Aurelia Joie Thai v Maxter Glove Manufacturing Sdn. Bhd. (WA-24NCC-315-06/2023)

MAXTER GLOVE MANUFACTURING SDN. BHD. (No. Syarikat: 199101019525 (229862-H))

THAI KIM SIM (No. Kad Pengenalan: 601019-01-5047) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 89)

This was the Defendants’ application by way of Notice of Application dated 28.4.2025 (Enclosure 89 or “the application”) for leave of this Court to file, refer to and read the Defendants' Supplementary Affidavit affirmed by Dato’ Ting Heng Peng on 16.4.2025 (Enclosure 87) (“the Supplementary Affidavit”).

The application was made pursuant to Order 92 Rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of this Court.

Having heard the parties, I dismissed Enclosure 89 with costs. These are my grounds. A]

The Plaintiff filed an Originating Summons dated 9.6.2023 (Enclosure 1) pursuant to sections 347 and 348 of the Companies Act 2016 seeking leave to commence a derivative action on behalf of the 1st Defendant (“the Company”) against the 2nd Defendant. The Plaintiff’s standing was premised on her capacity as a director of the 1st Defendant. The 2nd Defendant was subsequently added as a party. An Amended Originating Summons was filed on 2.5.2024 (Enclosure 56) (“the Leave Application”).

The Leave Application was heard over several dates. By 17.4.2025, all parties had exhausted their affidavits and concluded their oral submissions.

On 16.4.2025 - one day before the final hearing date - the Defendants filed and served a Supplementary Affidavit affirmed by Dato’ Ting Heng Peng (Enclosure 87) (“the S/N 6BoaAvTrgkesfih46NrOiA Page 4 of 13 Supplementary Affidavit”) without the prior leave of this Court. The Supplementary Affidavit sought to draw the Court's attention to the Plaintiff’s alleged removal as a director of the 1st Defendant following an Extraordinary General Meeting (“EGM”) convened on 20.12.2024, and to submit that, consequent thereupon, the Plaintiff lacked the requisite locus standi to continue with the Leave Application.

At the hearing on 17.4.2025, the Plaintiff raised an objection against the Supplementary Affidavit on the grounds that it was filed without leave and at the eleventh hour. This Court upheld the Plaintiff’s objection. This Court further directed that no further applications were to be filed by either party pending delivery of the decision on the Leave Application, which was fixed for 22.5.2025.

Notwithstanding this Court’s ruling and direction, the Defendants filed the present Notice of Application (Enclosure 89) on 28.4.2025, seeking leave to file, refer to and read the same Supplementary Affidavit, and for an order deeming its filing and service on 16.4.2025 to be good and regular. B]

The Defendants submitted that the Supplementary Affidavit discloses a material change in fact - the Plaintiff’s removal as director on 20.12.2024 - which goes to the threshold issue of her locus standi. They contended that standing must be S/N 6BoaAvTrgkesfih46NrOiA Page 5 of 13 maintained throughout proceedings and that the Plaintiff’s cessation as director extinguished her entitlement to pursue the Leave Application under sections 345 and 347 of the Companies Act 2016.

The Defendants further submitted that any delay was inadvertent and not inordinate, and that the Court’s discretion under Order 1A of the Rules of Court 2012 empowers the Court to prioritise justice over procedural irregularity. They contended that the Plaintiff would suffer no prejudice if the application were allowed, as the facts in the Supplementary Affidavit were already within her knowledge. C]

The Plaintiff resisted Enclosure 89 on three grounds as stated below.

First, that Enclosure 89 is an abuse of process and affords the Defendants a second bite of the cherry. This Court had already expunged the Supplementary Affidavit on 17.4.2025 and directed that no further applications be filed. Enclosure 89 is a direct attempt to relitigate a matter already decided.

Second, Enclosure 89 was filed after all affidavits had been exchanged and oral submissions concluded. Admitting the Supplementary Affidavit at this stage would be highly irregular.

Third, and in the alternative, that the locus standi argument is a non-starter. The material time for determining a complainant's standing under section 345 of the Companies Act 2016 is at the time of instituting the action. The Plaintiff was a director of the 1st Defendant when both Enclosures 1 and 56 were filed, and therefore falls within section 345(c) of the Companies Act 2016. D]

The most compelling ground for dismissing Enclosure 89 is that this Court had already adjudicated upon and rejected the very same affidavit on 17.4.2025. The Supplementary Affidavit was filed without leave and the Plaintiff’s objections were upheld.

Crucially, this Court then issued an express direction that no further applications were to be filed. Enclosure 89, filed eleven days thereafter, is in plain contravention of that direction.

In substance, Enclosure 89 seeks the same outcome as was refused on 17.4.2025 - namely, the admission of the same affidavit that this Court had already ruled to disallow. To permit this would be to render this Court’s prior ruling and direction without effect. The underlying principle that a party ought not to be permitted to relitigate an issue already decided was S/N 6BoaAvTrgkesfih46NrOiA Page 7 of 13 affirmed by the Court of Appeal in Metreco Industries Sdn Bhd v. Muhammad Fadhil bin Ab Wahid and another appeal [2019] 12 MLJ 164, where it was held that attempting to relitigate the same issue amounts to an abuse of the process of court. That principle applies with equal, if not greater, force where, in the present case, a party seeks to relitigate an issue already decided by the same Court within the same proceedings. Enclosure 89 falls squarely within that mischief.

It is further noteworthy that approximately four months prior, on 17.12.2024, the Plaintiff had herself sought to file a supplementary affidavit, which the Defendants strenuously objected to on the very same grounds now relied upon by the Plaintiff - namely, that no leave had been obtained and that the affidavit was filed late. The Defendants cannot now be heard to adopt a contrary position when seeking the same indulgence for themselves.

The Defendants’ reliance on Order 1A of the Rules of Court 2012 and Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & other appeals [2017] 5 MLJ 35 is misplaced. Order 1A is a facilitative provision directed at preventing injustice from minor procedural irregularities. It is not a licence to circumvent or override a subsisting court ruling and direction. To invoke Order 1A in these circumstances would subvert rather than advance the interests of justice. S/N 6BoaAvTrgkesfih46NrOiA Page 8 of 13 E] ISSUE 2: FILING AFTER COMPLETION OF AFFIDAVITS

Independently, Enclosure 89 is also objectionable on the basis that it was filed after all affidavits had been exchanged and oral submissions concluded. The principle is well established. In Lum Choon Realty v. Perwira Habib Bank [2003] 4 MLJ 409, the Court of Appeal held that once parties commence their submissions, affidavit evidence is deemed closed and parties are confined to submitting on the record as it stands. The admission of an affidavit after the completion of submissions was described as “highly irregular.”

The Court of Appeal in Sagajuta (Sabah) Sdn Bhd v. Trane Malaysia Sales & Services Sdn Bhd [2013] 1 LNS 1425 referred to and similarly applied the same principle from Lum Choon Realty (supra) upholding the rejection of a further affidavit filed after affidavits and submissions had been concluded.

The Supplementary Affidavit was filed on 16.4.2025 - four months after the EGM on 20.12.2024 - the Plaintiff having formally ceased to be a director of the 1st Defendant with effect from 6.1.2025. The material facts sought to be adduced by way of the Supplementary Affidavit were therefore available to the Defendants from as early as December 2024. No satisfactory explanation was offered for the delay of approximately four months before Enclosure 89 was filed on 28.4.2025. Enclosure S/N 6BoaAvTrgkesfih46NrOiA Page 9 of 13 89 itself was filed some eleven days after oral submissions had concluded on 17.4.2025. This delay and the advanced stage at which this application was brought are fatal to Enclosure 89.

In this regard, the Court of Appeal in Hock Seng Construction Sdn Bhd & Anor v. Yong Kon Fatt & Anor [2001] 3 MLJ 499; [2001] 3 CLJ 561 held as follows: “It is our view that a delay in filing, per se, is not fatal, but a delay with complete lack of explanation as to why there was a delay is fatal. It has often been reminded that ‘rules of court must prima facie be obeyed’, and in order to justify a court in extending the time there must be some material upon which the court could exercise its discretion, see Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228.” (emphasis added) F]

A further and independent ground for dismissal is the consequential prejudice that would ensue if Enclosure 89 were allowed. The admission of the Supplementary Affidavit at this stage would inevitably occasion the filing of further affidavits in reply by the Plaintiff, thereby causing additional delay to proceedings which have already been on foot for close to two years. The Leave Application was fixed for decision on 22.5.2025. To permit Enclosure 89 would be to unravel the S/N 6BoaAvTrgkesfih46NrOiA Page 10 of 13 finality that this Court's direction of 17.4.2025 was intended to secure.

The present case is materially similar to Lum Choon Realty (supra) in that multiple affidavits have been filed over an extended period, and the material facts contained in the Supplementary Affidavit (Enclosure 87) were available well before the hearing. G]

The application in Enclosure 89 constitutes an abuse of this Court’s process. It was filed in direct contravention of this Court’s ruling and direction made on 17.4.2025, at a stage when all affidavits and submissions had long been concluded, and amounts to no more than an impermissible attempt to relitigate a matter already decided. The Defendants have not established any basis warranting the exercise of this Court’s discretion in their favour.

For the purpose of completeness, in deciding Enclosure 89 I have made no determination on the substantive question of the Plaintiff’s locus standi under sections 345 and 347 of the Companies Act 2016. My decision to dismiss Enclosure 89 is made purely on procedural grounds as set out above. The question of locus standi, if it arises, remains a matter properly reserved for the substantive determination of the Leave Application in Enclosure 56.

For the reasons stated above, Enclosure 89 is dismissed. Dated this 7th day of May, 2026 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA COUNSEL FOR THE PLAINTIFF : Rishwant Singh A/L Amarjeet Singh (Mohd Wafiy bin Azman, Wardah Yumna binti Yunus, Ahmad Iqbal bin Rohaizan dan Nur Fathin Farrisya binti Md Noor together with him) Messrs Azmi & Associates Suite 6.03, Tingkat 6, Menara Keck Seng, 203 Jalan Bukit Bintang, 55100 Kuala Lumpur Tel: 03-21185070 Email: general@azmilaw.com S/N 6BoaAvTrgkesfih46NrOiA Page 12 of 13 COUNSEL FOR THE DEFENDANTS : Nik Azila Shuhada (Tong Wei Hang, Ong Tze Xian, Karu Ashwin A/L Karu Ramesh Kumar (pupil-in-chambers) and Muhammad Sirhan Sidqi bin Abdul Aziz (pupil-in-chambers) together with her) Messrs Shearn Delamore & Co. Tingkat 7, Wisma Hamzah-Kwong Hing, No. 1, Leboh Ampang, 50100 Kuala Lumpur Tel: 03-20272610 Emel: info@shearndelamore.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 1A ▪ Order 92 Rule 4 Companies Act 2016 ▪ Section 345 ▪ Section 347 ▪ Section 348

Hock Seng Construction Sdn Bhd & Anor v. Yong Kon Fatt &

Lum Choon Realty v. Perwira Habib Bank [2003] 4 MLJ 409

Metreco Industries Sdn Bhd v. Muhammad Fadhil bin Ab Wahid and another appeal [2019] 12 MLJ 164

Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & other appeals [2017] 5 MLJ 35

Sagajuta (Sabah) Sdn Bhd v. Trane Malaysia Sales & Services