Beverly Dentistree Sdn Bhd v Arlena Philip Lee (WA-22NCC-286-05/2025)

1 Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Negeri Wilayah Persekutuan Kuala Lumpur, Malaysia (Bahagian Dagang) Guaman Sivil No. : WA - 22 NCC - 286 - 05 / 2025 Antara 1) Beverly Dentistree Sdn Bhd 2) Natasha Beverly Dental Sdn Bhd Plaintif-Plaintif Dan Arlena Philip Lee (Dalam Tindakan Asal) Antara Arlena Philip Lee Dan 1) Beverly Dentistree Sdn Bhd 2) Natasha Beverly Dental Sdn Bhd 3) Natasha Beverly Sdn Bhd 4) Francis Ng Tian Sang 5) Howard Ng How Er 6) Alexander Ng Zhonglie-Defendan (Dalam Tuntutan Balas) Grounds of Decision Introduction 06/03/2026 10:12:50 WA-22NCC-286-05/2025 Kand. 42 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

1. The Defendant D filed a notice of application dated 12.12.2025 in Enclosure 25 to disallow certain amendments impugned amendments made:- (a) by the Plaintiffs in their Amended Statement of Claim; and (b) by the 3rd to the 6th Defendants in the counterclaim counterclaim defendants their Amended Defence to Counterclaim. Enclosure 25 is made under Order 20 rule 4 of the Rules of Court 2012 ROC 2012 .

2. On 12.2.2026, I . Here are my reasons. Background facts

3. The Plaintiffs initiated a claim against D seeking damages and a declaration that D :

4. D in turn filed a counterclaim pleading breach of fiduciary duties, breach of trust, negligence and conspiracy to injure. D seeks damages and the production of account statements and financial records for the purpose of an assessment to determine the profits obtained by the Plaintiffs, as well as the amount of money misappropriated by the 4th to 6th defendants in the counterclaim. in Enclosure 25

5. Enclosure 25 prayed for the following :

6. D objects to the impugned amendment in paragraph 33.4A of the Amended Statement of Claim. Whereby the Plaintiffs added an additional prayer to the reliefs sought. Namely :

33.4A RM 88,000.00 as special damages; **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

7. In respect of the counterclaim defendants Amended Defence to Counterclaim, D objects to the impugned amendments in paragraph 15.5 and paragraph 20.3.2 therein.

8. The amended paragraph 15.5 of the counterclaim defendants Amended Defence to Counterclaim is reproduced below.

15.5 Arlena was formally reprimanded due to her lapses and failures that have Francis Ng, Howard Ng, Alex Ng and AKH from BDSB, the same was done in accordance with CKAP requirements and relevant laws existing at the time and for internal restructuring. Howard Ng was subsequently re-appointed as director of BDSB on 11.02.2023 when CKAPS allowed non dentist (DRS) to be board director;

9. The amended paragraph 20.3.2 of the counterclaim defendants Amended Defence to Counterclaim is reproduced below.

20.3.2 reprimand, it was a genuine mistake on the part of the employees of the Plaintiffs in the Original Action and there was no bad faith on their part and it was done in any way to bring harm to Arlena because it would make no sense for the said clinics (and their staff) to harm themselves as well; it is the responsibility of Dr Arlena being the PIC to ensure all KAPS and MOH rules are fully complied and followed. There is a committee for advertisement and Dr Arlena is part of this committee and usually it is the DRs who would propose materials for advertisements for approval to their committee before release to advertise. Therefore, Dr Arlena cannot pass the blame to anyone else except to her own representative. The law governing amendment of pleadings

10. The court s power to allow amendments of pleadings is found in Order 20 rule 5 of the ROC 2012. The discretion conferred by Order 20 rule 5 is wide. It reflects the principle that procedural rules exist to facilitate, not obstruct, the administration of justice. The important **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 consideration is whether the amendment enables the court to determine the real issues in dispute between the parties, rather than whether strict procedural timelines have been observed in isolation.

11. It is trite that procedural rules must not be applied mechanistically, so as to defeat substantive rights. The court s task is to ensure that disputes are resolved on their merits, with all relevant facts properly pleaded and ventilated.

12. The leading authority on amendments of pleadings is the Federal Court decision in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, where the Federal Court articulated the governing principles in the following terms (at page 214 - 215) : 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 : (i) whether the application was bona fide; (ii) whether the prejudice caused to the other side can be compensated by costs; and (iii) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character."

13. These principles have been consistently applied by the Malaysian courts. They represent the framework governing applications to amend pleadings and underscore the court s focus on justice and the proper determination of disputes, rather than procedural technicality.

14. The Malaysian courts have repeatedly emphasised that applications to amend pleadings should be approached liberally. The case law authorities demonstrate a consistent judicial policy. That clarity, completeness, and justice take precedence over rigid adherence to form. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

15. In Pong Soon Lean v Ramlah Begum binti Mohamed Ibrahim (beramal atas nama dan gaya Tetuan Ramlah & Associates) & Ors [2023] MLJU 2163, the High Court remarked that the need to amend pleadings may arise from a myriad of circumstances during the life of a dispute, rendering amendments not only common but often unavoidable.

16. In Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 MLJ 629 at 640, the Court of Appeal held that the courts should lean towards granting applications for amendments even when a new cause of action or line of defence is raised, provided it is based on the same facts or arose out of the same transaction.

17. In Suhaili bin Ismail v Syarikat Sribima Sdn Bhd [2015] 6 MLJ 556 at 559, the Court of Appeal observed that amendments to pleadings may be sought and granted at any stage of the proceedings - before trial, during trial, before judgment, after judgment and even when there is a pending appeal. Decision

18. D contends that the impugned amendments:- (a) are not made bona fide; (b) amount to a recantation of an admission of fact; (c) alter the nature and character of the action; and (d) occasion prejudice to D. I disagree.

19. It is my finding that the impugned amendments:- (a) are bona fide; (b) are necessary for the fair and complete adjudication of the dispute; (c) are firmly anchored to the original cause of action; and (d) do not occasion any irremediable prejudice to D. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

20. The impugned amendments were procedurally valid when made, having been filed before the close of pleadings in compliance with Order 20 rule 3 of the ROC 2012. They are material, effective, and directed towards ensuring that the court has before it a complete and accurate articulation of the issues necessary for the determination of the real controversy between the parties. Here is my explanation. The impugned amendments are procedurally valid under Order 20 rule 3 of the Rules of Court 2012

21. The threshold question in an Order 20 rule 4 application is whether the amendments were procedurally valid when made. This is not a matter of discretion, but of objective compliance with the ROC 2012.

22. Order 20 rule 3 (1) of the ROC 2012 reads : A party may, without the leave of the Court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he shall serve the amended pleading on the opposite party.

23. The right to amend once without leave under Order 20 rule 3 (1) of the ROC 2012 is an absolute right, provided that the amendment is made before pleadings close. As stated in the commentary to Order 20 rule 3 in Mallal s Supreme Court Practice : Under this rule, each party may, before the close of pleadings, make one amendment to any of his pleadings without leave ... The purpose of the rule is to save costs and time.

24. D s application under Order 20 rule 4 of the ROC 2012 can only succeed if the court is satisfied that had leave been sought under Order **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 20 rule 5 of the ROC 2012 at the date of amendment, leave would have been refused.

25. Order 20 rule 4 (2) of the ROC 2012 reads : Where the Court hearing an application under this rule is satisfied that if an application for leave to make the amendment in question had been made under rule 5 at the date when the amendment was made under rule 1 (1) or rule 3 (1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part to be struck out.

26. This is a stringent test. The burden rests on D to demonstrate that leave would inevitably have been refused. The impugned amendments were filed before close of pleadings

27. The chronology of pleadings in this suit is set out below. Pleading Date filed Enclosure no. In the main action Writ and Statement of Claim 9.5.2025 1 and 2 Defence 28.7.2025 7 Reply 29.8.2025 10 In the counterclaim Counterclaim 28.7.2025 7 The 1st and the 2nd D Defence to Counterclaim 29.8.2025 10 The 3rd to the 6th Defendants Defence to Counterclaim 14.10.2025 16 Reply to Defence to Counterclaim 13.11.2025 21 The impugned amendments The 3rd to the 6th Amended Defence to Counterclaim 19.11.2025 23 Amended Statement of Claim 25.11.2025 24 **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

28. The presence of counterclaim proceedings extends the period for close of pleadings beyond the main action. Under Order 18 rule 20 (1) (a) of the ROC 2012 : The pleadings in an action are deemed to be closed -

29. In this case, Reply to Defence to Counterclaim was served on 13.11.2025. Pleadings were therefore deemed closed fourteen days thereafter, namely on 27.11.2025. The impugned amendments were filed within this period.

30. The impugned amendments were therefore procedurally valid and properly made under Order 20 rule 3 of the ROC 2012. All pleadings properly exhausted before amendment

31. The impugned amendments were made only after all parties had filed their respective pleadings in both the main action and the counterclaim. This is consistent with proper practice. **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

32. D s suggestion that the impugned amendments should have been made at an earlier stage is misconceived. The need for amendment often becomes apparent only after considering all parties' positions, as disclosed through the complete exchange of pleadings. To require premature amendment would be to encourage piecemeal pleading and repeated amendments.

33. The Plaintiffs and the counterclaim defendants acted reasonably by waiting until all pleadings had been exchanged, before making the impugned amendments. This ensures that amendments are properly informed and meaningful. There is no delay - the pleadings had not closed

34. D alleges delay on the part of the Plaintiffs and the counterclaim defendants in making the impugned amendments. This allegation is untenable.

35. There can be no delay where amendments are made within the time permitted by the ROC 2012. Order 20 rule 3 of the ROC 2012 expressly permits amendments at any time before pleadings close. The impugned amendments were made before pleadings closed on 27.11.2025. There was therefore no delay, much less inordinate delay.

36. In any event, the Court of Appeal in HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398 at 406 held that delay alone is not a ground to refuse an application for leave to amend. While the time at which an amendment is made is a relevant consideration **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 it is not necessarily decisive. Delay per se does not equal prejudice or injustice.

37. Here, there is no delay whatsoever. The impugned amendments were made within the statutory timeframe provided by Order 20 rule 3 of the ROC 2012. The impugned amendments were also made at an early stage, prior to any case management directions given by the court. Hence the argument of delay is a non - starter.

38. Next, I will deal with the impugned amendments through the lenses of an opposed amendment with leave of court under Order 20 rule 5 of the ROC 2012. The impugned amendments are bona fide

39. D alleges that the impugned amendments are not bona fide. She contends that they amount to a tactical manoeuvre designed to disadvantage her. This allegation is unsupported by evidence and is inconsistent with both the procedural chronology and the substantive nature of the impugned amendments.

40. I consider that :

41. Another relevant consideration is the materiality and effectiveness of the amendment. If the amendment would be ineffectual, then it ought not to be allowed. (See the High Court case of Ponnusamy & Anor v Nathu Ram [1959] 1 MLJ 228 at 229).

42. In the present case, I find that the impugned amendments are material and effective. They clarify the issues for determination and enable the court to adjudicate the real controversy. They therefore bear all the hallmarks of bona fide amendments. Paragraph 33.4A of the Amended Statement of Claim does not change the character of the suit The RM 88,000 loss was pleaded in the original statement of claim

43. D contends that the addition of paragraph 33.4A to the statement of claim changes the character of the action. This contention is unsustainable.

44. The RM 88,000 claim relates to losses suffered by the 2nd Plaintiff arising from Dr. Joyce Fong s resignation. This matter was already pleaded in the original statement of claim. The impugned amendment **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 merely particularizes the quantum, and adds a legal characterization to facts already in issue.

45. In Vincent Tang Fook Lam v Sok Chun Tang (P) [2004] 2 MLJ 145, the Court of Appeal held : All that the purported re - amendment sought to do was to throw a brighter light on the spectrum of the same facts relied on in the original statement of claim.

46. Similarly, in Ilustrasi Hikmat Sdn Bhd v Tan Sri Dato Seri Syed Mokhtar Shah bin Syed Nor & Ors [2016] MLJU 416, the High Court recognised that amendments which streamline, clarify, and refine pleaded facts serve the interests of justice and ought to be allowed.

47. Paragraph 33.4A of the Amended Statement of Claim falls squarely within this category. It does not introduce new facts. Instead, it clarifies and quantifies a head of loss already in issue. The amendment does not change the nature of the action

48. In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230, the Supreme Court observed that the question to be considered is whether the changes alleged in the amendment sought to be made are the same or substantially the same as those alleged to support a cause of action already pleaded. The court held that the fact that a new relief or substantially new relief has arisen out of a new cause of action should not be a bar to the court s power to grant leave.

49. Here, the impugned amendment in paragraph 33.4A of the Amended Statement of Claim arises from : **Note : Serial number will be used to verify the originality of this document via eFILING portal 14

50. It therefore cannot be said to change the character of the action. Parallel proceedings do not bar amendment

51. D relies on the existence of a separate Magistrate s Court proceedings (WA - A72 NCvC- 5201 - 08 / 2023) as evidence of lack of bona fides. This reliance is misconceived.

52. The Magistrate s Court proceedings involved different parties, different causes of action, and different factual matrices. The existence of separate proceedings does not preclude a party from properly pleading all relevant heads of claim in each action.

53. The Magistrate s Court delivered its decision on 21.11.2025. The 2nd Plaintiff has since filed an appeal to the High Court on 3.12.2025 (WA - 11B NCvC - 60 - 12 / 2025). **Note : Serial number will be used to verify the originality of this document via eFILING portal 15

54. This impugned amendment ensures that the court has before it the complete case for determination. This is consistent with the principle that parties should bring forward their whole case, rather than litigating piecemeal. The impugned amendments in the 3rd to the 6th Amended Defence to Counterclaim do not withdraw admissions The nature of the amendments to paragraphs 15.5 and 20.3.2

55. D alleges that the amendments to paragraph 15.5 and paragraph 20.3.2 of the 3rd to the 6th Amended Defence to Counterclaim constitute a withdrawal of admissions. This characterization is misconceived.

56. The impugned amendments do not withdraw any factual admission. Instead, they clarify, particularize and elaborate upon the manner in which certain events occurred. There is a distinction between:- (a) withdrawing an admission of fact; and (b) clarifying or particularizing the circumstances in which admitted events occurred. The impugned amendments in question fall within the latter category. Amendments which clarify are not withdrawals

57. In Vincent Tang (supra), the Court of Appeal expressly held that amendments which clarify or particularise existing allegations do not amount to admissions or withdrawals. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

58. The White Book commentary to Order 20 of the ROC 2012 at paragraph 20 / 8 / 17 states : As a general rule, amendments that would be inconsistent with previous pleading will not be allowed. However, an admission made inadvertently may be withdrawn, and the pleading amended accordingly, if the court is satisfied that the admission was a genuine mistake.

59. I consider that the amendments to paragraphs 15.5 and 20.3.2 of the 3rd to the 6th Amended Defence to Counterclaim do not involve withdrawal of admissions. They involve clarification of context, which is permissible.

60. The proper forum for testing disputed factual assertions is at trial, not through an application to disallow the amendments. The impugned amendments do not prevent D from challenging the Plaintiffs and the counterclaim defendants case at trial. No prejudice is occasioned by the impugned amendments

61. Prejudice, in the context of amendments, must be real, substantive, and irremediable.

62. In ASM Development Sdn bhd v Hijjas Kasturi Associates Sdn Bhd [2011] 6 MLJ 228 at 233, the Court of Appeal held : [15] Whether it would be unjust to grant leave to amend required a balancing of the applying party s need to amend and the prejudice to the opposing party s interest. or may have difficulty in defending the claim, specifically at the trial. For any relevant prejudice to be found it must constitute prejudice resulting from the amendment, either in the sense that the defendants, in reliance on the **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 claim originally made, altered their position so as to make it more difficult to defend the new claim now made.

63. In Khairy Jamaluddin Abu Bakar v Dato' Seri Anwar bin Ibrahim [2012] 6 MLJ 551, the Court of Appeal reaffirmed that an application for leave to amend should generally be allowed provided it was bona fide and where the purpose of the amendment would result in the true issues to be determined.

64. Here, D has not identified any specific, irremediable prejudice. On the contrary, she retains full liberty to :

65. No trial has commenced. No witnesses have been called. No evidence has been adduced. All procedural avenues remain open to D. Any alleged prejudice is therefore entirely remediable. The interests of justice requires allowing the impugned amendments

66. The Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, adopting the principle from KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10, held : To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.

67. The impugned amendments enable the court to determine the real controversy between the parties based on complete pleadings. Disallowing them would:- (a) prevent the full ventilation of relevant facts and issues; (b) restrict the court s ability to render complete justice; (c) elevate procedural form over substantive justice; and (d) encourage piecemeal litigation.

68. The overriding objective of the ROC 2012 is to enable the court to deal with cases justly. That objective cannot be achieved if amendments which clarify and complete the issues for determination are disallowed on technical or procedural grounds.

69. D has failed to discharge the burden under Order 20 rule 4 of the ROC 2012 of demonstrating that leave would have been refused under Order 20 rule 5 of the ROC 2012. On the contrary, applying the principles in Yamaha Motor (supra), I consider that leave would have been granted. **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Conclusion

70. To sum up :

71. For the reasons above, I dismissed D application in Enclosure 25. I awarded costs of RM 3,000 to the Plaintiffs. **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Dated 6 March 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) Counsels Ivanpal Grewal (Messrs. A J Ariffin Yeo & Harpal) for the Plaintiffs Chan Yi Zheng (Messrs. Lo Chambers) for the Defendant Case reference 1. Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 2. Pong Soon Lean v Ramlah Begum binti Mohamed Ibrahim (beramal atas nama dan gaya Tetuan Ramlah & Associates) & Ors [2023] MLJU 2163 3. Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 MLJ 629 4. Suhaili bin Ismail v Syarikat Sribima Sdn Bhd [2015] 6 MLJ 556 at 559 5. HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398 6. Ponnusamy & Anor v Nathu Ram [1959] 1 MLJ 228 7. Vincent Tang Fook Lam v Sok Chun Tang (P) [2004] 2 MLJ 145 8. eri Syed Mokhtar Shah bin Syed Nor & Ors [2016] MLJU 416 9.

10. Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230 ASM Development Sdn Bhd v Hijjas Kasturi Associates Sdn Bhd [2011] 6 MLJ 228

11. Khairy Jamaluddin Abu Bakar v Dato' Seri Anwar bin Ibrahim [2012] 6 MLJ 551

12. Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1

13. KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10 Legislation reference 1. Order 18 rule 20 (1) (a); Order 20 rule 3, rule 4 and rule 5 of the Rules of Court 2012 **Note : Serial number will be used to verify the originality of this document via eFILING portal