Advanced Healthcare Products Sdn Bhd (dalam Likuidasi) v Wrp Asia Pacific Sdn Bhd (WA-22NCvC-554-08/2024)

This was an application by the Defendant to be given leave to amend the Defence dated 18.9.2024 by adding paragraph 12A (‘Proposed Amendment’) as follows: “C1(A). The Non-Termination of the EHAs

During the period when Dato’ Lee was in control of the Defendant, he also held the 18/09/2025 13:29:30 WA-22NCvC-554-08/2024 Kand. 60 position of Director in the Plaintiff.

12A.1. During this time, three letters dated 15.01.2018, 14.02.2018, and 10.08.2018 were issued to the Plaintiff, purportedly terminating the EHAs.

12A.2. However, as stated in paragraph 11 above, the EHA Production Lines 6 to 10 were subsequently renewed for another six years.

12A.3. Given these renewals, the purported termination letters dated 15.01.2018, 14.02.2018, and 10.08.2018 did not validly terminate the EHAs. The renewal of these EHAs after they were purportedly terminated also soon before they were terminated demonstrates that the Defendant had no intention of terminating the EHAs.

12A.4. As such the Defendant contends that the purported termination of the EHAs was invalid and/or a sham.”.

I had dismissed the Defendant’s application and these are my full grounds of judgment for the decision.

The Plaintiff is a company which was in the business of manufacturing and marketing gloves.

Between 23.9.2011 and 14.8.2013, the Plaintiff entered into seven Equipment Hiring Agreements (‘EHA’) to hire the Defendant’s glove production lines (Production Lines 4 to 10) to be used at the Plaintiff’s glove production factory at Senawang Industrial Estate, Negeri Sembilan for a period of six years at the monthly rental of RM68,000.00 per Production Line.

Dato’ Lee Son Hong (‘Dato’ Lee’) was a Managing Director of the Defendant between 2006 to 2019 and a shareholder of the Plaintiff between 2016 to 2019.

Syed Ali Aljfrri bin Syed Jan Aljffri (‘Syed Ali’) also served as a Director of the Plaintiff between 2013 to 2019.

By around 2019, the seven EHA were nearing the end of the six years term. The parties then agreed to renew Production Lines 6 to 10 for a further six years.

However, the Defendant terminated the EHA via three letters dated 15.1.2018, 14.2.2018, and 10.8.2018 (‘Termination Letters’). Dato’ Lee, purportedly acting for the Defendant, is said to have issued the Termination Letters.

On 15.8.2018, the Plaintiff requested the Defendant to remove the Production Lines by 30.8.2018 (‘1st Removal Deadline’) but the Defendant failed to do so.

On 23.5.2019, the Plaintiff was wound up by the court vide Ipoh High Court Companies (Winding Up) Petition No. AA-28NCC- 30-03/2019.

Thereafter, the Plaintiff was placed under the control of the Official Receiver until 4.8.2021 when Andrew Heng from Ferrier Hodgson MH Sdn Bhd was appointed as a private liquidator for the Plaintiff.

On 17.11.2021, the Liquidator conducted an Expression of Interest Exercise (‘EOI Exercise’) seeking to include the Plaintiff’s assets along with the Defendant’s Production Lines, subject to the Defendant’s consent. The Defendant agreed to the same subject to its final agreement to the offer price.

On 7.6.2022, as the Defendant disagreed with the highest offer price received by the Plaintiff, the Plaintiff requested the Defendant to remove the Production Lines from the Plaintiff’s premises by 6.8.2022 (‘2nd Removal Deadline’) subject to –

a security deposit of RM300,000.00 to be made to the Plaintiff and to be refunded within 14 days after the removal of the Production Lines subject to any damage caused to the Plaintiff’s premises;

full indemnity by the Defendant towards the Plaintiff and the Liquidator from all actions claims, losses, damages, expenses and costs in connection to, or arising out of, the removal of the Production Lines; and

a monthly rental of RM150,000.00 shall be charged upon the lapse of the 2nd Removal Deadline.

On 24.8.2022, the Plaintiff wrote to the Defendant that the monthly rental charges have commenced since 7.8.2022, without prejudice to its right to pursue further claims against the Defendant for failing to remove the Production Lines since the 1st Removal Deadline.

The Plaintiff filed a suit against the Defendant on 21.1.2023 vide Kuala Lumpur High Court Originating Summons No. WA- 24NCvC- 280-01/2023 seeking for, among others, a mandatory injunction to remove the Production Lines, arrears of rental and to dispose the Production Lines and deduct the outstanding rental from the proceeds of sale.

On 23.5.2023, the High Court granted the mandatory injunction compelling the Defendant to remove the Production Lines by 31.8.2023 without prejudice to the rights of the Plaintiff to claim for any outstanding rental or damages until the date of full compliance.

The Defendant removed the Production Lines on 30.9.2023.

Between 18.10.2023 and 30.10.2023, the parties corresponded regarding the extension of time to remove the BAOLI Forklift, which was agreed by the Plaintiff.

On 20.8.2024, the Plaintiff commenced this suit against the Defendant claiming for

In the present suit, the Plaintiff is claiming for, among others, payment from the Defendant for outstanding rental or mesne profits for the period from 31.8.2018 to 17.11.2021 and from 7.8.2022 to 30.9.2023, apart from the period of the EOI Exercise, amounting to RM7,860,000.00 for the continued storage of the EHA on the Plaintiff’s premises.

The Defendant filed its Defence on 18.9.2024 and the Plaintiff filed its Reply to the Defence on 3.10.2024.

The Defendant pleaded the following defences in response to the Plaintiff’s claim:

the Defendant denied any liability to pay the sum of RM7,860,000.00;

the Defendant was at all material times the owner of the EHA, and their placement at the Plaintiff’s premises was with proper justification and knowledge of the Official

the Plaintiff is not entitled to the rental or mesne profits claimed, and granting such relief would unjustly enrich the Plaintiff.

All pre-trial documents except for the Agreed Issues To Be Tried and Witness Statements had been filed when the Defendant made the application in encl. 17.

O. 20, r. 5(1) of the Rules of Court 2012 (‘RC 2012’) on “Amendment of writ or pleading with leave” states that “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.”.

The trial for this case has been fixed from 20 to 24 April 2026. The Defendant’s application was therefore not made on the eve of trial and the applicable legal principles are as set out in Yamaha Motor Co. Ltd. v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 CLJ 19124 where the Federal Court laid down the tests to be fulfilled as follows:

the application must be bona fide;

the proposed amendments would not change the character or nature of the suit; and

the proposed amendments made do not cause prejudice to the other side which cannot be compensated by costs

All amendments which would allow the determination of the real question in controversy between the parties, or which would correct any defect or error in proceedings would generally be allowed by the court (see Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230).

The Plaintiff raised a preliminary objection (‘PO’) that the

Affidavit In Support (‘AIS’, encl. 18) was affirmed by Mr. Mathew Thomas Philip, the solicitor acting for the Defendant, instead of a representative of the Defendant. In paragraph 2 of the AIS, the solicitor affirmed that “Saya telah secara sah diberi kuasa oleh Defendan untuk megikrarkan affidavit ini bagi pihak mereka.”; and

Affidavits In Reply (‘AIR’, encls. 36 and 42) were also affirmed by the same solicitor and he did not even aver that he was authorised by the Defendant to affirm both AIR.

The learned counsels for the parties had submitted on the PO and I decided to dismiss the PO on the ground that the Plaintiff failed to give notice to the Defendant as to its intention to raise the PO.

It is trite law that a party who wishes to raise any PO must give written notice to the other party’s solicitors as early as possible of his intention to do so and failure to do so would amount to waiver of the party’s right to raise the objection (see Bukit Melita Sdn Bhd v Lam Geok Hee & Ors [1996] MLJU 227 and Jasabena Sdn Bhd v Beh Heng Poo & Anor [1985] 1 MLJ 394).

In this regard, there was no written communication from the Plaintiff’s solicitors that they intend to raise the PO. Furthermore, the Plaintiff did not, in either of its AIR (encls. and 39), raised an issue as to the capacity of the Defendant’s solicitor to affirm the AIR.

The Defendant submitted that its application should be allowed on the following grounds:

there is no inordinate delay in filing encl. 17;

the Proposed Amendment is bona fide and intended to allow the true issues to be determined;

the Proposed Amendment would not change the character and nature of the suit; and

no prejudice is occasioned on the Plaintiff which cannot be compensated with costs.

After having considered the cause papers and submissions of the parties, I was inclined to agree with the Plaintiff that the Defendant’s application should be dismissed for the following reasons:

Delay The Defendant contended that –

mere procedural delay is not in itself a bar to an amendment. The Defendant has not delayed for years, nor is the application made with intent to delay the trial. O. 20, r. 5(1) RC 2012 expressly permits amendments to be made at any stage of the proceedings, including post-close of pleadings with leave. The Plaintiff must demonstrate prejudice, bad faith or abuse of process, none of which have been shown (see Datuk Dr Soon Choon Teck v Datuk

(ii) the Defendant’s application was filed before trial and does not seek to introduce a new cause of action or defence, or to revive any prior application or relitigate previously determined issues. No prior relief has been sought or dismissed. The Proposed Amendment arise from matters which were already raised in the Defence and are brought to clarify core factual issues, namely, whether the EHA were properly terminated and the Plaintiff is entitled to the sums claimed. The Defendant added that any procedural effect is mitigated by the Court’s case management (‘CM’) discretion. In my opinion, it is ironical that the Defendant should mention this in its Written Submission In Reply (encl. 49) when the Court had, on 20.9.2024, clearly directed that any interlocutory application must be filed on or before 17.10.2024, and any interlocutory application filed after this date will not be allowed. This direction was given pursuant to O. 34, r. 1 RC 2012, and in filing the application on 4.3.2025, the Defendant had blatantly flouted the Court’s direction. Robust pre-trial CM is a norm in this Court to ensure a just, expeditious and economical disposal of the hundreds of cases which are filed during each registration cycle (see Christopher ak Bandi @ Josny v Tumbung ak Nakis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100). Statistics have shown that one of the causes of delay in the disposal of cases is the numerous interlocutory applications filed by the parties and often, at a very advanced stage of the court proceedings i.e. close to the first trial date. A strong message must be sent that it is the duty of the parties and their counsels to comply with all directions by the Court lest the history of voluminous pending interlocutory applications in this Court will repeat itself. Worse, the Defendant did not even attempt to provide any justification in filing the application well beyond the timeline which was set by the Court. The delay is all the more inexcusable given the fact that the termination letters are the Defendant’s own documents.

The Proposed Amendment is a tactical manoeuvre and inconsistent with the pleaded Defence In the AIS, the Defendant’s solicitor merely affirmed that the application was made in good faith, and that the Proposed Amendment will not change the character of the defence and will not cause any prejudice to the Plaintiff. It was only in the AIR (encl. 36) that the same deponent averred that –

he had interviewed Syed Ali and was informed that, to Syed Ali’s knowledge, there was no request by the Plaintiff to terminate the EHA or to remove the Production Lines. In addition, Syed Ali supposedly said that Dato’ Lee was the Plaintiff’s alter ego and reference was made to the suits between the Defendant and Dato’ Lee as reported in [2022] 1

(ii) he interviewed the Defendant’s officers and none of them had any knowledge about any request pertaining the EHA and there is no acknowledgement of receipt of the Termination Letters by the Defendant. I must confess that I find the latter averment rather odd considering that the Termination Letters were signed by Dato’ Lee as the Chief Executive Officer (‘CEO’) on the Defendant’s letterhead and the Defendant itself exhibited the Termination Letters as exhibit “MTP-3”;

(iii) the EHA for Production Lines 8 to 10 were renewed on 1.10.2017, 1.11.2017 and 1.12.2017 where these dates are close to the termination dates as alleged by the Plaintiff; and

(iv) the EHA for Production Lines 6 and 7 were renewed on 1.4.2018 and 1.7.2018, which is after the alleged termination dates. I can immediately say that this fact is inaccurate as the EHA for these Production Lines were terminated vide the letter dated 10.8.2018 which stated that the termination was effective from 1.9.2018, which is obviously after the renewal of the EHA. In the second AIR (encl. 42), the same deponent affirmed that, around July 2020, he attended a meeting with the Official Receivers at the Malaysian Department of Insolvency and they did not raise any issue on the rental charges of the equipment and neither did they demand any rental, arrears of rental or damages. The identity of these officers is not stated in the AIR, contrary to the requirements as to the contents of an affidavit in O. 41, r. 5 RC 2012. The purpose of the Proposed Amendment is to dispute the Defendant’s obligation in removing the Production Lines on the basis that the Termination Letters did not validly terminate the EHA and the renewal of the EHA after they were allegedly terminated demonstrates that the Defendant had no intention of terminating the EHA. In paragraph 10 of the Defence, the Defendant had earlier pleaded that: “Semua EHAs untuk Barisan Pengeluaran 4 hingga 10 di atas adalah dimasuki pada tempoh di mana Dato’ Lee Son Hong (“Dato’ Lee”) mempunyai kawalan penuh ke atas Lembaga Pengarah (Board) dan semua kuasa serta pengurusan (managerial power and authorities) di Defendan. Sehubungan dengan ini:

10.1. Sebelum ini, Dato’ Lee merupakan seorang pengarah urusan (managing director) dan/atau ketua pegawai eksekutif (chief executive officer) Defendan dari kira-kira tahun 2006 hingga 29.11.2019;

10.2. Sebelum 23.10.2019, Dato’ Lee mempunyai kawalan penuh ke atas Lembaga Pengarah dan adalah bertanggungjawab terhadap pengurusan serta operasi harian Defendan; dan

10.3. Ia adalah kemudian didapati bahawa Dato’ Lee, semasa berada di Lembaga Pengarah, juga merupakan seorang pemegang saham (shareholder) Plaintif.”. I agree with the Plaintiff’s submission that, the proposed Amendment is a departure and inconsistent with the Defence admitting that Dato’ Lee had full control of the Defendant at the material time. I further agree that, whether or not the Termination Letters are invalid or a sham, should be known by the Defendant at all material times. In other words, the facts giving rise to the Proposed Amendment must have been known to the Defendant at the time when the Defence was prepared. If the Defendant truly had a valid defence as suggested in the Proposed Amendment, it would not have waited and the fact that it did, raised the inference that the application was a tactical manoeuvre (see Ismail bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348 and Lim Nyang Tak Michael v ACE Technologies Sdn Bhd [1995] 4 MLJ 616). The Defendant had never disputed the termination of the EHA prior to this, despite being fully aware of the Termination Letters. Not a single letter was exhibited by the Defendant to show that it had challenged the validity of the Termination Letters issued by its own CEO. There is no evidence from Dato’ Lee denying that he issued the Termination Letters, and from Syed Ali as to the facts which he purportedly conveyed to the Defendant’s solicitor. Interestingly, Syed Ali himself signed a letter dated 15.8.2018 with the Plaintiff’s company seal wherein reference was made to the Termination Letters and stating, among others, that the Defendant has terminated the EHA and hence, the Defendant should remove the equipment from Production Lines 4 to 10 within 15 days from the date of the letter (see exhibit “P-2”, encl. 39). It is therefore incredulous that after seven years, the Defendant is now raising the allegations as per the Proposed Amendment. Notably, no one from the Defendant with personal knowledge of the matter has affirmed an affidavit to state that the Termination Letters are invalid or a sham. The Defendant’s AIR contains much hearsay evidence and the deponent has possibly placed himself in a position of conflict of interest by turning himself into a potential witness. In the premises, to now attempt to amend the Defence by way of the Proposed Amendment is, in my considered view, not bona fide and amounts to a tactical manoeuvre and changes the character of the defence.

Prejudice to the Plaintiff According to the Defendant, the Proposed Amendment will not cause prejudice to the Plaintiff in the event that it is allowed because –

the Proposed Amendment is bona fide and meant to clarify and provide further particulars to the existing Defence; do not change the character of the Defence; is based on facts and documents which are already known or are within the knowledge of the Plaintiff; and are not made as a tactical manoeuvre;

(ii) there will be no delay to the full trial of this action; and

(iii) the Plaintiff will have the opportunity to make any consequential amendments to their its Reply to Defence, should leave to amend be granted. On the other hand, it was said that the Defendant would be prejudiced if the Proposed Amendment is not allowed as it would be precluded from properly ventilating the issues raised in the Proposed Amendment during the trial, which are directly relevant to the Defendant’s liability for the amount claimed by the Plaintiff. However, the justifications as set out in subparagraph (i) above have been rejected for the reasons as elaborated previously. While the Plaintiff would be given time to amend its Reply to Defence and there would be time for the pre-trial documents to be reviewed and re-filed if necessary, in the event the application is allowed, nevertheless for the reasons as explained earlier, the circumstances of this case are such that the argument as regards prejudice tips in the Plaintiff’s favour. Conclusion

Premised on the foregoing reasons, the Defendant’s application was dismissed with costs of RM3,000.00, subject to allocatur. DATED: 17.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Counsel for the Plaintiff : Lee Xin Yi Messrs. S. Mathews & Associates Counsel for the Defendant :