1. ) Rhb Trustees Berhad v 1. ) Tropicana Education Management Sdn Bhd (WA-22NCvC-479-08/2023)

RHB TRUSTEES BERHAD [No. Syarikat: 200201005356 (573019-U] (Sebagai Pemegang Amanah Sunway Real

SUNWAY REIT MANAGEMENT SDN. BHD. [No. Syarikat: 200801005046 (806330-X] (Sebagai Pengurus Sunway Real Estate Investment Trust)

SUNWAY EDUCATION GROUP SDN. BHD. [No. Syarikat: 198501013984 (146440–K] …PLAINTIF-PLAINTIF

TROPICANA EDUCATION MANAGEMENT SDN. BHD. [No. Syarikat: 199701014487 (429983-X]

TROPICANA CORPORATION BHD. [No. Syarikat: 197901003695 (47908-K] … DEFENDAN-DEFENDAN 21/08/2025 12:52:58 WA-22NCvC-479-08/2023 Kand. 155 GROUNDS OF JUDGMENT (Enclosure 114) INTRODUCTION [1] This is the Plaintiffs’ application to amend their Writ and Statement of Claim together with joinder application (Enclosure 114), seeking amongst others, for the following reliefs-

an order that the Plaintiffs be granted leave to amend their Writ and Statement of Claim; and

an order that Every Glory Sdn Bhd and Base Skypower Sdn Bhd be joined as defendants in this action. BRIEF FACTS [2] The Plaintiffs filed this claim to enforce a “Conduct Agreement”, which allegedly regulates the conduct of Sunway Group and Tropicana Group in a due diligence exercise leading up to a proposed transaction for the sale and purchase of the subject property and shares. [3] Generally, Sunway Group and Tropicana, had agreed to negotiate a proposed transaction (Proposed Transaction), by a letter of offer dated 20.4.2023 which was accepted, and amended in the letters dated 27.4.2023 and 28.4.2023. These letters formed the basis for the parties’ negotiation for the Proposed Transaction (LO) involving-

The sale and purchase of a piece of land where St. Joseph’s Institution School Malaysia (St Joseph’s School) is located (Property); and

The sale and purchase of the entire issued and paid-up share capital of Tropicana SJII Education Management Sdn Bhd (Shares). [4] The LO provides that Sunway Group would conduct a due diligence review within a period of one (1) month commencing on 2.5.2023 and expiring on 1.6.2023 (DD Review Period), and that the definitive agreements would be executed within seven (7) days from the expiry of the DD Review Period i.e. on or before 8.6.2023 (DA Execution Prescribed Period). [5] The Defendants contended that the Proposed Transaction was automatically deemed aborted by virtue of the terms of the LO because no definitive agreements were executed within the DA Execution Prescribed Period. The Plaintiffs disagreed and commenced this action on 25.8.2023. [6] Thereafter, on 19.8.2023, the Chairman of Taiko Group, Dato’ Lee Soon Hian (Dato’ Lee) informed the Founder and Chairman of Tropicana Tan Sri Dato’ Tan Chee Sing (Tan Sri Dato’ Tan) of his interest in acquiring St Joseph’s School through one of the Taiko Group companies. Tan Sri Dato’ Tan was agreeable to the selling of St Joseph’s School to Taiko Group, and both parties proceeded to finalise the transaction through their respective management teams. [7] By the end of September 2023, the sale and purchase of shares in the following companies had been executed between Ever Glory vis-à-vis

Tropicana Education Management Sdn Bhd (D1), which owns the Property on which St Joseph’s School is located; and

Tropicana SJII Education Management Sdn Bhd (TSEM), which operates the St Joseph’s School, [8] Also, by the end of September 2023, D1 was fully acquired by Ever Glory vis-à-vis Taiko Group, a bona fide third-party purchaser for value, and consequently ceased to have any connection with Tropicana. By 27.9.2023, all the existing Tropicana directors and the company secretary of TEM and TSEM were replaced by new Taiko Group directors and company secretary and by 13.10.2023-

The name of D1 as TEM was changed to Ever Splendid; and

The name of TSEM was changed to Ever Radiant Sdn Bhd. [9] Ever Glory is now the owner of the St Joseph’s School and has been operating the school since 29.9.2023. [10] In regards to this action, prior to the filing of Enclosure 114, five (5) interlocutory applications had been filed-

Enclosure 6 – the Defendants’ application to strike out the

Enclosure 19 – the Defendants’ application for leave to file and serve the Reply to Defence to Counterclaim;

Enclosure 24 – the Plaintiffs’ application for leave to serve interrogatories on the Defendants;

Enclosure 27 – the Plaintiffs’ application for discovery of documents against the Defendants; and

Enclosure 40 – D1’s application for leave to amend the Defence and Counterclaim. [11] Following the disposal of all pending interlocutory applications on 7.3.2025, this Court had allowed D1’s application to amend its Defence and Counterclaim, and directed parties to regularise their pleadings, while fixing the next case management on 9.4.2025 for pre-trial directions. [12] D1 duly filed its Amended Defence and Amended Counterclaim on 11.3.2025. However, instead of filing an Amended Reply and Defence to the Counterclaim, the Plaintiffs filed Enclosure 114 on 20.3.2025. [13] After one and a half years, the Plaintiffs seek amendments for the following reasons-

That there is a contract for sale of the Property or Shares; and

That a constructive trust had arisen over the Property and Shares. Contention of Parties [14] The Plaintiffs contended that the Amendment Application should be allowed, as it seeks to-

streamline and clarify the facts and causes of action pleaded against the Defendants;

incorporate additional facts material to the Plaintiffs’ case, which arose after the filing of the Writ and Statement of Claim; and

join the new Defendants to this action. [15] The Plaintiffs further contended that the Amendment Application-

is made bona fide;

causes no prejudice to the Defendants which cannot be compensated by costs;

does not turn the present suit from one character to another or inconsistent character; and

is made at an early stage of the proceedings before the trial of the matter and/or without any inordinate delay. [16] The Plaintiffs also contended that the limitation period for each of the causes of action set out in the Plaintiffs’ proposed amended pleadings has not expired. [17] Further, the Plaintiffs contended that the joinder of the new Defendants is essential to allow the effective, complete and global disposal and determination of the disputes in this action and the reliefs and remedies claimed. [18] On the other hand, the Defendants contended that the proposed amendments are an afterthought, lacking bona fides and are nothing more than a tactical maneuver to shore up a weak case after reviewing the Defendants’ case. There was also a delay as Enclosure 114 was filed after one and a half years without justified explanation. [19] The Defendants also contended that the proposed joinder brings with it, a host of substantive amendments, including entirely new causes of action, reliefs and claims that were never part of the original Writ and Statement of Claim. ANALYSIS AND FINDINGS The Defendants’ Preliminary Objection (PO) [20] The Defendants raised a PO that Enclosure 114 is procedurally irregular, as it has not been served on the Proposed Defendants. [21] The Defendants supported their contention by referring to the case of Golden Assent Sdn Bhd v Syarikat Perumahan Negara Berhad & Ors [2024] CLJU 2975; [2024] MLRHU 2536, where the Court held- “[15] Upon reviewing the case details, the Court determined that granting this request would be irregular and significantly disadvantageous to the Proposed New Parties, as it would occur without their opportunity to express any objections.” [22] On this point, this Court agrees that in the absence of the proposed parties, it would be irregular to grant such an application, as it would deprive the proposed Defendants of the opportunity to raise an objection. Amendment of Pleadings [23] Order 20 Rule 5 of ROC stipulates for the amendment of writ or pleadings with leave of the Court. It provides a discretion for the Court to allow leave to amend pleadings which must be exercised judicially (see Yamaha Motor Co. Ltd. v. Yamaha (M) Sdn. Bhd. & Ors [1982] 1 MLRA 417; [1983] 1 MLJ 213; [1983] CLJ (Rep) 428 (FC) and Smijaya Sdn Bhd & Ors v. Perwira Affin Bank Bhd [2009] 4 MLRA 753; [2010] 3 MLJ 54; [2011] 2 CLJ 609 (CA)). Such amendments should not cause injustice to the other party. The three (3) basic questions to ask are-

whether the application was bona fide;

whether the prejudice caused to the other party could be compensated by costs; and

whether the amendments would not in effect turn the suit from one character into another and inconsistent character. [24] Furthermore, an application for amendment of a writ or pleadings is not a matter of a right of a party but is left to the judicial discretion of the Court depending on the circumstances of each case (See Raphael Pura v. Insas Bhd & Anor [2000] 4 CLJ 830; [2000] 1 MLRA 809; [2003] 1 MLJ 513 (CA)). [25] It is an established principle that the Courts have a wide discretion whether to allow an amendment or not (See Ismail bin Ibrahim v. Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348; [1988] 1 CLJ Rep 606; [1988] 1 MLRH 186). [26] This Court finds that Enclosure 114 seeks to add a new party, is an entirely new cause of action which would turn this suit from one character into a suit of another inconsistent character (see Government of Malaysia v. Mohamed Amin Hassan [1984] 1 MLRA 793; [1986] 2 MLJ 224 (FC)). [27] This Court also observes that the Plaintiffs have not sufficiently explained as to why Enclosure 114 was made after one and a half years of litigation and after the disposal of five (5) interlocutory applications. The amendments created entirely new causes of action, reliefs and claims that were never part of the original Writ and Statement of Claim. [28] Additionally, in Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81; [2016] 1 MLJ 301; [2015] 8 CLJ 1, the Federal Court held that a different approach needs to be taken under the new case management regime to prevent delay in the progress of a case to trial and for its completion as “This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process… The progress of the case is no longer left in the hands of the litigants but with the court in the driver's seat. (See the case of Syed Omar Syed Mohamed v. Perbadanan Nasional Bhd [2012] 9 CLJ 557).”. Joinder Of Parties [29] The law governing the joinder of parties is provided under Order 15 Rules 4 and 6 of the ROC. [30] It was decided by the Supreme Court in Tajjul Ariffin Mustafa v. Heng Cheng Hong [1993] 2 MLJ 143; [1993] 1 MLRA 237 ; [1993] 3 CLJ 117; [1993] 1 AMR 1119 that- “(1) The principle of overriding importance is that all necessary and proper parties, but no others, should be before the court at the same time to enable the effectual and complete determination and adjudication to be made by the court of all questions and issues between the parties which arise for decision.” [31] In this context, it is important that a joinder application is made at the earliest opportunity as the delay would disrupt the proceedings as deliberated in Len Fa Medical Supplies (M) Sdn Bhd v. Karmarts Public Company Limited & Ors [2021] 1 LNS 866; [2021] MLJU 1939, where the Court held that a stricter approach should be taken in respect of joinder applications involving delay, “as such delays would seriously disrupt proceedings”. This is to ensure a just, expeditious and economic disposal of matters. [32] Particularly, the Plaintiffs must provide reasonable basis or facts to show that the proposed joinder and joinder-related amendments are necessary (see Len Fa Medical Supplies (supra)). [33] Additionally, in Public Bank Berhad v. National Feedlot Corporation Sdn Bhd & Ors & Another Appeal [2018] 1 LNS 966; [2018] 6 MLRA 495; [2018] AMEJ 0790; [2018] MLJ 938, the Court of Appeal held- “[15] What perhaps is of prime importance is for litigating parties to comprehend and accept that the conduct of litigation has changed substantially since 2009. The difference in approach is that where litigation was once conducted at the pace and manner dictated by advocates and solicitors, the emphasis has changed such that it is now the courts that steer the conduct of litigation so as to ensure a just, expeditious and economic disposal of matters. This means that time is not at large and costs are an important consideration while the primary goal of ensuring that justice is meted out is not compromised. [16] The goal of a just judgment or decision, coupled with an expeditious and economical disposal are not mutually exclusive. On the contrary, these objectives complement and serve each other well. This new approach is reflected in our Rules of Court 2012. Intrinsic to the scheme of how matters are conducted is the proper management of a case, as it greatly affects the progress of litigation generally. A failure to carry out a material step or inaction ought not to be condoned, and can of itself be penalized, even if it does not give rise to adverse consequences on the litigation itself.…”. [34] Likewise, in Mah Sing Properties Sdn Bhd v. Sky Acres Sdn Bhd [2020] 1 LNS 1061; [2020] MLJU 1499, the Court held that the Plaintiffs’ delay of 1 year and 8 months in filing their amendment application gave rise to an irresistible inference that the application was a tactical maneuver and was done in bad faith (see also Len Fa Medical Supplies (supra)). [35] Based on the above deliberations, this Court is of the considered view that the amendments introduce entirely new causes of action and reliefs that were never part of the original Writ and Statement of Claim, bringing the newly proposed parties, causes of action, declaratory reliefs, orders and damages. [36] Further, these proposed amendments do not merely strengthen the existing claim but alter the entire legal and factual character as the amendments transform the Plaintiffs’ case from one of negotiation and incomplete due diligence into an alleged concluded and enforceable transaction. [37] On that note, Enclosure 114 is not allowed due to following reasons-

The Amendment and Joinder Application is not bona fide and amounts to a tactical manoeuvre;

The proposed amendments would, in effect, turn the suit from one character into a suit of another and inconsistent character; and

The proposed amendment and joinder, if allowed, would cause prejudice to the Defendants. CONCLUSION [38] Therefore, Enclosure 114 is dismissed with costs. Dated: 21 AUGUST 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commisionner of the High Court NCVC 1 Kuala Lumpur COUNSELS For The Plaintiffs: DP Naban, Darryl Lee Yen Nan and Chew Thean Ern Messrs Rosli Dahlan Saravana Partnership For The 1st Defendant: Lim Koon Huan, Mahshan Singh, Ng Oui Yan and Lim Shu Yi Messrs Skrine For The 2nd Defendant: Yee Mei Ken, Mattheus Goon and Lai Xian Chi Messrs Shearn Delamore & Co.