Abstract
If an amendment of pleadings is intended after the pleadings are deemed to be closed, leave of the court should be obtained. In general, the court may permit either party to alter or amend its pleadings at any stage during the proceedings. However, there have been occasions where the party has used such an opportunity as a delayed rescue operation by turning the argument from one character to another. While the author acknowledges that the court has taken care to avoid such acts of getting a second bite at the proverbial cherry, the author also notes that various criteria are used to determine if such leave to amend should be given. In this article, the author examines the tests developed in Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 and Hong Leong Finance Bhd v. Low Thiam Hoe and Another Appeal [2016] 1 MLJ 301 respectively, and agrees that the test in Yamaha Motor case only applies to the amendment of pleadings made promptly at the early stage of the trial, while the test in Hong Leong Finance case applies to the amendments made at the advanced stage of the trial. The author goes on to discuss the issue of inconsistency in selecting which test to use: when it can be considered an advanced stage of the trial. Eventually, the author concludes that the apex court of the land should set an objective test by providing a range of considerations as a yardstick for the courts to ascertain the stage at which the proceeding is currently taking place in order to quickly determine if the test in the Yamaha Motor case or the test in the Hong Leong Finance case should be applied in the case at hand.
Tan Yoong Chang, School of Law, Universiti Utara Malaysia
yoongchang98@gmail.com
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