KENANGA INVESTORS BERHAD 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

KENANGA INVESTORS BERHAD 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

The application to amend is dismissed because the proposed amendments would materially change the character of the Defence and Counterclaim into a different and inconsistent suit, were filed with inordinate and unexplained delay (approx. 22 months) and not bona fide, and would cause prejudice to the opposing parties that cannot be adequately compensated by costs; in the exercise of the court's discretion justice requires refusal.

Citation
WA-22NCC-140-03/2023 (Mahkamah Tinggi)
Parties
Plaintiff / First Defendant in Counterclaim: Kenanga Investors Berhad; First Defendant / First Plaintiff in Counterclaim: Zulrafq Capital Sdn Bhd; Second Defendant / Second Plaintiff in Counterclaim: Tan Sri Zulhasnan bin Rafique; Second Defendant in Counterclaim: Muhammad Taqiuddin Halim; Third Defendant in Counterclaim: Datuk Wira Ismitz Matthew
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 July 2025
Case Number
WA-22NCC-140-03/2023 (Mahkamah Tinggi)
Procedural Posture
Interlocutory Application to Amend Defence and Counterclaim (commercial Dispute) / Pre Trial – Amendment Application After Close of Pleadings With Trial Dates Fixed
Outcome
Defendants' Notice of Application dated 17.3.2025 dismissed
Legal Topics
Amendment of Pleadings, Order 20 Rule 5 ROC, Order 41 Rule 11, Delay and Prejudice, Bona Fides of Amendment Application, Yamaha Motor Test, Hong Leong Finance Principles
Source Language
Malay/English
Civil Procedure Commercial Law Contract Law Fraud/conspiracy Amendment of Pleadings Order 20 Rule 5 ROC Order 41 Rule 11 Delay and Prejudice +3 more

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Parties

Kenanga Investors Berhad

Plaintiff / First Defendant in Counterclaim

Zulrafq Capital Sdn Bhd

First Defendant / First Plaintiff in Counterclaim

Tan Sri Zulhasnan bin Rafique

Second Defendant / Second Plaintiff in Counterclaim

Muhammad Taqiuddin Halim

Second Defendant in Counterclaim

Datuk Wira Ismitz Matthew

Third Defendant in Counterclaim

Procedural Posture

Interlocutory Application to Amend Defence and Counterclaim (commercial Dispute) / Pre Trial – Amendment Application After Close of Pleadings With Trial Dates Fixed

Legal Issues

  1. 1 Whether procedural non-compliance invalidated proposed amendments under Order 41 Rule 11
  2. 2 Whether proposed amendments would change the character of the suit into a different and inconsistent cause of action
  3. 3 Whether the amendment application was made bona fide or was tactical/delaying

Ratio Decidendi

The application to amend is dismissed because the proposed amendments would materially change the character of the Defence and Counterclaim into a different and inconsistent suit, were filed with inordinate and unexplained delay (approx. 22 months) and not bona fide, and would cause prejudice to the opposing parties that cannot be adequately compensated by costs; in the exercise of the court's discretion justice requires refusal.

Court Disposition

Defendants' Notice of Application dated 17.3.2025 dismissed

Orders

  • Application to amend Defence and Counterclaim dismissed
  • Defendants to proceed to trial on the Defence and Counterclaim dated 9.5.2023 without the proposed amendments in Lampiran A