Yap Teak Sing v Hiew Fook Sang @ Fook Hiew Sang (WA-23NCvC-7-02/2023)

YAP TEAK SING

SHAIFUL HIZAM BIN HUSIN

IOANNIS KOROMILAS (NO. PASPORT GREEK AT 1911893) ... PLAINTIF-PLAINTIF

HIEW FOOK SANG @ FOOK HIEW SANG

WONG CHONG CHE

SIEH KOK JIUN (NO. K/P : 470705-10-5555) … DEFENDAN-DEFENDAN 12/02/2025 16:23:21 WA-23NCvC-7-02/2023 Kand. 125 GROUNDS OF JUDGMENT (ENCLOSURES 50, 52 & 54) INTRODUCTION [1] These applications are filed by the Defendants for leave to amend their defence and counterclaim. The applications are filed in Enclosure 50 (1st Defendant), Enclosure 52 (2nd Defendant) and Enclosure 54 (3rd Defendant). This Court allows all the applications. The reasons are as deliberated. BRIEF FACTS [2] The Plaintiffs were previous members of the Suria Stonor Management Committee known as Perbadanan Pengurusan Suria Stonor (PPSS) of Suria Stonor Condominium (Condominium) for the year 2019/2020 and 2020/2021. [3] The Defendants were committee members of PPSS elected on 17-12-

[4] The Plaintiffs’ claims revolve on a notice published by PPSS on 20-1- 2023 ‘to address the issues and provide clarity’ pertaining to a petition that has been circulated to convene an Extraordinary General Meeting which was issued to all the proprietors of the Condominium (Notice). [5] At paragraph 15 of the Statement of Claim (SOC), the Plaintiffs pleaded that in the Notice, the 1st Defendant (D1) ‘has stated the list of offences and non compliance committed by the Plaintiffs’ - “...List of Wrongdoings and non-compliant actions that are under further investigation including but not limited:- a. Great expense of engaging a forensic consultant to produce a rather bias report based on the information provided by “a few individuals” with no justifiable reasons and benefits to Suria Stonor, an act of abuse of power. b. Giving go-head on a great expenditure exceeding RM100,000.00 without the proprietors’ approval at AGM/EGM. c. Contravene Suria Stonor by-law for commencing legal action against proprietors without exhausting all avenues for remedial action and negotiation.” [6] Further, at paragraph 16 of the SOC, the Plaintiffs pleaded that the Second Defendant (D2) and the Third Defendant (D3) had given D1 ‘false information and incited and/or caused the issuance and/or publication of the Notice to defame the Plaintiffs.’. The details were as pleaded in the SOC. [7] Therefore, the Plaintiffs’ claims against the Defendants, jointly and severably for the following reliefs:

general damages of RM27million;

aggravated and exemplary damages; and

injunction to restrain the Defendants from defaming the Plaintiffs. [8] In these applications, the Defendants are seeking, amongst others, to include that -

The Plaintiffs’ Writ and SOC are defective due to the Plaintiffs’ failure to produce the Purported Impugned Statements in verbatim;

The Plaintiffs do not have locus to bring this action against the Defendants; and

The defence of qualified privilege, fair comment and/or justification. ANALYSIS AND FINDINGS Amendment of Pleadings [9] Order 20 Rule 5 of ROC provides that “the Court may at any stage of proceedings allow” amendments made by parties “...in such a manner, if any, as it may direct.”. Order 20 Rule 5(1) states- “(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 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.” [10] The law on amendment of pleadings are settled (Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd v Ors [1983] 1 MLJ 213, FC; [1983] CLJ 428; [1982] 1 MLRA 417 and Hong Leong Finance Berhad v Low Thiam Hoe [2015] 8 CLJ 1; [2016] 1 MLJ 301; [2016] 3 MLRA 81). In summary, the Court should consider the following when deciding on amendment of pleadings-

Whether the application is bona fide.

Whether prejudice (if any) caused to the other side can be compensated with costs.

Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. [11] This Court is thus, guided by the cases of Yamaha Motor and Hong Leong Finance (supra) following the doctrine of stare decisis and finds that the applications are made bona fide and the explanation for the delay, as justified. [12] Previously, D1 had applied to strike out the Plaintiffs claim which this Court allowed, When the Plaintiffs appealed, D2 and D3 also filed a cross appeal to have the matter be struck out. The Court of Appeal then overturned this Court’s decision, hence these applications. [13] The Plaintiff contended that Enclosures 50, 52 and 54 were filed with great delay of 2 months before the trial, thus, was made in bad faith and not bona fide due to the inordinate delay. Further, the applications would change the character of the suit from one character to another whereby the Defendants have abandoned their original defence and raises new defences. This will all cause prejudice to the Plaintiffs whereby the Plaintiffs will have to refile their pre-trial case management documents resulting additional costs and time. [14] Upon reading the submissions of all the parties and the relevant documents including the affidavits, this Court finds that the amendments are derive from the same facts and issues. The general principle is that the Court will usually allow an amendment application particularly if the amendments are made for the purpose of determining the real question in controversy between the parties and are bona fide. The Courts have also emphasized that it should not punish parties for their mistake (warranting an amendment) in the conduct of the case. [15] This is as elaborated in Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230; [1987] 1 CLJ 126, where the Supreme Court held- “As for the general principles for the granting of leave to amend: “It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’ (see per Jenkins L.J. in G.L. Bakar Ltd. V. Medway & Supplies Ltd. [1958] 1 W.L.R. 1216, p.1231; [1958] 3 All E.R. 540, p.546). 'It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right' (per Bowen L.J. in Cropper v Smith [1883] 26 Ch. D. 700, pp. 710-722, with which observations A.L. Smith L.J. expressed 'emphatic agreement' in Shoe Machinery Co v Cultam [1896] 1 Ch. 108 p. 112). In Tildesley v Harper [1876] 10 Ch. D. 393 pp. 396, 397 Bramwell L.J. said: 'My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done Some injury to his opponent which could not be compensated for by costs or otherwise.'" (The Supreme Court Practice 1985 para. 20/5-8/6 p.340).” [16] This Court agrees with the Defendants’ submission that there is no such prejudice whereby the Plaintiffs would still be able to pursue with this action against the Defendants. [17] Furthermore, the Plaintiffs are not left without a legal recourse as they will also be given the opportunity for consequential amendments to Reply to the amended Defence and amended Counterclaim and also be compensated with cost. [18] In China Orient Asset Management Corporation Sdn Bhd v Alexma Corporation Sdn Bhd [2017] MLJU 1532; [2017] CLJU 1558; [2017] 1 LNS 1558; [2018] 7 AMR 213; [2018] 2 MLRA 680, in dealing with the issue of “prejudice”, the Court of Appeal held- “[14]….Prejudice” in the context of amendment applications, cannot mean that if the amendment is allowed, the chances of success of the litigation of the affected party will be severely diminished. Prejudice simply means that if the amendment is allowed, the party affected will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, and which is necessitated by the amendment, is lost or no longer available. In such a case, the prejudice is clearly seen. In every other case, where no such prejudice arises, the party can be compensated with costs” [15] In our respectful view, this was not such a case where the appellant was prejudiced in the sense that they will be unable to counter the allegations as put forward in the amendments allowed by the High Court. They may be put to some bother in doing so but the general principle is that parties must be allowed every latitude to define the issues between them as that is the core function of pleadings. Even in the case where there had been an omission or mistake, it is a matter of right to have it corrected, if it can be done without injustice, and where it is not made at too late a stage of the proceedings, so that the court can deal with the real question in controversy between the parties (see GL Bakar Ltd v Medway Building & Supplies Ltd [1958] 1 WLR 1216 as cited with approval by the Supreme Court in Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230)” (Emphasis Added) [19] Therefore, this Court is of the view that a party will only be prejudiced if it is no longer able to pursue or defend the suit as a result of the amendment, such as when crucial evidence is lost which does not happen in this action. [20] This Court also finds that the proposed amendment would not turn the suit from one character into a suit of another and inconsistent character as the issue in dispute is still about defamation action. CONCLUSION [21] Therefore, based on the aforementioned reasons, Enclosures 50, 52 and 54 are allowed with cost. -SGD- (SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISSIONER NCVC 1 KUALA LUMPUR HIGH COURT Dated: 12 February 2025 COUNSELS FOR THE PLAINTIFFS Messrs. Nandrajog 3-9-9, Tower 3, UOA Business Park. No. 1, Jalan Pengaturcara U1/51A, Section U1, 40150 Shah Alam,Selangor. FOR THE DEFENDANTS Messrs. SM Lee & Co. No. 139 (Tingkat Atas), Jalan Quek Kai Dong, 70200 Seremban, Negeri Sembilan