SIMETECH (M) SDN BHD v

YEOH CHENG LIAM

CONSTRUCTION SDN BHD
[1992] 1 MLJ 11

Facts
The defendant: Main contractor of the
construction of office building for Kian Min Realty
Sdn Bhd
The plaintiff: Sub-contractor of the project
6 November 1984: The parties entered into an
agreement where the plaintiff agreed to execute
sub-contract works a sub-contract which is for
the suppy and installation of air-conditioning and
ventilation system for a consideration of $1 288
000 or such other sums as would be due under
the sub-contract

 The plaintiff had completed the said works

satisfactorily but the defandant had failed to pay
the plaintiff the outstanding amount of $ 48,
618.40, the amount due to the plaintiff under the
sub-contract
The plaintiff instituted an action againts the
defendant claiming that amount.

 Before defendant can enter its defence,

the plaintiff defendant amended its
statement of claimant increasing the
amount claimed to $ 222, 277.65, made
pursuant to Order 20 Rules 3(1) of the
Rules of High Court 1980
The amount was made on the final
adjusted contract sum as stated by the
consulting engineer in the statemnt of final
account dated 10 November 1986.

 Subsequently, the plaintiff applied for

summary judgment against the defendant
for the sum of $ 222, 277.65 pursuant to O
14 RHC.
The defendant, via his affidavit evidence,
disputed this sum, and submitted the last
architect's payment ceritifcate issued
before the statement of claim was filed on
18 February 1987

 Later, the plaintiff, via affidavit evidence, produced copies

of the architects certificates of payments, both of which
were issued after the statement of claim was filed.
both certificates certified a further gross total sum of
$173,459.25.
On 1 November 1988, the plaintiff applied to amend its
statement of claim once again.
The amendment was allowed resulting the increased in
plaintiff claim to $222,277.65
On 24 July 1989, the senior assistant registrar held in
favor of the plaintiff
The defendant appealed.

 Under clause 11(b) of the said contract, it was

agreed that within 14 days of the receipt of the
certificate from the architect, the contractor must
notify and pay the sub contractor the value
certified in the certificate.
However, pending the reception of the certificate
stating the amount to be paid (222k) by the
Defendant, the Plaintiff already issued the writ
right before the Defendant received the
certificate. Hence, it is contrary to the agreed
clause.

 Court referred to:

1.Order 20 Rules 3(1) of Rules of High Curt 1980
- 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 shall serve the
amended pleading on the opposite party.
- Plaintiff amended the statement of claim before
the Defendant filed its statement of defense in
response to the Plaintiffs statement of claim.

2.Order 14 RHC
- Application by plaintiff for summary
judgment
- Plaintiff applied for summary judgment
against the Defendant for the sum of
$222,277.65 with interest and cost
pending statement of defense from the
Defendant.

 Court referred to 2 cases:1. Eshelby v Federated European Bank Ltd (1)

2. Zea Star Shipping Co v Parley Augustsson
3. Sio Koon Lin & Anor v SB Mehra [1981] 1
MLJ 225

Eshelby v Federated European

Bank Ltd (1)
Plaintiff issued his writ claiming payment of one
instalment of money under a contract. After
issue of the writ, the defandant defaulted in the
payment of further instalment. Plaintiff then
sought to amend his pleading to claim in the
same action for the second instalment.
Held: He could not do so because the nonpayment of the second instalment was a
separate cause of action which did not exist at
the time when the writ was issued.

Zea Star Shipping Co v Parley

Augustsson
The question posed in this case was:
Whether the statement of claim could be
amended so as to include a cause of action
which had not accrued to the plaintiff on the
date when the writ was issued.
The trial judge held: It would be inappropriate
to give leave to amend the writ or statement
of claim by addition of a new cause of action
because of the prejudice which would be
caused to the defendant

Sio Koon Lin & Anor v SB Mehra [1981]

1 MLJ 225
The respondent there had contributed $100,000 to a
partnership business with the appellant. Subsequently it
was mutually agreed, inter alia, that the respondent
would assign all his rights in the partnership to the first
appellant in consideration of the return of the capital
contribution $100,000.
A sum of $15,000 was paid on the execution leaving
$85,000 to be paid by monthly instalments of $10,000 on
12 of each succeeding month.
There was no provision that in the event of default in the
payment of any one instalment, the remaining
instalments could become immediately due and payable.

Sio Koon Lin & Anor v SB

Mehra [1981] 1 MLJ 225
On 7 October 1972 the respondent took out a writ
claiming, inter alia, payment of the sum of $85,000 with
interest. This writ was subsequently amended on 14
October 1972 and a new prayer was added for the
payment of any sum found due on the taking of
accounts. The learned trial judge gave judgment for the
respondent and the appellants appealed to the Federal
Court.Court held: the respondent did not on October 7,
1972 have any cause of action in respect of the $85,000
or any part thereof, as no instalments were then due;
the amendment to the writ dated back to the date of the
original issue of the writ and at that date even the first
instalment of $35,000 was not due.

Held
The plaintiff is not entitled to claim the
additional sum of $173,659.25 which became
due and payable to the plaintiff only after the
date of issue of the writ and statement of
claim.
Judge consider the decision in the case of
Eshelby v Federated European Bank Ltd, as
the non payment of the second installment
was a separate cause of action which do not
exist at the time when the writ was issued and
would therefore have to be claimed in the
separate action.

 Court also referred the relating back

concept where the writ and statement
was served on 18th February 1987
However, the architect certificate of
payment was only given to the
Defendant on 20th July and 8th
September 1987.

The judge in this case adopted the principle of relating back

according to the case of Zea Star Shipping Co v Parley
Augustsson as reference to the principle enunciated which
conceded that there will be many cases in which it would be
inappropriate to give leave to amend a writ or a statement of
claim by addition of a new cause of action.
This would prejudice the defendant.
Hence, the plaintiff is not entitled to the claim of that additional
sum of $ 173, 659.25 which is due to the plaintiff as it became
due and payable to the plaintiff only after the date of the issue of
the writ an statement of claim

Conclusion
There is no cause of action.
BUT, court did not reject the plaintiffs
right to claim for the additional amount
but the defendant have to bring another
claim to the court.

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