WONDERFUL COMPOUND SDN. BHD. (COMPANY NO: 841171-M) (IN LIQUIDATION) MAN PLUG INDUSTRIES SDN BHD (COMPANY NO: 191212-H)

JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA CIVIL SUIT NO: JA-22NCC-71-11/2019 BETWEEN WONDERFUL COMPOUND SDN. BHD. (COMPANY NO: 841171-M) (IN LIQUIDATION) …PLAINTIFF AND MAN PLUG INDUSTRIES SDN BHD (COMPANY NO: 191212-H) …DEFENDANT GROUNDS OF JUDGMENT 1 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. Introduction [1] This was the Plaintiff’s application (“this Application”) in enclosure 43, pursuant to Order 20 rule 5 of the Rules of Court 2012 (“Rules of Court”) to amend the Writ of Summons and Statement of Claim. The background facts [2] The Plaintiff had filed a claim for an original amount of MYR1,065,271 (“this Suit”) against the Defendant for goods sold and delivered. This Application was to include three purchase orders, which were left out from the original Statement of Claim. [3] The inclusion of these purchase orders via the amendments sought in this Application would render an increase of the purported debt to MYR1,179,559.22. This Application was allowed for the following reasons. The applicable law [4] This Application was made under Order 20 rule 5 of the Rules of Court, which reads: Order 20 - Amendments Rule 5. Amendment of writ or pleading with leave (1) Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct. … 2 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. [5] The judge has a discretion to allow an application to amend pleadings but such powers must be exercised judicially. The two leading cases on the principles applicable to an application to amend pleadings are Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd [1983] CLJ (Rep) 428, and Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2015] 8 CLJ. [6] In the Federal Court case of Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd, Mohd Azmi FCJ in delivering the judgment, distilled the principles pertaining to an application to amend, 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, (1) whether the application is bona fide; (2) whether prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit from one character into a suit of another and inconsistent character. Contentions, evaluation, and findings Whether this Application was bona fide [7] It is also crucial to bear in mind that an application to amend a pleading would be disallowed if it was made as a tactical manoeuvre. [8] Whilst the Defendant submitted that this was a tactical manoeuvre to circumvent the issue of limitation, the Plaintiff contended that this Application was necessary to reflect the truth of what had been transacted between the parties, and that such revelation was 3 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. significant to assist this Court in reaching a fair conclusion at the trial proper. [9] In my view, based on the invoices issued by the Plaintiff, the Defendant was provided with a period of 90 days to settle the balance purchase price, which was to be calculated from 1 October 2013. Put it simply, there would not have been any breach of contract if the Defendant settled the balance purchase price at any time before expiry of the 90-day credit term on 30 December 2013. [10] As such, the Plaintiff’s claim was not time-barred, as time had started to run on 30 December 2013, rendering the expiry of the limitation period on 29 December 2019, whilst the Writ of Summons and Statement of Claim were filed on 25 November 2019. The issue of limitation, therefore, had no bearing on this Application. [11] It was also crucial to note that the purpose of this Application was to determine the real question in dispute between the parties. As stated by Jenkins LJ in G.L. Bakar Ltd. v Medway Building & Supplies Ltd. [1958] 3 All ER 540, ‘all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings'. (See also Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230). 4 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. [12] I also drew guidance from Ketteman and Others v Hansel Properties Ltd. And Others [1987] 1 AC 189, which has been assimilated into our jurisprudence through the cases of Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 649, and Dato' Tan Heng Chew v Tan Kim Hor & Ors [2008] 7 MLJ 184, where it was stated that the principles on which courts exercise its discretion whether to allow or refuse an application to amend are well settled, and that an application to amend should be allowed where the purpose of the amendment would reveal the true issues to be determined. This is provided that such amendments do not cause injustice to the other party, and if so, that such other party could be compensated by appropriate orders as to costs. [13] I, therefore, failed to comprehend the Defendant’s strenuous resistance to this Application, especially since the Plaintiff’s omission to include the three purchase orders in the original Statement of Claim, was unintentional and bona fide. Whether there was delay in filing this Application [14] On the issue of delay in filing an application to amend pleadings, it is imperative to note that the words ‘may at any stage of the proceedings’ appearing in Order 20 rule 5(1) of the Rules of Court cannot literally be interpreted so as to mean that a litigant is at liberty to make an application to amend at any time he wishes. As a general rule, the application to amend must be made promptly. If there is inordinate delay, the onus is then on the applicant to 5 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. furnish a reasonable explanation for such a delay, and that the failure to do so would result in the application being disallowed. [15] I am mindful that the principles enunciated in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd are no longer the only factors when considering an application to amend, if such application was made at a very late stage of proceeding and no cogent reasons were provided at all. This was made clear by the Federal Court in Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal, where it was stated by Zulkifli Ahmad Makinuddin CJ: Having considered the facts and the circumstances of the present case, our views are as follows: (a) 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; (b) The principles in Yamaha Motor applies to cases where the application to amend the pleadings is made at an early stage of the proceedings; (c) That there has to be a cogent and reasonable explanation in the applicant's affidavit as to why the application was filed late; (d) That the application to amend the pleadings is not a tactical manoeuvre; (e) That the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same; and (f) That lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs. [Emphasis added.] 6 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. [16] It is established, therefore, that the Federal Court in Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal had displaced the principles enunciated in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd on amendment of pleadings, if such application is made at a later stage of proceedings, making it imperative that the application to amend must be made at an early stage of the proceedings; and where the application is made at a later stage, there must be cogent and reasonable explanation for the delay. [17] In this case, this Application was filed on 28 October 2020, which was approximately 11 months from the filing of the Statement of Claim in November 2019. However, the delay, if at all, must be viewed contextually, as this Application was filed during the interlocutory stage, before the pre-trial Case Management, and earlier than the Defendant’s application under Order 14A of the Rules of Court in enclosure 45, which was filed on 16 November 2020. [18] Furthermore, the delay was due to the fact that the Plaintiff had to consult its Liquidator as well as its solicitors on the inclusion of further documents, and this proved to be a challenge in terms of their mobility, due to the Movement Control Order, and the fact that the Plaintiff, Liquidator and solicitors were based respectively in three different states. 7 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. [19] In my view, therefore, looking at it holistically, the interval of 11 months was not a sufficiently inordinate delay that would warrant dismissing this Application. Whether prejudice suffered (if at all) by the Defendant could be compensated with costs [20] An important prerequisite for an application to amend is that the proposed amendment must not cause prejudice to the other parties, and if it did, that such prejudice should be compensated by costs. This is trite law found in numerous cases including Yamaha Motor Co. Ltd. v Yamaha (M) Sdn. Bhd. & Ors. In fact, it has been aptly said that ‘cost is the panacea that heals almost every sore in litigation’: per Bowen LJ Cropper v. Smith [1884] 26 Ch.D.700. (See also Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230). [21] Based on a perusal of the Defendant’s Affidavit-in-reply dated 13 November 2020, the Defendant had failed to satisfactorily explain what prejudice it had actually suffered. Merely stating that one had suffered prejudice which could not be compensated with costs, as it did in paragraphs 8.8 of such affidavit, was inadequate. [22] In fact, it was difficult to see how the Defendant would be prejudiced, since this Application had merely served to apprise the Court of all relevant transactions between the parties. The Defendant, therefore, was unjustified in objecting to the inclusion 8 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. of facts, especially if such facts were provided to assist the Court in reaching a just and fair conclusion. Whether this Application would turn this Suit from one character into another [23] In my view, this Application did not seek to change the character of this Suit. The amendments had merely sought to include three purchase orders to provide the Court with facts pertaining to the full and complete transaction between the parties. The amendments, therefore, did not have the undesirable effect of springing a surprise on the Defendant. Conclusion [24] In the final analysis, it must be borne in mind that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they may have made in the conduct of their cases, by deciding otherwise than in accordance with their rights. As aptly put by Bowen LJ in Cropper v Smith [1884] 26 Ch.D.700: Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. [Emphasis added.] 9 JA-22NCC-71-11/2019 21 April 2021 ………………………………………………………………………………………………………………………………………………. [25] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, this Application was allowed. Dated: 21 April 2021 ……..…SIGNED…………. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Plaintiff – TK Cheng and TY Chung; Messrs Messrs Cheng, Lee & Goh, For the Defendant – Sukhwinder Singh; Messrs Sukhwinder Singh N Mahinder Singh Cases referred to:  Cropper v Smith (1884) 26 ChD 700  Dato' Tan Heng Chew v Tan Kim Hor & Ors [2008] 7 MLJ 184  G.L. Bakar Ltd. v Medway Building & Supplies Ltd. [1958] 3 All ER 540  Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230  Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 10 JA-22NCC-71-11/2019 21 April 2021 ……………………………………………………………………………………………………………………………………………….  Ketteman and Others v Hansel Properties Ltd. And Others [1987] 1 AC 189  Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 649  Yamaha Motor Co. Ltd. v Yamaha (M) Sdn. Bhd. & Ors. [1983] 1 CLJ 191; [1983] CLJ (Rep) 428 Legislation referred to: Rules of Court 2012, Order 14A, Order 20 rule 5 11