1. ) Muhammad Halim Al-Hafiz Bin Ramli v 1. ) Suhaimi Bin Sabilan (BA-22NCvC-359-09/2024)

MUHAMMAD HALIM AL-HAFIZ BIN RAMLI

SITI MAZRIZAN BINTI TOHID

NURUL AIN BINTI SIUTI

ZURLIA BINTI SIUTI

SITI AISAH BINTI MOHD TAHIR (NO. K/P.: 780710-10-5588) …PLAINTIF-PLAINTIF

SUHAIMI BIN SABILAN (NO. K/P.: 750528-10-5875) 27/10/2025 15:02:07 BA-22NCvC-359-09/2024 Kand. 84 S/N r8kChsxxDk2hdbVf2eOdeQ

HANITA & CO

MUHIBINA SDN BHD (NO. SYARIKAT: 199301026737 [281475-H]) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

The amended Notice of Application at Enclosure 39 (the original Notice of Application was at Enclosure 35) is the First Defendant’s application for leave to amend his Statement of Defence pursuant to Order 20 rule 5 of the Rules of Court 2012 (ROC 2012). The Third Defendant objected to the said application. However, the Plaintiff did not object.

The Plaintiffs initiated this suit against the Defendants concerning land known as PM878, Lot 3615, Pekan Asam Jawa, Daerah Kuala Selangor.

In their Statement of Claim, the Plaintiffs sought, among other reliefs, declarations that the Sale and Purchase Agreements S/N r8kChsxxDk2hdbVf2eOdeQ entered into between the Plaintiffs and the First Defendant, and prepared by the Second Defendant, in respect of the sale and purchase of land plots situated on the property held under PM 51, Lot 3615, Mukim Api-Api, Assam Jawa, District of Kuala Selangor, Selangor, are valid and remain in force; that the Plaintiffs are the beneficial owners of the said land plots purchased under those agreements; that the Second Defendant, as the solicitor acting for the Plaintiffs in the said transactions, was negligent in handling the Sale and Purchase Agreements, thereby causing the Plaintiffs to suffer financial losses and to lose their ownership rights over the land plots; that the First Defendant committed fraud by transferring the said property to the Third Defendant without the Plaintiffs’ knowledge; and that the Third Defendant is not a bona fide purchaser without notice in respect of the said property.

The Third Defendant purchased the said land from the First Defendant through a Sale and Purchase Agreement dated 13 June

The Third Defendant was registered as the proprietor on 27 December 2018.

The First Defendant filed his Statement of Defence on 4 November 2024 (Enclosure 9), asserting that the signatures on the transfer documents were not his and had been forged. He subsequently filed an application for discovery (Enclosure 18) to obtain the original transfer form for verification by a handwriting expert. S/N r8kChsxxDk2hdbVf2eOdeQ

The discovery application was subsequently discontinued. Then, on 10 February 2025, the First Defendant filed the present application for leave to amend his Statement of Defence.

The proposed amendment aimed to replace the previous plea of forgery with a new plea that his signatures were obtained under undue influence and duress, and to introduce a counterclaim against the Third Defendant and two new parties.

The First Defendant argued that the proposed amendment was made in good faith and within a reasonable timeframe, referencing Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] CLJ (Rep) 428, which permits amendments as long as they are bona fide, do not cause irremediable prejudice, and do not alter the nature and character of the suit.

The First Defendant argued that the amendment merely clarified the factual basis of his defence, namely, that although he signed certain documents, they were executed under undue influence or duress by the Third Defendant’s directors, Iqbal Feiruz Khan Bin Mohamed Rafik (Iqbal) and Mohamed Rafik Bin Kadir (Rafik). He maintained that this did not alter the essence of his earlier defence that he never consented to the transfer.

The First Defendant relied on Palaniappan v Universiti Pertanian Malaysia [1995] 1 MLJ 353, where the court held that amendments S/N r8kChsxxDk2hdbVf2eOdeQ may be allowed even if they introduce new facts, provided they arise from substantially the same circumstances. He also cited IFCI Ltd v Bishopgate Capital Ltd & Anor [2023] 12 MLJ 111, Dato’ Chang Jong Yu v OSK Capital Sdn Bhd & Ors [2021] MLJU 409, and ASM Development Sdn Bhd v Hijjas Kasturi Associates Sdn Bhd [2011] 6 MLJ 228 to support the proposition that amendments may be permitted to ensure that the real issues between parties are determined on their merits

The Third Defendant opposed the application, arguing that the proposed amendment would fundamentally alter the nature and character of the First Defendant’s Defence, shifting from an allegation of forgery to one of undue influence and duress.

Relying on Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors (supra), the Third Defendant argued that the test for amendment includes whether the amendment is bona fide, whether costs can compensate prejudice, and whether the amendments in effect turn the suit from one character into a suit of another and inconsistent character. The Third Defendant contended that all three questions must be answered in the negative in this case.

The Third Defendant argued that the First Defendant’s earlier position in his Statement of Defence in Enclosure 9 and in the Discovery application in Enclosure 18 was clear, claiming that his signature had been forged. The change in stance occurred only after S/N r8kChsxxDk2hdbVf2eOdeQ the Third Defendant filed its appearance and affidavits, which provided documentary evidence confirming the legitimacy of the sale and purchase transaction.

The Third Defendant argued that the First Defendant’s application was mala fide and tactical, intended to overcome the weaknesses in his forgery claim. The First Defendant failed to provide any credible explanation or documentary evidence for the alleged undue influence, nor any justification for the delay in filing the amendment.

In support, the Third Defendant relied on Bank of Commerce (M) Bhd v Hj Mazlan Hj Khamis & Ors [1999] 1 CLJ 499, where the court held that an amendment unsupported by affidavit evidence may be rejected as a tactical manoeuvre. The Third Defendant also cited Walter Pathrose Gomez & Ors v Sentul Raya Sdn Bhd [2005] 7 CLJ 385, which held that bare assertions unsupported by evidence are speculative and ought to be rejected.

Furthermore, the Third Defendant distinguished Palaniappan v Universiti Pertanian Malaysia (supra) and IFCI Ltd v Bishopgate Capital Ltd & Anor (supra), arguing that in those cases the proposed amendments arose from substantially the same facts. In this case, the proposed amendment aimed to replace one factual premise (forgery) with an entirely different and inconsistent one (duress), which is impermissible (see: Yam Sau Wah & Ors v Chan Sau Yin & Ors [2022] MLJU 124). S/N r8kChsxxDk2hdbVf2eOdeQ

The governing provision is Order 20 rule 5 of the ROC 2012, which confers the Court's wide discretion to allow amendments at any stage, provided that such amendments are made bona fide, do not cause prejudice that cannot be compensated by costs, and do not transform or change the nature of the action.

The Federal Court in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors (supra) set out the threefold test which this Court adopts: a. Whether the application is bona fide; b. Whether prejudice to the opposing party can be compensated by costs; and c. whether the amendments in effect turn the suit from one character into a suit of another and inconsistent character.

Having considered the affidavits, as well as the written and oral submissions from both parties, this Court dismissed the First Defendant’s application. The reasons are set out below.

Applying the Yamaha Motor test, the Court finds as follows: S/N r8kChsxxDk2hdbVf2eOdeQ

The chronology shows that the First Defendant initially claimed his signature was forged. This was confirmed in his Statement of Defence and his Discovery Application. The proposed amendment was filed only after the Third Defendant entered an appearance, filed detailed affidavits, and provided documentary evidence verifying the transfer’s legitimacy.

The First Defendant provided no explanation or documentary evidence to justify the significant change of position and the delay in seeking an amendment. The affidavits in support and in reply (Encl. 36 and 46) contained only bare assertions of undue influence or duress without corroboration.

Based on the authorities, such unsupported assertions do not meet the threshold of bona fides as stated in Bank of Commerce (M) Bhd v Hj Mazlan Hj Khamis & Ors (supra) and Walter Pathrose Gomez & Ors v Sentul Raya Sdn Bhd (supra). This Court therefore finds that the amendment is not bona fide.

The Third Defendant’s case has been based on the original defence of forgery. Allowing the First Defendant to plead duress and undue influence now would require an entirely different evidential and factual investigation. Such prejudice cannot be adequately compensated for by costs. S/N r8kChsxxDk2hdbVf2eOdeQ

The original Defence asserted forgery, claiming that the signatures on the transfer documents were not those of the First Defendant. The proposed amendment aimed to replace that position entirely with a claim that the signatures were indeed his but obtained through undue influence or duress.

This change is fundamental and inconsistent. A party cannot sustain two irreconcilable positions. The proposed amendment would transform the Defence into one of a completely different nature.

Having considered the affidavits and submissions of both parties, and applying the principles from Yamaha Motor, the Court finds that: a. The application is not made in good faith. b. Costs cannot compensate for the prejudice to the Third Defendant. c. The proposed amendments would change the nature and character of the original Defence. S/N r8kChsxxDk2hdbVf2eOdeQ

Accordingly, for the reasons stated above, I therefore ordered that the First Defendant’s application in Enclosure 39 to amend the Statement of Defence be dismissed with costs of RM6,000.00. Dated 27 OCTOBER 2025 JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Muhammad Faris bin Muhamad Fazly for the First Defendant, and mentioning on behalf of the Plaintiff (Messrs Basharuddin Iskandar) For the Defendant : Philip Ryan Matthew for the Third Defendant, and mentioning on behalf of the Second Defendant. (Messrs Philip Matthew) S/N r8kChsxxDk2hdbVf2eOdeQ