Lion City Holdings Pte Ltd (in liquidation) v Jumabhoy Asad and Others
| Jurisdiction | Singapore |
| Judge | Choo Han Teck J |
| Judgment Date | 16 June 2004 |
| Neutral Citation | [2004] SGHC 130 |
| Docket Number | Suit No 450 of 2002 (Registrar's Appeals Nos 134 and 139 of 2004) |
| Date | 16 June 2004 |
| Published date | 17 June 2004 |
| Year | 2004 |
| Plaintiff Counsel | Chan Kia Pheng and Shaun Koh (Khattar Wong and Partners) |
| Citation | [2004] SGHC 130 |
| Defendant Counsel | Harpreet Singh Nehal and Chew Kiat Jinn (Drew and Napier LLC),Edmund Kronenburg (Tan Peng Chin LLC) |
| Court | High Court (Singapore) |
| Subject Matter | New cause of action time barred,Writ of summons,Civil Procedure,Order 20 r 5(5) of the Rules of Court (Cap 332, R 5, 2004 Rev Ed),Whether leave to amend generally endorsed writ by adding new cause of action should be granted |
16 June 2004
Choo Han Teck J:
1 This suit was filed by the liquidators of the plaintiff, Lion City Holdings Pte Ltd, against three of its former directors. The writ when filed on 18 April 2002 was filed as a generally endorsed writ. No statement of claim was filed until 18 May 2004. The endorsement on the writ merely stated as follows:
The Plaintiff’s claims are as follows:-
(a) Claim against the Defendants for breaches of fiduciary duties owed to the Plaintiff;
(b) An account of all profits made by Defendants as a result of the breaches of fiduciary duty;
(c) Damages to be assessed against the Defendants;
(d) Costs; and
(e) Such further relief as this Honourable Court may deem fit.
2 The plaintiff applied to amend the writ to include a claim based on a breach of the duties of care. The application was allowed by the assistant registrar and consequently the plaintiff filed its statement of claim on 18 May 2004. The defendants appealed against the order granting leave to the plaintiff to amend the writ because by the amendment the plaintiff was able to present a claim that would otherwise be time barred. This was not disputed but the plaintiff’s contention was that the cause of action based on the breach of a duty of care arose from the same or substantially the same facts.
3 It will be useful to set out the context for a better understanding of the issue in dispute in these appeals. The courts will not normally allow a claim to be amended if the amendment produces a new cause of action that would have been defeated by a limitation defence. This is encapsulated in a passage in the judgment of Lord Esher in Weldon v Neal (1887) 19 QBD 394 at 395:
We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.
L P Thean JA in Chan Mui Eng v Chua Chu Huwe
In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence.
4 Counsel for the plaintiff relied on O 20 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) which provides an exception that ameliorates the harshness to the rulings above. Order 20 provides as follows:
Amendment of writ without leave (O 20, r 1)
1.—(1) Subject to paragraph (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed.
(2) Where a writ is amended under this Rule after service thereof, then, unless the Court otherwise directs on an application made ex parte, the amended writ must be served on each defendant to the action.
(3) This Rule shall not apply in relation to an amendment which consists of —
(a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued;
(b) the addition or substitution of a new cause of action; or
(c) (without prejudice to Rule 3(1)) an amendment of the statement of claim (if any) endorsed on the writ,
unless the amendment is made before service of the writ on any party to the action.
Amendment of appearance (O 20, r 2)
2. A defendant may not amend his memorandum of appearance without the leave of the Court.
Amendment of pleadings without leave (O 20, r 3)
3.—(1) A party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the opposite party.
(2) Where an amended statement of claim is served on a defendant —
(a) the defendant, if he has already served a defence on the plaintiff, may amend his defence;
(b) the period for service of his defence or amended defence, as the case may be, shall be either the period fixed under these Rules for service of his defence or a period of 14 days after the amended statement of claim is served on him, whichever expires later.
(3) Where an amended defence is served on the plaintiff by a defendant —
(a) the plaintiff, if he has already served a reply on that defendant, may amend his reply; and
(b) the period for service of his reply or amended reply, as the case may be, shall be 14 days after the amended defence is served on him.
(4) In paragraphs (2) and (3) references to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively.
(5) Where an amended counterclaim is served by a defendant on a party (other than the plaintiff) against whom the counterclaim is made, paragraph (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made a defendant.
(6) Where a party has pleaded to a pleading which is subsequently amended and served on him under paragraph (1), then, if that party does...
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