Wishing Star Ltd v Jurong Town Corp

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 18 May 2006
• Neutral Citation: [2006] SGHC 82
• Court: High Court (Singapore)
• Year: 2006
• Published date: 19 May 2006
• Plaintiff Counsel: Lawrence Tan and Eugene Tan (Drew & Napier LLC)
• Defendant Counsel: Ho Chien Mien and Jagateesan Sathiaseelan (Allen & Gledhill)
• Subject Matter: Civil Procedure,Pleadings,Amendment,Whether amendment causing prejudice to opposing party,Applicable principles,Order 20, r 5, Rules of Court (Cap 322, R 5, 2006 Rev Ed)
• Citation: [2006] SGHC 82

18 May 2006

Choo Han Teck J:

1 This was an appeal by the plaintiff against the assistant registrar’s refusal to grant leave to amend its re-amended reply and defence to counterclaim dated 13 October 2003. The suit was commenced on 13 January 2003. The trial proceeded on the preliminary issue of misrepresentation only and the rest of the issues were deferred since the resolution of the preliminary point might have rendered the other issues unnecessary. At the conclusion of the trial on the preliminary issue, I found that there were misrepresentations but that the defendant was not induced by the misrepresentations, and further, that the defendant had affirmed the contract in spite of the misrepresentations. The defendant appealed and the Court of Appeal allowed the appeal and ordered damages to be assessed.

2 On 24 March 2006, the plaintiff applied to amend its re-amended reply and defence to counterclaim by pleading that the defendant failed to mitigate its loss. The application was dismissed on 7 April 2006. At the hearing of the plaintiff’s appeal, I directed the defendant to file an affidavit to set out what prejudice it might suffer if the application to amend was allowed.

3 On 20 April 2006, Ms Mao Whey Ying (“Ms Mao”), the executive vice president of the defendant, filed the affidavit as directed. The main concern of Ms Mao was that the defendant may have to recall some of their witnesses, depending on what new issues arise from the amendment. The defendant feared that some of its witnesses, including Mr Spencer Lim Teong Boon, a deputy director, might not be available to testify as they have either been posted overseas or have left the defendant’s group of companies. On 21 April 2006, counsel submitted their respective written arguments together with a chronology of events prepared by the defendant’s counsel. On 9 May 2006, I allowed the plaintiff’s appeal and gave directions on the further conduct of the matter. I now set out the grounds upon which I decided to allow the appeal.

4 Order 20 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) permit a party to amend his pleadings at any stage with the leave of the court. Although the kind of amendments that could be permitted are explicitly laid down, for example, amendments as to the capacity of a party, or the substitution of a cause of action, the reasons for granting leave is left to the discretion of the court. There are, however, well-established principles to guide the court in the exercise of that discretion. These principles appear clear and uncomplicated when the underlying tension between the applicant and opponent in an application to amend the pleadings is understood. One is entitled to prepare his case according to what he has to meet on the basis of what has been pleaded. Careful and precise pleadings are such time and money savers. The quality of the pleadings is also a reflection of legal skills. And so is the response to changes made to the case. Each time a pleading is amended, the opposing side will have to reconsider its own case and pleadings. It is reasonable to assume, generally, that when substantive amendments are required, it is because hitherto, the applicant’s case has not been adequately pleaded, or was not pleaded at its best, or in its strongest form. Consequently, a weak case could be strengthened if the amendments are allowed; but that is not always true, of course, because an otherwise sound pleading could be rendered a mess by unnecessary or careless amendments (we are not presently concerned with such a case). Conversely, the opposing party would, understandably, prefer to have the applicant pinned down to what he might think to be a weaker case. All that, it might be argued, is part of the adversarial system. If a gladiator, having arrived at the coliseum with just a sword, and finding his opponent more heavily armed, asks for leave to increase his with a shield, or an extra blade, should his request be allowed? Should he be told that he was a professional, and ought therefore, stand by his choice of weapons; and if his predicament was of his own making, that is, in forgetfulness, ought he be assisted? To arm him better might have made it a more even fight, but would that have been fair to the other warrior who had come prepared? On the other hand, should we be so absorbed in the examination of the gladiators’ weapons that we forget the fight, or misdirect ourselves as to the issue – fairly armed or fairly fought? That one follows the other is already an indication what the answer ought to be.

5 In the process of adjudication in the courts, it is the substantive laws that govern the substantive rights of the litigants; and the procedural rules govern the way and manner the litigants assert their claims. By and large, substantive laws do not pose as many problems as procedural ones simply because they are usually well settled and the main question, broadly speaking,...