin Hassan76 the Supreme Court
rejected an application by the plaintiff to add a co-plaintiff after the expiry of limitation.
Lee Hun Hoe CJ (Borneo) said:
“What [R] did was not correcting the name of a party. Neither was it a matter of mistake ..
This is not a case of altering a party suing in his representative capacity into his personal
capacity. It is a case of adding a new party to the original suit. For that very reason the
learned [Judge] rightly refused to grant leave to [W] to be made the second plaintiff .. Clearly
the court has no power to resuscitate an action which must fail in limine upon a plea of
limitation .. I am not aware of any authority which allows the addition of a party in such
circumstances as to defeat the defendant of his defence under the Statute of Limitation. All
the English cases cited show that the amendments were allowed to correct the name of a
party (O 20 r 5(3) or to alter the capacity in which the party sues or is sued (O 20 r 5(4) or to
add or substitute a new Cause of action (O 20 r 5(5)) .. [these] provisions .. confer express
and unmistakable powers which apply only to those special circumstances within the scope
of these provisions which could not have been intended to prejudice or remove en masse
77
the right or benefit conferred by any Statute of Limitation.”
74
In International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corp of India, the court
said: “Can the intending plaintiff or defendant be identified by reference to a description which is specific
to the particular case, eg landlord, employer, owners or shipowners? If the answer is in the affirmative,
then an amendment can be allowed even where the correction involves substituting a different name
altogether, and the name of a separate legal entity, which may be equivalent to substituting a new party.”
75
See also Boss s/o Ramasamy v Penang Port Sdn Bhd & Anor [1996] 5 MLJ 511, where Vincent Ng
J (as he then was) said: “In an application under O 20 r 5(3), the court is enjoined to require the fulfilment
of the following four conditions before allowing the amendment: (1) there was a genuine mistake in
naming the plaintiff or the defendant to the proceedings (2)the mistake was not misleading; (3)the mistake
was not such as to cause any reasonable doubt as to the identity of the person intending to sue or
intended to be sued and(4)it is just to allow such an amendment.”
76
supra, Para 5.05
77
See the explanation by the Federal Court on the doctrine of relation back in Instantcolor supra, Para
5.06.

2.3 Paragraph (5)
[13.31] Hock Hua Bank Bhd v Leong Yew Chin78 concerned an application to raise a
new cause of action and adding a new relief which arose out of the same or
substantially the same facts as the original cause of action. The Supreme Court, by a
majority, allowed the application. Hamid Omar LP (Ag) (as he then was) said:
“The fact that a new relief or substantially new relief has arisen out of a new cause of action
79
should not be a bar to the Court’s power to grant leave under r 5. A new or substantially
new relief which arises out of a new cause of action is in effect ancillary to the new cause of
action and is indeed part and parcel of that new cause of action .. The rule is silent: indeed,
it does not make the granting of leave to amend under r 5 conditional upon there being no
new or substantially new relief arising out of the new cause of action. To construe otherwise
would, in my view, be reading into r 5 something which is not provided for. I am firmly of the
view that a new relief is not a relevant consideration … a relief or a remedy is ancillary to
and not separable from a cause of action.” (emphasis added)
3. Failure to amend
[13.32] In Lim Oh & Ors v Allen & Gledhill80 P filed an action on 2.5.1986.
Thereafter, on 13.6.1988, P filed an application to amend the writ and statement of
claim to include R as a party. The application was allowed by the court. P failed to
affect the amendments within 14 days from the date the order was made81 and there
was no application for the extension of the period. Thereafter, on 20.3. 1990, P filed a
similar application. This second application was granted on 7.6.1990. Yet again, P
failed to affect the amendments within 14 days. The amendments were eventually
effected on 15.10.1990, without any application being made for an extension of time.
D accordingly applied to set aside the amended writ and statement of claim. The
application was allowed and P did not appeal against this order. Instead, P issued a
fresh writ against D (“2nd Suit”). D applied to set aside the 2nd Suit on the ground that
the issuance of the 2nd Suit constituted an abuse of the process of the court. The Court
of Appeal agreed. Shaik Daud JCA said:
“It is our view that for issue estoppel to apply, it was not necessary for the issue to be
decided on its merits. Once a point is distinctly put in issue and determined and a judicial
decision is final on that point, then it ought not to be allowed to be ventilated in a fresh or
new suit .. the issue in the first suit was to make [R] a party to the action .. The learned
78
[1987] 1 MLJ 230
79
It is critical to appreciate that if no new cause of action is added or substituted, the discretion of the
courts under rule 5(5) is not applicable. In such cases, the general principles of law relating to the
amendment of pleadings, as stated in the earlier part of this judgment, apply. The learned author of
McGee, Limitation Periods (1990) states: “.. a preliminary point here is that the discretion conferred by the
rule [O 20 r 5(5)] is required only when the amendment seeks to add a new cause of action. There is a
fine distinction between amendments which merely seek to clarify the existing issues between the parties,
which do not fall within the scope of this rule, and amendments which seek to add a distinct cause of
action. An amendment which merely adds a new particular to an existing cause of action will be allowed
even though the time has expired.”
80
[1998] 4 MLJ 645
81
O29 r9

judge came to a finding that the issue of making [R] a party to the action has been finally
decided, and that the only purpose of filing the second suit was also to make [R] a party as
the statements of claim in both suits are the same. It was on this premise that the learned
judge held that issue estoppel applied and the commencement of the second suit was an
abuse of the process of the court. We agree with that finding.
We agree that the filing of the second suit was an abuse of the process of the court since
after having filed the second suit and obtained an order for its amendments, [P] had
admitted that the amendments were effected out of the prescribed period. When faced with
the application to set aside the first suit, [P] again failed to apply for an extension of time to
enable the amendments to be effected. This raises the presumption that [P] failed to
comply with the rules of court. When the order striking out the first suit was made, [P] could
have appealed but failed to do so. [P] felt that they could circumvent the need to appeal by
instituting the second suit.”
C. STRIKING-OUT
[13.33] O18 r19 provides a discretion to the court to strike-out a pleading and
consequently order that the action be dismissed or judgment entered (as the case may
be) against the party whose pleading has been struck-out. This is an exceptional and
draconian power which allows the court to summarily bring an end to the proceedings.
However, this power is tempered by a curative discretion allowing the Court to order an
amendment of the pleading in circumstances where the pleading can be saved. The
manner in which these competing discretions should be exercised was explained in
Republic of Peru v Peruvian Guano Co82 where Chitty J observed that a pleading
will not be struck out:
“unless it is not only demurrable but something worse than demurrable”, that is, such that
no legitimate amendment can save it from being demurrable. If, notwithstanding defects in
the pleadings, which would have been fatal on a demurrer, the Court sees that a substantial
case is presented the court should, I think, decline to strike out that pleading; but when the
pleading discloses a case which the Court is satisfied will not succeed, then it should strike
out and put a summary end to the litigation.”
1. The principles
[13.34] The discretion to strike-out is only to be exercised in a plain and obvious case.
The principles were explained in Bandar Builder Sdn Bhd v UMBC Bhd83 where
Mohamed Dzaiddin SCJ (as he then was) said:
“The principles upon which the Court acts in exercising its power under any of the four
limbs of O18 r19(1) Rules of the High Court are well settled. It is only in plain and obvious
cases that recourse should be had to the summary process under this rule .. and this
summary procedure can only be adopted when it can be clearly seen that a claim or
82
(1887) 36 ChD 489
83
[1993] 3 MLJ 36

84
answer is on the face of it "obviously unsustainable" .. It cannot be exercised by a minute
examination of the documents and facts of the case, in order to see whether the party has
a cause of action or a defence .. [The court is] not concerned at this stage with the
respective merits of the claims. But what we have to consider is whether the [Statement of
Claim] discloses some cause of action and, likewise, whether the [Defence] raises a
reasonable defence. It has been said that so long as the pleadings disclose some cause of
action or raise some question fit to be decided by the judge, the mere fact that the case is
85
weak and not likely to succeed at the trial is no ground for the pleadings to be struck out.”
(emphasis added)
2. Delay
[13.35] Although the Rules allow the application to be made “at any stage of the
proceedings”, nonetheless in Blue Valley Plantation Bhd v Periasamy Kuppannan
& Ors86 Hishamudin Yunus JCA said:
“ .. we do not think that the words 'at any stage of the proceedings' should be literally
interpreted so as to mean that a party to a proceeding is at liberty to make the striking out
application at any time he wishes however so late. We take the view that as a general rule
the application must be made promptly and, in any event, it should not be allowed after a
87
very long delay, and all the more so where the long delay is unexplained.”
3. Election between O14 and O18 r19
[13.36] It is plain that P may resort to O18 r19 to strike-out a Defence and enter
judgment against him. However P, if he takes the view that D’s Defence is
unsustainable or a sham, could also resort to O14 to enter judgment against him. In
Mohd Azam Shuja v UMBC Bhd88 P applied to strike out the Defence or alternatively,
to enter summary judgment against D. The Court of Appeal, by a majority, held that P
ought to be put to election as which he application he intends to proceed with.
84
As correctly pointed in Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 2 CLJ 886 the
emphasis in not on the word "unsustainable" but rather on the word "obviously" - which means the claim of
defence must be plainly unsustainable in law. So for example, in Roslan Bin Abdullah v New Zealand
Insurance Co Ltd [1981] 2 MLJ 324, P obtained judgment against the driver and owner (O) of a truck that
had collided with his truck and caused him injuries. He subsequently brought a new action against D, an
insurance company, on the basis that D had insured the truck when it belonged to W, who had later sold it
to O. D applied to strike-out the claim on the premise that since the insurance policy was not novated to O,
it lapsed when the truck was sold to O. The Federal Court agreed that P’s claim against D was “obviously
unsustainable”.
85
In Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 2 MLJ 105, the Federal
Court said: “It cannot be gainsaid that under O18 r19 pleadings will only be struck out in plain and obvious
cases. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is
unlikely to succeed at the trial is no ground for striking out ..”
86
[2010] 4 CLJ 753
87
A similar point was previously made in Jamir Hassan v Kang Min [1992] 2 MLJ 46 where Haidar J (as
he then was) held that the application should be made promptly and as a rule before the close of the
pleadings. The court, however, may allow an application to be made even after the pleadings are closed
but such an application would generraly be refused after the action has been set down for trial.
88
[1995] 2 MLJ 851

In practice, O18 r19 tends to be the exclusive province of D to strike-out P’s claim,
there being no other provision in the RHC that allows D to do so.89
4. The 4 limbs
[13.37] Although the 4 limbs in O18 r19 are disjunctive, a party may rely on any or all
of them in his application to strike-out.90 A party who intends to rely on more than one
of the limbs may take-out one application provided he states precisely the limbs that
he is relying on.91 He is not permitted to take out different applications based on the
individuals limbs and present his case in installments.92
In Government of Malaysia v Dato' Chong Kok Lim93, D applied to strike out P's
statement of claim on certain grounds. That application was dismissed. Later, D took
out another application to strike out the action based on grounds different from those
relied upon in his earlier summons. It was held that D's second application was barred
by the doctrine of res judicata.
4.1 Limb (a)
[13.38] The basic principles governing this limb was explained in Zakaria Bin
Mohamed Esa v Dato Abdul Aziz Bin Ahmed & Ors94 where it was held that in
considering an application under this limb, no evidence is admissible95, the pleading
must be read as a whole, each paragraph must be viewed in relation with the others
and cannot be viewed in isolation and all the allegations in it should be assumed to be
true.
[13.39] A striking-out on the basis of limitation cannot be taken-out under limb (a).
This principle was explained in Goh Kiang Heng v Hj Mohd Ali bin Hj Abd Majid96
where Augustine Paul JC (as he then was) held that where there is a defence under
the Limitation Act, D can either plead that defence and seek the trial of a preliminary
issue or, in a very clear case, he can seek to strike out the claim on the ground that it
is frivolous, vexatious and an abuse of the process of the court and support his
application with evidence. But in no circumstances can he seek to strike out on the
ground that no cause of action is disclosed.97
89
That said, it is wrong to assume that O18 r19 has no value to P – see Dato’ Muhammad Shafee
Abdullah v Raja Petra Kamaruddin at Para 9.04.
90
Domnic Selvam v Kerajaan Malaysia & Ors [2006] 8 CLJ 114
91
In Sambu (M) Sdn Bhd v Stone World Sdn Bhd [1997] 1 CLJ 775, Malik Ishak J (as he then was)
said: “The word 'or' appears between (a), (b), (c) and (d) of O. 18 r. 19(1) of the RHC and in ordinary
usage the word 'or' is said to be disjunctive .. In my judgment, the second defendant when resorting to O.
18 r. 19(1) of the RHC must be very specific and must not cumulatively add (a), (b), (c), (d) together and
lump them as one as it would run counter to the explicit provisions of r. 19(2) of O. 18 of the RHC.” This
passage was approved by the Court of Appeal in Razshah Enterprise Sdn BHd v Arab Malaysian
Finance Bhd [2010] 2 CLJ 457.
92
See Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 CLJ 553
93
[1973] 2 MLJ 74
94
[1985] 2 MLJ 222
95
O18 r19(2)
96
[1998] 1 MLJ 615. See also Perwira Affin Bank Bhd v Ahmad bin Abdul Rahman [1999] 5 MLJ 306.
97
The English authorities are clear on this point. In Dismore v Milton [1938] 3 All ER 762, the English
Court of Appeal held that “where it appears from a statement of claim that the plaintiff’s cause of action

[13.40] An interesting example of the use of this limb is seen in 2 decisions

concerning suits issued against judges. In Indah Desa Saujana Corporation Sdn
Bhd v James Foong Cheng Yuen and subsequently in Hodan-R Sdn Bhd v Dato'
Mohd Hishamudin Hj Mohd Yunus, the courts struck-out suits brought against
judges for acts done in their judicial capacity pursuant to O18 r19(1)(a), (b) and (d)
based on s.14 CJA 196498 and the common law as set-out in Sirros v Moore99 where
Lord Denning MR said:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is
maintainable against a Judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him. The words which he speaks are protected by an absolute
privilege. The orders which he gives, and the sentences which he imposes, cannot be
made subject of civil proceedings against him. No matter that the Judge was under some
gross error or ignorance, or was actuated by envy, hatred and malice, and all
uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to
appeal to a Court of Appeal or to apply for habeas corpus, or a Writ of error or certiorari, or
take some step to reverse his ruling. Of course, if the Judge has accepted bribes or been in
the least degree corrupt, or has perverted the course of justice, he can be punished in the
Criminal Courts. That apart, however, a Judge is not liable to an action for damages. The
reason is not because the Judge has any privilege to make mistakes or to do wrong. It is so
that he should be able to do his duty with complete independence and free from fear .. He
should not have to turn the pages of his books with trembling fingers, asking himself: "If I do
this, shall I be liable in damages?".
So long as he does his work in the honest belief that it is within his jurisdiction, then he is
not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he
does may be outside his jurisdiction - in fact or in law - but so long as he honestly believes
it to be within his jurisdiction, he should not be liable .. Nothing will make him liable except it
be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.”
arose at a time before the period prescribed by the Statute of Limitations it is not possible for the
defendant to have the statement of claim struck out on the ground that it discloses no reasonable cause of
action .. It is because the plaintiff may be able to show that he is entitled to bring his action,
notwithstanding the expiration of the statutory period, by reason of one of the exceptions contained in the
Limitation Act …” This principle was applied in Ronex Properties Ltd v John Laing Construction Ltd
[1983] 1 QB 398 where Donaldson LJ said: “Authority apart, I would have thought that it was absurd to
contend that a writ or third party notice could be struck out as disclosing no cause of action, merely
because the defendant may have a defence under the Limitation Acts .. [It] is trite law that the English
Limitation Acts bar the remedy and not the right; and, furthermore, that they do not have this effect unless
and until pleaded. Even when pleaded they are subject to various exceptions, such as acknowledgment of
a debt or concealed fraud, which can be raised by way of reply .. The answer might well have been
different if [D] had relied upon any ground other than failure to disclose a reasonable cause of action, but
in that event all concerned could have adduced evidence and we would have been able to explore the
factual basis upon which it is said that the Limitation Acts do, or as the case may be do not, apply.”
98
No Judge or other person acting judicially shall be liable to be sued in any Civil Court for any act done
or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his
jurisdiction, nor shall any order for costs be made against him, provided that he at the time in good faith
believed himself to have jurisdiction to do or order the act complained of.
99
[1975] 1 QB 118

4.2 Limbs (b) and (c)
[13.41] As Raja Azlan Shah J (as he then was) observed in Malayan Banking Bhd v
Gan Kong Yam100 no precise legal definition can be found as yet as to the meaning of
‘frivolous or vexatious’ or ‘tending to delay the fair trial of the action’. These limbs are
subject to the overriding principle that the pleading must be “obviously
unsustainable”.101
4.3 Limb (d)
[13.42] The phrase ‘abuse of process’ is rather loosely used in practice. It’s precise
precise legal meaning was explained by Gopal Sri Ram JCA (as he then was) in Jasa
Keramat Sdn Bhd v Monatech (M) Sdn Bhd:102
“It is trite that a person who has a legitimate grievance may invoke the court's process to
obtain redress. But cases may arise where the true purpose for invoking the court's process
is something other than to obtain a remedy provided by law. It may be to oppress a
defendant. Or it may be to apply pressure upon him which the law regards as illegitimate.
Or it may be to merely commence an action and let it hang over the head of the defendant
with no intention of bringing it to a conclusion .. Or the plaintiff having commenced an
action may take steps to discontinue it after the defendant has become dominis litis,
thereby preventing the defendant from obtaining vindication through a judgment of the
court. In the last instance, the court will refuse to permit discontinuance, or if a notice of
discontinuance has been filed, will set it aside and direct the action to proceed .. Since the
circumstances in which the court's process may be abused are varied and numerous, the
categories of such cases are therefore not closed. Whether the institution of an action or its
continuation or a step taken therein amounts to an abuse of process depends upon
particular and individual circumstances. Where an action is found to be an abuse of the
court's process, it may be struck out or stayed. If it is too late to do this, the party aggrieved
103
may bring an action based upon the tort of abuse of process.” (emphasis added)
This case, which Gopal Sri Ram JCA described as “one of the worst cases of an abuse
of the process I had ever come across” is an excellent illustration of the application of
the principle. P was a housing developer. On 1.6.1994, it entered into an agreement
with D1, whereby D1 was to carry out certain infrastructure work for a project in Kedah.
D2 was a consultant engineer and the managing director of D1. According to P’s
statement of claim, D2 was the alter ego of D1.
100
[1972] 1 MLJ 32
101
In Lee Yoke San v Tong Lee Hwa & Anor [1978] 2 MLJ 112 Abdul Hamid J (as then was) struck-out
a defence on the principle in Remington v Scoles [1897] 2 Ch 1 - where D delivered a defence in which
he either denied or refused to admit each of the allegations in the statement of claim but set up no case of
his own the court may, in the circumstances of the case, find the defence to be frivolous and vexatious
and one which ought to be struck out as being an abuse of the procedure of the court.
102
[1999] 4 CLJ 533
103
In Goldsmith v Sperrings Ltd & Ors [1977] 1 WLR 478 Lord Denning MR said: “In a civilised society,
legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused.
It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It
is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert
pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law.
The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm
is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.”

Disputes arose over certain payments which D1 claimed was due to it. The agreement
contained an arbitration clause. The parties accordingly referred their dispute an
arbitrator on 9.10.1997. On 1.6.1998, while the arbitration was a foot, D1 took out an
OS in the Penang High Court (1st Action) and obtained an ex parte Mareva injunction
freezing the contractual retention sum in the hands of P.104 On 24.6.1998, P objected
to the arbitrator conducting the arbitration on the ground of bias. The objection failed. P
then took out an OS (2nd Action) on 7.7.1998 in the Penang High Court and obtained
an ex parte injunction restraining the arbitrator from proceeding with the arbitration.
At the hearing of the 1st Action on 20.7.1998, the parties entered into a consent order
whereby P was to pay the retention sum amounting to RM575,000 into an account in
the joint names of the parties' respective solicitors pending the resolution of the dispute
between them. On 27.8.1998, P issued a writ against D1 and D2 (3rd Action) in the
Shah Alam High Court. This was a peculiar choice of venue. As Gopal Sri Ram JCA
explained:
“In my view, if the third action was necessary at all; and I use the expression "if necessary"
advisedly; it ought to have been instituted in the branch of the High Court in Malaya at
Penang as that would have been the convenient forum. After all, the branch of the High
Court in that State was already seised of the first and second actions and would therefore
have been in a far better position to deal with the third action as it was already advised of
the nature of the dispute between the parties. In my judgment, the learned judge in the
court at Shah Alam, by reason of history of the prior litigation between the parties before it,
ought not to have entertained the third action. Instead, he ought to have referred the matter
to the Honourable, the Chief judge of Malaya for the latter's directions under s. 20 of the
Courts of Judicature Act 1964, on the transfer of the third action to Penang.”
On the very day the writ was issued, P took out an application for an injunction
restraining all proceedings in the 1st and 2nd Actions and an order directing that the
sum of RM575,000 held in the joint account to be forthwith paid out to P upon service
of the ex parte order. The summons, although returnable inter partes, was, for some
“inexplicable reason”, heard ex-parte on the same day and the order was granted.
Later, D1 and D2 took out an application to have the 3rd Action struck out as an abuse
of process. The application was dismissed by the High Court. In allowing the appeal,
Gopal Sri Ram JCA said:
“.. I am driven to the conclusion that [P] plainly abused the process of the court not only in
instituting the third action but in the steps it took therein. There are several matters when
taken together reasonably support that conclusion.
First, it is clear that if [P] was genuinely unhappy with the conduct of the arbitrator, it could
105
have pursued the remedy made available by s. 24(1) of the Arbitration Act 1952. That
provision enables the High Court to remove an arbitrator who has misconducted himself ..
[D1 and D2] would be entitled to appear and be heard upon such an application. Here, [P]
bypassed the procedure established by law by commencing the third action.
104
An arbitrator does not have jurisdiction to grant injunctive relief – s.11 Arbitration Act 2005.
105
The position is now governed by ss.14 & 15 of the Arbitration Act 2005.

Second, [P] having obtained an order before the High Court at Penang in the second action
prohibiting the arbitrator from adjudicating upon the dispute in question, obtained a further
ex parte injunction in the third action restraining all proceedings in the second action. This
bound [D1 and D2] hand and foot. They found themselves in the unenviable position of
being unable to apply for a discharge of the restraining order obtained by [P] in the second
action. The arbitration proceedings were truncated without a single shot being fired in reply.
The conduct of [P] was, to say the least, entirely unconscionable in all the circumstances of
the case. In my view, there can hardly be a clearer case where injunctive relief has been
used as an instrument of oppression.
Third, [P] having entered into a consent order in the first action that the retention monies
should be placed in a joint account, nullified that order with a stroke of a pen. This it did by
obtaining the further ex parte order in the third action whereby the retention monies were to
be released to it. By so doing, it bypassed the need for an inter partes application in the first
action to have the consent order vacated. Had such an application been made, [D1 and D2]
would most certainly have had an opportunity to appear and oppose it. And [P] having
entered into the consent order with open eyes, would have found it most difficult to
surmount the obstacles that lay in its path in having that order set aside, especially since it
was to the practical advantage to both parties.
Fourth, [P] obtained orders in the third action that had the effect of staying the first and
second action in the hands of the Penang High Court. This is a clear intrusion by one
branch of the High Court into the conduct of proceedings that were plainly within the control
and supervision of another branch .. I am unable to escape the conclusion in the present
case that the orders granted in the third action, on their proper construction, in substance
have the effect of interfering with the power and jurisdiction of the High Court at Penang.
Particularly is this so in the case of the order that directs the payment out to [P] of the
retention monies in violation of the consent order in the first action. It is an order that is
permanent and not merely temporary in effect.
Lastly, there is the matter of the change in the forum .. There is no good reason [P] to have
approached the High Court at Shah Alam by way of the third action. It was aware of the first
and second actions that were pending before the Penang High Court. The manner in which
the approach was made to the High Court at Shah Alam smacks of an abuse.
For the reasons already given .. The third action was ordered to be struck out. All orders
made therein were set aside. It was also ordered that the costs of the appeal and those in
the court below be taxed on a solicitor client indemnity basis and that these be paid
forthwith to [D1 and D2]. I realise that such an order for costs is not ordinarily made. It is
usually reserved, in the discretion of this court, for the most exceptional of cases. Having
regard to the conduct of [P], the present appeal is indeed such a case.”

[13.43] A further example is found in Ansa Teknik (M) Sdn Bhd v Cygal Sdn
Bhd.106 P filed an action on 6.10.1986 for a debt allegedly due. D delivered its defence.
P then took-out an O14 application, which was dismissed. P did not appeal but instead
filed a notice of discontinuance without leave of the court contrary to O21 r2(1).
Subsequently, P sent a notice pursuant to s.218 of the Companies Act 1965 and
thereafter presented a Winding-up petition. D took-out an application to have the
petition struck-out.107 LC Vohrah said:
“ .. that there was a bona fide dispute as to the amount that was owing to the petitioner.
That dispute was the subject of the civil suit, which had not been properly discontinued ..
for want of leave of the court under O 21 r 2(1) so that the civil suit could be considered as
still pending between the parties .. the filing of the notice of discontinuance and the
subsequent presentation of the winding-up petition were all acts calculated to circumvent
the normal course of going to trial after the dismissal of the application for summary
judgment under O 14 and to embarrass [D]. In the circumstances I considered the
presentation of the winding-up proceedings as an abuse of the process of the court and I
accordingly [ordered] that the petition be struck out ..”
Res Judicata
[13.44] An action filed in defiance of the res judicata doctrine may be struck-out as an
abuse of process. The principle was explained by Peh Swee Chin FCJ in Asia
Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd108:
“What is res judicata? It simply means a matter adjudged, and its significance lies in its
effect of creating an estoppel per rem judicatum. When a matter between two parties has
been adjudicated by a court of competent jurisdiction, the parties and their privies are not
permitted to litigate once more the res judicata, because the judgment becomes the truth
between such parties .. The public policy of the law is that, it is in the public interest that
there should be finality in litigation .. It is only just that no one ought to be vexed twice for
the same cause of action — nemo debet bis vexari pro eadem causa. Both maxims are the
rationales for the doctrine of res judicata, but the earlier maxim has the further elevated
status of a question of public policy.
[T]here are in fact two kinds of estoppel per rem judicatum. The first type relates to cause
of action estoppel and the second, to issue estoppel .. The cause of action estoppel arises
when rights or liabilities involving a particular right to take a particular action in court for a
particular remedy are determined in a final judgment and such right of action, ie the cause
of action, merges into the said final judgment .. The said cause of action may not be
109
relitigated between the same parties because it is res judicata.
106
[1989] 2 MLJ 423
107
O18 r19(3) provides that the rule applies to a petition which must include a winding-up petition - see
NKM Development Sdn Bhd v Irex Sdn Bhd [1988] 1 CLJ 65
108
[1995] 3 MLJ 189.
109
In Wong Peng Yan Benjamin v Genting Bhd & Anor [1993] 3 MLJ 713 the High Court held that
having sued the agent, P’s suit against the principal for the same transaction was barred by res judicata
th
based on the following passage from Chitty on Contracts (25 Edn): “Where the agent, having made a
contract in such terms that he is personally liable, has been sued on it to judgment, it appears that no
action is maintainable against the principal on the same contract.”

In order to prevent multiplicity of action and also in order to protect the underlying rationales
of estoppel per rem judicatum .. such estoppel of cause of action has been extended to all
other causes of action (based on the same facts or issues) which should have been
litigated or asserted in the original earlier action resulting in the final judgment, and which
were not, either deliberately or due to inadvertence.
.. On the other hand, the issue estoppel literally means simply an issue which a party is
estopped from raising in a subsequent proceeding. However, the issue estoppel .. means in
law a lot more, ie that neither of the same parties or their privies in a subsequent
proceeding is entitled to challenge the correctness of the decision of a previous final
judgment in which they, or their privies, were parties .. the corollary being that neither of
such parties will be allowed to adduce evidence or advance any argument to contradict
110
such decision.
.. in Superintendent of Pudu Prison v Sim Kie Chong [1986] 1 MLJ 494 at p 498,
Abdoolcader SCJ held to the effect that the court has the inherent jurisdiction to dismiss an
action by applying the doctrine of res judicata against a party even if it has not been
pleaded. We venture to think the reason for the ratio is that an estoppel or exclusion of
evidence based on a question of public policy .. that there should be finality in litigation, is
more vigorous in excluding evidence and need not be pleaded, unlike an ordinary estoppel
which should be pleaded.”
[13.45] The wider application of res judicata was explained by Sharma J in Dato'
Chong Kok Lim:111
“A decision given by a court at one stage on a particular matter or issue is binding on it at a

later stage in the same suit or in a subsequent suit .. Parties cannot raise a second time in
the same suit an issue that has already been determined either expressly or by necessary
implication .. A matter which might and ought to have been made a ground of attack or
defence in the former application but which was not alleged as such a ground of attack or
defence is for the purposes of the plea of res judicata deemed to have been a matter
directly and substantially in issue in the former application, that is to say, though it may not
have been actually directly and substantially in issue it is still regarded as, having been
constructively, directly and substantially in issue. There can be no distinction between a
claim that was actually made and a claim which might and ought to have been made. The
plea of res judicata applies, except in special cases, not only to points on which the court
was actually required by the parties to form an opinion and to pronounce its judgment
thereupon but to every point which properly belonged to the subject of litigation and which
the parties exercising reasonable diligence might have, brought forward at the time. It is
only where the plea which is sought to be raised in the subsequent proceedings was not
available to the party at the time of the previous proceedings that the decision cannot be
constructively res judicata. The rule of constructive res judicata is really a rule of estoppel.
The question now raised has already been heard and finally decided. It constitutes but a
part of the prayer in the former application. It was not collaterally or incidentally but directly
and substantially in issue when [the application] was heard and decided. The answer to the
matter is simple. The defendant's only remedy was by way of an appeal against the
decision of [the Judge]. The matter was heard on merits and finally decided. It is not
capable of re-adjudication by the same court in the same suit .. If a decision has been given
110
As Peter Gibson J (as he then was) succinctly put in Lawlor v Gray [1984] 3 All ER 345: “Issue
estoppel .. prevents contradiction of a previous determination, whereas cause of action estoppel prevents
reassertion of the cause of action.”
111
supra, Para 13.35

with respect to a matter or part of a matter in controversy between the parties by a court of
competent jurisdiction it remains binding in the subsequent stages of the same proceedings
in the same court and cannot be re-opened in that court. In my view an erroneous decision
irrespective of whether it is on a question of law or fact operates as res judicata between
the parties to it. The correctness or otherwise of a judicial decision seems to have no
bearing upon the question whether it operates as res judicata or not. Until that decision is
reversed or set aside on appeal its finality and binding force remain operative on the
112
parties.”
In Prorak113 judgment was entered against D when his counsel failed to attend the
trial. Later that day, the suit was called up again when D’s counsel appeared. He orally
applied to have the judgment set-aside. P consented but the judge directed D to make
a written application. D did so. When that application came up for hearing, D’s counsel
was absent again. So the judge dismissed the application. D applied to reinstate the
application, but the application was dismissed114 and the resultant appeal was also
dismissed.
D then took-out a 2nd application to set-aside the judgment on the ground that the
judgment was irregular. The question before the Court of Appeal was whether D could
take out a 2nd application for the same relief. D argued that he could as he was relying
on a different ground from that relied on in the 1st application. Gopal Sri Ram JCA (as
he then was) said:
“In our judgment, the doctrine of res judicata in its wider sense provides a complete answer
to counsel's submission. It is sometimes referred to as "constructive res judicata" "issue
estoppel" or "cause of action estoppel", depending upon the particular subject matter to
which it is to be applied. It is a doctrine of great antiquity and reflects the role of equity in
the field of adjectival law .. it was certainly open to [D] to ground its first application on the
basis that the default judgment was irregular for the reasons we have set out earlier in this
judgment. It was therefore an issue which properly belonged to the first application. But it
chose not to rely upon that ground. Once the first application was dismissed, it was not
open to [D] to make a second application to set aside the judgment on a different ground. It
would, as Haidar JCA, observed during the course of [counsel’s] argument, amount to
presenting one's case in installments. That is something the law does not permit.”
112
The principle covers all issues which might have been and which were litigated, though not actually
decided by the court. As Wigram VC explained in Henderson v Henderson (1843) 3 Hare 100: “The plea
of res judicata applies, except in special cases, not only to points upon which the court was actually
required by the parties to form an opinion and pronounce a judgment, but to every point which properly
belonged to the subject of litigation and which the parties, exercising reasonable diligence might have
brought forward at the time.” The point was emphasized by Somervell LJ in Greenhalgh v Mallard [1947]
2 All ER 255: “.. res judicata for this purpose is not confined to the issues which the court is actually asked
to decide, but … it covers issues or facts which are so clearly part of the subject matter of the litigation
and so clearly could have been raised that it would be an abuse of the process of the court to allow a new
proceeding to be started in respect of them.”
113
supra fn 81.
114
As Gopal Sri Ram JCA (as he then was) explained, the application was hopelessly out of order since
there was nothing to reinstate. The application had not been merely struck out, in which event an
application to reinstate it for hearing would be the correct procedural step. It had been dismissed. In other
words, it had been finally disposed of and was therefore at an end. If D was unhappy with the dismissal, it
ought to have appealed against that order. It was therefore not surprising that the judge dismissed the
application.

[13.46] In Joseph Paulus Lantip & Ors v Unilever Plc115 P sued 4 defendant
companies. In 1995, P accepted D4’s offer for a joint venture of D4’s business.
Pursuant thereto, P entered into 2 agreements to regulate the JV: (i) a shareholder
agreement with D1, D2 and D3 and (ii) a share sale agreement with D1. Disputes then
arose which resulted in P issuing proceedings against the defendants for breach of
contract, misrepresentation and tort of conspiracy to defraud. D1 and D2 were both
private limited companies registered in Malaysia. D3 and D4 were incorporated and
had their registered address in England. P obtained leave, pursuant to O11, to serve
the concurrent writs and the notice of writs out of jurisdiction against D3 and D4, who
were duly served. D4 applied to set-aside the leave under O12 r7 on the ground that P
had failed to demonstrate a prima facie case against it pursuant to O11 r4(1). The
application was dismissed by the High Court. Thereafter, D4 took out a striking out
application under O18 r19(b) or (d). The application was dismissed by the High Court
but the Court of Appeal allowed the appeal. P appealed to the Federal Court.
The crux of the appeal was whether the test under O18 r19 was similar to the test
under O11 r4(1)?116 Ariffin Zakaria CJ said:
“O. 18 r. 19(1) .. involves a different exercise from that of O. 11 .. In the latter case, the
court merely considers whether it could exercise jurisdiction over the 4th defendant.
Whereas, in the O. 18 r. 19(1) of the RHC application, the court needs to consider whether
or not, on the merits, the plaintiffs' claim is sustainable, vexatious or otherwise an abuse of
the process of court. In the present case, when the High Court heard the 4th defendant's
application under O. 12 r. 7 of the RHC, it had examined and adjudicated on the issue of
whether the plaintiffs' claim, assuming it to be true, would attach liability against the 4th
defendant and that liability is within the territorial jurisdiction of the court. At that stage, the
court did not examine and adjudicate on the merits of the claim. The learned Judge in
dismissing the 4th defendant's application merely considered the plaintiffs' allegation as
pleaded without the benefit of the 4th defendant's counter allegations as found in the
affidavit supporting the 4th defendant's application under O. 18 r. 19(1) of the RHC.”
This reasoning is somewhat strained. In an O11 application, the court must be

satisfied that P has a “good cause of action” or a "good arguable case."117 This is, of
course, an ex parte application. However D4’s application, inter partes, to set-aside the
O11 leave was dismissed. That must mean that the court was satisfied that P had met
that threshold. Shouldn’t D4 be estopped, by the res judicata doctrine, from arguing
that P’s case is “obviously unsustainable” since this test is substantially similar to the
O11 test?
115
[2012] 7 CLJ 693
116
The leave question was as follows: “Whether the doctrine of res judicata applies to bar an application
under Order 18 Rule 19 where an application under Order 11 of the Rules of the High Court is dismissed
on similar grounds?”
117
In Seaconsar Far East Ltd v. Bank Markazi Jomhouri Islami Iran [1993] 4 All ER 456, Lord Goff of
Chieveley approved the speech of Lord Davey, who said: “… the court is not, on an application for leave
to serve out of the jurisdiction, or on a motion made to discharge an order for such service, called upon to
try the action or express a premature opinion on its merits .. But I think that the application should be
supported by an affidavit stating facts which, if proved, would be a sufficient foundation for the alleged
cause of action .. If the court is judicially satisfied that the alleged facts, if proved, will not support the
action, I think the court ought to say so, and dismiss the application or discharge the order.”

[13.47] In Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul
Makmur & Anor118 P obtained judgment against D on 25.5.2007 for a sum of
RM37,127,471.60. The Court of Appeal dismissed D’s appeal on the ground that the
Record of Appeal was not filed on time. Subsequently, D initiated a fresh action to
impeach and set-aside the judgment on the premise that the judgment was entered
into as a result of fraud or perjured evidence by P’s witness (based on fresh evidence
which could not have been obtained and adduced at the earlier trial). The basis of Ds’
claim was set-out in paras 22–29 of the Statement of Claim. After delivering its
Defence, P applied, under O18 r19, to strike-out paras 22–29 of the Statement of
Claim based on the doctrine of res judicata. The Federal Court held:
(i) s.44 of the Evidence Act 1950 recognises P’s cause of action as an exception
to the doctrine of res judicata in s.40;
(ii) the fraud of which s.44 speaks refers to an actual fraud and not constructive
fraud119;
(iii) the question of whether s.44 refers to intrinsic or extrinsic fraud should only be
determined at trial; and
(iv) reiterated the Bandar Builder test. Ramly Ali FCJ said:
“[28] The basic test for striking out as laid down by the Supreme Court in Bandar
Builder is that the claim on the face of it must be ‘obviously unsustainable’. The stress
is not only on the word ‘unsustainable’ but also on the word ‘obviously’ ie the degree of
unsustainability must appear on the face of the claim without having to go into lengthy
and mature consideration in detail. If one has to go into lengthy and mature
consideration in detail of the issues of law and/or fact, then the matter is not appropriate
to be struck out summarily. It must be determined at trial. [29] The established rule on
this point is that the court should not examine the evidence in this summary
proceedings in such a way as to amount to conducting a trial on the conflicting affidavit
120
evidence .. [32] The impeachment action must be by way a fresh action, not in the
same action where the impugned earlier judgment was made ..”
118
[2016] 3 MLJ 1
119
Ramly Ali FCJ said: “.. ie fraud practised by the other side must have prevented the respondents from
placing their case before the court. The fraud must be actual positive fraud, a meditated and intentional
contrivance to keep the parties and the court in ignorance of the decree by the contrivance ..The earlier
judgment cannot be impeached or set aside on a mere general allegation of fraud. It must be shown with
sufficient details how, when, where and in what way the alleged fraud was committed.”
120
In American Cyanamid Co v Ethicon Ltd [1975] AC 396, Lord Diplock said: “… The court no doubt
must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious
question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve
conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor
to decide difficult questions of law which call for detailed argument and mature considerations. These are
matters to be dealt with at the trial ..” This passage was cited with approval by the Privy Council in Eng
Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212.

[13.48] The facts of Ibig@David Rampas & Anor v Terisah Bahan & Ors121, for
present purposes, is confined within a narrow compass. P1 – P4 and 2 others claimed
they were 100% registered shareholders of a company, P5. However, the records
showed that D1 and D2 were the only shareholders of P5. In an action brought by P5,
a default judgment dated 27.4.2010 was entered whereby D1 & D2 were declared as
the lawful shareholders and directors of P5 (“JID”). Subsequently, P1 – P5 issued
proceedings seeking a declaration that P1 – P4 are the lawful owners of the shares of
P5 and that D1 & D2 do not have any interest whatsoever in P5. In the Court of
Appeal, D1 & D2 argued that the issue of whether they were the shareholders of P5 is
res judicata based on the JID. P1 – P4 however argued that the JID was not binding
on them as they were not parties to it and in any event, the JID was not a judgment on
the merits. The Court of Appeal agreed with D1 & D2. Zaleha Yusof JCA said:
“[20] .. it is trite that a judgment, albeit a default judgment, shall remain valid until it is set
122
aside .. [22] By arguing that the [JID] is irregular and defective, [P1 – P4] seem to now
trying to challenge it in this action .. [23] Based on [Badiaddin] it is clearly wrong for [P1 –
P4] to now trying (sic) to challenge the said judgment in this action by arguing that it is
irregular and defective. They should have applied to set it aside in its original action .. [24] ..
[P5], being a party to [the JID], is therefore obviously bound by it. Consequently, we opine
that since the [P5] itself is bound by the judgment, the [High Court] ought not to have
granted any order which is inconsistent with that judgment. [25] Although [P1 – P4] were not
parties to the [JID] but nevertheless they had notice of the said judgment and for some five
months prior to the filing of the present action, [P1 – P4] failed to intervene and set aside the
said judgment. The failure of [P1 – P4] to set aside the said judgment, in our view, is fatal to
their claim herein. [31] By [the JID] .. we are of the view that the matter before us now is
123
clearly res judicata. ”
Ravindran Shanmuganathan ∗
121
[2016] 4 MLJ 682
122
In Puah Bee Hong & Anor v Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur &
Anor (Teo Keng Tuan Robert, Intervener) and another appeal [1994] 2 MLJ 601, the Supreme Court
said: “We are of the considered view that an order of a superior court such as the High Court, even if it is
eg, an order obtained ex parte or a default judgement; until it is set aside, must be obeyed by everyone
whether its validity is challenged or not, and ‘it is the plain and unqualified obligation of every person
against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and
until the order is discharged’, per Romer LJ in Hadkinson v Hadkinson .”
123 nd
In The Doctrine of Res Judicata (2 Ed) the learned author says: “ A judgment or order by default is
prima facie just as much a judicial decision in favour of the plaintiff as any other judgment or order,
whether the default of the defendant was in appearance to the writ, or in pleading, or in appearance at the
trial or hearing, or in prosecution of, or resistance to, an appeal .. In Ker v Williams (1885) 29 Sol Jo 681
CA, the dismissal of an action on default of appearance at the trial was held to be a “judgment” which
operated as an estoppel to the plaintiff .. For res judicata, the parties need not be the same. It had been
so held in North West Water Ltd. V Binnie & Partners (a firm) that: “Where an issue had for all practical
purposes been decided in a court of competent jurisdiction the court would not allow that the issue to be
raised in separate proceedings between different parties arising out of identical facts and dependent on
the same evidence, since not only was the party seeking to relitigate the issue prevented from doing so by
issue estoppel but it would be an abuse of process of allow the issue to be relitigated. It followed that
since the issue of negligence had already been determined against the consultant engineers in the first
action they were estopped from denying negligence and further it would be an abuse of process if they
were to be permitted to deny negligence. Their defence denying negligence would accordingly be struck
out.”
∗
The views expressed herein are my own, as are all the mistakes. I welcome comments and may be
contacted at ravi@sreeneyoung.com.


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[13] Pleadings, Amendment & Striking-Out

1. The Basic Pleadings

2. Parties are bound by their pleadings

4. An unpleaded point that is raised and argued

2. Post limitation amendment

3. Election between O14 and O18 r19

Ravindran on Civil Procedure (2018) 1

[13.01] The function of pleadings is neatly summed up in the following passage in

1. The Basic Pleadings2

Ravindran on Civil Procedure (2018) 2

2. Parties are bound by their pleadings

[13.04] In Janagi v Ong Boon Kiat10, Sharma J said:

Ravindran on Civil Procedure (2018) 3

In Saiman Umar v Lembaga Pertubuhan Peladang17 P issued proceedings against

P, in para 22 of the Statement of Claim, pleaded: “Plaintif menyatakan bahawa

Ravindran on Civil Procedure (2018) 4

Ravindran on Civil Procedure (2018) 5

Ravindran on Civil Procedure (2018) 6

2.2 Nuisance and/or negligence

2.3 Fraud and forgery

Ravindran on Civil Procedure (2018) 7

2.4 Legal Consequence

[13.09] A party is only required to provide “a statement in a summary form of the

Ravindran on Civil Procedure (2018) 8

2.5 Contributory Negligence

Ravindran on Civil Procedure (2018) 9

Ravindran on Civil Procedure (2018) 10

Ravindran on Civil Procedure (2018) 11

2. An unpleaded point that is raised and argued

Ravindran on Civil Procedure (2018) 12

[13.15] The rules of procedure distinguish between amendments by agreement,

(i) whether the application is bona fide;

Ravindran on Civil Procedure (2018) 13

[13.16] It is critical to remember that the court exercises a discretion when

Ravindran on Civil Procedure (2018) 14

Ravindran on Civil Procedure (2018) 15

Zulkefli CJ (Malaya) said:

Ravindran on Civil Procedure (2018) 16

1.3 Bona fide

Ravindran on Civil Procedure (2018) 17

1.4 Changing the character of the suit

1.5 To include a subsequent cause of action

Ravindran on Civil Procedure (2018) 18

1.6 Withdrawing an admission

[13.23] An admission made inadvertently may be withdrawn and the pleading

1.7 Including a Counterclaim

[13.24] Whilst O15 r2 requires a Counterclaim to be added to the Defence, O20 is

[13.25] In Alloy Consolidated Sdn Bhd v Dato’ Hj Adam Harun67 D applied to

Ravindran on Civil Procedure (2018) 19

2. Post limitation amendment

2.1 Paragraph (3)

[13.28] In Lim Yong Swan (supra), Yong Pung How CJ said:

Ravindran on Civil Procedure (2018) 20

2.2 Paragraph (4)

[13.29] In Lim Yong Swan (supra), Yong Pung How CJ said:

Ravindran on Civil Procedure (2018) 21

2.3 Paragraph (5)