ROGER LIM KONG FAI KOEK TIANG KUNG

ROGER LIM KONG FAI KOEK TIANG KUNG

Amendment of writ, statement of claim and a judgment in default of appearance to substitute a differently named individual with a different identification number is a material alteration and not a clerical/accidental slip under O 20 r 11 ROC; the sessions court erred in permitting such amendment without affording the substituted person the right to be heard and accordingly the amendment and resultant order were set aside and the appeal allowed.

Citation
BA-12ANCC-18-03/2021 (Mahkamah Tinggi)
Parties
Appellant/defendant: Lim Kong Fai; Respondent/plaintiff: Koek Tiang Kung
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 April 2022
Case Number
BA-12ANCC-18-03/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Appeal From Sessions Court Concerning Amendment of Writ, Statement of Claim and Judgment in Default of Appearance
Outcome
Appeal allowed; order of Sessions Court to amend writ, statement of claim and judgment in default of appearance set aside.
Legal Topics
Amendment of Pleading and Judgment, Judgment in Default of Appearance, Misnomer and Identity of Defendant, Natural Justice and Right to Be Heard, Rules of Court 2012 Interpretation
Source Language
Malay/English
Civil Procedure Commercial Debt Recovery Enforcement of Judgment Amendment of Pleading and Judgment Judgment in Default of Appearance Misnomer and Identity of Defendant Natural Justice and Right to Be Heard Rules of Court 2012 Interpretation

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Parties

Lim Kong Fai

Appellant/defendant

Koek Tiang Kung

Respondent/plaintiff

Procedural Posture

Civil Appeal / Appeal From Sessions Court Concerning Amendment of Writ, Statement of Claim and Judgment in Default of Appearance

Legal Issues

  1. 1 Whether amendment under O 20 r 11 ROC can be used to change the defendant named in the writ and in a judgment in default of appearance
  2. 2 Whether a change of name and identification number constitutes a clerical/accidental mistake or a material alteration requiring fresh proceedings
  3. 3 Whether the sessions court erred in allowing amendment without affording the substituted defendant the right to be heard

Ratio Decidendi

Amendment of writ, statement of claim and a judgment in default of appearance to substitute a differently named individual with a different identification number is a material alteration and not a clerical/accidental slip under O 20 r 11 ROC; the sessions court erred in permitting such amendment without affording the substituted person the right to be heard and accordingly the amendment and resultant order were set aside and the appeal allowed.

Court Disposition

Appeal allowed; order of Sessions Court to amend writ, statement of claim and judgment in default of appearance set aside.

Orders

  • Appeal allowed with costs of RM3500 to be paid to the appellant subject to an allocatur fee
  • Order by the Sessions Court to amend the writ, statement of claim and judgment in default of appearance is set aside