Azio e-Pay Service Malaysia Sdn Bhd v Pejabat Pendaftar Agensi Pelaporan Kredit (WA-21NCvC-22-03/2024)

Defendan sebagai satu pejabat am (public officer) telah melakukan misfeasans (‘misfeasance’)

(ii) Defendan telah mengingkari kewajipan berhati-hati (‘breach of duty of care’) yang terhutang terhadap Plaintif 06/03/2026 18:09:34 WA-21NCvC-22-03/2024 Kand. 53 S/N Fq/8SkJSIkOvQllvxr6Zog [2] The italicized show the exact excerpts from the Plaintiff’s Statement of Claim (SoC) paragraph 25. The Plaintiff also asked for an order that the Defendant immediately instruct the Credit Reporting Agencies to upload onto the database the details of the borrowers that had been deleted. [3] This case was closely managed by this Court. On 12.8.2024 the Defendant’s application for further and better particulars was allowed. On 28.11.2024 this Court fixed trial dates and issued directions for parties to comply for the smooth-running of the trial. [4] During the preparation for trial - when parties were complying with the filing of documents, agreed facts and issues to be tried, at the case management of 27.10.2025, the Defendant sought permission to file a striking out application. This Court allowed and fixed deadlines for the exchange of affidavits and submissions and hearing date fixed on 29.1.2026 for arguments. The Defendant complied with the timeline and filed the striking out application on 21.11.2025 (Enclosure 35). [5] On 20.1.2026, the week before the hearing of the Defendant’s Enclosure 35, the Plaintiff filed an application to amend the intitulement of its Writ of Summons and SoC (Enclosure 43). [6] This Court heard both applications on 29.1.2026. Enclosure 35 was allowed, the Plaintiff’s SoC was struck out and costs of RM10,000 subject to allocator was ordered to be paid to the Defendant. Enclosure 43 was dismissed with costs of RM3,000 subject to allocator. The trial dates of S/N Fq/8SkJSIkOvQllvxr6Zog 3 12.4.2026 to 14.4.2026 were thus vacated. The Plaintiff has appealed to the Court of Appeal against this Court’s decision. Background [7] The Plaintiff is a company involved in providing financial services, specifically easy instalment financing schemes. Between 2007 and 2017, the Plaintiff offered financing to the public for the purchase of vehicle tracking systems supplied by Takashimaya Sales & Services Sdn Bhd. To manage credit risk, the Plaintiff subscribed to licensed credit reporting agencies registered under Pejabat Pendaftar Agensi Pelaporan Kredit (Defendant) (such as Experian Information Services (Malaysia) Sdn Bhd and CTOS Data Systems Sdn Bhd) and submitted credit information regarding borrowers, including those who defaulted on their payments. [8] The crux of the Plaintiff’s grievances was that following complaints by certain defaulting borrowers, the Defendant allegedly issued directions to the credit reporting agencies to withhold or suspend the Plaintiff’s reported credit information. The Plaintiff asserted that these directions were issued without prior clarification from the Plaintiff or an opportunity for the Plaintiff to be heard. Consequently, the Plaintiff commenced this action seeking declarations that the Defendant committed the tort of misfeasance in public office and breached a duty of care owed to the Plaintiff, alongside an order to reinstate the deleted data and an assessment of damages. S/N Fq/8SkJSIkOvQllvxr6Zog [9] The Defendant, cited as Pejabat Pendaftar Agensi Pelaporan Kredit is a public authority established under the Credit Reporting Agencies Act 2010 [Act 710] to register and regulate persons carrying on credit reporting businesses. In its defence, the Defendant maintains that its statutory duties and relationships are directed toward credit reporting agencies, not toward subscribers like the Plaintiff. Enclosure 35 [10] The Defendant moved to strike out the Plaintiff’s Writ of Summons and SoC pursuant to Order 18 Rule 19(1)(a), (b) and/or (d) Rules of Court 2012 (RoC). The application was premised on three grounds:

No reasonable cause of action and lack of legal capacity: The Defendant argued that the Plaintiff’s claim was fundamentally defective because it was not directed against a juristic person or a legal entity capable of being sued. The named Defendant - Pejabat Pendaftar Agensi Pelaporan Kredit (the Office) is merely an administrative arm of the government and lacks the legal personality required to be a party to legal proceedings. Furthermore, the Plaintiff’s pleaded cause of action which is the tort of misfeasance in public office, requires its first essential element that the Defendant be a public officer. Because an Office is not an “Officer”, the Defendant submitted the Plaintiff had failed S/N Fq/8SkJSIkOvQllvxr6Zog to satisfy the threshold requirement for the tort, rendering the claim obviously unsustainable.

The action is statute-barred The Defendant contended that the action is barred by limitation under Section 2(a) of the Public Authorities Protection Act 1948 (PAPA), which mandates that actions against public authorities be commenced within 36 months next after the act, neglect, or default complained of. The Defendant argued that the cause of action accrued, and the alleged wrong was complete, when the instructions were allegedly issued and the Plaintiff became aware of them. Documentation filed by the Plaintiff, specifically an email dated 3.3.2021 confirmed that the Plaintiff had actual knowledge of the impugned conduct by that date. Consequently, the Plaintiff was required to file the suit by 3.3.2024. As the Writ of Summons and the SoC was only filed on 19.3.2024, the action is 16 days late and thus legally untenable.

Abuse of process The Defendant characterized the suit as an abuse of the process of the court, asserted that the Plaintiff’s SoC was incoherent and failed to plead the necessary material facts to support the elements of misfeasance. The Defendant maintains that allowing a statute-barred action against a non-legal entity to proceed to trial would occasion unnecessary prejudice and expense. S/N Fq/8SkJSIkOvQllvxr6Zog [11] In response, the Plaintiff asserted that the cause of action for misfeasance did not necessarily accrue on 3.3.2021. The Plaintiff contended that the limitation period under Section 2(a) PAPA should instead be calculated from 6.12.2022 which was the date of the last email between the parties. According to the Plaintiff, it was only after these late-stage discussions and the subsequent breakdown of ‘negotiations’ that the cause of action fully crystallized. [12] Regarding naming the Defendant, the Plaintiff characterized the citation of Pejabat Pendaftar Agensi Pelaporan Kredit instead of Pendaftar Agensi Pelaporan Kredit as a mere inadvertent clerical mistake. It argued that the Defendant suffered no prejudice or confusion, as the Defendant had participated in earlier pre-action discovery proceedings. [13] Factually and legally, the Plaintiff’s answer failed to meet the threshold of the Defendant's application. Most significantly, in the Affidavit-in-Reply to Enclosure 35, the Plaintiff failed to specifically traverse or respond to the Defendant’s averment that the named Defendant is not a legal entity capable of being sued. The Plaintiff’s silence on this fundamental jurisdictional point left the Defendant’s contention that it was a non-entity in law unchallenged in the affidavits. [14] The Plaintiff’s claim that the negotiations were also not supported by evidence. The correspondences and meetings held between the parties did not evidence any negotiations but were strictly for clarification sought on documents already submitted by the Plaintiff. S/N Fq/8SkJSIkOvQllvxr6Zog [15] Furthermore, the Plaintiff’s reliance on December 2022 correspondences to restart the limitation clock is legally flawed. Under PAPA, the limitation period is absolute and begins to run from the act, neglect or default complained of. The alleged wrong - the instruction to block the Plaintiff’s data - was complete, and the Plaintiff admittedly had actual knowledge of it, by 3.3.2021. Subsequent meetings or requests for clarification did not constitute fresh acts of misfeasance nor did they suspend or reset the statutory limitation period. [16] The Plaintiff’s attempt to amend its pleadings via Enclosure 43 revealed that the alleged ‘inadvertent mistake’ was not bona fide. The course of the proceedings with the time it travelled demonstrated that the Plaintiff’s identification of the Pejabat was an intentional choice that formed the core of its narrative. In paragraphs 4 and 6 in its Reply to Defence, the Plaintiff specifically referred to the administrative actions and meetings conducted by the office, which confirmed that it always intended to sue the administrative arm itself. [17] The timing of Enclosure 43 further underscores a lack of genuineness. The Plaintiff was put on clear notice regarding the Defendant’s lack of capacity as early as November 2025. Despite this, the Plaintiff took no corrective action for two months, only filing the application to amend on 20.1.2026 - just the week before the scheduled hearing of Enclosure 35 and a mere 48 hours after having received the Defendant’s written submissions which exposed the fatal nature of the defect. This Court views Enclosure 43 not as a bona fide effort to correct a typo, but S/N Fq/8SkJSIkOvQllvxr6Zog as a reactive scramble to repair a fundamentally broken case to its own convenience after its unsustainability was laid bare. [18] This Court allowed Enclosure 35 to strike out the Plaintiff’s SoC on the following grounds:

Improper party and lack of capacity In adjudicating the fundamental principle that he who asserts must prove, this Court ruled that it is incumbent upon the Plaintiff to ensure its SoC is properly drafted and contain all material facts necessary to disclose a complete and recognized cause of action in law. This Court found that the Plaintiff failed to meet this burden. To sustain a claim for the tort of misfeasance in public office, the Plaintiff was required to identify a specific tortfeasor who is a public officer. The suit was filed against a non-entity. Pejabat Pendaftar Pelaporan Agensi Kredit is merely an administrative office or arm of the Government and does not possess a separate legal personality or the capacity to be sued in its own name. By naming a non-entity and failing to plead facts connecting the alleged wrongs to a valid legal officer, the Plaintiff’s SoC was rendered obviously unsustainable at the threshold. See Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12 S/N Fq/8SkJSIkOvQllvxr6Zog MLJ 1; RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188 The tort of misfeasance in public office requires as an essential first element, that the Defendant is to be a public officer. As the named Defendant is an Office and not an Officer, the Plaintiff failed to surmount the very first threshold of the pleaded cause of action. A perusal of the Credit Reporting Agencies Act 2010 (CRAA) demonstrated that while the CRAA established a regulatory framework and provided for the appointment and functions of a Registrar, it did not clothe the Office itself with the status of a body corporate. Critically, CRAA contains no provision conferring the Office with perpetual succession, a common seal, or the capacity to commence or defend legal proceedings in its own name. In the absence of such express statutory provisions, the named Defendant had no legal capacity to be sued. See Vestime Corporation Sdn Bhd v. YBLe Resources Sdn Bhd & Ors [2006] 2 CLJ 196; Lim Wen Long v. Ketua Polis Negara & Ors [2020] MLJU 395; Sri Devi Kanan & Ors v. Malaysian Airline System Bhd & Ors [2017] 2 CLJ 728. As the tort of misfeasance requires a public officer as its first essential element, and an Office is not an Officer, the Plaintiff’s failure to surmount this basic jurisdictional requirement is fatal to the suit. This is not a case of a mere clerical misspelling or a minor type, it is the citing of a wrong entity, which substantially changes the nature of the litigant and cannot be repaired or cured S/N Fq/8SkJSIkOvQllvxr6Zog at this late stage. See Three Rivers District Council v. Bank of England (No.3) [2000] 3 All ER 558; Riga Sdn Bhd v. Awang Sepian Haji Awang Joini & 3 Ors [2005] 1 LNS 251; Keruntum Sdn Bhd v. Director of Forests & Ors [2017] 3 MLJ 281.

The action is plainly statute-barred The suit is barred by the mandatory and absolute limitation period prescribed in Section 2(a) PAPA. The cause of action accrued when the alleged instructions were issued, and the Plaintiff’s own documentation (the email of 3.3.2021) proved actual knowledge of the impugned act by that date. Consequently, the three-year window to file the suit closed on 3.3.2024. By filing the Writ of Summons and SoC on 19.3.2024, the Plaintiff was 16 days late. The 2022 meetings did not erase or override the earlier accrual of the cause of action, as they were not negotiations but merely clarifications sought on documents submitted, which did not affect the running of time under PAPA. This Court noted that unlike Limitation Act 1953, PAPA did not provide this Court with the discretion to set aside once the threshold of facts was established. Thus argument of the exercise of this Court’s inherent jurisdiction to save the claim did not arise. See Alias bin Ismail v Hairuddin bin Mohamad & Anor [1997] 4 CLJ 669; SR Katherine Lim KH v Ketua Pengarah Perkhidmatan Perubatan Malaysia & Ors [1997] 2 CLJ 564; Selvaraju A/L Ponniah v Suruhanjaya Perkhidmatan S/N Fq/8SkJSIkOvQllvxr6Zog Awam, Malaysia & Anor [2006] 2 CLJ 150; Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 CLJ 663; Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 2 CLJ 169; Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 CLJ 69; Haji Hussin bin Haji Ali & Ors v Datuk Haji Mohamed bin Yaacob & Ors [1983] 2 MLJ 227. [19] As the suit was brought against a non-legal entity and filed outside the statutory limitation period, it is obviously unsustainable. To allow such a fundamentally defective action to proceed to trial would be an abuse of the process of the court and would cause unnecessary expense to the public authority. Therefore, the Writ of Summons and the SoC were struck out in their entirety. See Lee Teck Meng v Prem Kumar a/l Ganasaratnam & Ors [2021] MLJU 394; Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 4 CLJ 7; [1993]; [1993] 3 MLJ 36; [1993] 2 AMR 1969; Zakaria Mohamed Esa v Dato Abdul Aziz Ahmad & Ors [1984] 2 MLRH 494; [1985] 2 MLJ 222. Enclosure 43 [20] The counsel for the Plaintiff sought for Enclosure 43 to be heard first but this Court saw it was fit and just to hear Enclosure 35 before Enclosure

The Plaintiff had known and was put on notice since November 2025 and to the facts averred by the Defendant that clearly and unambiguously stated that the Plaintiff may have been barking at the wrong tree, so to speak. The Plaintiff’s counsel admitted the reason for the scramble of filing S/N Fq/8SkJSIkOvQllvxr6Zog Enclosure 43 was to change the name and the whole entity of the Defendant cited in the Writ of Summons and SoC. [21] This Court noted that in the Plaintiff’s reply to the Defendant’s affidavit, there was nothing to that effect. The Plaintiff had failed to respond to paragraph 5 of the Plaintiff’s Affidavit-in-Support for Enclosure 35 that stated that the Defendant was not the ‘entiti perundangan yang sah… Penamaan Defendan adalah merupakan satu salah tanggapan di sisi undang-undanng… Defendan tidak mempunyai apa-apa hubungan dan/atau kuasa terhdap Plaintif… Plaintiff telah mendapatkan perkhidmatan daripada agensi-agensi pelaporan kredit dengan menjadi orang yang mealnggan kepada perkhidmatan yang disediakan oleh agensi-agensi pelaporan kredit tersebut.” [22] The Plaintiff had failed and did not specifically reply to the contents of paragraph 5 of the Defendant’s Affidavit-in-Support. The learned Senior Federal Counsel (SFC) submitted that Enclosure 43 was not a bona fide effort to clarify its case but a reactive step taken only after the fundamental defects in the SoC were exposed through Enclosure 35 to strike it out. [23] All were considered and this Court found that it was fit and just to hear Enclosure 35 (the striking out application) first because the Plaintiff had been put on notice of the fatal defect since November 2025 but failed to act until the reactive scramble following the Defendant’s written submissions. S/N Fq/8SkJSIkOvQllvxr6Zog [24] Paragraphs 4 and 6 of the Reply to the Defence, the Plaintiff expressly referred to meetings allegedly conducted by the Registrar which showed the Plaintiff’s intention to sue the named Defendant. Thus, it was submitted that the Plaintiff’s attempt to characterize the naming of the Defendant as an inadvertent error clearly showed that it was devoid of merit. The Plaintiff’s pleadings made clear the identification of the named Defendant was intentional and formed part of the Plaintiff’s narrative. [25] In other words, the Plaintiff had always meant to sue the ‘Pejabat Pendaftar Agensi Pelaporan Kredit’ as stated in its pleadings. [26] The Plaintiff relied on the principle in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213to justify the amendment. However, this Court finds that the proposed amendment was not to correct a mere clerical slip. The removal of the word Pejabat (Office) to substitute it with Pendaftar (Registrar) changes the entire character of the litigant from a non-legal administrative arm to a statutory officer. Given that the Plaintiff was put on notice of this jurisdictional defect in November 2025 and only moved to amend 48 hours after the Defendant’s written submissions exposed the suit’s unsustainability the application lacks the requisite bona fides and is a reactive attempt to repair a case to its own convenience. [27] The submissions of parties were regarded and this Court decided to dismiss the Plaintiff’s application to amend its Writ of Summons and SoC. With a risk of being repetitive, the following were the reasons:

Lack of Bona Fides and Reactive Nature of the Application The application was not a bona fide attempt to correct a clerical error, but rather a reactive scramble to salvage a fundamentally flawed case. The Plaintiff had been put on clear notice of the Defendant’s lack of legal capacity as early as November 2025. Despite this, the Plaintiff took no corrective steps for two months, only filing Enclosure 43 on January 20, 2026 - just one week before the scheduled hearing and a mere 48 hours after receiving the Defendant’s written submissions which laid bare the fatal nature of the defect.

The Identification of the Defendant was Intentional, Not Inadvertent The Plaintiff’s contention that citing Pejabat (the Office) instead of Pendaftar (the Officer) was an inadvertent clerical mistake is devoid of merit. The Plaintiff’s own pleadings, specifically paragraphs 4 and 6 of its Reply to the Defence, explicitly referred to the actions and meetings of the administrative office, confirming that the choice of entity was intentional and formed a core part of the Plaintiff’s narrative.

Substantive Change of Litigant Rather Than a Typographical Correction The proposed amendment sought to do more than correct a misspelling; it sought to substitute a non-legal entity with a legal person. While this Court has the power to allow amendments to correct the name of a party, such a change at this late stage - where it changes the entire identity of the S/N Fq/8SkJSIkOvQllvxr6Zog litigant and attempts to cure a fundamental lack of a cause of action - cannot be sanctioned. Because the tort of misfeasance requires the defendant to be a public officer, suing a Pejabat (Office) is a fundamental defect that goes to the root of the suit’s sustainability.

Prejudice and Abuse of Process To allow the Plaintiff to "repair" its case to its own convenience after the suit’s unsustainability was exposed would occasion unnecessary prejudice to the Defendant and undermine the finality of litigation. The Plaintiff had every opportunity to address these issues earlier in the proceedings but chose not to do so until it was too late in the day. [27] As the Plaintiff failed to demonstrate that the error was a bona fide mistake and because the amendment sought to cure a fatal legal defect after an unreasonable delay, this Court found no grounds to exercise its discretion in favor of the Plaintiff. Accordingly, Enclosure 43 was dismissed. DATED 5 MARCH 2026 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA KUALA LUMPUR S/N Fq/8SkJSIkOvQllvxr6Zog For the Plaintiff: Nurul Umairah on behalf of Manjit Lavinder & Co. (Petaling Jaya) For the Defendant: K. Saravanan on behalf of Jabatan Peguam Negara, Wilayah Persekutuan Kuala Lumpur S/N Fq/8SkJSIkOvQllvxr6Zog