THERESIA LIUK 1. ) MUHAMMAD HAMIZRIE BIN MOHD AZMI 2. ) HEW WAI HEN ENTERPRISE

THERESIA LIUK 1. ) MUHAMMAD HAMIZRIE BIN MOHD AZMI 2. ) HEW WAI HEN ENTERPRISE

High Court allowed the appeal, finding the Sessions Court erred in refusing leave to amend/substitute the second defendant; the proposed amendment was bona fide, necessary in the interests of justice to identify the true party liable for the loss of dependency claim, did not amount to an impermissible change of character that could not be remedied, and the Yamaha Motor principles must be applied fairly; case remitted to the same Sessions Court for trial and appeal costs ordered to be paid by the appellant.

Citation
BA-12A-56-11/2023 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Theresa Liuk; Respondent/defendant One: Muhammad Hamizrie bin Mohd Azmi; Respondent/defendant Two (original): Hew Wai Hen Enterprise
Court
High Court
Jurisdiction
Malaysia
Judgment Date
19 February 2024
Case Number
BA-12A-56-11/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court Concerning Amendment of Writ/joinder and Loss of Dependency Claim Under Civil Law Act 1956 / High Court Appellate Judgment on Interlocutory Amendment/non Joinder
Outcome
Appeal allowed; decision of Sessions Court dated 23-10-2023 set aside; matter remitted to the Sessions Court for trial on the merits.
Legal Topics
Amendment of Pleadings, Non Joinder (order 15 R.6), Limitation Period for Dependency Claims, Loss of Dependency (civil Law Act), Costs and Prejudice, Yamaha Motor Amendment Test
Source Language
Malay/English
Civil Procedure Tort (road Traffic) Insurance Law Limitation Law Amendment of Pleadings Non Joinder (order 15 R.6) Limitation Period for Dependency Claims Loss of Dependency (civil Law Act) +2 more

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Parties

Theresa Liuk

Appellant/plaintiff

Muhammad Hamizrie bin Mohd Azmi

Respondent/defendant One

Hew Wai Hen Enterprise

Respondent/defendant Two (original)

Procedural Posture

Civil Appeal From Sessions Court Concerning Amendment of Writ/joinder and Loss of Dependency Claim Under Civil Law Act 1956 / High Court Appellate Judgment on Interlocutory Amendment/non Joinder

Legal Issues

  1. 1 Whether the Sessions Court erred in refusing leave to amend the writ/statement of claim to substitute/add the correct defendant (Mytropical Fruits Sdn Bhd)
  2. 2 Whether the Yamaha Motor three-part test was applicable and correctly applied
  3. 3 Whether the plaintiff's application was bona fide or a tactical manoeuvre and whether prejudice to defendants could be compensated by costs

Ratio Decidendi

High Court allowed the appeal, finding the Sessions Court erred in refusing leave to amend/substitute the second defendant; the proposed amendment was bona fide, necessary in the interests of justice to identify the true party liable for the loss of dependency claim, did not amount to an impermissible change of character that could not be remedied, and the Yamaha Motor principles must be applied fairly; case remitted to the same Sessions Court for trial and appeal costs ordered to be paid by the appellant.

Court Disposition

Appeal allowed; decision of Sessions Court dated 23-10-2023 set aside; matter remitted to the Sessions Court for trial on the merits.

Orders

  • Allow appeal and set aside the Sessions Court decision dated 23-10-2023
  • Grant leave to amend/replace Defendant Two with Mytropical Fruits Sdn Bhd (subject to proceedings in Sessions Court)