1. ) Han on Sdn Bhd v 1. ) Eas Air-Conditioning Services Sdn Bhd (WA-22NCvC-276-05/2023)

The Plaintiffs in this Suit applied vide Enclosure [Encl] 102 to amend their Statement of Claim. This Application was filed on 21 October 2025 and is supported by Encl 103 and Encl 107, whereas it is opposed by the Defendant, vide Encl 105.

The Parties filed their respective Written Submissions and Bundles of Authorities in Encls 109 and 110 for the Defendant, and Encls 111 and 112 for the Plaintiffs.

The trial dates had been previously set for 3, 4, 5 and 6 November 2025 and 19 to 20 November 2025 by the previous Learned Judge on 2-10-2024 during Case Management. However, Counsel for the Defendant had applied to vacate the trial dates on 5 and 6 November 2025 at the Case Management on 18 September 2025, as he had a 2021 part-heard trial on those days. The Court had allowed this.

The Application to amend in Encl 102 and was not the first time such an Application had been made by the Plaintiffs. Prior to Encl 102, the Plaintiffs had filed and obtained Orders to Amend their Statement of Claim twice, by Order dated 27 October 2023, where the Plaintiffs amended their Writ and Statement of Claim; and then again on 30 July 2025.

Encl 102 is the Plaintiffs’ third Application to Amend their Statement of Claim.

On 3 November 2025, I delivered broad grounds dismissing Encl 102. These are now my detailed grounds. A. Background Facts as pleaded 7. The Plaintiffs’ Case 7.1 The Plaintiffs allege that in 2017, they entered into an oral profit‑sharing agreement with the First Defendant, represented by the Second Defendant. They allege that the profits from certain projects were to be shared equally after expenses.

7.2 There are six projects alleged in the Re-Amended Statement of Claim [the second Amended Statement of Claim] in Encl 74, which forms part of the alleged oral profit‑sharing agreement, namely, Trinity Aquata, Vistayu, Tropicana, Sky Boutique Hotel, Suria Land, and TSI Domain, and one which is alleged to be non-profit sharing, namely the Elevia Project.

7.3 The Plaintiffs alleged the First Defendant failed to pay the full share of the profits and did not reimburse expenses, causing a total shortfall of RM2,092,687.39 [as pleaded in paragraph 56 of the Re-Amended Statement of Claim in Encl 74], which the Plaintiffs claim is the sum from which the Defendants have unjustly enriched themselves.

7.4 The Plaintiffs allege fraud against the Defendants, pleading, inter alia, that the Defendants never intended to honour the alleged oral agreement and allegedly made false representations to obtain the Plaintiffs’ services at a reduced cost or cheaply.

5 The reliefs sought in the Re-Amended Statement of Claim in Encl 74 are: a. The payment of the sum of RM2,021,651.74, being the sum payable jointly or severally, by the Defendants; b. The sum of RM74,783.08 which is the estimated bank interest; c. An account of all the profits for the six projects; d. All accounting and investigations to ascertain the sums that ought to be paid to the Plaintiffs; and e. Aggravated damages, general damages, and Costs.

The Defendants’ case 8.1 The Defendants deny any oral profit-sharing arrangement, asserting that Plaintiffs were subcontractors who were engaged per project, sometimes under Letters of Award.

8.2 Pertaining to the projects pleaded, the Defendants allege that the Plaintiffs failed to complete or abandoned works on several projects, causing the First Defendant to incur additional rectification costs.

8.3 The Defendants deny the allegation of fraud and unjust enrichment as baseless and plead that the Plaintiffs have already been paid and any profit-sharing claim would unjustly enrich the Plaintiffs.

8.4 By their Counterclaim, the Defendants seek recovery of overpayments and rectification costs totalling more than RM200,000.00 plus damages for alleged malicious prosecution against the Second Defendant.

8.5 In their Reply and Defence to Counterclaim, the Plaintiffs maintain that an oral profit-sharing agreement existed, citing specifically the Trinity Aquata payment history as proof. The Plaintiffs dispute the Defendants’ claims of abandonment of works, alleging that the Second Defendant verbally instructed them to cease work on all projects due to non-payment. The Plaintiffs also deny owing any sums sought in the counterclaim, pleading that any extra costs incurred were the result of the Defendants’ own actions, and reject the malicious prosecution allegation on the basis that the Second Defendant was directly involved in the alleged fraudulent scheme.

In the Reply by the Defendants, the Defendants plead that the Plaintiffs’ positions are contradictory, and reiterate that the terminations were the Plaintiffs’ own doing; that the projects still were ongoing when work was abandoned; and that there was no benefit to the First Defendant from alleged profit-sharing; and the Defendants deny fraud or malicious prosecution allegations.

B. Applicable Legal Principles on Amendment of Pleadings From the authorities cited in the papers filed by the Parties, the governing law on Amendment of Pleadings under Order 20 Rule 5 of the Rules of Court (ROC) 2012 can be summarised as follows:

10.1 The general rule oft quoted is that found in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213, which lays out the general principles to be observed when a Court is faced with such an Application. 7 10.2 The Court may allow Amendments at any stage of the proceedings if: a. The application is bona fide. b. Any prejudice to the other party can be compensated by costs. c. The Amendment will not turn the Suit into one of a different and inconsistent character.

10.3 Even a new Cause of Action can be added if it arises out of either the same or substantially the same facts as already pleaded.

The law was tweaked to represent and echo the times after Order 34 was introduced in the ROC 2012, which now governs the management of cases that have been filed and requires the direct involvement and constant supervision of the Courts. By the amendments to the Rules, and the later Federal Court decision of Hong Leong Finance Bhd v Low Thiam Hoe [2015] 8 CLJ 1, specifically related to Applications to Amend made at a late stage or at the eve of Trial, the Courts must consider: a. Any cogent and reasonable explanation for the lateness. b. Whether the Application is a tactical manoeuvre. c. Whether the proposed Amendment discloses full particulars showing a real prospect of success. d. Whether lateness can necessarily be compensated by Costs.

The Federal Court emphasised that under the current court-managed system in Order 34 of the ROC 2012, the progress of the case is within the Court’s control, and litigants must frame their cases fully before trial. The latest Practice Direction, issued by our outgoing Chief Justice of Malaya on 13 November 2025 in PD 2 of 2025, is testament to this.

An important criterion that must not exist is that of prejudice.

In this context, prejudice includes: a. Giving the opposing party a different case to meet late in the day. b. Disrupting trial dates fixed in advance. c. The Application must not be such as to procure a tactical delay.

14.1 In this regard, the following must be taken into account: a. Timing: The present application (Encl 102) was made after a Re-Amended Statement of Claim was already on record, and trial preparation was well advanced, and in fact, the trial was barely weeks away when the Application was filed. b. The Defendants allege that the Amendments are last-minute; that the Amendments change the factual structure; and that they amount to a tactical manoeuvre. c. The Defendants also plead that the Plaintiffs have inserted the proposed Amendments into the Witness Statement before the Court has ruled on the Amendment Application, suggesting bad faith.

The Plaintiffs, on the other hand, submit that there is no undue delay and that the Amendments are necessary to determine the real controversy; are bona fide; and cause no prejudice that cannot be compensated by Costs.

The Plaintiffs plead that this is not an eve-of-trial Amendment and there was sufficient time for the Defendants to reply.

The Plaintiffs state that they want to: a. Clarify and particularise fraudulent acts and the fraudulent scheme allegedly perpetrated by the Defendants. b. Plead specifics regarding:

Circumstances of the Oral Agreement.

(ii) Facts behind the “Trinity Aquata Project”.

(iii) Acts / conduct giving rise to estoppel.

(iv) Fraudulent misrepresentations.

Conspiracy to defraud.

(vi) Additional relief for inquiry into damages. 10 17.1 The Plaintiffs emphasise that these matters do not introduce a new Cause of Action, but rather, the proposed amendments streamline and augment existing pleaded facts relating to fraud, breach of resulting / constructive trust, and unjust enrichment.

The Plaintiffs further submit that the Application is bona fide and that the Amendment is required to place all relevant facts before the Court to arrive at a just decision.

The Plaintiffs submit that fraud was already pleaded earlier and therefore this is not a new Cause of Action.

For the WhatsApp communications that the Plaintiffs wish to introduce, the Plaintiffs depose that due to technical difficulties, they only recently managed to obtain the same, however, what these technical difficulties are were not fully alluded to.

The Plaintiffs submit that there is no new Cause of Action and that the Suit is still based on fraud and breach of trust arising from the same set of facts. C. Analysis

(A) Timing and Delay

The record shows that the Application comes late in the litigation, after earlier Amendments, and after Witness Statements has been filed. a. Encl 102 was filed only on 21 October 2025. b. The Parties had filed their Witness Statements on 14 October 2025. c. The trial was set to begin on 3 November 2025. d. Due to this Application, the trial could not proceed on 3 November 2025.

From this Court’s perspective, even if the Application was not made literally on the eve of trial, the lateness triggers the Hong Leong Finance principles. It therefore estops the Plaintiffs from arguing that the Application was not made on the eve of trial; or that any prejudice could be compensated by Costs.

The Court in Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd [2021] MLJU 132 in discussing the Federal Court decision of Hong Leong Finance had this to say about the Affidavit in that case, which did not provide cogent material on the issue of whether the Amendment Application would prejudice the trial dates: [38] The Plaintiff’s assertions in paragraph 13 of its Affidavit-in-Support (Enclosure 53) and in paragraph 10 of its Affidavit-in-Reply (Enclosure 59) that the amendment application would not prejudice the full trial dates or could be adequately compensated by costs are also without substance. On the question of prejudice, costs are not the only factor to be considered – see Hong Leong Finance v. Low Thiam Hoe, wherein the Federal Court approved the dicta that the following factors are also relevant –

having a case hanging over the heads of the defendants;

the defendants’ desire to have the case heard and disposed of expeditiously; and

The policy of the court-managed system of administration of justice is to dispose of the cases smoothly, expeditiously and economically. [39] In assessing whether or not an amendment application would prejudice the trial dates fixed by the Court, regard must be had also to the following factors and reality in addition to the date of filing the amendment application relative to the fixed trial dates –

the time needed for the parties to file and exchange affidavits in connection with the amendment application involving substantial or significant amendments and such minimal time as envisaged by the ROC 2012 is 14 days for the Defendant’s affidavit-in-reply plus a further 14 days for the Plaintiff’s affidavit-in-reply;

the time needed for the parties to do their research into law and to prepare, file and exchange their submissions – which usually takes about 3 weeks;

the subsequent time needed for filing and service of amended pleadings, if the amendments were allowed – this would usually take about 8 weeks for a case of similar nature as the present case; and

the subsequent time needed for the parties to re-organize their respective documents, witness statements, etc in preparation for the full trial on basis of the amended pleadings.

The Plaintiffs’ explanation for the delay is essentially that the issues “came to light during trial preparation”.

The Plaintiffs filed this Suit in May 2023 and since then, the Plaintiffs have made two Amendments. Based on the cause papers filed, no reference was made to any position being reserved about the inability to obtain WhatsApp messages due to ‘technical difficulties’. This militates against the Plaintiffs.

Bearing in mind that the Suit was filed in May 2023; and the first Amendment was made on 27 October 2023 [See: Encl 22] and the second Amendment Application was made on 30 July 0025 [See: Encl 74], and this present Application was filed on 21 October 2025, this Court finds that there was a delay in the Amendment Application in Encl 102, and that no cogent and material reasons were provided for the delay.

Courts have repeatedly held that a bare assertion is insufficient; and that a material and cogent reason is required. This was the position of the Federal Court in Hong Leong Finance, citing at paragraph 30, the Supreme Court decision of Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri [1993] 1 MLJ 12.

It has been more than two years since the Suit was instituted, and after two Amendments, the Plaintiffs seem to suddenly realise that further Amendments were necessary, especially after the Defendants had filed Witness Statements.

Here, the Plaintiffs' reasons seem thin — the facts underlying the Amendments appear to have been known earlier. The necessary inference, therefore, is that the explanation does not meet the “heavy onus” threshold for late Amendments.

(B) Bona Fides / Tactical Manoeuvre

The Defendants argue that inconsistent conduct and the insertion of Amendments into Witness Statements before Leave is granted show tactical behaviour.

Courts generally disallow Amendments used to circumvent procedural rules or gain an advantage. Again, the Federal Court in Hong Leong Finance observed that Applications filed to gain an advantage may be disallowed, citing Ismail bin Ibrahim v Sum Poh Development [1998] 2 CLJ 632 and Everise Hectares Sdn Bhd v Citibank Bhd [2011] 2 CLJ 25.

The Plaintiffs deny this, but the sequence of actions raises legitimate concern about tactical advantage. This sequence is evident in paragraphs 27 and 28 above.

There is therefore the element of tactical manoeuvre to delay the trial, as, if the Amendment were to be allowed, the Defendant would have the necessary right to amend its Defence and subsequent Pleadings.

The Amendments proposed by the Plaintiff doubled the number of pages from the second Amendment of the Statement of Claim of 64 paragraphs, not including the sub-paragraphs previously amended in 33 pages, to 64 paragraphs in 65 pages, which is almost double the previous pleadings.

This would require the Defendants to incur substantial time and costs to make the necessary Amendments and, thereafter, to make further Amendments to their Pleadings.

This would also necessarily cause the parties, particularly the Defendants, to rethink their defence strategy [as the Defendant only has to meet the Plaintiffs’ case] and reformulate issues and review the veracity of the previous Witness Statements.

Based on the timelines allowed in the Rules and the Court’s diary, there would be a substantial and inevitable delay in having a matter that was filed in 2023 to be heard and disposed of in a timely manner.

In Merge Jati Engineering Sdn Bhd v UPECA Flowtech Sdn Bhd [2017] MLJU 1174, for legal position on such factual circumstances when bona fides and tactical manoeuvres are in issue, the Court said: [17] It would, thus, appear that in filing L. 11 just a few weeks before the trial, D had not acted bona fide based on the sequence of events elaborated above. This attempt was likely to cause undue prejudice and hardship to P and their solicitors in the preparation for the trial occasioned by the proposed amendments, which made the Defence materially different from what it originally was. It smacked of afterthought and refusal to accept certified independent findings on the issue of encroachment. The amendments were not shown to be likely to assist in the determination of the true or real issues in dispute but instead served to unnecessarily prolong the matter to the detriment of P who had the right to expect their claim to be tried on the scheduled dates without undue delay,

(C) Change in Character of the Suit

The Defendants argue the Amendments change the factual structure entirely.

The Plaintiffs say the Cause of Action arises from the same facts.

Where the Amendments introduce new fraud allegations and different factual framing, the Courts have found that this can turn the Suit into one of a distinct and inconsistent character.

In Merge Jati Engineering, the Learned Judge also said, with reference to this point at paragraph 17 and 19 therein, that: [17] … It must be borne in mind that the basic purpose of PTCM of which there were 7 sessions in this case, is for the ‘just, expeditious and economic disposal of an action. [19] In light of the above, particularly the fact that P would have to face a totally new defence when the trial is already around the corner and the element of surprise at an unreasonably late stage, the prejudice that would be occasioned of the application were allowed would be such that it cannot be compensated by costs.”

The Plaintiffs’ Claims in Encl 74 [the Re-amended Statement of Claim] reveal that their Claim is premised upon: a. A breach of an oral agreement; b. Specifically for the Elevia contract, the allegation of a breach of contract. c. Specifically based upon the terms of the oral agreement, that the profits that arose from the projects jointly undertaken were to be divided 50:50 and that by not paying the Plaintiffs, the Defendant held the Plaintiffs’ portion on a resulting and or constructive trust. d. The Pleading that the Defendants failed to assist the Plaintiffs in recovering expenses; failed to provide accurate accounts; and failed to pay the profits to the Plaintiffs. e. The Pleading that the Plaintiffs were induced to enter into a sham oral agreement, as the Defendants had no intention of fulfilling the terms, and used false and misleading representations to obtain work and services. Additionally, the Plaintiffs alleged that the Defendants had unjustly enriched themselves by more than RM 2 million.

From this Court’s analysis, the Amendments alter the character of the Suit in the following manner: a. In the proposed amendment found in Encl 102, the Plaintiffs add that the Defendants are estopped from denying the partnership and profit-sharing arrangement due to explicit, repeated written admissions over more than two years. This is absent from Encl 19 74 and adds a new equitable doctrine to block the Defence’s denial. b. Encl 74 alleges fraud, unjust enrichment, and breach of trust but does not plead conspiracy. In Encl 102, the Plaintiffs add “conspiracy to injure by unlawful means”, with particulars:

Agreement between the Defendants to injure the Plaintiffs via fraud.

(ii) Objectives: To obtain the Plaintiffs' work at minimal cost; withhold profits; and enrich the Defendants.

(iii) Means: By false representations, fraudulent scheme, systematic underpayment, false excuses, false documentation, and denial of the partnership. To my mind, this is a significant escalation, introducing a tort claim independent of contract and a clear change in the character of the Suit. c. Encl 74 claims specific sums for profit shortfall and reimbursement, plus interest and damages. Encl 102 adds:

Breakdown into direct losses and consequential losses.

(ii) Specific financing costs (RM 74,783.08) and other costs that are subject to further assessment.

(iii) Links losses explicitly to reliance on false representations. This reframes Damages as now flowing from tortious wrongdoing, and not just from breach of contract. d. Encl 102 retains the relief sought in Encl 74 but adds:

An inquiry into damages.

(ii) Explicit orders linked to estoppel, conspiracy, and fraudulent misrepresentation findings.

(iii) Assessment “or such value of benefit as assessed by the Court” thereby asking the court to award beyond fixed sums.

There is, therefore, an overall change of character in the Suit. a. Encl 74 primarily involves breach of oral agreement, breach of trust, fraudulent inducement, and unjust enrichment claims.  Whereas Encl 102 transforms it into a multi-cause action in contract, equity, and tort, adding:

Misrepresentation / deceit with structured false statement categories.

(ii) Estoppel (preventing denial of partnership).

(iii) Conspiracy to injure by unlawful means.

(iv) Expanded fraud phases and evidentiary detail.

Broader timeline.

(vi) A more comprehensive damages framework. b. This transforms the claim from a straightforward commercial dispute over profit-sharing into a complex, multifaceted allegation of deliberate, long-term fraudulent conspiracy, with equitable and tortious remedies.

(D) Prejudice

Based on the above, this Court find that Costs cannot compensate for the prejudice visited on the Defendants.

Applying Yamaha Motor and Hong Leong Finance together with the other authorities referred, the application in Encl 102 is therefore dismissed for the reasons expounded on above, with Costs of RM7,500.00 subject to allocatur. Dated 17th November 2025 ……………………………………… AVINDER SINGH GILL A/L RANJIT SINGH JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC2) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Counsel for the Plaintiffs: Mr. Theng Kai Chi together with Miss Mugeela Chandran Messrs Sodhi Chambers (Petaling Jaya) Counsel for the Defendants: Mr. Chan Kheng Hoe together with Mr.Henry Ng Zong Hui & En. Mohamed Daniel Messrs Chong + Kheng Hoe (Kuala Lumpur)