Sek Ann Thong v. Tamparuli Granite Quarry (Sabah) Sdn. Bhd. & Anor.

[1995] 4 CLJ Tee Ah Sing JC 757

SEK ANN THONG a

v.
TAMPARULI GRANITE QUARRY (SABAH) SDN. BHD. & ANOR.
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
TUAN TEE AH SING JC
[SUIT NO. K. 1478 OF 1985] b
6 JULY 1995
PRACTICE & PROCEDURE: Pleadings - Amendments to statement of claim - Hearing
of application not fixed for 8 years - Amendments sought on trial date - Whether
application made bona fide - Order 20 r. 5 Rules of the High Court 1980.
PRACTICE & PROCEDURE: Pleadings - Amendment to statement of claim - Whether c
proposed amendments seek to convert claim into an inconsistent claim of a different nature
- Whether plaintiff introducing an entirely new cause of action - Limitation - Order 20
r. 5 Rules of the High Court 1980.
The writ and statement of claim were filed on 26 November 1985. The defence of the
1st and 2nd defendants was filed on 7 January 1986. On 22 December 1987, the plaintiff d
filed a summons in chambers under O. 20 r. 5 of the Rules of the High Court 1980
(RHC) to amend the statement of claim, supported by the affidavit of Noel Kenneth
Davidson affirmed on 16 October 1986. No hearing date for the said summons had been
fixed by the Court but notice of the plaintiff’s application was given to the defendants
on 26 June 1995 and the plaintiff sought the amendments on the day fixed for the trial
of the case. The defendants objected to the proposed amendments on the following grounds: e
(i) the amendments sought were too late being 10 years after the filing of the writ and
there was substantial delay prejudicing the defendants;
(ii) that the plaintiff made a tactical manoeuvre by filing a generally indorsed writ and
on the same day obtaining an order ex parte for the production of the account books
and appointment of receivers to use the information and particulars to pursue a claim f
which the plaintiff previously did not possess;
(iii) particulars of the claim in the proposed amendments convert the character of the cause
of action into another type of claim of an inconsistent nature;
(iv) proposed amendments in paragraph 9(b) of the statement of claim seek to convert
the alleged secret profit of RM15,000 allegedly taken by the 2nd defendant from g
Paramount Industries Sdn. Bhd. over the sale of granite into an alternative claim
for recovery of a secret commission over the same brokerage done by the 2nd
defendant in his personal capacity on the resale of the shophouse in Inanam;
(v) that paragraph 11 of the proposed amendment pleads a new cause of action not
originally pleaded namely; payment of royalty and rental over the quarry which is
statute barred; and h
(vi) the proposed claim for specific performance would in effect turn the suit from one
character into a suit of another inconsistent character.
Held:
[1] Although the plaintiff had not explained why the said application remained unattended
for 8 years, the Court was partly at fault for not fixing a return date. The statement of i
 Current Law Journal
758 December 1995 [1995] 4 CLJ

a claim showed that all allegations in the proposed amendments were within the control
and knowledge of the defendants. Therefore, the delay did not prejudice the defendants
nor take them by surprise. However late the amendment is sought, it should be allowed
if it will not injure the opponent or prejudice him in some way that cannot be compensated
by costs.
[2] The application was not a tactical move as it is averred in paragraph 3 of the original
b
statement of claim that the defendants had at all material times control and management
of all books of accounts, management accounts, working papers, bank statements, cheque
stubs, contracts, delivery orders and invoices of the 1st defendant and the plaintiff did
not have any control over the same.
[3] The particulars of the claim do not change the character of the cause of action to
c another type of claim of an inconsistent nature and the new particulars relate back to a
cause of action which existed and was pleaded. Therefore, the proposed amendment does
not prejudice the defendants and the application is made bona fide.
[4] The defendants’ argument over paragraph 9(b) is accepted and to allow the
amendment would turn the suit from one character into that of another inconsistent
character which will prejudice the defendants. As such, the proposed amendment to
d paragraph 9(b) is disallowed.
[5] The proposed amendment in paragraph 11 would introduce an entirely new cause of
action in that it could not be said that it had arisen out of the same facts or substantially
the same facts as a cause of action in respect of which relief has already been claimed.
It cannot be inferred that the statement of claim includes this new cause of action. The
e plaintiff had failed to bring it within the scope of O. 20 r. 5 of the RHC.
[6] The existing statement of claim is largely a claim for accounts and for an order to
pay up funds not accounted for in the books of the company. The proposed claim for
specific performance is in the nature of a company law relief under s. 162 Companies
Act. This amendment is disallowed as it would turn the character of the suit into another
of inconsistent character.
f
[Amendments partially allowed].
Cases referred to:
Dr. S. Underwood v. Ong Ah Long [1986] 2 MLJ 246 (refd)
Hock Hua Bank Bhd. v. Leong Yew Chin [1987] 1 MLJ 230 (foll)
Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. [1983] 1 MLJ 213 (foll)
g Ismail bin Ibrahim v Sun Poh Development Sdn. Bhd. [1988] 3 MLJ 348 (refd)
Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. [1983] 1 MLJ 213 (refd)
Simetech (M) Sdn. Bhd. v. Yeoh Cheng Liam Construction Sdn. Bhd. [1992] 1 MLJ 11 (refd)
Legislation referred to:
Companies Act 1965, s. 162
Rules of the High Court 1980, O. 20 r. 5
h Other source referred to:
Supreme Court Practice 1991, p. 368 para. 20/5 - 8/9
White Book 1985, p. 343, para. 20/5 - 8/11
For the plaintiff - Raymond Szetu; M/s. JNLS Assoc.
For the defendants - Cyrus Das (Vincent Fernandez with him); M/s. Fernandez & Co.

i
 Sek Ann Thong v. Tamparuli Granite Quarry (Sabah) Sdn. Bhd. & Anor.
[1995] 4 CLJ Tee Ah Sing JC 759

JUDGMENT a
Tee Ah Sing JC:
In this case the writ of summons and statement of claim were filed on 26 November
1985
The statement of defence of the 1st defendant was filed on 7 January 1986. The statement
of defence of the 2nd defendant was also filed on 7 January 1986. b

On 22 December 1987 the plaintiff filed summons in chambers under O. 20 r. 5 of the

Rules of the High Court 1980 (‘the RHC”) to amend the statement of claim. The proposed
amendments are underlined. The summons-in-chambers is supported by an affidavit of Mr.
Noel Kenneth Davidson affirmed on 16 October 1986.
The learned Counsel for the plaintiff informed the Court that notice of the application c
for amendment was given to the defendants on 26 June 1995. This application was in
fact filed on 22 December 1987 and no date has been fixed by the Court.
I have perused the Court file and I note that the summons in chambers for the proposed
amendments was filed on 22 December 1987.
However no return date was given to this summons in chambers by the Court registry. d
On the other hand the previous solicitors for the plaintiff did not inform the Court about
the summons in chambers and that it has not been fixed for hearing. As pointed out by
the present solicitors for the plaintiff he came to know of this summons in chambers only
on 26 June 1995. And he informed the solicitors for the defendants about it.
So on 5 July 1995, on the day fixed for the trial of this case the Court heard submissions e
in respect of this summons in chambers for an application to amend the statement of
claim.
I shall first deal with the submission of the learned Counsel for the defendants that the
proposed amendments are sought to be made on the date of the trial itself and comes
almost 10 years after the filing of the writ.
f
The application was filed on 22 December 1987. No explanation was given why this
application remained unattended for almost 8 years. He submitted that there was substantial
delay which is prejudicial to the defendants. The exercise of discretion by the Court in
considering amendments at the date of trial is always most stringent than an application
made before the trial itself. In support he cited the White Book 1985 at page 343
paragraph 20/5 - 8/11 which reads: g
But the Court will not readily allow at the trial an amendment the necessity for which
was abundantly apparent months ago, and then not asked for (Hipgrave v. Case [1885] 28
CLD 356 p. 361); nor will an amendment be allowed at the hearing which for the first
time introduces a charge of fraud......
He also cited the case of Dr. S. Underwood v. Ong Ah Long [1986] 2 MLJ 246 at page
251. h
Their Lordships are in no doubt that the amendment proposed on behalf of Dr. Underwood
on the first day of the trial was altogether lacking in specification and utterly inappropriate
in form to give fair notice of the evidence which it was proposed to lead on his behalf
and, coming as it did fourteen years after the accident, called for explanation why it had
come so late.
i
 Current Law Journal
760 December 1995 [1995] 4 CLJ

a The learned Counsel for the plaintiff submitted that the application can be made “at any
stage of the proceedings” so long as the opposite party is not prejudiced in a way which
cannot be compensated by cost. In support he cited the Supreme Court Practice 1991 page
368 paragraph 20/5 - 8/89 which reads as follows:
Rules 5 and 8, expressly state that an amendment may be allowed “at any stage of the
proceedings” (Roe v. Davies [1876] 2 Ch.D 729, 733) and amendments may be allowed
b before, or at, or after the trial, or even after judgment or on appeal (The Duke of Buccleuch
[1892] P. 201; G.L. Baker Ltd. v. Medway Building & Supplies Ltd. [1958] 1 WLR 1216;
[1958] 3 ALL ER 540, CA). As a general rule, however late the amendment is sought to
be made, it should be allowed if it will not do the opponent party some injury or prejudice
him in some way that cannot be compensated for by costs or otherwise.
I have perused the affidavit of Noel Kenneth Davidson sworn on 16 October 1986. There
c is exhibited a copy of a report on statement of claim (exhibit “El”). I find that the
allegations in the proposed amendments are based on the facts as stated in exhibit El.
In this case although the plaintiff has not explained why the said application remained
unattended for 8 years I am of the view that the Court was partly at fault for not fixing
a return date. Due to inadvertence this application was not fixed for hearing. I find that
d the application was made bona fide.
In paragraph 3 of the original statement of claim it is averred as follows:
3. (a) The 2nd defendant is and has at all material times been a director and
shareholder of the 1st defendant company. The 2nd defendant is and has been
the secretary of the 1st defendant company and is and has been in full control
of the management and affairs of the 1st defendant company.
e
(b) The 1st and 2nd defendants are and have at all material times been in control
and management of all books of account, managements, accounts, working papers,
bank statements, cheque stubs, contracts, delivery orders, working papers, bank
statements and invoices of the 1st defendant company.
It is clear from paragraph 3 of the statement of claim that all the allegations as stated
f in the proposed amendments are within the control and knowledge of the 1st and 2nd
defendants. Therefore I am of the view that the delay in the hearing of this application
to amend the statement of claim would not prejudice the defendants nor take the
defendants by surprise.
The defendants can be compensated by costs.

g In Hock Hua Bank Bhd. v. Leong Yew Chin [1987] 1 MLJ 230 His Lordship Abdul Hamid
Ag. LP (as he then was) at page 230 said:
The respondents had caused a writ accompanied by a statement of claim to be issued against
the appellants on 8 October 1980. The matter relates to a claim in 1974. On 3 December
1984, the respondents took out O. 25 summons for directions seeking inter alia, an
amendment of the statement of claim to introduce a new cause of action....
h It is clear from the case cited that the application for amendment was allowed ten years
from the claim in 1974. By analogy I am of the view that the Court can hear this
application to amend the statement of claim even on the 1st day of the trial after 10
years.
Further the passage at paragraph 20/5 - 8/9 of the Supreme Court Practice 1991 at page
i 368 supports the view “that an amendment may be allowed before, or at, or after the
trial. ... As a general rule, however late the amendment is sought to be made, it should
 Sek Ann Thong v. Tamparuli Granite Quarry (Sabah) Sdn. Bhd. & Anor.
[1995] 4 CLJ Tee Ah Sing JC 761

be allowed if it will not do the opponent party some injury or prejudice him in some a
way that cannot be compensated for by costs or otherwise”.
I shall next deal with the submission of the learned Counsel for the defendants that to
use the report and information supplied by the receiver appointed ex parte to boost up
the statement of claim and to re cast some parts of it is not bona fide.
I reject this contention for whether amendments are allowed or refused the general b
principles are set out in the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn.
Bhd. [1983] 1 MLJ 213.
The learned Counsel for the defendants also contended the plaintiff made a tactical
manoeurve citing the case of Ismail bin Ibrahim v. Sun Poh Development Sdn. Bhd. [1988]
3 MLJ 348 by filing a writ and statement of claim with general allegations and on the
same day of filing the writ obtaining ex parte an order for production of account books c
and appointment of receivers so that the account books and the report of the receivers
would provide him with the requisite information and particulars to pursue the claim which
he previously did not possess.
I agree with the contention of the learned Counsel for the plaintiff that the application
was not a tactical move as it is clearly averred in paragraph 3 of the original statement d
of claim that the 1st and 2nd defendants are and had at all material times been in control
and management of all the books of accounts, management accounts, working papers, bank
statements, cheque stubs, contracts, delivery orders and invoice of the 1st defendant
company and that the plaintiff has no control of the books or accounts of the company.
Therefore the issue whether to allow or disallow the proposed amendments must be guided
by the principles enunciated in the Yamaha case. e
The principles whether an application for amendment of pleading should be allowed or
not are set out in Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. [1983] 1 MLJ
213 His Lordship Mohamed Azmi FJ (as he then was) at page 214 said:
Under O. 20 of the Rules of the High Court 1980, which is equivalent to O. 28 Rules of
Supreme Court, a Judge has a discretion to allow leave to amend pleadings. Like any other f
discretion, it must of course be exercised judicially (See Kam Hoy Trading v. Kam Fatt
Ting Mine [1963] MLJ 248). The general principle is that the Court will allow such
amendments as will cause no injustice to the other parties. Three basic questions should
be considered to determine whether injustice would or would not result, (1) whether the
application is bona fide; (2) whether the prejudice caused to the other side can be
compensated by costs and (3) whether the amendments would not in effect turn the suit
from one character into a suit of another and inconsistent character. g
I shall now proceed to consider the proposed amendments. The proposed amendments for
paragraph 8 of the statement of claim which are underlined are as follows:
8. (a) The plaintiff has further in the month of October 1985 discovered that on diverse
dates the 2nd defendant, whilst in charge of the business of the 1st defendant, had sold
large quantities of granite produced by the 1st defendant company to Paramount Industries
h
Sdn. Bhd. and to other third party purchasers under sales invoice printed with the name
Tamparuli Granite Quarry Sdn. Bhd. (a non-existent company not registered with any
authorities) for which the 1st defendant company never received any payment nor were such
cash transactions credited or accounted for in the 1st defendant company’s accounts for
the total sum of RM593,306. The 2nd defendant had in breach of his fiduciary duty and
the joint venture arrangement retained and converted to his own use the monies paid by
the said Paramount Industries Sdn. Bhd. and other cash sales for the said granite belonging i
to the 1st defendant sold and delivered to the said Paramount Industries Sdn. Bhd. and
 Current Law Journal
762 December 1995 [1995] 4 CLJ

a other third party purchasers under the sales invoices of Tamparuli Granite Quarry Sdn.
Bhd.
Particulars
(i) Particulars for the cash sales of RM593,306 for the periods 1982, 1983, 1984 and
1985:
b Summary of Cash Sales Proceeds of the Company - 1 June 1982 to 26 November 1985.
(RM)
1982 June 15,798.00
July 7,760.00
August 4,705.00
c September 6,320.00
October 10,435.00
November 27,841.00
December 49,627.00
1983 January 48,630.00
d February 10,948.00
March 19,596.00
April 14,648.00
May 21,323.90
Year Ended 31 May 1983 237,631.90
Bal. b/d 237,631.90
e
June 13,858.90
July 11,851.60
August 9,581.30
September 13,802.30
October 12,128.50
f November 8,040.92
December 10,050.67
1984 January 18,858.13
February 8,610.95
March 10,631.64
April 6,595.00
g
May 3,335.00
Year Ended 31 May 1984 127,344.91
June 3,180.20
July 4,934.90
August 6,677.94
h
September 5,039.00
October 1,747.00
November 2,994.00
December 4,651.00
1985 January 2,614.68
i February 4,419.08
March 43,578.25
 Sek Ann Thong v. Tamparuli Granite Quarry (Sabah) Sdn. Bhd. & Anor.
[1995] 4 CLJ Tee Ah Sing JC 763

April 24,497.51 a
May 34,054.24
Year Ended 31 May 1985 138,387.80
503,364.61
June 5,578.23
July 19,273.57
b
August 35,871.12
September 10,673.32
October 6,760.74
November
(up to 26 November 1985) 11,784.41
Grand total 593,306.00
c
========
(ii) 9 payments form Paramount Industries Sdn. Bhd. untraceable in the 1st
defendant’s accounts:
Voucher Payment Cheque No. Amount (RM)
UCQ24/3 14 March 1985 UMBC KK 022319 3,000.00
d
UCQ30/3 18 March 1985 022325 965.48
UCQ49/5 22 May 1985 035807 4,000.00
UCQ8/6 11 June 1985 035830 7,337.60
UCQ34/7 18 July 1985 046818 6,000.00
e
UCQ33/7 18 July 1985 046817 7,400.00
UCQ27/8 25 August 1985 052665 13,400.00
UCQ15/8 5 September 1985 052653 20,420.00
65,523.08
======== f
In respect of these proposed amendments the learned Counsel for the plaintiff submitted
that the proposed figure in the amendment totalling RM593,306 was only discovered after
the receivers appointed by the Court investigated the accounts. The proposed amendment
specifically stated full particulars in regard to RM593,306 received by the 2nd defendant
from Paramount Industries Sdn. Bhd. and other third parties which the 2nd defendant
converted for his own use. g
The new particulars relate back to a cause of action which existed and was pleaded In
the original statement of claim i.e. conversion of receipts from cash sales and breach of
fiduciary duty. The proposed amendment does not add a new cause of action.
In support he cites the case of Simetech (M) Sdn. Bhd. v. Yeoh Cheng Liam Construction
Sdn. Bhd. [1992] 1 MLJ 11. h
On the other hand the learned Counsel for the defendants submitted that previously the
claim was based entirely on cash sales to a company Paramount Industries Sdn. Bhd.
and now the plaintiff is seeking to convert this claim to include also “other third party
purchasers” and also “other cash sales”. The character of this cause of action is being
converted to another type of claim of an inconsistent nature.
i
 Current Law Journal
764 December 1995 [1995] 4 CLJ

a I am of the view that it is pleaded in the original paragraph 8 of the statement of claim
of the breach of fiduciary duty by the 2nd defendant and the conversion of monies received
from cash sales. Therefore the proposed amendments to include “and other third party
purchasers” and “other cash sales” do not change the character of the cause of action to
another type of claim of an inconsistent nature. Further the new particulars relate back
to a cause of action which existed and was pleaded. (See Simetech (M) Sdn. Bhd. v. Yeoh
b Cheng Liam Construction Sdn. Bhd. [1992] 1 MLJ 11). I also find that the proposed
amendments do not prejudice the defendants. I find that the application is made bona
fide. I allow the proposed amendments in paragraph 8 of the statement of claim. I shall
now deal with the proposed amendments in paragraph 9(b) of the statement of claim.
(b) Further or in the alternative, if the RM15,000 received by the 2nd defendant from the
said Paramount Industries Sdn. Bhd. is a commission which the 2nd defendant purportedly
c earned in his capacity as a broker for the resale of one unit of shophouse in Inanam, Kota
Kinabalu, to Paramount Industries Sdn. Bhd. the said shophouse in question was one or
two which was built by the 1st defendant and as such the commission was received by
the 2nd defendant whilst a director of the 1st defendant and arising from the sale of the
property through which the 1st defendant was interested in at the material time and since
the 1st defendant never approved nor authorized such receipt by the 2nd defendant, it
constituted a breach of the 2nd defendant’s fiduciary duty to the 1st defendant.
d
The learned Counsel for the plaintiff submitted that the proposed amendments in paragraph
9(b) plead lack of authority of the 2nd defendant to receive a commission of RM15,000
and a breach of fiduciary duty which was the cause of action which accrued to the plaintiff
at the time of issuance of the writ and it relies on the same particulars pleaded in the
original paragraph 9. The learned Counsel for the defendants contended that the proposed
e amendments in paragraph 9(b) of the statement of claim seek to convert the alleged secret
profits of RM15,000 allegedly taken by the 2nd defendant from Paramount Industries Sdn.
Bhd. over the sale of granite into an alternative claim for recovery of a secret commission
over some brokerage done by the 2nd defendant in his personal capacity on the resale of
a shophouse in Inanam.
I agree with the contention of the learned Counsel for the defendants that the proposed
f
amendments seek to convert the claim into an inconsistent claim of a different nature.
In my view to allow the amendment would in effect turn this suit which is of one
character into that of another and inconsistent character. This will prejudice the defendants.
As such I disallow the proposed amendments to paragraph 9(b).
The proposed amendments underlined in paragraph 11 of the statement of claim are as
g
follows:
11. The 1st defendant had purchased the granite quarry from one Buja Bin Gumbilai and
according to the 1st defendant’s company’s accounting records and audited accounts, it had
purportedly paid rental and royalty to Buja Bin Gumbilai the previous owner of the quarry
and also to the 2nd defendant particulars whereof are as follows:
h Particulars
Year ended 31 May 1981 23,000.00 (Rental)
31 May 1982 59,204.30
31 May 1983 149,858.23
31 May 1984 290,742.28
i
31 May 1985 51,686.96
 Sek Ann Thong v. Tamparuli Granite Quarry (Sabah) Sdn. Bhd. & Anor.
[1995] 4 CLJ Tee Ah Sing JC 765

The 2nd defendant through the 1st defendant had thereby improperly caused the 1st a
defendant or authorized such payment of purported rental and royalty and consequently
causing the 1st defendant to suffer loss by such payment to the detriment of the 1st
defendant and/or plaintiff and which was further a breach of the joint venture arrangement
in the unauthorized depletion of funds to the detriment of the plaintiff.
The learned Counsel for the plaintiff submitted that the proposed amendments in paragraph
11 of the statement of claim plead a new cause of action which was not originally pleaded. b
And this new cause of action is not statute barred at the time of the application. And
the facts that support this new cause of action only came to light after the managers and
receivers reported their findings on the accounts of the 1st defendant company.
It was a cause of action which the plaintiff was entitled to plead on the date of issuance
of the writ since it accrued before the commencement of action.
c
The learned Counsel for the defendants submitted that the proposed amendments in
paragraph 11 raises a new cause of action namely the payment of royalty and rental over
the quarry. The last of the rental payments was allegedly made on 31 May 1985 and
therefore the cause of action is today clearly statute barred. In support the case of Hock
Hua Bank Bhd. v. Leong Yew Chin [1987] 1 MLJ 230 is cited.
It is plain that the proposed amendment in paragraph 11 would introduce an entirely new d
cause of action in that it could not be said that it had arisen out of the same facts or
substantially the same facts as a cause of action in respect of which relief has already
been claimed by the plaintiff.
I am not unmindful of the fact that these facts to support the new cause of action only
came to light after the findings of the receiver appointed ex parte by the Court on 26 e
November 1985.
In my opinion it cannot be inferred that the statement of claim includes this new cause
of action. I am therefore of the view that the plaintiff has failed to bring the proposed
amendments in paragraph 11 within the scope O. 20 r. 5 of the RHC. (See case of Hock
Hua Bank Bhd. v. Leong Yew Chin [1987] 1 MLJ 230 at page 232 where His Lordship
Abdul Hamid Ag. LP (as he then was) said: f

It is also clear from the established principle that the Court has power to grant an
amendment after the expiry of the limitation period notwithstanding that the effect of the
amendment will be to add or substitute a new cause of action subject to one very important
condition, namely, that the new cause of action must arise out of the same or substantially
the same facts as the cause of action in respect of which relief had already been claimed.
g
In prayer (iv) the amendment sought is “Tamparuli Granite Quarry (Sabah) Sdn. Bhd”.
I allow the proposed amendments as this will not cause prejudice or injustice to the
defendants. In prayer (v) the proposed amendments are “the sum of RM593,306 or and
“at the rate of 8% per annum from the time the 2nd defendant received each sum until
full and final settlement.”
h
Since I have allowed the proposed amendments in paragraph 8 of the statement of claim,
the consequential amendments in this prayer (v) are also allowed.
In prayer (vi) the proposed amendments are “or alternatively the purchase of the shophouse
by” to reflect the proposed amendment in paragraph 9(b).
Since I have disallowed the proposed amendments for paragraph 9(b) I therefore disallow i
this proposed amendment.
 Current Law Journal
766 December 1995 [1995] 4 CLJ

a And for prayer (viii) the proposed amendments as underlined are as follows:
(viii) for an order for specific performance of the joint venture agreement that either, the
shares purportedly allotted to the plaintiff and 2nd defendant on 15 May 1985 be ordered
to be cancelled or that the 2nd defendant be ordered to transfer 100,000 of his shares in
the 1st defendant to the plaintiff and they are to pay for the allotment.
In respect of the proposed amendments the learned Counsel for the plaintiff submitted
b
that these arise out of the matters pleaded in paragraph 5 of the statement of claim. On
the other hand the learned Counsel for the defendants submitted that this is a new cause
of action. It converts the character of this suit into a different and inconsistent type within
the Yamaha principle.
The existing statement of claim is largely a claim for accounts and for an order to pay
c up funds not accounted for in the books of the company. The proposed claim for specific
performance is in the nature of a company law relief under s. 162 of the Companies Act.
It calls for a cancellation of the new allotment of shares and for a retransfer of shares.
I agree that the proposed amendments would in effect turn the suit from one character
into a suit of another and inconsistent character. As such, the proposed amendments are
disallowed.
d
The costs for this application shall be paid by the plaintiff. The defendants shall be given
liberty to amend their statement of defence within two weeks of the receipt of the amended
statement of claim. The costs of the amended statement of defence shall be borne by the
plaintiff.