1. ) Che Seow Foon @ Chow Seow Foon v Loh Hong Liang (PA-12A-1-01/2025)

DATO’ CHE SEOW FOON @ CHOW SEOW FOON

TAN SEE WIE (NRIC: 801114-01-6191) … PERAYU-PERAYU DAN LOH HONG LIANG (NRIC: 790722-07-5143) … RESPONDEN (DALAM MAHKAMAH SESYEN DI GEORGETOWN DI PULAU PINANG, DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO: PA-B53F-1-01/2023 ANTARA 1. COMET CATCHER SDN BHD (NO. SYARIKAT: 201201042067) 2 2. LIEW CHEE YEN

CH’NG EWE LEE (NRIC: 721215-07-5561) … PLAINTIF-PLAINTIF DAN 1. DATO’ CHE SEOW FOON @ CHOW SEOW FOON

TAN SEE WIE

LOH HONG LIANG (NRIC: 790722-07-5143) … DEFENDAN-DEFENDAN JUDGEMENT A.

This is an appeal by the Appellants, being the First and Second Defendants, against the decision of the Learned Sessions Court Judge dated 17 January 2025, whereby the Court allowed the Respondent, being the Third Defendant, to amend its Defence and Counterclaim dated 1 March 2023.

For clarity, the parties will be referred to in this appeal as they were in the Sessions Court, namely, the Appellants as the First and Second Defendants (“D1” and “D2”) and the Respondent as the Third Defendant (“D3”). B.

On 12 January 2023, the Plaintiffs commenced the present action against the Defendants on the basis that the Defendants, including D3, who purportedly held themselves out as members of the committee of the Bay Avenue Management Corporation (“BAMC”), had published and/or permitted the publication of defamatory statements concerning the Plaintiffs. The alleged publications were made via online platforms, namely a Facebook page known as “We Love Bay Avenue” (“the Facebook Page”) and an email account at bayavenue.careline@gmail.com (“the Email Account”), both of which were purportedly under the full control and administration of the Defendants.

The alleged statement was titled, “Dato Has Something to Say! Special Broadcast – Condo Master Plot Exposed?” (“the Alleged Statements”), which the Plaintiffs contend contained defamatory content. According to the Plaintiffs, the Alleged Statements were defamatory as they, inter alia, falsely alleged that the Plaintiffs had acted in conflict of interest, engaged in misconduct, and committed a breach of trust by misusing the personal data of Bay Avenue proprietors.

The Plaintiffs further allege that the contents of the Alleged Statements were also disseminated by the Defendants via email to the Plaintiffs’ clients using the email address bayavenue.careline@gmail.com. It is contended that such dissemination not only tarnished the Plaintiffs’ reputation but also eroded their clients’ confidence in them, thereby adversely affecting their business. The Plaintiffs accordingly claim damages against the Defendants.

Messrs Chan, De Vries & Co. (“Messrs CDVC”) were appointed to file a Defence and Counterclaim. The Defence and Counterclaim were prepared and filed on behalf of D1, D2, as well as D3. However, D3 alleged that he had never consented to the appointment of Messrs CDVC as his solicitors, nor to the filing of the Defence and Counterclaim on his behalf. D3 further contended that the said Defence and Counterclaim failed to properly plead the facts, position, and defences applicable to him. Consequently, D3 applied to amend his Defence and Counterclaim dated 1 March

The Learned Sessions Court Judge allowed D3’s application. C. SUBMISSION OF D3 7. D3’s Defence is that he served solely as the Treasurer and a Committee Member of BAMC, with responsibilities confined to the management of BAMC’s finances and treasury functions. D3 asserts that he was never involved in any social media matters relating to the “We Love Bay Avenue” Facebook Page, nor did he receive any instructions from any party concerning the said Facebook account. D3 further avers that he had no knowledge of, nor access to, the username or password of the said Facebook account. At all material times, the Facebook Page was under the full control of D1 and D2. Accordingly, D3 maintains that he had no involvement in the publication of any content on the said Facebook Page, including the Alleged Statements.

The aforesaid defences of D3 were not pleaded in the original Defence dated 1 March 2023. The manner in which the Defence and Counterclaim dated 1 March 2023 was pleaded created the erroneous impression that D3 had access to the Facebook account, was aware of the publication of the Alleged Statements on the Facebook Page, and was aware of the dissemination of the Alleged Statements via email. Further, D3 never intended to initiate any counterclaim against the Plaintiffs. However, in the original Defence and Counterclaim dated 1 March 2023, D3 was also named as a party counterclaiming against the Plaintiffs. Consequently, D3 filed the Amendment Application to amend the Defence and Counterclaim in order to provide a full and specific clarification of his position, to ensure that his Defence is consistent with the true facts, and to ensure that his Defence is pleaded with greater clarity and particularity for the proper consideration and determination of the Learned Sessions Court Judge.

The Amendment Application was made bona fide by D3 and brought with the genuine intent of clarifying his actual factual position in the Plaintiffs’ action against him. The proposed amendments are strictly confined to D3’s Defence and do not, in any way, undermine or prejudice the case of any other party, particularly that of D1 and D2. Instead, the amendments are intended to provide clarification that will assist in the fair and proper disposal of the matter before the Court. While D1 and D2 opposed the Amendment Application on the ground that it allegedly altered the character of their Defence and Counterclaim dated 1 March 2023 and introduced a new cause of action, they have failed to explain with specificity how the amendments would fundamentally alter the character of their Defence and Counterclaim or introduce any new or inconsistent claims.

There is also no prejudice or injustice caused to any of the parties by the Amendment. The Plaintiffs did not object to the Amendment Application, and their lack of objection indicates that they suffer no prejudice or injustice as a result of the amendments. Likewise, there is no prejudice to D1 and D2, as D3’s amendments are confined solely to his own Defence and do not in any way alter, affect, or interfere with the Defence and Counterclaim of D1 and D2. D. SUBMISSION OF D1 & D2 11. D1 and D2 submitted that D3 had in fact engaged the services of Messrs CDVC, who duly filed the original Defence and Counterclaim on 1 March 2023. Messrs CDVC acted for D3 in order to avoid a Judgment in Default of Appearance being entered by the Plaintiffs in the event D3 failed to file within the time prescribed by the Court. Accordingly, D3’s contention that no solicitor had been appointed by him for the filing of the original Defence and Counterclaim, particularly when the Memorandum of Appearance stands undisputed, is an afterthought and ought to be rejected.

Subsequently, on 28 August 2024, an application for amendment was filed by Messrs CDVC in respect of the Defendants’ original Defence and Counterclaim. It is submitted that D3’s allegation that only D1 and D2 had absolute control over the said Account is highly prejudicial as it undermines the defence of D1 and D2 herein. Further, the delay in filing the Amendment Application demonstrates bad faith. Case management for the main suit commenced in 2023, and no objection was raised by D3 after pleadings were closed and preparations for pre-trial were underway. The only explanation advanced by D3 in his supporting affidavit for such delay was that he had only recently discovered that a solicitor from Messrs CDVC had filed the original Defence and Counterclaim without his authority and that his defence was not properly pleaded. It is submitted that this explanation is wholly untenable and does not justify the belated Amendment Application.

In the circumstances, D1 and D2 submitted that this Court ought to exercise its inherent jurisdiction under Order 92 Rule 4 of the Rules of Court 2012 to direct that D3 plead and file his own Defence and Counterclaim individually and separately. The decision of the Sessions Court in allowing D3 to amend the original Defence and Counterclaim has caused prejudice to D1 and D2, as it effectively affords the Plaintiffs an opportunity to revise or modify their previously filed Replies to Defence and Counterclaim dated 29 March 2023. It is further submitted that the Plaintiffs’ claims would in fact be more accurately directed towards D3 if he were required to file his Defence and Counterclaim individually, given that the facts, positions, defences, and interests relied upon by D3 materially differ from those of D1 and D2. E.

In making my decision, I am guided by the trite principle that an appellate court will only interfere with the decision of a trial court where the learned judge has acted on a wrong principle of law or where the decision reached is plainly wrong. In the case of S QUARRY SAN BHD V DESARY DEVELOPMENT CORPORATION SDN BHD [2019] 1 LNS 93, the Court of Appeal has stated as follows: “[13] Accordingly, it falls upon this Court to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing. this Court was perfectly entitled to examine the process of evaluation of the evidence by the trial court. The requirement for the trial judge to have made a decision which was plainly wrong' before an appellate court may intervene is well settled in our appellate jurisprudence and practice. [14] A plainly wrong decision happens when it can be shown that there is insufficient judicial appreciation of evidence by the trial court. The requisite or correct standard to be applied is that no reasonable judge, on the evidence on record, could have reached the conclusion of the trial judge. The adverb 'plainly' does not refer to the degree of confidence felt by the appellate court that it would have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty that the appellate court considered that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached”.

The law regarding amendments of the pleadings is well established in YAMAHA MOTOR CO. LTD V. YAMAHA MALAYSIA SDN BHD & ORS [1983] 1 MLJ 213: -

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.”

The amendment of pleadings is governed under Order 20 rule 5 Rules of Court 2012 which reads as follows: - “Amendment of writ or pleading with leave (O. 20, r. 5 ) 5.

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.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

The above provision confers wide discretionary powers on the Court to allow amendments to writs and pleadings. This discretion, is however, guided by the established principles in accordance with the factual matrix of the case before the court. In this case before me, I found that the amendment application was made in good faith and there is a need for the original Defence and Counterclaim to be amended. This is to ensure that the pleadings accurately reflect the true factual position concerning D3 in the Plaintiff’s action against him as D3 claimed that he was not involved in managing or contributing to any social media content on the Facebook page “We Love Bay Avenue” or in disseminating content via email. The amendment sought is to clarify and elaborate facts that were not adequately pleaded in relation to D3’s position in the Plaintiff’s suit. Nowhere in the amendment would alters the character of their Defence and Counterclaim dated 1.3.2023 and introduces a new cause of action.

I find that no prejudice would be caused to any of the parties by the amendments sought by D3. This is especially so given that the Plaintiffs did not object to the Amendment Application. D1 and D2 likewise suffer no prejudice, as the amendments are strictly confined to D3’s Defence. Any consequential amendment by the Plaintiffs to their Reply to Defence and Defence to Counterclaim would necessarily be limited to the amendments made by D3 and bear no connection to the Defence of D1 and D2. Accordingly, I find the contention by D1 and D2 that they would be prejudiced to be baseless and unsupported.

In my view, the suggestion by D1 and D2 that D3 should instead file a new and separate Defence is untenable. The Defence and Counterclaim dated 1 March 2023 was filed on behalf of and for all the Defendants, including D3. To require D3 to file a fresh Defence would result in a duplicity of proceedings, risk inconsistency, and create confusion. The proper course, therefore, is to amend the existing Defence and Counterclaim dated 1 March 2023.

This is an appropriate case for this Court to exercise its inherent jurisdiction under Order 92 Rule 4 of the Rules of Court 2012 to permit D3 to amend his Defence. The decision of the Sessions Court in allowing D3 to amend his Defence did not prejudice D1 and D2. I am further not persuaded that any prejudice or injustice has been occasioned to any party by reason of the delay in filing the Amendment Application, as amendments to pleadings may be made at any stage of the proceedings where the interests of justice so require.

Upon hearing the submissions of both parties, I find that D1 and D2 have failed to satisfy this Court that the Learned Sessions Court Judge was plainly wrong in arriving at her decision. For the reasons stated above, the appeal by D1 and D2 is hereby dismissed with costs of RM2,000.00, payable by D1 and D2 to D3. Bertarikh 22 September 2025 Peguam bagi pihak Perayu : Loh Pay Chea Messrs Chan, De Vries & Co. Peguam bagi pihak Defendan: