Bukit Kiara Properties Services Sdn Bhd v Gunalan & Associates (WA-22NCvC-142-03/2020)

This is the Plaintiff’s Notice of Application filed on 14.4.2025

That leave be granted to amend the Writ and Statement of Claim dated 2.3.2020 (Encls. 1 and 2), in the manner where the proposed amendments have been underlined in red ink as shown in the Proposed Amended Writ and Proposed Amended Statement of Claim (Proposed Amendments), which are annexed to the Notice of Application filed herein;

(ii) That the costs of this application be costs in the cause; and

(iii) Such further and/or other relief as the Court deems fit.

The grounds of this application are, among others, as follows:

The Proposed Amendments are intended to reflect the current name and status of the Defendant and are made bona fide;

The Proposed Amendments do not alter the character of the Plaintiff’s action to a different and inconsistent one;

At all material times, the Plaintiff is suing the Defendant as a firm. In this regard, the company searches show that there was no change in the Audit Firm Number of the Defendant and only a change in the Name of the Firm;

No prejudice or injustice will be caused to the Defendant in any manner that cannot be compensated with costs.

The cause papers filed in relation to Encl. 129 are as follows:

Plaintiff’s Affidavit in Support of Datuk Tong Nguen Khoong filed on 14.4.2025 (Encl. 130) and Reply Affidavit of filed on 27.5.2025 (Encl. 134);

Defendant’s Affidavit in Reply of Gunalan a/l Appalasamy filed on 9.5.2025 (Encl. 132) and Affidavit in Reply of Kumaraguru a/l Manokaran filed on 9.5.2025 (Encl. 133);

Plaintiff’s Written Submissions (Encl. 135) and Bundle of

Defendant’s Written Submissions (Encl. 137), Reply Submissions (Encl. 139) and Bundle of Authorities (Encls. 138 and 140).

The Defendant’s solicitor raised a preliminary objection on the first day of trial (17.3.2025) concerning the name and existence of the Defendant, arguing that the Plaintiff could not sue a non-existent entity and even if they proceed to do so, the Plaintiff would encounter issues when the Plaintiff intends to enforce the judgement in the event the Plaintiff is successful in their claim.

On the even date, the Plaintiff applied to file this Notice of Application in response to the Defendant’s Preliminary Objection addressed to Court which was filed on 13.3.2025 (Encl. 126) as follows: “Tujuan kami menulis surat ini adalah untuk memaklumkan kepada pihak Mahkamah bahawa kami akan membuat satu bantahan untuk diputuskan sebelum perbicaraan disebabkan ketidakwujudan lagi Defendan yang dinamakan dalam kes ini. Defendan yang dinamakan dalam kes ini, iaitu Gunalan & Associates yang merupakan satu milikan tunggal tidak lagi wujud dimana ianya sekarang dikenali sebagai GSK & Associates dan merupakan satu perkongsian. Perkara ini sudah lama diketahui oleh pihak Plaintif. Untuk makluman Mahkamah, pada 12.3.2025, kami telah memaklumkan perkara ini kepada peguamcara Plaintif dimana sekiranya peguamcara Plaintif berniat untuk meminda Writ dan Pernyataan Tuntutan, kami mempunyai bantahan dan sekiranya Plaintif berniat untuk meminda Writ dan Pernyataan Tuntutan, kami akan membuat bantahan preliminary. Peguamcara telah mengambil maklum.” Issues in this Application

The Defendant has raised the following issues to oppose this Notice of Application as follows:

there is an inordinate delay in the filing of Encl. 129; and

the Defendant no longer exists; Plaintiff’s Submissions (Encl. 135) Was there a delay in filing this Application?

The Plaintiff submits that an amendment to a pleading may be made “at any stage of the proceedings” (O. 20 r. 5 ROC 2012). The Court decided in the case Sheikh Khaled bin Jassem bin Mohammad Jassem Al-Thani (t/a Petroserv General Trading Establishment) v. Merbok Hilir Bhd. (No 1) [2013] 7 MLJ 707 at pp. 711 & 712 as follows: “I am of the view that that itself may be prejudicial when the relevant fact upon which the plaintiff had relied on to apply for amendment was available and known to all parties well before the commencement of the trial bearing in mind that party is permitted to amend the pleadings at any stage of the proceedings with the leave of court. If it is contended that the delay had caused prejudice to the defendant, I am of the view that this can certainly be met by an order for costs.” Is the Defendant in existence?

The Plaintiff submits that the objection by the Defendant is misleading when the Defendant alleged that it no longer exists. The Defendant merely changed its name from “Gunalan & Associates” to “GSK & Associates” and from a sole proprietorship to a partnership. From searches conducted with the Companies Commission of Malaysia on 18.12.2019 and 6.10.2021, the Defendant despite the above changes, still bears the same Audit Firm Number of “AF 001811”.

The Plaintiff submits that pursuant to sections 11 and 19 (1) of the Partnership Act 1961 (Revised 1974) (Act 135) it is clear that the new partner (Kumar) is not personally liable for matters that occurred before he became a partner of the Defendant, therefore no prejudice whatsoever will be caused to the new partner.

On the contrary grave prejudice would be caused to the Plaintiff if a technical or procedural issue as to the Defendant’s name is allowed to prevent the Plaintiff from pursuing this application to amend the writ and statement of claim. For completeness, the relevant provision in Act 135 is reproduced:

Liability of partners “Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner.”

Liability of incoming and outgoing partners “(1) A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.”

The Defendant submits that under the modern litigation framework, the role of the Court has evolved significantly from a passive arbiter to an active manager of proceedings. This shift places responsibility on the Court to actively supervise and control the progress of a case to ensure it is disposed of justly, expeditiously and economically. This shift in judicial approach reflects the Court’s duty to all litigants, not just parties before it. The Court must now weigh the impact of delay, not only on the opposing party, here, the Defendant, but also on the judicial system as a whole, including other cases awaiting adjudication. Therefore, to allow a late, tactical amendment at this juncture would run contrary to the objectives of judicial economy and procedural fairness, and would set a dangerous precedent whereby litigants may attempt to circumvent procedural compliance by merely offering costs, rather than substantive justification.

The Defendant further submits that the Plaintiff’s application to amend their original Writ and Statement of Claim dated 2.3.2020 on the first day of trial on 17.3.2025, 4 years after the Writ and Statement of Claim was filed constitutes an inordinate and unjustified delay, and is nothing more than a tactical manoeuvre designed to derail the whole trial and their attempt to get a second bite at the cherry to remedy their mistake. At no point before the trial, did the Plaintiff raise any issue or intention to amend their Writ and Statement of Claim.

The Defendant referred to the case of Hong Leong Finance Bhd. v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81 where the Federal Court addressed the issue of the need for reasonable, material and cogent reasons to be given for any delay in amendment applications. The Court in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay.

Order 20 rule 5 (1) of the Rules of Court 2012 is the relevant law governing the amendment of pleadings with leave of court. “Amendment of writ or pleading with leave (O. 20 r. 5)

(1) 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 Federal Court in Yamaha Motor Co. Ltd v. Yamaha Malaysia Sdn. Bhd. & Ors [1982] 1 MLRA 417 at p. 418 outlined the general principle when the Court will allow such amendments as will cause no injustice to the other parties as follows: “Three basic questions should be considered to determine whether injustice would or would not result,

whether the application is bona fide;

whether the prejudice caused to the other side can be compensated by cost; and

whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.”

The Federal Court in the case of Hong Leong Finance Bhd. v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81 at p. decided as follows: “Nowadays the court recognizes 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 Syed Mohamed v. Perbadanan Nasional Berhad [2013] 1 MLRA 181) 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 Co. Ltd v. Yamaha Malaysia Sdn. Bhd. & Ors [1982] 1 MLRA 417 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.”

The Court of Appeal in the case of Public Bank Bhd. v. National Feedlot Corporation Sdn. Bhd. & Ors and Another Appeal [2018] 6 MLRA 495 at p. 504 decided as follows: “[15] What perhaps is of prime importance is for litigating parties to comprehend and accept that the conduct of litigation has changed substantially since 2009. The difference in approach is that where litigation was once conducted at the pace and manner dictated by advocates and solicitors, the emphasis has changed such that it is now the courts that steer the conduct of litigation so as to ensure a just, expeditious and economic disposal of matters. This means that time is not at large and costs are an important consideration while the primary goal of ensuring that justice is meted out is not compromised. [16] The goal of a just judgment or decision, coupled with an expeditious and economical disposal are not mutually exclusive. On the contrary, these objectives complement and serve each other well. This new approach is reflected in our Rules of Court 2012. Intrinsic to the scheme of how matters are conducted is the proper management of a case, as it greatly affects the progress of litigation generally. A failure to carry out a material step or inaction ought not to be condoned, and can of itself be penalised, even if it does not give rise to adverse consequences on the litigation itself.”

I have read and perused the Affidavits in Support, Written Submissions and Authorities filed by the Plaintiff and Defendant. I have also considered the Oral Submissions by Mr. Hoi Jaek S’ng (Plaintiff’s counsel) and Mr. Manoharan Malayalam (Defendant’s counsel) on 30.7.2025.

Following the Defendant’s preliminary objection, the Plaintiff’s solicitor informed the Court that they wished to amend the Writ and Statement of Claim to reflect the correct name of the Defendant from Gunalan & Associates to GSK & Associates.

By Enclosure 129, the Plaintiff seeks leave to amend the Writ and Statement of Claim dated 2.3.2020, pursuant to O. 20 r. 5 and/or O. 92 r. 4 of the Rules of Court 2012 (ROC 2012). The proposed amendment is merely a technical or procedural one to change the name of the Defendant in the intitulement from “Gunalan & Associates” to “GSK & Associates”. Encl. 129 was filed in response to the Defendant’s Preliminary Objection (Encl. 126) which was raised preceding the commencement of the trial.

The details of GSK & Associates (Encl. 56 p. 30) and the search (carian rasmi) of the Companies Commission of Malaysia (CCM) on 6.10.2021 can be gleaned from the Audit Firm Profile (Particulars of Firm) as follows: Name of the Firm GSK & Associates Audit Firm Number

The details of GSK & Associates (Encl. 56 p. 33 and Encl. 130 p. 15) in respect of the particulars of current partners & name of auditors are Gunalan a/l Appalasamy, Saravanakumar a/l Gunasekaran and Kamaraguru a/l Manokaran. The CCM search was made on 6.10.2021 after the filing of this suit on 2.3.2020. The CCM search on Gunalan & Associates was made on 18.12.2019 before the filing of this suit on 2.3.2020.

On the analysis of the contemporaneous documents filed in Court inter alia the CCM search, the Firm with the Audit Firm Number AF001811 is GSK & Associates and not Gunalan & Associates. According to the proposed amendments to the intitulement from Gunalan & Associates (No. Firma Audit: AF 001811) (disaman sebagai sebuah firma) to GSK & Associates (dahulunya dikenali sebagai Gunalan & Associates) (No. Firma Audit: AF 001811) (disaman sebagai sebuah firma). There was lack of explanation and documents by the Defendant to prove that GSK & Associates was formerly known as Gunalan & Associates. Explanation for delay

The Courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the Applicant to furnish a reasonable explanation for such delay. (see Hong Leong Finance Bhd. (supra)).

I am of the considered view that the explanation as why this application was filed as reflected in the Affidavit (Encl. 130) paragraphs 4 and 5 stating that the reason the amendment application was filed was to deal with the Preliminary Objection (Encl. 126) on first day of trial on 17.3.2025 by the Defendant cannot be regarded as a cogent and reasonable explanation.

Be that as it may, it is therefore crystal clear that in the absence of any cogent and reasonable explanation for the filing of Encl. 129 at a stage when the trial was scheduled to commence on the even date, the Plaintiff has failed to discharge the burden on a balance of probabilities.

The Court have to take into consideration whether the amendment application was made as a tactical manoeuvre albeit the preliminary objection was filed by the Defendant to address the issue of the non-existent of the Defendant’s firm Gunalan & Associates (Audit Firm Number AF 001811).

In Encl. 130 Affidavit (paragraphs 7 and 8), the Plaintiff had knowledge in the change in the Defendant’s business name and entity type from sole proprietorship to a partnership in 2021 but opted to only filed for the amendment application only when the trial commenced and further the amendment was only to be filed more than 3 years from the date of the CCM search on 6.10.2021 (Encl. 130 p. 20) till the date of filing of Encl. 129 on 14.4.2025. Court or Judge shall have regard to Justice

Order 1A of the Rules of Court 2012 reads as follows: 1A Regard shall be to justice (O 1A) “In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules”

I am mindful of the provisions in Order 1A and Order 2 rule 3 of the Rules of Court 2012 have been further fortified to ensure that this application (in this case Encl. 129) was heard on its merits. The Court must consider the overriding interest of justice and not only the technical non-compliance of the rules. (see Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin and other appeals [2017] 5 MLJ 35 para. 5 Court of Appeal).

The established law on the amendment of pleadings in Order 20 rule 5 ROC 2012 must be dealt with if the Court were to 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.

In this instant application, the Court in exercising its discretion based on the principle of justice hereby finds that the Plaintiff’s application ought not to be allowed and the Court is duty bound to deal with this case not only expeditiously but also effectively and efficiently. Summary of Court’s analysis

The Court makes the following evaluation and findings in a nutshell:

Encl. 129 although is a mere technical and procedural amendment however the Court finds that the amendment application filed herein is an afterthought;

the proposed amendments to the name of the Defendant with the same Audit Firm Number changes not only the character of the Plaintiff’s claim but also the actual identity of the Defendant’s Firm (in this case the Audit Firm);

the application is in all circumstances made mala fide and therefore prejudicial to the Defendant (see the case of Dato’ Tan Heng Chew v. Tan Kim Hor & Ors [2007] 4 MLRH 1 at paras 15 and 16); and

on the grounds of delay and absence of cogent and reasonable reasons the application to amend in Encl. ought to be dismissed.

Having considered the circumstances of the present amendment application (Encl. 129), I am of the considered view that there was no cogent and reasonable explanation in the Plaintiff’s Affidavit in Support and the grounds of application as to why the amended application was required filed on the 14.4.2025 preceding the commencement of the trial and that the application to amend the Writ and Statement of Claim was therefore a tactical manoeuvre to derail the commencement of the trial on 17.3.2025.

Needless to say, the Plaintiff failed to meet the threshold outlined in the case of Hong Leong Finance Bhd. (supra) in particular when an application to amend the Writ and Statement of Claim after more than 3 years after the CCM search in respect of GSK & Associates.

The Court in further guided by the provisions in O. 20 r. 5 ROC 2012 whereby amendment of Writ and Pleading with leave to be considered on such terms as to costs, or otherwise as may be just and in such a manner, if any as it may direct.

Based on the reasons adumbrated above, the Plaintiff’s Application to amend the Writ and the Statement of Claim (in Encl. 129) is hereby dismissed with costs of RM5,000.00. Dated: 30 July 2025 sgd. ………………………………………….. (EDDIE YEO SOON CHYE) Judge Commissioner High Court of Malaya Kuala Lumpur Counsel for the Plaintiff: Mr. Hoi Jack S’ng (Ms. Tiffany Low Jia Qi with him) Messrs. Lee Hishammuddin Allen & Gledhill Kuala Lumpur. Counsel for the Defendant: Mr. Manoharan Malayalam (Ms. Adiishyiah Tangarajoo with him) Messrs. M Manoharan & Co. Kuala Lumpur.