Trucknet Machinery Trading Sdn Bhd v Jacky Su Kai Lun (JB-23NCvC-3-07/2024)

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JB-23NCvC-3-07/2024 Kand. 44 01/07/2026 09:12:24 IN THE HIGH COURT OF MALAYA AT MUAR IN THE STATE OF JOHOR, MALAYSIA CIVIL SUIT NO.: JB-23NCVC-3-07/2024

Subsection

(1) 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.

Subsection

(2) 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.

Subsection

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

Subsection

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

Subsection

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment. [11] The fundamental principles of amendment were outlined in Yamaha Motor Co Ltd V Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, namely that amendments may only be allowed if they are bona fide, do not irreparably prejudice the opposing party, and do not change the character of the action. For ease of reference, this Court reproduces the following relevant extract from the said judgment:- 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; [12] For late applications, the Court must apply the additional principles in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301, namely that the applicant must provide a cogent and reasonable explanation as to the delay. This is clearly illustrated by the Federal Court in the following passage :- EXPLANATION FOR DELAY The Courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay. They seem to have considered this as an additional factor to the Yamaha Motor's rules. The need to show 'some material and advance some cogent reasons' was applied in Taisho Co Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 MLJ 359; [1999] 1 CLJ 703, Haidar JCA (as he then was) held: The learned judge intimated that the application was made after the appellant failed on appeal to this court to affirm the judgment entered by it initially. Further, he said that the appellant had knowledge of the 'acknowledgement' as late as April 1987, that is, four years before the action was filed. Furthermore, the application was filed four years after the commencement of this action. We would add further that no reasons were given for the delay in filing the application when the point of admission was obviously available even before filing the proceedings. As rightly opined by the learned JC in Multi-Pak Singapore Pte Ltd and correctly followed by the learned judge, the appellant did not place some material and advance some cogent reasons to impel the court to lean on its side. We would further add that the application borders on lack of bona fides, one of the basic question set out in Yamaha Motor Co Ltd. (Emphasis added.) The requirement to advance some material and cogent reasons was likewise followed in the subsequent decisions in the cases of Raphael Pura v Insas Bhd & Anor [2001] 1 MLJ 49; [2000] 4 CLJ 830 and Everise Hectares Sdn Bhd v Citibank Berhad [2010] MLJU 1379; [2011] 2 CLJ 25. It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure 'just, expeditious and economical disposal' of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. [13] The principle that an amendment should not be permitted where it is futile or devoid of any real prospect of success was recognised by the Court of Appeal in Everise Hectares Sdn Bhd v Citibank Berhad [2010] MLJU 1379, where it was held as follows:- [29] Since the amendment application can conveniently be categorised as a useless attempt to attack the outcome of the public auction, it should not be allowed to succeed. It was an ineffective amendment application that should be nipped in the bud. In similar vein, Abdul Razak J in Eshah binti Sa'at v. Meriam binti Sa'at & Ors [1975] 2 MLJ 97 aptly said: "It has been held that in dealing with the application for amendment, the court has to consider the materiality and effectiveness of the amendment and that it was a well established practice not to allow an amendment where it appeared such an amendment would be useless. The court should look at the probable consequence of the amendment and if the amendment would be ineffectual then it ought not to be allowed to be made. One such amendment was sought to be made in Ponnusamy v. Nathu Ram [1959] MLJ 228 and was refused. Clearly, the amendment here, even if allowed, would be of no value because I would not have been persuaded to grant the declaration asked for. To have the desired effect, the Collector's decision must at least be impugned. An amendment would, therefore, have involved making the Collector a necessary party to the action with or without the defendant. To allow the application to amend at the trial stage, therefore, was to make the Collector a party and binding him without first giving him the right of reply." [14] Amendments also cannot fundamentally change the nature of the action, as decided in Low Kian Hoew v Lu Zhijun & Ors [2020] MLJU 2187. PARTIES' SUBMISSIONS Plaintiffs' Submissions [15] The Plaintiffs argue that this application was filed late after all PTCM documents were filed and the trial date was fixed. [16] The Plaintiffs assert that the reason of "new counsel" is not a reasonable ground according to Public Bank Berhad V. National Feedlot Corporation Sdn Bhd & Ors & Another Appeal [2018] CLJU 966. [17] The Plaintiffs argue that the amendment introduces new causes of action - repudiatory breach, implied terms under SOGA/CPA, restitution - which change the character of the action. [18] The Plaintiffs also assert that there is no privity of contract between the Plaintiffs and Defendants because the lorries were purchased from Fresh Go Food. [19] The Plaintiffs state that the amendment is futile because restitution claims can only be made against the contracting party (refer to Badiaddin Mohd Mahidin & Anor V. Arab Malaysian Finance Bhd [1998] 2 CLJ 75) Defendants' Submissions [20] The Plaintiffs claim the amendment will cause serious prejudice as they would need to prepare a new defence and new witnesses. [21] The Defendants argue that the amendment is necessary to present the real issues regarding lorry defects from 2021-2023. [22] The Defendants claim that the Plaintiffs took over the technical and warranty roles, thus an implied contractual relationship exists. [23] The Defendants state that the amendment does not change the underlying facts but only adds legal frameworks. [24] The Defendants argue that the Plaintiffs will not be prejudiced as they can amend their response. [25] The Defendants state that the delay is reasonable because new counsel needed to reassess the file. COURT'S ANALYSIS Issue 1: Delay and Explanation [26] The application was filed more than a year after the original defence, and after the entire PTCM was completed and the trial date fixed. [27] The reason of "new counsel" has been rejected by the Court of Appeal in Public Bank Berhad (Supra) which affirmed that the negligence of previous counsel is not a cogent reason. [28] The case of Ng Kong Hock v Tan Peng Son [2022] 1 LNS 1830 states that delay without strong reason demonstrates absence of bona fide. This can be seen as follows :- [38] This Court noted that the application was made three years after the pleading was closed and pre-trial case management was complied with (in May 2018). Plaintiffs have raised the issue as to why the amendments were not made earlier as all the documents namely the three solicitors' letters, were made available to the Defendants at the time when Plaintiffs filed for Summary Judgment for their claim in 2018. The case of Raphael Pura v. Insas Bhd & Anor [2001] 1 CLJ 397; [2001] 1 MLJ 49, CA and Everise Hectares Sdn Bhd v. Citibank Berhad [2011] 2 CLJ 25 support the contention that failure to provide sufficient material and give cogent reasons for delay shows a lack of bona fide in making the application. [45] It is my considered view that the two applications under Enclosures 177 and 197 both lack bona fide, a tactical maneuver to multiply its chances in the Suit. There are already existing claims in the Main Suit and a Third Party Proceeding. No explanation was given as to the change in position except that they just discovered the relevant documents which are already made available at the start of the Main Suit. There is an inordinate delay in the application. I, therefore, find it is not an honest mistake as decided in the case of Bunsu Junaidi v. Bodco Engineering and Construction Sdn Bhd & 2 Ors., where the Court held inter alia that the fact that "the 1st Defendant was aware of the existence of the relevant document since October 2015, this Court finds that there was no "honest fault or mistake' on the part of the 1st Defendant". [46] The argument that the amendment should be allowed as it arises out of the same facts poses a question if based on similar facts, why only now that the Applicants raised the issue of negligence and mistakes? The same facts have been laid down before them ever since the commencement of the Main Suit in 2018. As such, this Court is of the view that there is a lack of bona fide on the part of the Applicants in making the amendments. [29] The Court finds that no material and cogent explanation has been provided. Issue 2: Change in Character of Action [30] The original defence only touched on issues of conversion and defamation. [31] The amendment introduces causes of action in contract for sale of goods, including implied terms under SOGA/CPA, repudiatory breach, restitution, and business losses. [32] This is a substantive and fundamental change. [33] The case of Low Kian Hoew (Supra) affirms that such a change cannot be permitted. [34] Thus, this Court holds that the proposed amendment fundamentally changes the character of the action. Issue 3: Prejudice to the Plaintiffs [35] The Plaintiffs have filed all PTCM documents, including issues for trial, witness lists, and case summaries. [36] The amendment would require the Plaintiffs to prepare a new defence, new witnesses, and new documents. [37] This is irreparable prejudice that cannot be compensated by costs. Issue 4: Effectiveness of Amendment (Futility) [38] Invoices show the lorries were purchased from Fresh Go Food, not the Plaintiffs. [39] Therefore the Plaintiffs are not the contracting party and cannot be held liable under SOGA/CPA. [40] Restitution claims can only be made against the contracting party (refer to Badiaddin (Supra)). [41] This Court finds that the proposed amendment is futile and has no real prospect of success. Issue 5: Bona Fide [42] The amendment was filed after the Plaintiffs filed all PTCM documents. [43] The amendment attempts to introduce new causes of action that never existed in the original defence. [44] The case of Ng Kong Hock (Supra) characterises such circumstances as delaying tactics. [45] This Court is not satisfied that the application was made bona fide. FINAL FINDINGS [46] Having considered all the facts, law, and submissions of both parties, the Court finds that :- - There is inordinate delay without reasonable explanation; - The amendment fundamentally changes the character of the action; - The amendment seriously prejudices the Plaintiffs; - The amendment is futile; and - The application is not bona fide. ORDER [47] Accordingly, the Notice of Application in Enclosure 19 is dismissed. Costs of this application are awarded to the Plaintiffs on a scale basis. DATED ON 22nd APRIL 2026 YA DATUK ZAMRI BIN BAKAR JUDICIAL COMMISSIONER HIGH COURT (1) MUAR Plaintiffs' Counsel: MERSSTAN KAH KIAT & CO. Defendants Counsel: MERSS FOO HIAP SIONG & CO.