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CIVIL PROCEDURE
Pleadings — Defects in pleadings — Whether in appropriate cases defects in pleadings could be made up for by the evidence given at trial if opposing party was not taken by surprise and especially where it had not objected to the evidence given


Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd and another appeal
[2019] 1 MLJ 181, Federal Court

- see the grounds of judgment here

Facts The dispute which led to these appeals before us relates to a project involving dredging, reclamation and marine infrastructure development works (‘the works’). Baltic Agencies Pte Ltd (‘Baltic’) claimed to have been awarded a subcontract for the works by Kondisi Utama Sdn Bhd (‘Kondisi’) or alternatively claimed that EPIC had awarded a contract for the works to ‘Kondisi Utama Sdn Bhd Baltic Agencies Pte Ltd JV’ (‘JV’) a joint venture consisting of Kondisi and itself. However, Baltic claimed that EPIC and Kondisi had breached those contracts when they allegedly conspired to cause the procurement of vessels for the works to fail so that they could thereafter deal directly with the foreign company (‘KSE’) to acquire the vessels and exclude Baltic from the performance of the works. In their defences, EPIC and Kondisi denied that they had any contractual relationship with Baltic. Kondisi claimed its letters to Baltic were not to appoint it as its subcontractor but only to request it to source for a dredge named Sical Portofino but Baltic could not procure that vessel. Kondisi also denied that it had any joint venture with Baltic. Kondisi counterclaimed against Baltic for losses it allegedly suffered as a result of an injunction Baltic obtained to prevent it from proceeding with the works. Following a trial, the High Court dismissed Baltic’s claim and allowed Kondisi’s counterclaim, that there was no contract between Baltic and either EPIC or Kondisi and neither did any JV exist; that the letters Baltic had relied upon to show the existence of a contract were merely letters of offer. The Court of Appeal (‘COA’), however, allowed Baltic’s appeal and ruled that the facts and circumstances of the case pointed to the existence of implied contracts between Baltic and Kondisi and between EPIC and the JV which were made partly by the letters written by EPIC and Kondisi, partly by the conduct of Ramli and Amarjeet and partly by performance on Baltic’s part and that Baltic was entitled to general damages for the breaches of those contracts. Hence, this appeal.

Issue The main issue in this case was whether in appropriate cases defects in pleadings could be made up for by the evidence given at trial if opposing party was not taken by surprise and especially where it had not objected to the evidence given.

Held The Court is of the view that what Baltic lacked in pleading was more than made up for by the evidence before the High Court and that EPIC and Kondisi were certainly not taken by surprise by and did not object to the evidence given by witnesses for Baltic. Evidence was led during cross-examination of their own witnesses which supported Baltic’s position. The appeals were dismissed.


 

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