Scib Properties Sdn Bhd v Awana Jv Suria Saga Sdn Bhd (BA-22NCC-17-02/2025)

This matter comes before this Court on the Plaintiffs’ application for leave to amend their Amended Writ and Amended Statement of Claim (Enclosure 83), which is strongly opposed by the 1st and 2nd Defendants. The issue is whether the proposed amendments, which seek to introduce new parties and additional causes of action namely fraud, conspiracy, constructive trust, dishonest assistance, knowing receipt, and negligence ought to be permitted at this juncture of the proceedings. This Court must determine whether the proposed amendments ought to be allowed, weighing the Plaintiffs’ entitlement to advance their case against the 1st and 2nd Defendant in an orderly conduct of proceedings.

The Plaintiffs commenced the original suit in February 2025, primarily alleging a contractual dispute concerning the operation of bank accounts and the drawdown of funds from an Islamic Financing Facility provided by the 2nd Defendant (MBSB Bank Berhad). The Plaintiffs successfully obtained an interlocutory injunction against the Defendants in April 2025.

Following an interview with the Malaysian Anti-Corruption Commission (MACC) on 29 May 2025, the Plaintiffs discovered documents relating to the 1st Defendant’s drawdown of approximately RM1.7 million from the Islamic Financing Facility and subsequent transfers of RM1.5 million to Northstar Construction Sdn Bhd and RM150,000 to Bri & Associates. The Plaintiffs contend these transactions were unauthorised, lacked supporting documentation, and were signed solely by the 1st Defendant’s director, Dato’ Ang Tee Peng, in violation of the agreed-upon signing protocols. Consequently, the Plaintiffs filed an application (Enclosure 83) to amend their Writ and Statement of

Add Dato’ Ang Tee Peng, Northstar Construction Sdn Bhd, and Bri & Associates as new defendants.

Introduce new causes of action, including fraud, conspiracy to injure, constructive trust, dishonest assistance, knowing receipt, and negligence against the 2nd Defendant.

Subsequently, the First and Second Defendants now oppose this application, arguing that the Plaintiffs were aware of the underlying facts regarding the payments as early as January 2025 and that the application is a tactical maneuver following a change of solicitors, rather than a discovery of new facts.

The Court’s discretion to permit amendments is guided by the principle that it should be allowed when they help resolve the real issues in dispute, provided no injustice is caused to the other side. In exercising this discretion, this Court must consider three main factors:- I. whether the application is brought bona fide, in the genuine pursuit of clarifying or advancing the claim. II. whether any prejudice that may be caused to the other party can be adequately compensated by an award of costs. III. whether the proposed amendment would fundamentally alter the character of the suit, thereby transforming it into a substantially different action from that originally commenced.

These factors, taken together, ensure that the Court’s discretion is exercised in a manner that balances fairness to both sides with the need to achieve substantive justice.

The application for leave to amend pleadings is governed by Order 20 rule 5(1) of the Rules of Court 2012. That provision vests the Court with a broad discretion to allow amendments at any stage of the proceedings, subject always to the overriding consideration that no injustice is caused to the other parties.

The principles governing the Court’s discretion in allowing amendments have been authoritatively laid down by the Federal Court in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ

The general principle is that amendments should be permitted where they cause no injustice to the other parties. The dispute between the parties crystallises around several interrelated issues that must be resolved in determining whether leave to amend should be granted.

The court must firstly determine if the Plaintiffs application is made in good faith. A significant factor is whether the applicant has provided a cogent and reasonable explanation for any delay in seeking the amendment.

The Plaintiffs contend that their application for leave to amend is justified by the discovery of new facts during an interview conducted by the Malaysian Anti-Corruption Commission (MACC) on 29 May

Specifically, they allege that RM1,500,000.00 was released to Northstar and RM150,000.00 to Bri & Associates without supporting documentation, and that there was an unauthorised drawdown of RM1,700,000.00. These matters, according to the Plaintiffs, were not within their knowledge at the time of filing the original pleadings and only came to light through the MACC interview.

They argue that the proposed amendments are therefore necessary to reflect these newly discovered facts, and that the amendments are integral to the proper ventilation of the real issues in controversy. In their submission, the amendments do not constitute an abuse of process but rather ensure that the pleadings remain comprehensive and accurate, thereby enabling the Court to adjudicate upon the full scope of the alleged misconduct.

The Defendants resist the application on the basis that the Plaintiffs are not relying on newly discovered facts but are instead attempting to re-characterise matters that are already within their knowledge. They point to email notifications dated 21 January 2025, which, they contend, provided the Plaintiffs with actual and specific knowledge of the transactions in question. In their submission, these matters were expressly pleaded in the original Statement of Claim filed on 5 February 2025.

Accordingly, the Defendants argue that the Plaintiffs cannot now assert that the information only came to light during the MACC interview of 29 May 2025. Relatively, this application represents a tactical effort to change existing allegations into more serious causes of action, such as fraud and conspiracy, thereby altering the character of the whole suit. On this basis, the Defendants contend that the application is not bona fide and riddled with bad faith, entailing an inordinate and unexplained delay. Court’s finding

I am satisfied that the Plaintiffs have provided sufficient and credible explanation for the delay in filing the present application. The discovery of documents during the MACC process, which were not previously within the Plaintiffs’ possession or knowledge, constitutes a persuasive and legitimate basis for seeking the proposed amendments. The Court accepts that the Plaintiffs acted promptly upon becoming aware of these materials, and that the application is not the product of undue delay or tactical maneuvering.

In IFCI Ltd v Bishopgate Capital Ltd [2023] 12 MLJ 111, the High Court authoritatively outlined the applications for leave to amend pleadings were permitted notwithstanding that trial proceedings had already commenced. The Court emphasised that the overriding consideration is the furtherance of justice, and that procedural rules must not be applied so rigidly as to defeat substantive rights. The authorities cited demonstrate a consistent judicial willingness to allow amendments where they do not occasion prejudice to the opposing party and where they serve to clarify the real issues in dispute.

I agree with the Plaintiffs’ reliance on the authority of Alloy Consolidated Sdn Bhd v Anjari Properties Sdn Bhd [2009] 4 MLJ 833, where the 1st Respondent sought to amend its defence by adding a counterclaim after summary judgment had been granted to the Plaintiff. Although the amendment application was delayed by three years, the Court of Appeal held that delay alone does not amount to prejudice or injustice. Affirming the Judge in Chambers, the Court allowed the amendment, reasoning that refusal would permanently deprive the Respondent of its opportunity to pursue justice.

In my opinion, the Federal Court’s decision of Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2016] 1 MLJ 301, is distinguishable in this case. The Federal Court held that reasonable explanation on the delay in filing a late application to amend pleadings must be given by the applicant. The court further ruled that the Yamaha Motor principles can be applied in an application to amend pleadings at the early stage of proceedings and do not extend to a late application made on the eve of the trial. The Federal Court’s decision in Hong Leong Finance should not have an effect in the present matter and the governing principle remains that amendments ought to be allowed unless obvious prejudice or injustice is shown, and just a mere delay does not suffice.

While the lapse of time between the commencement of proceedings and the filing of the present application is notable, it cannot be characterised as inordinate delay. The trial is not scheduled to commence until January 2027, leaving ample time for the parties to address the amendments without disrupting the orderly conduct of the proceedings. In these circumstances, I’m in the view that any prejudice to the Defendants arising from the timing of the application can be adequately managed through case management directions and, if necessary, compensated by costs.

The Plaintiffs argue that authorities relied upon by the 1st and the 2nd Defendants are distinguishable on their facts and principles, namely: - a) Taisho Co Sdn Bhd v Pan Global Equities Bhd [1999] 1 MLJ 359; b) Mid Pastel Resources Sdn Bhd v Celcom Mobile Sdn Bhd [2017] MLJU 2153; c) Eshah binti Sa’at v Meriam binti Sa’at [1975] 2 MLJ 97; d) Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd [2021] MLJU 132; e) Kenanga Investors Bhd v Zulrafq Capital Sdn Bhd [2025] MLJU 3981; f) Everise Hectares Sdn Bhd v Citibank Berhad [2010] MLJU 1379; g) Bacom Enterprises Sdn Bhd v Jong Chuk [1998] 2 MLJ 301; h) Jupiter Securities Sdn Bhd v Wan Yaakub bin Abd Rahman [2002] 3 MLJ 264.

In my opinion and upon close examination, those precedents do not bear material similarity to the circumstances presently before this Court. The factual circumstances and legal issues therein diverge significantly, such that the ratio decidendi of those cases cannot be applied to the instant matter. Accordingly, the authorities cited by the Defendants are of no application to the present case and do not assist their position. Therefore, this Court finds that the delay does not, in itself, constitute a bar to the application. Rather, the Plaintiffs have demonstrated that the amendments are sought in good faith, grounded in newly obtained evidence, and necessary to ensure that the real questions in controversy are properly ventilated at trial.

The Defendants argue that the amendments cause prejudice that cannot be compensated by costs, citing the personal targeting of the 1st Defendant’s director and the disruption of existing interlocutory orders. However, prejudice in the context of amendment applications does not mean that the opposing party’s chances of success are diminished. It refers to the inability to pursue or defend the suit due to the loss of material evidence. The Defendants remain fully capable of defending the action. Any additional costs incurred by the Defendants in responding to the new allegations can be adequately addressed through an appropriate order for costs.

In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230, the Supreme Court emphasised that the purpose of permitting amendments at any stage of proceedings is to ensure that a party can properly present their case at trial. Such amendments should be allowed where they enable the Court to address the real issue in controversy between the parties.

In ASM Development Sdn Bhd v Hijjas Kasturi Associates Sdn Bhd [2009] 3 CLJ 115, the defendant served its bundle of documents upon the plaintiff. Upon examination of the said documents, the plaintiff discovered numerous relevant materials which had not previously been available to them, together with several facts that had not been pleaded in the original statement of claim. In consequence, the plaintiff filed an application seeking leave to amend the statement of claim. The High Court, having considered the application, granted the amendment sought. Dissatisfied, the defendant appealed to the Court of Appeal. The Court of Appeal, after due consideration, affirmed the decision of the High Court and held, inter alia, at paragraphs [18] and [22] as follows:- “[18] The learned judge accepted the explanation given by the plaintiff that the proposed amendments arose out of the documents produced by the defendant in the exchange of documents exercise. The defendant's documents filled up the missing pieces and the defendant would not be prejudiced as these documents had been in their possession at all times. On the allegation of delay, the judge held that a delay of about four months from the date of exchange of documents (early December 2003) to the date of filing of the application to amend was not inordinate. The plaintiff's explanation of many employees involved in the project and the fact that many had resigned since the abandonment of the project, and inability to locate the files and documents were good reasons why the proposed amendments could not be filed earlier. … [22] We are of the view the learned judge had applied the correct principles and agree with his views. We see no reason for interfering with the exercise of his discretion. We are in agreement that the plaintiff had produced sufficient, material and cogent reasons as set out in the supporting affidavits for the proposed amendments. The judge had not erred i n accepting the explanation for the delay when allowing the proposed amendments. The proposed amendments clearly clarifies the relevant facts to enable the issues to be determined by the court and certainly material and relevant as a response to the defendant's statement of defence dated 11 June 2003. We agree they are not futile amendments. The amended statement clarified and elaborated the original grounds, and instead of causing prejudice to the defendants, were of benefit to the defendants. We are of the view that a plaintiff can put forward alternative remedies and need only make an election at point of judgment.” (emphasis added); ………. Court’s finding

In my opinion, this Court observed that the proposed amendments were necessary in the interests of justice, as they would allow for the proper determination of the real questions in dispute between the parties. Specifically, the amendments sought to raise issues concerning whether the 1st and 2nd Defendants, together with Ang, Northstar and B&A, had committed fraud, conspired to injure the Plaintiffs, or dishonestly assisted in breaches of trust and constructive trust relating to monies drawn down from the Islamic Financing Facility and released without the Plaintiffs’ knowledge or consent, as well as whether the 2nd Defendant had acted negligently.

In the Court’s view, these issues went to the very heart of the Plaintiffs’ claim and could not be ignored without risking injustice. By allowing the amendments, the Court ensured that all material matters would be properly pleaded and tested at trial, thereby enabling a determination on the merits rather than on technical deficiencies in the pleadings.

The Defendants contended that the proposed amendments would fundamentally alter the character of the suit. The Court, however, was not persuaded by this submission. While it was acknowledged that the amendments were extensive, the Court found that they nonetheless arose from the same factual foundation, namely the joint venture arrangement and the subsequent drawdown of funds, which had already formed the original claim.

In Suhaili bin Ismail v Syarikat Sribima Sdn Bhd [2015] 6 MLJ 5563, the respondent sought to amend its writ and statement of claim to include conspiracy allegations. The appellant opposed, arguing prejudice and that the allegations were an afterthought relating to events six to eight years earlier. The High Court allowed the amendments, finding they arose from the same or substantially the same facts and were necessary for the full determination of the controversy. The Court of Appeal upheld this decision, emphasising that amendments, even serious ones, may be permitted if they stem from the same factual basis and ensure substantive justice.

In my view, the amendments, in this case did not introduce an entirely new or inconsistent cause of action but rather served to refine and clarify the issues already in dispute. The addition of new parties and causes of action was a necessary development flowing from the same factual basis, designed to ensure that all relevant matters were properly before the Court. The overriding consideration was the determination of real questions in the disagreement between the parties, and that justice would be best served by permitting the amendments so that the dispute could be adjudicated upon in its entirety.

Having considered the submissions of both parties and the authorities cited, the Court is satisfied that the proposed amendments are necessary to ensure that the real issues in controversy are properly adjudicated upon. The Plaintiffs have demonstrated that the application was made bona fide, with no element of mala fides or tactical abuse, and that the Defendants will not suffer any prejudice that cannot be compensated by costs.

I am mindful that the fundamental principle governing amendments is the advancement of justice, and that technical objections should not be permitted to obstruct the determination of substantive rights. In the present case, the amendments flow from the same facts as the original claim and serve to refine, rather than transform, the dispute and interests of justice are therefore best served by allowing the amendments.

This Court further observes that the trial is not scheduled to commence until January 2027. In those circumstances, ample time remains for the parties to address the proposed amendments without causing disruption to the orderly conduct of the proceedings. I am therefore satisfied that the allowance of the amendments would not prejudice the Defendants in the preparation of their case, nor would it compromise the efficient management of the trial. On the contrary, the amendments would ensure that the real issues in controversy are ventilated and adjudicated upon, thereby advancing the interests of justice.

Accordingly, the Plaintiffs’ application in Enclosure 83 is hereby allowed with costs. Date : 5th May 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: CHEAH KHA MUN [MESSRS ALEX TAN CHIE SIAN] Solicitor for the Defendant 1: AFRINA BATRISYIA BINTI AHMAD [MESSRS SIMRENJEET, TAY & CO.] Solicitor for the Defendant 2: KHOR WAN YIN [MESSRS SHAIKH DAVID & CO.]