Abc v Def (BA-33-119-02/2023)

This is the Respondent Wife’s (RW) application in Encl 75 seeking leave to amend her Reply to the Divorce Petition and Cross-Petition and to add one Lu Chiew Yit (NRIC: 770703-08- 6922) as Co-Respondent in the RW’s Cross Petition under section 53 of the Law Reform (Marriage and Divorce Act) 1976.

The application is opposed by the RH.

Having considered the affidavits, the written submissions of the parties and the authorities cited, this Court dismissed the RW’s application.

These are the reasons for the decision. Brief Facts 5. The PW and RH were legally married on 4.10.2003 and as a result of that union two children were born who are now 21 and 17 years old.

The marriage ultimately broke down amidst allegations of adultery, cruelty and unreasonable behavior. By July 2021 the RW had left the matrimonial home leaving the PH and the children behind.

On 8.2.2023 the PH filed the Petition for Divorce pursuant to sections 53 and 54 of the LRA 1976.

The RW filed her Reply and Cross-Petition on 13.7.2023. It is crucial to note that no allegation of adultery against the PH was pleaded at the material time notwithstanding that the RW now alleges that such adultery occurred as early as 2002 and 2004.

On 5.3.32024 this Court allowed the PH’s application to amend the Divorce Petition and to add the Co-Respondent as a party to the pleadings.

On 16.5.2025 the Timbalan Pendaftar had given instructions for PTCM and had fixed trial date on 19.11.2025 before the Family Court in Shah Alam.

The instant application in Encl 75 by the RW seeking to amend her Reply and Cross Petition was filed on 17.6.2025, approximately one year and three months after the PH’s amendment application was allowed and about 3 years after the filing of the Divorce Petition.

The proposed amended Reply and Cross Petition that is sought by the RW is attached to this judgment and marked as Lampiran A. The RW’s Contentions supporting the Application 13. The RW maintains that the proposed amendments are necessary to determine the real issues in controversy between the parties. She has contended that the amendments are necessary to advance her claims against the PH in a clear and precise manner and that she had always acted in good faith and always endeavored to be fair and avoid unfair surprises upon the other side.

The RW asserts that if the amendment is not allowed she will be shut out from ventilating the true controversy between the parties and this will cause her to suffer grave prejudice as the Court will not be able to arrive at a fair ruling as to the main controversy between the parties which according to her were the PH’s predisposition towards lechery and sexual perversion, abuse and punishments perpetrated on her and his tendency to lie, cheat and act vindictively.

Worse still it would deprive her of her right to seek appropriate judicial relief against Lu Chiew Yit, the person who is central to the matters pleaded.

She argues that there is no element of surprise in the application given that the PH has been made aware since September 2024 of the RW’s intention to file this application but was put on hold in order for parties to allow mediation and negotiations to take its course. Since the parties could not achieve any resolution through mediation the RW intended to proceed on with her application to amend her Reply and Cross-Petition.

Moreover, it was argued that the PH can suffer no prejudice if the application is granted as he will have every opportunity to amend and/or file his Defence to the RW’s Amended Reply to the Divorce petition and Cross Petition. Counsel for the RW reminded the court to ensure fairness be dispensed between both parties and that allowing the application would ensure procedural fairness as it would enable the RW to put forward the case she genuinely wishes to litigate and to add an appropriate Co-Respondent. More so after the Court had allowed the PH’s application to amend his Divorce Petition and to add the Co-Respondent. Refusing the amendments would result in procedural injustice as she would be prevented form fully advancing her case.

The RW further stated that the proposed amendments would not alter the fundamental character of the RCP as they remained within the factual structure already pleaded and they arose out of the same set of events and personal knowledge of the parties.

Moreover the RW submits that amendments may be allowed at any stage of the proceedings, even at a late stage provided no injustice is caused. The RW argued that there was no inordinate delay in this application as trial dates had yet to be fixed. PH’s objections to the Application 20. In resisting the amendments sought, the RH has contended that there is inordinate and unexplained delay on the part of the RW in filing this application. It was argued that all the material facts relied upon by the RW were within her knowledge at the time of the filing of the original RCP and the allegations sought to be introduced relate to events allegedly occurring as early as 2002 and 2004 yet no satisfactory explanation has been offered as to why these matters were not pleaded earlier. In these circumstances it was argued that the application lacked bona fides.

The PH went further to submit that the application bears the hallmarks of mala fide conduct on the part of the RW as the application was filed only after the PH succeeded in amending his Divorce Petition. The PH alleged that the timing of the application demonstrated that the application is an afterthought and not a genuine attempt to clarify or narrow issues. It was further contended that the proposed amendments are not minor or ancillary in nature but would fundamentally alter the nature and character of the RW’s case in toto. The PH states that serious prejudice would be caused to him which cannot be cured by any award of costs. The Issues 22. Having considered the affidavits and the respective submissions of the parties, this Court is of the view that the following issues arise for determination in the present application :

whether the application in Encl 75 is bona fide;

whether there has been inordinate and unexplained delay in seeking the proposed amendments;

whether the proposed amendments would alter the nature and character of the proceedings;

whether any prejudice occasioned to the PH can be adequately compensated by an award of costs. Findings of the Court 23. The legal principles regarding the amendment of pleadings are set out in Order 20 rule 5 ROC 2012 - “5. Amendment of writ or pleading with leave (O. r. 5)

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.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3),

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.

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.

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.

An amendment may be allowed under paragraph

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.”

The Court undoubtedly has a discretion to allow an application to amend pleadings. However, such discretion must be exercised judicially and in accordance with well-established principles. The leading authorities governing the exercise of this discretion are Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd [1983] CLJ (Rep) 428 and Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1.

In Yamaha Motor the Federal Court held that an application to amend any pleading may be allowed at any stage of the proceedings provided that the applicant is able to satisfy the following essential requirements first :

the application is made bona fide

(ii) any prejudice caused to the other side can be compensated with costs; and

(iii) the amendments would not turn the suit from one character into a suit of another and inconsistent character.

Subsequently in Hong Leong Finance the Federal Court refined and supplemented the Yamaha Motor principles by introducing an additional requirement where an amendment application is brought after a substantial delay. In such circumstances, the applicant bears the burden of providing a reasonable and satisfactory explanation for the delay This position was clearly explained in paragraph 25 of the judgement where the Federal Court stated as follows : “…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 Company Sdn Bhd v Pan Global

In the present case, this additional requirement squarely applies. The RW’s application was only filed in June 2025, some 2 years 3 months after the original Divorce Petition was filed on 15.2.2023. In the face of such a substantial lapse of time, the burden lies on the RW to provide a cogent and reasonable explanation for the delay before this Court may properly exercise its discretion in her favour. Whether there has been inordinate delay 28. From the chronology of events, this Court is satisfied that there has been both inordinate and unexplained delay in the filing of the present application to amend the RCP. The RW’s explanation that mediation justified withholding the application to amend is in the considered view of this Court untenable and without merit.

A careful examination of the procedural timeline of the case reveals that the PH commenced this proceedings in February

The RW filed her Reply and Cross-Petition (RCP) on 13.7.2023, some 5 months later. The RCP is of critical significance. At that stage, the RW did not allege, whether expressly or implicitly, that the PH had had committed adultery with Lu Chiew Yit or with any other female individual. Instead the RW’s pleaded case was firmly anchored on allegations of emotional and physical abuse allegedly inflicted upon her by the PH and that she feared him.

In her Cross Petition the RW attributed the irretrievable breakdown of the marriage solely on the PH alleging inter alia that he had made threats to kill her and himself. She expressly relied on a police report lodged on 15.7.2021. Being the same day, she left the matrimonial home. Notably the RW did not at that juncture, seek to attribute the breakdown of the marriage to any alleged extramarital conduct on the part of the PH. This Court finds it highly material that no allegation of adultery against the PH was pleaded at the time the RCP was first filed nor was any reservation or indication given that such allegations might later be pursued.

It was only after the PH’s application to amend his Petition and to add a co-respondent and after the pleadings had effectively crystallized that the RW filed the instant application to introduce allegations of adultery allegedly committed by the PH dating back to as early as 2002 and 2004.

The lapse of time between the filing of the original RCP and the filing of this instant application is also a significant factor. From the records it shows a time span of 2 years during which the pleadings were allowed to stand, directions given and the litigation to progress on the clear footing that adultery on the part of the PH was not an issue.

On this basis this Court agrees with the PH’s submission that such delay is plainly inordinate on the face of it.

The RW has sought to justify the delay by attributing it to ongoing mediation efforts and negotiations between the parties. With respect this Court is unable to accept that explanation as having any merit. While mediation is strongly encouraged in matrimonial proceedings it does not operate to suspend the obligation of a party to plead known and serious allegations in a timely manner. Serious allegations such as adultery should ordinarily be pleaded at the outset, or at the very least at the earliest reasonable opportunity so that mediation may proceed with full transparency and with all material issues properly identified.

The Court further observes that no documentary evidence has been produced to substantiate the assertion that the allegations were consciously withheld due to the mediation process. There is no contemporaneous correspondence and no record before the Court that the RW was reserving her right to bring in adultery allegations pending the mediation process.

In contrast the chronology reveals that the application was filed only after the mediation process was unsuccessful. In these circumstances, this Court is constrained to agree with the PH’s contention that the allegations sought to be introduced in Encl 75 bear all the hallmarks of an afterthought. The allegations were not pleaded when they ought to have been pleaded. Crucially there were not raised even when the PH had obtained leave to amend his own pleadings. Instead they were introduced at a stage when the RW was already confronted with adverse material already properly before the Court. The PH cannot be faulted for complaining that the application appears calculated to dilute and deflect the force of the PH’s allegations levelled against the RW.

It is also pertinent to note that the police report lodged by the PW on 15.7.2021, the very day she left the matrimonial home, makes no reference whatsoever to any alleged adultery committed by the PH or to the involvement of Lu Chiew Yit or any other woman. On the contrary the police report attributes her departure solely to the alleged beatings and physical and sexual abuse by the PH The absence of any reference to adultery in a contemporaneous document of such significance further undermines the RW’s attempt to explain the belated introduction of these allegations.

In the view of this Court the proposed amendments are not neutral, technical or clarificatory in nature. When examined closely they seek to introduce serious allegations of adultery against the PH. In substance they would fundamentally alter the RW’s pleaded position from denial to accusations. Fundamentally it will recast the narrative of the marital breakdown of the marriage from one premised on abuse and fear to one that contain accusations of extramarital misconduct.

It bears emphasis that allegations of adultery in matrimonial proceedings are grave and serious in nature and carry with it significant reputational consequences. Such allegations ought not to be introduced casually or belatedly and certainly without proper and satisfactory justification. A serious allegation of adultery must be pleaded promptly, candidly and in good faith. While this Court accepts that RW’s argument that amendments may be allowed at any stage, delay remains a decisive consideration. The discretion to allow amendments is not a right but an equitable discretion exercised to advance the interest of justice not to facilitate tactical re-litigation. Whether the application is made bona fide 40. This Court is not persuaded that the present application has been made bona fide. The material facts now relied upon by the RW were already known to her at the time the RCP was filed and when the PH filed his amended Divorce Petition to include the co-respondent. If the RW genuinely intended to pursue allegations of adultery she ought to have taken steps as soon as the original Divorce Petition was served on her. Litigation cannot be conducted in this manner which can only result in substantial delay and disruption to the orderly progress of the trial.

The prolonged inaction on the part of the RW in bringing this application to file the application undermines any claim of bona fides. The RW remained silent for more than a year after the PH’s successful application to amend his pleadings and only thereafter sought to introduced entirely new and serious allegations. Such delay is inconsistent with the conduct of good faith. If this application were allowed it would inevitably necessitate the reopening of pleadings, filing of other pleadings and applications and likely cause more adjournments where even now after two years the matter has still not been completed.

The Court has already had to vacate the trial dates fixed in December 2025 in order to hear this application. The matter has undergone numerous pre trial case management sessions since close of pleadings. The introduction of new issues through this amendment application at this stage would cause further delay to the resolution of the parties marital dispute. Courts are under a duty to ensure that the trial is undertaken fairly and within a reasonable time frame. The RW should have acted on her own RCP diligently. The failure to do so expeditiously militates strongly against the grant of leave to amend at this late stage.

The RW has contended in her submissions that the Court ought not to concern itself with the merits of the allegations at this stage and that it is sufficient that the amendments are said to raise the real controversies between the parties. While the Court agrees with that argument it is unable to accept that proposition in the circumstances of the present case. The Courts is entitled and obliged to examine whether the application is genuinely advanced in good faith or not.

At the outset this Court notes that the proposed party cited Lu Chiew Yit was not named or alluded to in the original RCP nor was her involvement pleaded at any material time when the pleadings were closed. Her sudden emergence at this late stage is puzzling and a matter of concern. Yet the RW has alleged that “as early as 2004, the Petitioner Husband has been engaging in an extramarital affair with Sofia Lu as his long-time mistress” a serious allegation but without any credible proof to support it.

The RW’s reasons to introduce Lu Chiew Yit are upon this Court’s consideration rather speculative and wholly insufficient. The RW relies primarily on Lu Chiew Yit’s presence in a random Chinese New Year family photograph (unknown when it was taken) in which she is said to be seated next to the PH with the assertion that such a seating position would ordinarily be reserved for a spouse or partner in a family photograph. The RW further deposes that neighbours allegedly informed her that a vehicle said to belong to Lu Chiew Yit was parked overnight at the PH’s residence on multiple occasions.

This Court is unable to accept such assertions which even if taken at their highest, do not provide a proper evidential foundation for the introduction of a third party or for the pleading of adultery. It is difficult to accept that the mere presence of Lu Chiew Yit in a family photograph even one taken during a festive occasion gives the inference that seating in that position signifies an adulterous relationship. The photographs show a big group of people with about 21 individuals in it. The photographs relied upon by the RW do not show any act of intimacy between the PH and Lu Chiew Yit. More importantly no evidence was adduced to establish that culturally or traditionally seating in the position that she occupied is customarily reserved for a spouse or a person in an intimate relationship with the PH. No expert evidence, cultural testimony and no material was placed before this Court to support such a proposition. In the absence of such evidence, this Court is not prepared to accept the RW’s assertion that the seating position was anything more than ordinary.

Additionally, the reliance on the alleged sitting position as a marker of intimate relationship is purely speculative. The Court cannot draw inferences of adultery based on assumptions of proximity or placement in a group photograph particularly where the photograph depicts a large gathering with no contextual explanation provided. To allow the addition of Lu Chiew Yit as a co-respondent based on the photographs produced would mean that the Court is accepting flimsy evidence to form the basis of an allegation of adultery.

In regard to the assertions attributed to unnamed neighbours regarding a vehicle allegedly parked overnight at the PH’s residence are plainly hearsay. No affidavits from these ‘neighbours’ are exhibited, dates, duration or frequency of these happenings were particularized. With respect these assertions carry little, if any evidential weight to be attached.

To reiterate the Court emphasizes that allegations of adultery are grave and potentially damaging. Hence they cannot be founded on inference and conjecture. The Court requires credible, cogent and particularized evidence especially where a non-party is sought to be drawn into the contentious litigation between the PH and RW.

In the circumstances this Court finds that the RW’s attempt to justify the addition of Lu Chiew Yit or the pleading of an adulterous relationship involving her to be evidentially deficient and has not crossed the minimum threshold necessary to sustain a bona fide application. The requirement of bona fides has not been satisfied. For these reasons the proposed inclusion of Lu Chiew Yit is untenable and without merits. Whether the amendments would alter the character of the proceedings 51. This Court further finds that the proposed amendments would offend against the 3rd principal enunciated in the Yamaha Motors case i.e. that the proposed amendments ought not to be permitted if it would turn the suit from one character into a suit of another and inconsistent character thereby materially altering the nature and character of the proceedings.

In Smijaya Sdn Bhd dan lain-lain v Perwira Affin Bank Bhd [2010] 3 MLJ 54 the Court of Appeal refused leave to amend wheret he proposed amendments went far beyond the original defence and introduced a materially different factual matrix. The Court of Appleal held as follows :- “(2) The proposed amendment was obvious compared to the original defence. It was obvious that the proposed amendment had changed pattern. The amendment was with regards to the plaintiff’s involvement in the advice and the defendants’ profits estimation, whilst in the original defence it was only with regards to the question as to the plaintiff’s advise in the matters of purchase of USD during the financial crisis. The proposed amendment was not minor but a major one to the extent of causing extensive prejudice to the plaintiff. The proposed amendment was also not bona fide (see paras 13 – 15); HA Securities Sdn Bhd v Ng Kong Yeam [1993] 3 MLJ 489 referred.”

Similarly in the case of Keng Tiam Leng v Cheong Suh Ching [2024] CLJU 2885 the Learned Judge refused to allow the amendment application where the facts sought to be introduced were already within the knowledge of the application at the time the original pleading was filed. The Court held :- “[29] Since the facts were already known to the RW at the time the original Answer to the Petition was filed, couple with the late filing of Enclosure 79 and also it was filed after the discovery application vide Enclosure 36, the irresistible inference is that the filing of Enclosure 79 was a tactical manoeuvre and with bad faith. The RW is not allowed to conduct their case by way of installment and their actions has caused substantial delay for trial. [30] Under the circumstances, the insertion of new claims in the proposed Amended to the Answer to the Petition by the RW are an afterthought which should not be allowed.”

Those principles apply with equal force to the present case. It is to be noted that the original RCP filed in July 2023 was framed as a response to the PH’s case and did not attribute the breakdown of the marriage to adultery on his part. The RW’s position as originally pleaded was one of denial and resistance grounded primarily on allegations of abuse and fear. Adultery was conspicuously absent from the RW’s narrative.

The proposed amendments now seek to introduce allegations of adultery allegedly committed by the PH in the early years of their marriage. If allowed the proposed amendments would which began as a defence and cross petition denying wrongdoing on the part of the RW to be transformed into a proceeding centered on allegations of adultery against the PH. In the view of this Court, it cannot by any stretch be said that such amendments merely refine or clarify the issue already in dispute. Instead it represents a radical departure of the earlier pleadings and is a substantive recasting and overhaul of the RW’s entire case. The inevitable conclusion to be drawn is that the filing of Encl 75 lacks bona fides and is not directed at the proper ventilation of the real issues originally pleaded.

It is trite law that while amendments are permitted to resolve the real controversy, they must not convert the suit into one of an entirely different nature. In the present case the amendments sought would fundamentally change the character and substance of the RW’s defence and cross petition and in effect introduce a new and distinct cause of action. Whether any prejudice can be compensated by costs 57. The RW has contended that any prejudice occasioned to the PH can be adequately cured by allowing the PH to respond to the new allegations and by an appropriate award of costs. This Court is unable to accept such a contention.

In the circumstances of the present case, the prejudice that would be suffered by the PH is neither minimal nor merely procedural. It is in the view of this Court, grave and substantive in nature and of a kind that cannot be adequately compensated with costs. Allowing the amendments would require the PH to answer entirely new allegations dating back decades ago, reopen factual inquiries long overcome over time and in the absence of contemporaneous evidence. Such a process would impose an unfair and disproportional burden on the PH.

Furthermore, the amendments seek to introduce narratives involving third parties who are not presently parties to the proceedings and who have not been afforded an opportunity to defend themselves Such harm cannot be overcome by any amount of costs. Accordingly, this Court agrees with the PH’s submission that the prejudice occasioned by the proposed amendments is real, substantive and irreparable by any amount of costs. Conclusion 60. Based on the reasons above, it is the finding of this Court that the RW has failed to fulfill all the requirements as laid down by the Federal Court in Yamaha Motor and Hong Leong Finance Berhad.

Accordingly, the RW’s application in Encl 75 is hereby dismissed with costs. Dated 28 December 2025. (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan (SELANGOR) Counsel for the Petitioner : Jarrett Lee-Panjalingam (MOB Messrs Yoges & Co.) Counsel for the Respondent Husband : Fang Huey Yiing with Goh Yee Huey (Messrs Wong Wei Fan & Co.) Counsel for the Co-Respondent : Jarrett Lee-Panjalingam (Messrs Andrew Sewell)