CEF (Capital Markets) Ltd & anor v Goh Chin Soon & ors

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 24 May 2000
• Neutral Citation: [2000] SGHC 92
• Published date: 19 September 2003
• Year: 2000
• Citation: [2000] SGHC 92
• Court: High Court (Singapore)

JUDGMENT:

Grounds of Judgment

1. Goh Teck Beng, the 2^nd defendant in Suit No. 849/98, applied by way of SIC 601332/2000 to further amend the Amended Defence and Counterclaim filed by him in that suit.

2. The application for amendment was made at a time when the hearing of Suit No. 849/98 (which was heard together with Suit No. 24/98 and Suit No. 822/99) had gone into the third week of hearing. At the time the application was heard, the hearing was on its 24^th day, all witnesses for the plaintiffs in Suit No. 849/98 (and Suit No. 24/98) had completed their testimony and the plaintiffs had closed their case. I rejected the application. The 2^nd defendant has appealed against my decision and I now give my grounds.

3. A Memorandum of Charge executed by the 2^nd defendant in connection with certain facilities granted by the plaintiffs, contained a personal guarantee from the 2^nd defendant that the facilities would be re-paid. The 2^nd defendant claimed that, at all material times, the plaintiffs and the 1^st defendant (Goh Chin Soon) had intended only to have the 1^st defendant and not the 2^nd defendant as personal guarantor for the loans under the Facility Agreement and, by the proposed amendment, sought, for the first time, to introduce the defence of common mistake.

4. Counsel for the 2^nd defendant submitted that as the 2^nd defendant - in an affidavit filed as early as 14 August 1998 and, subsequently, in his affidavit evidence-in-chief filed on 18 February 2000 - had raised the matters covered by this application, the proposed amendments would not take the plaintiffs by surprise and would not cause any prejudice to the plaintiffs that could not be compensated by way of costs.

5. The plaintiffs had demanded payment from the 2^nd defendant under the personal guarantee contained in the Memorandum of Charge as early as 13 May 1998. Not getting satisfaction, the plaintiffs had followed up on their demand by instituting Suit No. 849/98. In paragraph 6 of the Statement of Claim filed by the plaintiffs on 29 June 1998, the plaintiffs claimed against the 2^nd defendant under the personal guarantee. In his defence to that claim, the 2^nd defendant not only failed to raise the defence of common mistake, but, by paragraph 3 of his Defence and Counterclaim admitted, without qualification, that he executed the said personal guarantee. Even assuming that there was some unwitting error in the filing of that defence, the need to have that error corrected should have been evident to the 2^nd defendant from at least as early as 14 August 1998 when he filed the affidavit relied on by his counsel. Yet no application for leave to amend was made until 17 March 2000 and no satisfactory explanation was proffered by the 2^nd defendant to explain this failure.

6. It cannot be over-emphasized that parties to a suit must ensure that all necessary amendment to their pleadings are effected as early as possible. To effect amendments at a late stage or in the course of the trial itself is undesirable. In general terms, the longer a party takes to amend his pleadings after it is clear that an amendment is called for, the more prejudice it will cause and the less likely it is that the application for amendment will be granted. If this application for leave to amend was merely to clarify the issues already raised in the pleadings, I may well have considered the application favourably, late though the application was. But the amendments sought in...