Abdul Majid Bin Mohd Yusoff v 1. ) Bts Buildtrade Supply Sdn. Bhd (WA-23NCvC-69-10/2023)

BTS BUILDTRADE SUPPLY SDN BHD

LEOW LI HWA (NO. K/P: 750418-05-5176) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] On 9th April 2025 this Court issued two orders. The first order was to dismiss the Defendants’ application (Enclosure 67) to strike out the Plaintiff’s claim. The second order was to dismiss the Plaintiff’s application (Enclosure 74) for leave to add a new defendant and to amend his Amended Statement of Claim. I shall only be addressing the Plaintiff’s application herein because he has filed an appeal to the Court of Appeal. [2] This is not a new case. It was filed in October 2023. Trial dates in July 2025 have been fixed and parties are expected to be ready to proceed. [3] In deciding to dismiss the Plaintiff’s said application to add a new defendant and to amend his Amended Statement of Claim, I was guided 23/06/2025 13:15:33 WA-23NCvC-69-10/2023 Kand. 112 by the judgment of the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301 which ruled, inter alia, that it is not necessary for an opposing party to file any affidavit to oppose an application for leave to amend pleadings if the applicant’s supporting affidavit does not state any cogent reasons. The full reasons for my decision are as explained below. Background Facts [4] The Plaintiff’s claim against the Defendants are based on allegations of libel and harassment. [5] The introduction part in the Plaintiff’s Amended Statement of Claim is lengthy, 25 paragraphs long and spanning over 10 pages, narrating about some business ventures that went awry without any word about the Plaintiff’s cause of action of libel or harassment. From para 26 onwards, libel and harassment were pleaded. [6] On 8th March 2024, leave had in fact been granted by this Court for the Plaintiff to amend his Reply & Defence to Counterclaim and/or his Statement of Claim. That was about 12 months prior to the Plaintiff filing his current application (Enclosure 74) in March 2025. A screenshot of para 3 of the sealed Order dated 8th March 2024 is pasted below: [7] The Plaintiff did proceed to file his Amended Statement of Claim, making full use of the leave to make extensive amendments. His Amended Statement of Claim (Enclosure 48) was filed on 6th May 2024 – which was exactly 10 months before he filed his current application for leave to amend again. The Defendants filed their Amended Defence and Amended Counterclaim on 23rd May 2024. The Plaintiff’s Application dated 6th March 2025 (Enclosure 74) [8] The Plaintiff’s said application was filed on 6th March 2025 for leave to add a new defendant (to be the 3rd Defendant) and also to amend his Amended Statement of Claim. A screenshot showing the first prayer in his application is shown below: [9] In his supporting affidavit dated 6th March 2025, the Plaintiff made several averments, inter alia, that his application is to respond to the Defendants’ pleadings, will cause no prejudice to the Defendants, will clarify the Plaintiff’s cause of action, i.e. the usual grounds stated to justify an application for leave to amend pleadings as set out in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213. However, there is no explanation whatsoever about his delay for making that application. Analysis of the Facts and Law [10] The fact that the Plaintiff’s application (for leave to add a new defendant and to amend his Amended Statement of Claim) is numbered as the 74th enclosure in the CMS efiling system, tells us that there has been ‘much water under the bridge’ since the filing the of the Writ in October 2023. [11] After having decided to dismiss the Defendants’ striking-out application (Enclosure 67) as I am of the view that the pleadings have amply set out the issues that require a trial – which is scheduled to commence in July this year, I read the Plaintiff’s application (Enclosure 74) and his supporting affidavit. By applying the principles set out by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301, I found that the Plaintiff’s affidavit had failed to give any reason for his delay. With only about 3 months to the trial dates, the parties ought to be complying with pre-trial directions speedily to be ready to proceed with the trial in July 2025 instead of affirming further affidavits and drafting submissions on interlocutory applications. [12] Bearing in mind that the Plaintiffs had been granted leave 12 months earlier and did proceed to amend his Statement of Claim extensively (filed on 6th May 2024) and the Defendants had also filed their Amended Defence and Counterclaim on 23rd May 2024, should the Plaintiff be allowed to add a new defendant and reamend his Statement of Claim again when the trial dates are barely 3 months away? [13] Yamaha Motor Co Ltd (supra) is a well-known authority on the principles governing applications for leave to amend pleadings. It was a decision based on the Rules of the High Court 1980. For 33 long years it was quoted in all civil courts as the leading authority on amendment of pleadings, until the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 decided that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The following words of the Federal Court are illuminating: “It is pertinent to note that Yamaha Motor was decided under the old RHC

The civil procedure has since then changed with the introduction of the pre-trial case management in the year 2000 under O 34 of the RHC 1980 (22 September 2000) and now under O 34 of the RC 2012 (1 August [2016] 1 MLJ 301 at 3092012). Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. 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 bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. 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 (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80).” [14] Now, there is not even a single sentence in the Plaintiff’s supporting affidavit to explain his delay. His learned counsel submitted, albeit from the Bar Table, that his firm took over the conduct recently. With respect, if a change of solicitors is a sufficient ground for applying to add new parties to the proceedings and amend pleadings, thereby ignoring the trial dates that have been fixed, there would be inordinate delay of cases. The Federal Court in Hong Leong Finance Bhd (supra) emphasised the requirement that a cogent explanation for such a delay must be furnished. The relevant passage is quoted below: “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. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable.” [15] I have not overlooked the fact that the Defendants had yet to file their affidavit to oppose the Plaintiff’s application. However, learned counsel for the Defendants had submitted, after this Court dismissed the Defendants’ striking-out application (Enclosure 67) that they would strenuously object to the Plaintiff’s late application to add a new defendant and to amend the Amended Statement of Claim. Having reading the Plaintiff’s supporting affidavit, I decided to proceed to dismiss the Plaintiff’s application (Enclosure 74) to avoid having to vacate the trial dates. I find support from the facts of Hong Leong Finance Bhd (supra), wherein the Federal Court had ruled that if the applicant’s affidavit in support failed to adduce an explanation for the delay, there is nothing to reply, i.e. there is no need for any affidavit in reply to be filed by the opposing party. I respectfully quote the following passage from the judgment of the Federal Court: “It is noted in the present case the defendant’s affidavit in support failed to adduce an explanation for the delay in filing the said application. The Court of Appeal however held that the plaintiff should have filed an affidavit to oppose the application to amend which the plaintiff failed to do. With respect in our view the Court of Appeal erred on this point again. This is because the defendant’s affidavit in support of its application to amend contained nothing more than a bare assertion. A bare assertion carries no evidential value and hence, there is nothing to reply...” [16] It must be emphasised that the Plaintiff’s late application in Enclosure 74 is not just about re-amending his Amended Statement of Claim again to correct some typographical errors or omissions. The amendments to add a new defendant and to add allegations are extensive – as is visible from the colourful display of red and green on the proposed draft Amended Statement of Claim. [17] The proposed amendments, if allowed, would inevitably require this Court to vacate the trial dates fixed in July this year (2025). This is because a new third defendant must file its Defence and be given sufficient time to prepare for trial. Further, the 1st Defendant and 2nd Defendant would need to amend their Defence a second time to address the re-amended allegations pleaded against them. Though this Court has the power to abridge time, surely it should not be used to the detriment of the Defendants in favour of the Plaintiff who is guilty of inordinate delay. Counsel for the Plaintiff: Azlan Bin Zainal Abidin SOLICITORS FOR THE PLAINTIFF: MESSRS ZAINAL ABIDIN & CO. Advocates & Solicitors Suite 1803-1806, 18th Floor, Plaza Permata, IGB Plaza, Jalan Kampar Off Jalan Tun Razak, 50400, WILAYAH PERSEKUTUAN KUALA LUMPUR Counsel for the Defendants: Wong Hui Hong (Siow Yoong Kei with him) SOLICITORS FOR THE DEFENDANTS: MESSRS H WONG & CHIA WEN Advocates & Solicitors Level 11 & 12, Menara Dungun, 46, Jalan Dungun, Taman Damansara Endah, 50490 KUALA LUMPUR. CASES REFERRED TO: 1) Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301. 2) Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1