PEMPETISYEN KENG TIAM LENG CHEONG SUH CHING

JA-33-404-12/2021 Kand. 108 17/12/2024 21:36:18 IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA DIVORCE PETITION NO. JA-33-404-12/2021 BETWEEN KENG TIAM LENG … Petitioner AND CHEONG SUH CHING … Respondent  GROUNDS OF JUDGMENT  1 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal INTRODUCTION [1] This is an application by the Respondent Wife (“RW”) via Summons in Chambers (Enclosure 79) mainly for a leave to amend the RW’s Answer to The Petition under subrule 15(3) Divorce and Matrimonial Proceedings Rule 1980 1980 (“DMPR 1980”) and/or Order 20 Rule 5 of Rules of Court 2012 (“ROC 2012”). [2] After having read the Affidavits, written submissions by both the RW and the Petitioner Husband (“PH”), and after having heard the oral submissions of the parties, I dismissed the RW’s application with costs of RM 1,500.00 subject to allocator costs, to be paid by the RW to the PH. [3] Below are my grounds of the decision. BACKGROUND AND SUBMISSION OF PARTIES [4] The brief facts which are relevant to the present application are as follows: (a) on 03.12.2021, PH filed a divorce petition under section 53 and 54 of Law Reform (Marriage and Divorce) Act 1976 [Act 164] seeking a dissolution of his marriage to RW, and other prayers; (b) the service of the cause papers was effected via Substituted Service to the RW where subsequently, RW appointed solicitor, Messrs. Kiew and Partners (the “former solicitor”), to represent her in this suit on 02.04.2022 and an Answer to the Petition was filed on 18.04.2022; 2 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) a Reply to the Answer was filed by the PH on 02.05.2022 and served to the RW’s former solicitor. The RW then changed her solicitor to this current solicitor, Messrs. Lee, Kiew and Yee on 02.08.2022 who then filed a Notice of Application for Ancillary Relief (Enclosure 36) on 12.10.2022 and Enclosure 36 was allowed on 28.03.2023. The consequent of this Order includes the furnishing of the relevant documents pertaining to the assets and incomes of the PH (in and out of Malaysia) to the RW; and (d) subsequently, on 11.10.2023, RW filed Enclosure 79. [5] In brief, the RW submitted the follows: (a) Enclosure 79 was made bona fide considering that the RW has no knowledge on the real amount in the DBS/POSB account, the PH’s CIMB bank account and also the money in the Central Provident Fund (“CPF”); (b) the RW has no details about the matrimonial house until July 2023; and (c) the RW further submitted that there will be no prejudice to the PH if this application is allowed. Instead, the RW claimed that it will be an injustice to the RW which could not be compensated by costs if this application is dismissed. [6] On the contrary, the PH contended that— (a) the filing of the Notice of Intention to Use Affidavit is defective due to incorrect format was used and not in accordance with Order 32 Rule 13(1)(b) ROC 2012 of 3 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal which preliminary objection was raised; (b) there was a delay in filing the amendment application and the delay was not sufficiently explained. Further this amendment will change the nature of the RW’s defence and her counter-claim, as well as adding new cause of action; (c) the RW's amendment application is a “tactical maneuver” and a “fishing expedition”. The proposed amendment has failed to reveal full details for the Court to determine the level of success in proving their case; and (d) the delay in the application to amend the said Answer to the Petition and add a new counter-claim cannot be compensated with costs, thus will prejudice the PH. COURT ANALYSIS AND FINDINGS [7] I have identified two (2) issues below for the determination of this Court: (a) whether the proposed amendments would change the substance and character of the original defence; and (b) whether the delay was satisfactorily explained. Principles of law applicable on application to amend pleadings [8] The relevant provisions governing the amendment of pleadings concerning family matters are subrule 15(3) of DMPR 1980 and Order 20 Rule 5 of ROC 2012. [9] I take guidance from the two leading authorities on the principles 4 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal applicable to applications to amend pleadings are Yamaha Motor Co. Ltd. v Yamaha (M) Sdn. Bhd. [1983] 1 MLJ 213 and Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301. [10] Mohd Azmi FCJ in the case of Yamaha Motor Co Ltd v Yamaha (M) Sdn. Bhd. has laid down the principles governing the amendment of pleading has stated as follows: “…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 (a) whether the application was bona fide; (b) whether the prejudice caused to the other side can be compensated by costs; and (c) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character…”. [Emphasis added] [11] Zulkifli Ahmad Makinuddin CJ in the Federal Court case of Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2015] MLJU 1165 has further provide a clearer principle in regards to application of the principles as follows: “…Having considered the facts and the circumstances of the present case, our views are as follows: (1) When dealing with an application to amend the pleadings, which introduce a new case in the claim or defence, on the eve of the trial, the principles in Yamaha Motor are not the sole considerations. (2) The principles in Yamaha Motor applies to cases where the application to amend the pleadings is made at an early stage of the proceedings. (3) That there has to be a cogent and reasonable explanation in the applicant’s affidavit as to why the application was filed late. (4) That the application to amend the pleadings is not a tactical manoeuvre. (5) That the proposed amendment must disclose full particulars for the 5 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Court to ascertain if there is a real prospect of success in proving the same. (6) That lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs.”. [Emphasis added] [12] Thus, scrutinising the principles in these two leading authorities, it can be emphasized that any application to amend pleadings should be made at the early stage of the proceeding. However, if the application is made at a later stage of the proceeding, there must be cogent and reasonable explanation for the delay. Petitioner’s Preliminary Objection [13] The PH has raised a preliminary objection on the filing of the Notice of Intention to Use Affidavit claiming that it is defective due to incorrect format was used and not in accordance with Order 32 Rule 13(1)(b) ROC 2012. Further, the RW has failed to specify the details of Affidavits to be used for Enclosure 79, whether it will include the Affidavits filed by the PH. Thus, the failure to comply with requirements under Order 32 Rule 13(1)(b) ROC 2012 and such failure cannot be cured under Order 1A rule 2 of ROC 2012. This has caused injustice to the PH and the PH prayed that Enclosure 79 be struck out. [14] After considering the arguments of the parties, I find that the failure of the RW to use Form 58 specified under Order 32 Rule 13(1)(b) ROC 2012, did not cause any injustice to the PH as the PH has full knowledge of all the Affidavits filed for the purpose of Enclosure 36. The non-compliance can be cured by Order 1A rule 2 ROC 2012 as it is merely technical incompliances and thus I rule 6 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal that the objection raised is unmeritorious and preliminary objection by the PH is dismissed. Whether the proposed amendments would change the substance and character of the original defence [15] To answer this issue, I refer to the proposed amendments to the original Answer to The Petition which was filed on 18.04.2022 (Enclosure 26) by the former solicitor. Blatantly it can be seen that in Enclosure 26, the RW did not include any claim for the matrimonial house and the money in the PH’s account and the CPF. However, in the application for amendment to the Answer to the Petition, the RW not only include many new claims, but also included a Cross-Petition. [16] The reasons given by the RW were she only know the relevant transactions of the PH’s accounts in DBS/POSB Bank Ltd. and CIMB Bank Berhad in Singapore and also the details of the matrimonial property after the Order for Disclosure of Assets (Enclosure 64) was granted. [17] This rather looks like a tactical manoeuvre as contended by the PH since the fact that in the original Answer to the Petition, the RW has agreed with the averment made by the PH in paragraph 10 of the Divorce Petition (Enclosure 1) that there is no immovable assets and any other assets amongst them to be distributed. [18] Initially the RW did not wish to claim the matrimonial property, the money in the bank accounts and the CPF of the PH. However, by adding the proposed Amended Answer to the Petition and Cross- Petition, the RW has changed her position now. RW in the 7 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal paragraph 2 of the proposed amendment denies all the averments made by the PH in paragraph 10 of the Enclosure 1. RW claims that the matrimonial house, all the moneys and interest in the CPF and in the DBS/POSB account and also in the CIMB account are the matrimonial assets where she is entitled to. It can clearly be seen that the RW was indeed adding a new cause of action to their reply and thus changing the character and substance of their original defence, undoubtedly. [19] The Court of Appeal in the case Smijaya Sdn. Bhd. dan lain-lain v Perwira Affin Bank Bhd. [2010] 3 MLJ 54 held that— “…(2) The proposed amendment was obvious compared to the original defence. It was obvious that the proposed amendment had changed pattern. The amendment was with regards to the plaintiff's involvement in the advice and the defendants’ profits estimation, whilst in the original defence it was only with regards to the question as to the plaintiff's advice in the matters of purchase of USD during the financial crisis. The proposed amendment was not minor but a major one to the extent of causing extensive prejudice to the plaintiff. The proposed amendment was also not bona fide (see paras 13–15); HA Securities Sdn Bhd v Ng Kong Yeam [1993] 3 MLJ 489 referred.”’ [Emphasis added] [20] Through the evidences presented by way of Affidavits filed by both parties, I find that the details of the bank accounts in DBS/POSB Singapore and CIMB Bank Berhad in Singapore including the amounts at the material times and also the existence of the matrimonial property were available to the full knowledge of the RW, except the actual amount of money. This indeed highlights that if the RW really intended to claim since before or at the time of filing the original Answer to The Petition (Enclosure 26), this should have been included earlier during the filing of the same, and not at this stage of proceeding which changes the nature and 8 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal character of the RW’s defence. [21] I find the contention of the RW could not hold water because initially, the RW did not deny the assertions of the PH in paragraph 10 of Enclosure 1 which showed that the RW knew about the existence of the matrimonial property and the relevant transactions of the PH’s accounts in DBS/POSB Bank Ltd and CIMB Bank Berhad in Singapore and also the CPF account when the original Answer to the Petition (Enclosure 26) was filed. [22] The RW’s in her Affidavit in Support of this application (Enclosure 80) averred that she has conducted land search on 11.07.2023, which is one (1) year two (2) months and twenty-five (25) days after filing her original Answer to the Petition. Further, I refer to paragraph 4 of the Enclosure 1 where the PH averred that the last address that the PH and RW resided is at No. 21, Jalan 12, Taman Matahari, 86000 Kluang, Johor and this averment was agreed by the RW in her original Answer to the Petition, in particular paragraph 1 of Enclosure 26. The same address is stated in the land search conducted by the RW on 11.07.2023 (see exhibit CSC-3 of Enclosure 80). This fact has rebutted what the RW’s argument that she knew about the particular of the matrimonial property after Order in Enclosure 64 was granted. [23] Further, the Enclosure 79 was filed after the close of pleadings and direction of Pre-Trial Case Management (“PTCM”) was given by the Court. The Common Bundle of the Documents (“CBD”) have been filed by the parties after the Enclosure 36 was filed and before the hearing of the Enclosure 36. The proposed amendments were filed on 11.10.2023, which is one (1) year five 9 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (5) months and eleven (11) days after the original Answer to the Petition was filed. From the records and minutes of the court proceedings, this was after 17 case management, 2 interlocutory applications and 1 decision on Enclosure 36 was made. [24] The RW claimed the purpose of the Enclosure 36 is seeking the disclosure of the assets and the accounts of the PH as she believes the PH is not able to pay the children’s maintenance and her maintenance. [25] Upon perusing the CBD, I find that the PH has included the latest pay slip in the CBD. The PH his Divorce Petition (Enclosure 1) has agreed to pay RM1,500 per month for the three children. However, the RW requested RM3,000 per month for the three children. In this regard, the issue on the amount of the maintenance will be determined based on the evidence produced by the parties after hearing the petition. Therefore, the argument of RW is baseless. The application by the RW via Enclosure 36 indeed was fishing expedition in order to obtain more details of the financial status of PH, which was not claimed by the RW initially. [26] Apart from that, the inclusion of the new claims for the division of matrimonial property and money in the bank accounts and CPF of the PH in the proposed Amended Answer to the Petition will change the nature of the claims and/or defences from the claims for child and spousal maintenance to new claims. These facts are readily available to the RW during the filing of the original Answer to the Petition. Therefore, the RW’s contentions are devoid of merits. 10 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [27] In this regard, I refer to the Court of Appeal decision in the case of Christopher ak Bandi @ Josny v Tumbung ak Nakis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100 where it was held that— “… [19] Reverting to the matter before us, to concede to the contention that the appeal before us is appealable, in our view, would no doubt give a party an extra bullet, so to speak, to delay an expeditious trial and would also be inconsistent to the jurisprudence of the present regime of civil procedure. As pointed out by the learned Chief Judge of Malaya, the Rules of Court 2012 now provides robust pre-trial case management by the courts before the trial is set down. The philosophy behind the new regime of civil procedure is simply to attend a ‘just, expeditious and economical’ disposal of an action. Litigants through their respective counsel must understand that they must put their house in order before a case goes to trial and once the trial commenced courts will not tolerate any delay except in the most exceptional circumstance. Putting one’s house in order simply means that parties and their counsel must be aware that they have a duty to frame their case fully in all their causes of action and defences prior to the start of trial. Conducting one’s case by instalment must not be allowed in the context of the present regime of civil procedure. It is an undeniable fact that many cases had been stayed pending appeals to higher courts on matters similar to the factual matrix in this case, which undoubtedly had delayed the disposal of these cases. [20] The present case is a glaring example of unnecessary delay. The summons and statement of claim of the appellant were filed on 6 June 2013, the trial started on 9 October 2014 and in between then and now (March 2016) there was the appeal in the High Court and the appeal to this court. This sort of delay must be avoided at all costs. Gone also are the days when the interests of the litigants of a case are the main consideration. The interest of other litigants who are waiting for their days in court must also be considered in the present regime of civil procedure in this country.”. [Emphasis added] [28] The view of the apex court of Australia by Heydon J in AON Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, was referred to in the abovementioned case where it was said that— “…An application to amend a pleading should not be approached on the 11 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendments should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend...”. [Emphasis added] [29] Since the facts were already known to the RW at the time the original Answer to the Petition was filed, couple with the late filing of Enclosure 79 and also it was filed after the discovery application vide Enclosure 36, the irresistible inference is that the filing of Enclosure 79 was a tactical manoeuvre and with bad faith. The RW is not allowed to conduct their case by way of instalment and their actions has caused substantial delay for trial. [30] Under this circumstance, the insertion of a new claims in the proposed Amended to the Answer to the Petition by the RW are an afterthought which should not be allowed. [31] Thus, I rule that the amendment would change the character and substance of the RW’s defence and cause a new cause of action, which will certainly prejudice the PH that cannot be compensated by costs. Whether the delay was satisfactorily explained [32] Initially, the RW’s Answer to the Petition was filed on 18.04.2022 by the former solicitor, whereby the PH then filed a Reply to the Answer on 02.05.2022 and served to the RW’s former solicitor. The RW then changed her solicitor to this current solicitor on 02.08.2022 who then filed Enclosure 36 for Ancillary Relief on 12.10.2022. Enclosure 36 was allowed on 28.03.2023. 12 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [33] Subsequently, on 11.10.2023, RW filed Enclosure 79 which is after almost one (1) year and seven (7) months after filing of the original Answer to the Petition. Hence, the RW bears the burden to explain the delay in filing the application. [34] This was explained in Hong Leong Finance Berhad (supra) as follows: “…[25] The courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay. They seem to have considered this as an additional factor to the Yamaha Motor 's rules. The need to show "some material and advance some cogent reasons" was applied in Taisho Company Sdn Bhd v. Pan Global Equities Bhd & Anor [1999] 1 CLJ 703, Haidar JCA. (as he then was) held: The learned judge intimated that the application was made after the appellant failed on appeal to this court to affirm the judgment entered by it initially. Further, he said that the appellant had knowledge of the "acknowledgement" as late as April 1987, that is, four years before the action was filed. Furthermore, the application was filed four years after the commencement of this action. We would add further that no reasons were given for the delay in filing the application when the point of admission was obviously available even before filing the proceedings. As rightly opined by the learned JC in Multi-Pak Singapore Pte Ltd and correctly followed by the learned judge, the appellant did not place some material and advance some cogent reasons to impel the court to lean on its side. We would further add that the application borders on lack of bona fides, one of the basic questions set out in Yamaha Motor Co Ltd. The requirement to advance some material and cogent reasons was likewise followed in the subsequent decisions in the cases of Raphael Pura v. Insas Bhd & Anor [2000] 4 CLJ 830 and Everise Hectares Sdn Bhd v. Citibank Bhd [2011] 2 CLJ 25. [26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure "just, expeditious and economical disposal" of an action. (See O. 34 r. 4(1) of the RHC 1980 (now O. 34 r. 13 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1(1) of the RC 2012 ) and the Practice Direction No. 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime.”. [Emphasis added] [35] Further, Enclosure 79 was filed after the PTCM direction was given and filing of the Bundle of Pleadings and the CBD. Apart from insisting that the RW has no previous knowledge, the RW did not furnish any material or cogent reason on why there was a delay in making this application. Thus, the filing the application via Enclosure 79 after almost one (1) year and seven (7) months after filing of the original Answer to the Petition, has caused delay to the trial and if allows, it will re-open the filing of the pleadings by the parties. [36] Looking at another point of view, if at all the delay was due to the reason that this application was made by a new solicitor. However, according to the Court’s system, Notice of Change of Solicitor was filed on 02.08.2022. It is pertinent to note that the original Answer to the Petition was filed by the former solicitor, Mr. Kiew, who is now the partner of the current legal firm. He has joined the current legal firm and the firm is currently acting for the RW. Therefore, the delay in filing the application via Enclosure 36 and the present application via Enclosure 79 was due to the fault of the RW and her solicitor. [37] In the present case, Enclosure 79 was filed only on 11.10.2023 which is around one (1) year and seven (7) months after the filing of the original Answer to the Petition. I find the delay is an inordinate which warrant a satisfactorily explanation by the RW. 14 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [38] In this context, I refer to the case of the Taisho Sdn. Bhd. v Pan Global Equities Bhd. & Anor. [1999] 1MJ 3591 where Haidar JCA has state that “where there is delay in making an application to amend, the applicant must ‘place some material and advance some cogent reasons to impel the court to lean on his side’, failing which, the inference is that the application borders on lack of bona fide. [39] Scrutinising the Affidavits filed by the RW, I find that there were no reasonable explanations given by the RW in regards to the delay in filing of Enclosure 79. Rather, to the dissatisfaction of this Court, the RW in her Affidavit in Support of this application stated that there was no excessive delay in making this application, quoted verbatim in paragraph 11(d) of Enclosure 80 as “Ketiadaan kelewatan yang melampau dalam permohonan ini”. CONCLUSION [40] Based on the reasons above, I find that the RW has failed to fulfil the requirements in the case of Yamaha Motor and Hong Leong Finance Berhad. [41] As such, I rule that it would be grossly unjust to the PH if the Enclosure 79 is allowed and it would cause injustice which could not been compensation by the costs. [42] Therefore, Enclosure 79 is dismissed with costs of RM 1,500.00 subject to allocator fees, to be paid by RW to the PH. 15 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Dated 3 December 2024 Signed by: ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the PH: Mr. Lim Chin Huat Messrs Lim Chin Huat & Co. 25-B, (1st Floor), Jalan Syed Abdul Hamid Sagaff, 86000 Kluang, Johor. Counsel/Solicitor For the RW: Mr. C H Lee Messrs Lee, Kiew & Yee 33-01, Jln Perjiranan 4/6, Bandar Dato Onn, 81100 Johor Bahru, Johor Cases referred to: 1. Yamaha Motor Co Ltd v Yamaha (M) Sdn. Bhd. [1983] 1 MLJ 213 2. Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301 3. Smijaya Sdn. Bhd. dan lain-lain v Perwira Affin Bank Bhd. [2010] 3 MLJ 54 4. Christopher ak Bandi @ Josny v Tumbung ak Nakis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100 16 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5. AON Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 6. Taisho Sdn. Bhd. v Pan Global Equities Bhd. & Anor. [1999] 1MJ 3591 Legislation referred to: 1. Law Reform (Marriage and Divorce) Act 1976 [Act164] 2. Divorce and Matrimonial Proceedings Rules 1980 3. Rules of Court 2012 17 S/N lByBxmCxkUSFqaVVQq0ZZQ **Note : Serial number will be used to verify the originality of this document via eFILING portal