1. ) Awa New Parts Sdn Bhd v 1. ) Winston Chin Weng Fai (WA-12ANCC-3-01/2025)

YIP WAI KEAN APPELLANTS

CARSTO GARAGE SDN BHD RESPONDENTS GROUNDS OF JUDGMENT (Appeal against disallowing amendment)

The Appellants appeal against the decision of the learned Sessions Court Judge that had disallowed the application to amend the Statement of Claim. The Appellants did apply to amend the Statement of Claim by way of an application in Enclosure 71. This was dismissed by the learned Sessions Court Judge.

After hearing parties and considering the affidavits as well as the submissions filed, I find that this is a suitable case for this Court to set aside the order of the learned Sessions Court Judge and allow the application to amend the Statement of Claim.

My reasons for allowing this appeal are contained in the following paragraphs.

The learned Sessions Court Judge had correctly laid down the principles applicable concerning an application for leave to amend a Statement of Claim or any pleading by a litigant before our Courts.

The learned Sessions Court Judge however opined that:

That the application was not bona fide as it was filed late and that trial dates have since been fixed in January and February 2025;

(ii) That the application was not bona fide as it was to add additional particulars after the Plaintiffs’ application for injunction was withdrawn and that the Court had allowed the application for damages to be assessed for the alleged wrongful injunction. Order for damages have since been made against the Plaintiff;

(iii) That the application to amend was a tactical maneuvering by the Plaintiffs to delay proceedings and is an abuse of process.

(iv) That the Plaintiff should have pleaded all its particulars as they had access to all available information and should not have waited until the last minute.

The additional causes of action of fraud, cheating, conspiracy and misuse of company assets and breach of trust should have been pleaded at the outset and this changes the character of this suit. C. Reasoning of this Court allowing the appeal 6. I have considered all the above facts and found that the Plaintiffs’/Appellant’s application should be allowed. Although the reasoning of the learned Sessions Court concerning the lateness in the application is justifiable but in view of the change of circumstances, i.e. the vacated trial, I find that the amendment should be allowed to ensure all of the issues in dispute between parties are dealt with in a single trial before this Court.

To not allow the amendments as proposed would cause the truncation of the claims and even lead to a possible miscarriage of justice. As I have said, the trial dates have since been vacated. Therefore, this appeal should be allowed with costs in the cause.

I also find that the amendments, although lengthy, is not prejudicial to the Respondents. They do add particulars and specify the causes of action brought against the Respondents, but these causes of action arose from the same main cause of action i.e. breach of fiduciary duties owed by the Respondents to the company.

The fact that the amendments made added a new case or a new cause of action does not mean that the proposed amendments should not be allowed. The test is whether the amendments will change the true nature of the action into one that is substantially different from the one originally pleaded. Under those circumstances, the amendments would not be allowed as the proposed amendments could be heard and determined in a different claim.

The overriding principle is that leave should be allowed to amend its pleading to ensure that real question in controversy between the parties be determined once and for all. If the amendment does not cause any form of injustice to the Respondent, then the application should be allowed. See Yamaha Motors Co Ltd v. Yamaha (M) Sdn Bhd & Ors [1983] 1 MLJ 213 and Hiroto Watanabe v. Law Yen Yen & Anor [2012] 1 AMR 344.

I am aware that the circumstances as it was before the learned Sessions Court was that the trial was imminent. Under those circumstances, the learned Sessions Court Judge was right in refusing the application.

However, as the trial has since been vacated and no blame could be attributed to any party for the said adjournment, I find that it is best that the application be allowed to enable the Plaintiff to have its claim decided once and for all. The particulars of the claim do not change the nature of the claim. They may add new causes of action and particularize them in detail, but these arose from the same factual dispute. All of these claims arise from the alleged duties owed by the Defendants to the company and the alleged losses that arose as a result of the failure to comply with their duties owed.

I also find that the fact that injunction was decided against the Plaintiffs eventually and caused them to pay damages to the Defendants, does not mean that the application to amend is not bona fide. I find that the amendments were made to genuinely ensure that all of the dispute between parties are dealt once and for all.

For the above reasons, I allow the Appeal with costs in the cause. Dated 18th June 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya Kuala Lumpur NCC5 Counsel: Zeti Zulfah Zulkifli together with Nurul Athilah Suhaimi For the Appellant Chambers of Aminahtul Mardiah Advocates & Solicitors Damian Keithan together with Chan Yuet Liang For the Respondent Sivagurunathan & Co.