Asia Hotel Sdn Bhd v Malayan Insurance (M) Sdn Bhd

Facts of the case

The plaintiff was the owner of the Asia Hotel, Batu Pahat and had insured their hotel
with the defendants against fire and consequential loss, as evidenced by two
policies, both dated 25 february 1985. Once a fire policy and other a consequential
loss policy. On 11 May 1985, the hotel was damaged by fire. The plaintiff claimed
indemnity under both policies. The defendant then repudiated liability and refused
to pay contending that both policies. The defendant then repudiated liability and
refused to pay contending that both policies were obtained by misrepresentation,
non disclosure and concealment of a material fact. In that the plaintiff failed to
disclose that one Dragon nite( the nite club) of which one Mr Lim Ah Kow, PI’s
managing director was the managing or active partner had took out a fire claim
with one Safety Life and general Insurance Sdn Bhd. The nite club took out a fire
insurance policy and a claim was made under this. The manager director answered
that the PI’s had never made any claim. The agent insurance also gave evidence to
explain how the question was answered and that he was aware of the fire and the
nite club. The defendants contended that their testimony ought to be disregarded
as they were not raised in the pleadings.

The issue:-

Whether there was an implies joinder of issue when there were failure to file reply
defence regarding to the function of the pleadings

Plaintiff contention

018r14 of the Rule of the High Court 1980 stated that if no reply to the defence
there is an implied joinder of issue on that defence