LAW 601: CIVIL PROCEDURE 1

PARTIES
PREPARED BY:
RIZWANA BINTI ROSLAN (2016239334)
CLASS : LWH07K
PREPARED FOR : PROF MADYA DR. WAN LIZA BT. MD AMIN
 POH CHEE LENG & ANOR v. CHEAH SIEW HUEN &
ANOR[2019] 1 LNS 1226
AND
Welsh Ministers v Price and another [2017] EWCA Civ
1768
POH CHEE LENG & ANOR v. CHEAH SIEW HUEN & ANOR[2019] 1 LNS 1226
FACTS OF THE CASE:
This is an application by the Plaintiff under Order 15, 18 and 20 of the Rules of Court 2012
("ROC 2012") dated 04 January 2019 (enclosure 35) seeking leave to amend the Writ and the
Statement of Claim dated 02 September 2018 and to join the Third, Fourth, Fifth and Sixth
Defendants as additional Defendants.
THE LAW ON JOINDER OF PARTIES AND AMENDMENT OF PLEADING IN
MALAYSIA

Order 15 Rule 6(2) Rules of Court 2012 which states the following :
Misjoinder and non-joinder of parties
(2) Subject to this rule, at any stage of the proceedings in any cause or
matter, the court may on such terms as it thinks just and either of its own
motion or on application -
(a) order any person who has been improperly or unnecessary made a party
or who has for any reason ceased to be a proper or necessary party, to cease
to be a party;
Con..
(b) order any of the following persons to be added as a party, namely-
(i) any person who ought to have been joined as a party or whose presence
before the Court is necessary to ensure that all matters in dispute in the
cause or matter may be effectually and completely determined and
adjudicated upon; or
(ii) any person between whom and any party to the cause or matter there may
exist a question or issue
arising out of or relating to or connected with any relief or remedy claimed in
the cause or matter which, in the opinion of the Court, would be just and
convenient to determine as between him and that party as well as between the
parties to the cause or matter.
Issues in the case:
1) Whether the amendments would not in effect turn the
suit from one character into a suit of another
and inconsistent character?
2) Whether the application was made bona fide?
Order 20 Rule 5 Rules of Court 2012 the following :
5. Amendment of writ or pleading with leave

(1) Subject to Order 15, rules 6, BA, 7 and 8 and the following provisions of this rule, the
Court may at any stage of the proceedings allow the plaintiff to amend his writ or any
party to amend his pleading, on such terms as to costs or otherwise as may be just and in
such a manner, if any, as it may direct.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the
effect of the amendment will be to add or substitute a new cause of action if
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 action by the party applying for leave to make the
amendment.
Refer to the case of Yamaha Motor Ltd V Yamaha (M) Sdn Bhd and Hong
Leong Finance v. Low Thiam Hoe [2015] 8 CLJ 1 there are three main criteria to
be satisfied before leave to amend
would be granted, namely :
(a) Whether the application was made bona fide;
(b) Whether the prejudice caused to the other side can be compensated by
costs; and
(c) Whether the amendments would not in effect turn the suit from one
character into a suit of
another and inconsistent character.
Application
In this case, The transfer of the said Land by the First and Second Defendant to
the Defendant was void as it was effected and registered ultra vires and/or in
breach of the provisions in the National Land Code.
Conclusion of the court:

(a) The Amendment and Joinder Application if allowed, would change the suit
from one character into a suit of another and inconsistent character;
(b) The Amendment and Joinder Application is not Bona Fide and amounts to
abuse of process of the Court; and
Welsh Ministers v Price and Another [2017] EWCA Civ 1768

Facts of the case:

By an application notice dated 12 November 2015 the Welsh Ministers applied to be joined
as a party to the proceedings pursuant to CPR 19.2 and 19.4(2)(b). It also sought a
declaration that the Restoration Order and the Variation Order were properly made, and
the assignment of the Photograph to Media was valid and effective; or alternatively, an
order that the Restoration Order and the Variation Order be revoked, a declaration that
the purported restoration of Pablo Star to the Register of Companies was invalid and of no
effect, and a further declaration that the assignment was invalid and of no effect and that
ownership of the copyright in the Photograph remains vested in the Crown.
THE LAW ON JOINDER OF PARTIES AND AMENDMENT OF PLEADING IN
UNITED KINGDOM :

Civil Procedure Rules 1998, 19.2(2) provided:

‘The court may order a person to be added as a new party if—
(a) it is desirable to add the new party so that the court can resolve all the
matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is
connected to the matters in dispute in the proceedings, and it is desirable
to add the new party so that the court can resolve that issue.’
CPR 19.2 confers a discretion on the court to join a party if the conditions in
19.2(2)(a) or (b) are satisfied.

The conditions in CPR 19.2(2)(a) are that (1) the new party can assist the
court to resolve all the matters in dispute in the proceedings, and (2) it is
desirable to add the new party to achieve that end.
Conclusion of the court:
As I have made clear, in an appropriate case, where it is desirable for the
purposes of CPR 19.2(2) and consistent with the overriding objective, there
is jurisdiction to permit a third party to be joined to bring such matters
before the court.
DIFFERENCE BETWEEN MALAYSIAN AND UK LAW REGARDING JOINDER
OF PARTIES:

1) In Malaysia, the parties that can be made joinder parties is either as

defendant and plaintiff. This can be seen in O. 15 r. 4(2) and O. 15 r.
4(3). While in UK, the joinder of parties can be more than just
defendant and plaintiff.
2) The second difference is the cause of action of joined parties. In
Malaysia, if the parties wished to apply in including joined parties, the
joined must be proved to have the same caused of action.