Bank Kerjasama Rakyat Malaysia Berhad v Nuro Dagangan Sdn. Bhd. (WA-22M-841-11/2022)

NURO DAGANGAN SDN BHD [Company No. : 199801002947 (459073-A)]

MUHAMAD AZMI BIN OTHMAN (NRIC No.: 630222-10-7687)

MOKHTAR BIN OTHMAN (NRIC No.: 500620-10-5729)

MUHAMAD IZZAT EMIR BIN MUHAMAD AZMI (NRIC No.: 910710-14-5961)

MUHAMAD IZZHAM EMIR BIN MUHAMAD AZMI (NRIC No.: 920701-14-5045) … DEFENDANTS GROUNDS OF JUDGMENT

Before the Court are two applications filed by the Plaintiff on 17 March 2025, namely:

Enclosure 132 – an application to amend the Writ of Summons and Statement of Claim for the third time, and to discontinue the action against the 3rd and 4th Defendants; and

Enclosure 133 – an application to adduce 66 additional documents into the trial bundle.

On 14 October 2025, after careful consideration of the written submissions, supporting affidavits, and oral arguments presented by both parties, this Court exercised its discretion and allowed both applications. Subsequently, the Defendants, aggrieved by the decision, lodged their respective notices of appeal on 6 November 2025.

The Plaintiff is a cooperative bank that granted two Islamic financing facilities to Nuro Dagangan Sdn Bhd (“D1”) between 2010 and 2021. Muhamad Azmi Bin Othman, Mokhtar Bin Othman, Muhamad Izzat Emir Bin Muhamad Azmi, and Muhamad Izzham Emir Bin Muhamad Azmi (“D2” to “D5”) were at various times directors and shareholders of D1 and provided personal guarantees.

In 2021, D3 and D4 ceased to be directors and shareholders of D1. The Plaintiff agreed to discharge them as guarantors, and new guarantees dated 3 November 2021 were executed by D2 and D5.

The Defendants defaulted on repayment. The Plaintiff commenced this action in November 2022. Due to a series of changes in solicitors and a successful recusal application by the Defendants during an appeal of a related suit, the Plaintiff’s current solicitors only took over conduct of the matter on 2nd December 2024.

On 13 December 2024, after confirming that the pre-trial directions had been complied with, the Court fixed the trial dates for 19 to 23 January 2026.

It should be noted that earlier trial dates in August 2024 had been vacated following the Defendants’ application in Enclosure 105 to recuse Messrs Azmi & Associates, the Plaintiff’s third set of solicitors, both in this suit and in a related appeal before the Court of Appeal (Appeal No. W-02(MUA)(A)-305-02/2024).

The related appeal concerned this Court’s decision in Originating Summons No. WA-24M-22-08/2023, where on 14 February 2024 the Court dismissed the Defendants’ application to declare the banking facilities null and void for alleged non-compliance with Shariah principles. (See: Nuro Dagangan Sdn Bhd v Bank Kerjasama Rakyat Malaysia Bhd [2024] 7 MLJ 1 (HC)).

Upon review carried out by Messrs Raja Daryl & Loh, the newly appointed solicitors, the Plaintiff discovered that:

D3 & D4 had been wrongly maintained as parties; and

A significant number of relevant documents had not been included in the trial bundle.

The Plaintiff solicitors promptly wrote to the Defendants’ solicitors on 12 March 2025 seeking consent to the proposed amendments and the inclusion of additional documents. Upon objection, the present applications were filed on 17th March 2025.

The following issues arise for determination:

Whether the application to amend the pleadings and discontinue against D3 and D4 (Enclosure 132) should be allowed.

(ii) Whether the application to adduce 66 additional documents (Enclosure 133) should be allowed. COUNSELS’ CONTENTIONS

Plaintiff’s Submissions

Learned counsel for the Plaintiff, Ms Yip Yi Wen submits that both applications are made bona fide and in the interests of justice. With regard to Enclosure 132, counsel posits that the amendments are necessitated by the Plaintiff’s discovery (upon a thorough review by its newly appointed solicitors), that D3 and D4 had in fact been discharged as guarantors and ought no longer to be parties to the suit.

Counsel argues that this correction does not introduce any new cause of action, but rather refines the pleadings to accurately reflect the contractual relationships and the true scope of liability. The amendments serve to particularise material facts and clarify the documentary basis of the claim, thereby ensuring the real issues in controversy are properly before the Court.

Concerning Enclosure 133, counsel contends that the admission of the sixty-six additional documents is essential for a fair and complete adjudication of the dispute. These documents, which include facility letters, board resolutions, security instruments, and correspondence spanning the parties’ longstanding relationship, are largely executed by or addressed to the Defendants themselves.

Counsel argues that their inclusion will provide the Court with a full factual matrix and prevent a fragmented or selective presentation of the evidence. Counsel reasoned that any prejudice to the Defendants is minimal and can be adequately remedied by an award of costs, particularly given that the trial is not scheduled to commence for several months, affording the Defendants ample opportunity to respond.

Learned counsel for the Plaintiff emphasises that the overriding objective of the Rules of Court is to facilitate the just, expeditious, and economical disposal of proceedings. To deny these applications would be to elevate procedural technicality over substantive justice and to punish the Plaintiff for an innocent oversight in the pleadings and the delayed collation of documents, a delay attributable in part to multiple changes in legal representation. Counsel therefore urges the Court to exercise its broad discretionary powers under Order 20 rule 5 and Order 34 of the Rules of Court 2012 (“the Rules”) to allow both applications, thereby ensuring that the ultimate trial is conducted on a complete and accurate record.

(ii) Defendants’ Submissions

Learned counsel for the Defendants, Mr Mugunthan Vadiveloo vigorously oppose both applications as constituting an abuse of process and a tactical manoeuvre devoid of bona fides. They submit that Enclosure 132, framed as an amendment under Order 20, is in substance a disguised application for discontinuance against D3 and D4, brought under the wrong procedural rule and only after the Defendants had filed their expert evidence in Enclosure 108. This sequencing is not coincidental but reveals a calculated attempt to reconfigure the Plaintiff’s case in reaction to the Defendants’ expert report.

Furthermore, the Defendants contend that the proposed amendments go far beyond mere clarification; they seek to fundamentally alter the nature and character of the suit by introducing new factual assertions regarding the discharge of guarantors and the substitution of securities, matters which were known or should have been known to the Plaintiff from the inception of these proceedings. The inordinate delay of nearly three years in seeking such amendments is inexcusable and remains wholly unexplained, rendering the application liable to be dismissed in limine.

Regarding Enclosure 133, learned counsel for the Defendants argue that the Plaintiff’s attempt to introduce sixty-six additional documents at this late stage, long after the close of pleadings and the finalisation of the trial bundle, is procedurally improper and prejudicial. These documents were always within the Plaintiff’s possession, custody, and power. The Plaintiff’s purported justification i.e. the repeated changes of solicitors and an alleged need for internal collation, is untenable in law and contradicts the duty of diligence imposed on litigants and their legal representatives. The timing of the application, coming immediately after the service of the Defendants’ expert evidence, strongly suggests its true purpose is to undermine, dilute, or counteract that evidence, rather than to serve the interests of completeness or fairness.

The Defendants urge the Court to uphold the principles of finality and procedural discipline. Allowing these applications would reward indolence, permit the Plaintiff to engage in strategic repositioning at the eleventh hour, and cause severe prejudice to the Defendants who have conducted their defence on the basis of the pleaded case and the agreed bundle. In light of the authorities cited, including Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC) (“Hong Leong Finance”) and Mah Sing Properties Sdn Bhd v SG Prestige Sdn Bhd [2021] 8 MLJ 607 (HC), counsel prays that both Enclosure 132 and Enclosure 133 be dismissed with costs.

The Court has considered the authorities cited by both parties, and finds that the applicable legal principles, when viewed through the prism of our jurisprudence on amendment of pleadings, support the granting of the Plaintiff's applications. The central philosophy, as consistently articulated by the courts, is that amendments are to be liberally allowed at any stage of proceedings to ensure the real issues in controversy are adjudicated, provided they cause no injustice that cannot be remedied.

The Defendants’ reliance on Hong Leong Finance Bhd and Mah Sing Properties Sdn Bhd v SG Prestige Sdn Bhd (supra) is noted for the proposition that late amendments require cogent explanation and must not be tactical. The Court acknowledges these principles, but finds the present factual matrix clearly distinguishable. This is not a case of an amendment sought “on the eve of the trial” as contemplated in Hong Leong Finance, where the application was filed a mere two weeks before a long-awaited trial after thirteen years of litigation. At the time of filing of the applications, the trial remains approximately ten (10) months away, affording ample time for the Defendants to respond.

Further, the Plaintiff has provided a credible and specific explanation for the timing of these applications. The oversight regarding the discharge of D3 and D4, and the corresponding documentary matrix supporting the claim, was only discovered following a fresh and comprehensive review undertaken by the Plaintiff’s fourth set of solicitors. This review was necessitated by the previous amendments and a protracted and disruptive recusal application that severed the continuity of legal representation and hindered a cohesive review of the file. As a matter of record, the Plaintiff’s legal representation has undergone the following sequence:

Messrs Amir Ruhana & Khairuddin, from 24th November 2022 until 10th May 2023;

Messrs Kama & Wan, from 11th May 2023 until 12th August 2024;

Messrs Azmi & Associates, from 13th August 2024 until 1st

Messrs Raja, Darryl & Loh, from 2nd December 2024 to the present.

This approach aligns with the well-established judicial principle that parties should not suffer unduly for their lawyers' honest mistakes, as articulated by Lord Denning in Doyle v. Olby (Ironmongers) Ltd [1969] 2 QB 158 (CA) at paragraph 11: ".. We never allow a client to suffer for the mistake of his Counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side...” [Emphasis added].

The discovery of the relevant facts upon the appointment of current solicitors constitutes a reasonable and cogent explanation for any perceived delay, aligning with the established principle that a genuine oversight, once discovered, ought to be rectified in the interests of justice and to ensure the real issues are before the Court.

Further, the foundational authority of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (FC) (“Yamaha Motors”) establishes the cardinal rule that amendments should be permitted unless they cause irremediable injustice, with the key considerations being bona fides, compensatable prejudice, and whether the amendment alters the suit’s fundamental character. The Court finds that all three limbs are satisfied. The amendments are bona fide, intended to correct an error and clarify the factual record. Any prejudice to the Defendants is procedural and temporal i.e. the type precisely contemplated as being compensable by costs and manageable through adjusted timelines, as endorsed in Yamaha Motor. Furthermore, the amendments do not transform the nature of the suit; the cause of action remains breach of contract, and the relief sought remains the recovery of sums due.

The Court also finds guidance in the purposive approach endorsed in Gale v Superdrug Stores plc [1996] 3 All ER 468 (CA), as affirmed locally, which emphasises that rules of amendment exist to decide the true matters in controversy, not to punish parties for errors in the conduct of their cases. The Plaintiff’s endeavour to rectify its pleadings aligns with this higher objective.

The Court also finds guidance in HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398 (CA), where it was held that delay per se is not decisive, and in Bank Pertanian Malaysia Bhd v Gagnar Corp Sdn Bhd & Ors [2021] 6 MLJ 931 (CA), which demonstrates the court’s willingness to allow amendments even at advanced stages to serve the ends of justice. The present applications are made well before trial, affording a far greater opportunity for the Defendants to respond than in those cited authorities.

Regarding the application to adduce further documents, the Court is mindful of the case management objectives under Order 34 of the Rules. While the Defendants cite Item Industrial Engineering Sdn Bhd & Ors v Bank Utama (M) Bhd [2015] 3 MLJ 254 (CA) to argue against last-minute document introduction, the critical distinction lies in the stage of proceedings. In Item Industrial, documents were sought to be introduced mid-trial, causing direct disruption. Here, the trial is months away. The inclusion of these documents, many of which are foundational contracts and correspondence executed by the Defendants themselves, will ultimately promote a fair trial on a complete record, preventing a potentially misleading or incomplete presentation of the parties’ 15-year relationship. Preventing their admission would, in the circumstances, be a triumph of form over substance.

After careful consideration of the submissions, affidavits, and authorities, and in the exercise of the Court’s discretion under Order 20 rule 5 of the Rules, the Court finds that the ends of justice are best served by allowing both applications to ensure the suit proceeds on an accurate and complete factual footing, with any resulting prejudice being compensable and manageable.

Accordingly, the Court orders as follows:

Enclosure 132 is allowed. The Plaintiff is granted leave to amend its Writ of Summons and Statement of Claim for the third time in the terms of its proposed amendments. Consequent to the amendments, the action against D3 and D4 is discontinued;

Enclosure 133 is allowed. The Plaintiff is permitted to include the sixty-six (66) additional documents listed in Appendix A of Enclosure 133 into the trial bundle;

As a term of the grant of leave, and to compensate the Defendants for the costs occasioned by these applications, the Plaintiff shall pay costs to the Defendants as follows:

RM5,000.00 in relation to Enclosure 132; and

(ii) RM5,000.00 in relation to Enclosure 133.

To mitigate any prejudice and ensure procedural fairness, the Defendants are granted liberty to file and serve any rebuttal evidence they deem necessary. Dated: 2nd December 2025 Yusrin Faidz Bin Yusoff Judicial Commissioner High Court of Malaya Kuala Lumpur Counsel for the Plaintiff: Yip Yi Wen Messrs. Raja, Darryl & Loh Tingkat 26, Menara Hong Leong, No. 6, Jalan Damanlela, Bukit Damansara, 50490 Kuala Lumpur. Counsel for the Defendant: Mugunthan Vadiveloo (Together with Mohammed Nasser Bin Yusof and Mohamad Fauzi Bin Abu Samad) Messrs. The Law Chambers of Fauzi & Nasser No. 25-1, Jalan PUJ 3/5, Taman Puncak Jalil, Bandar Putra Permai, 43300 Seri Kembangan, Selangor Darul Ehsan. CASE REFERENCE:

Nuro Dagangan Sdn Bhd v Bank Kerjasama Rakyat Malaysia Bhd [2024] 7 MLJ 1 (HC).

Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC).

Mah Sing Properties Sdn Bhd v SG Prestige Sdn Bhd [2021] 8

Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 (CA).

Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (FC).

Gale v Superdrug Stores plc [1996] 3 All ER 468 (CA).

HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398 (CA).

Bank Pertanian Malaysia Bhd v Gagnar Corp Sdn Bhd & Ors [2021] 6 MLJ 931 (CA).

Item Industrial Engineering Sdn Bhd & Ors v Bank Utama (M) Bhd [2015] 3 MLJ 254 (CA).

O.20 r.5, & O.34, of the Rules of Court 2012.