CIVIL Suit No: BL-A53 KJ-326-08/2024

Enclosure 31 concerns the application by the Third and Fourth Defendants to amend their Statement of Defence dated 8.10.2024, pursuant to Order 20 Rule 5 of the Rules of Court 2012 ("the ROC 2012"). The Plaintiff objected to the application.

Having considered the application in its entirety, I allowed it with costs. My reasons for the decision, along with the consequential orders, are set out in the later segment of this judgment.

Enclosure 31 is supported and opposed by the following affidavits:

Affidavit in Support affirmed by Rajambal a/p Suparamenium on 18.4.2025 - Enclosure 32.

(ii) Affidavit in Reply affirmed by Mohamad Lokman Nurhakie Bin Hasan on 02.5.2025, on behalf of the Plaintiffs - Enclosure 34; and

(iii) Affidavit in Opposition affirmed by Rajambal a/p Suparamenium on 13.5.2025 in response to the Plaintiffs’ reply - Enclosure 35. 3 PARTIES RELEVANT TO THE AMENDMENT APPLICATION

The parties to this action comprise the riders and pillion rider involved in the accident, as well as the registered owners and authorised drivers of the vehicles concerned. Their respective identities and roles are as follows.

The First Plaintiff was the rider of a motorcycle bearing registration number DBS 1732.

(ii) The Second Plaintiff was the pillion rider of the motorcycle bearing registration number DBS 1732

(iii) The First Defendant was the rider of a motorcycle authorised by the Second Defendant and was in control of a motorcycle bearing registration number BPX 9456, which was owned by the Second Defendant.

(iv) The Second Defendant was the registered owner of the motorcycle bearing registration number BPX 9456.

The Third Defendant was the driver, servant and/or agent authorised by the Fourth Defendant in the operation of a trailer lorry bearing registration number KEL 8002, which was owned by the Fourth Defendant.

(vi) The Fourth Defendant was a private limited company incorporated in Malaysia under the Companies Act 2016 and was the registered owner of the trailer lorry bearing registration number KEL 8002. 4 CHRONOLOGICAL BACKDROP TO PARALLEL SUITS ARISING FROM A SINGLE FATAL ACCIDENT – FACTUAL CONVERGENCE AND PARTY OVERLAP

Before turning to the merits of the amendment application, I find it apposite to first situate this suit within the broader matrix of related proceedings, in order to appreciate the interwoven factual and legal context in which the present dispute unfolds.

The present action, Suit No. BL-A53KJ-326-08/2024 ("Suit 326"), filed in this Court (Sessions Court 2), concerns a fatal road accident that took place on 11.3.2020 at Jalan Pelabuhan Barat, involving multiple vehicles - specifically, three motorcycles bearing registration numbers DBS 1732, BPX 9456, and BPM 2422, as well as the trailer bearing registration number KEL 2008.

Suit 326 is closely connected to two earlier actions arising from the same accident, both of which are at the trial stage and remain ongoing before Sessions Court 1:

Suit No. BL-A53KJ-163-05/2022 ("Suit 163") — filed by the estate of the deceased rider of motorcycle BPM 2422; and

(ii) Suit No. BL-A53KJ-279-08/2022 ("Suit 279") — filed by the estate of the deceased pillion rider of motorcycle BPX 9456. Although the trial proceedings in Suit 163 and Suit 279 are already underway, witness testimony has yet to conclude, and no determinations have been made on liability or quantum. 5

While filed separately, all three suits arise from the same fatal accident and involve substantially the same parties, albeit in different procedural roles. Notably, the First Plaintiff in the present suit is named as the First Defendant in both Suit 163 and Suit 279. Additionally, the Third and Fourth Defendants in this suit have issued Third Party Notices against the Plaintiffs in the related proceedings.

Given this shared factual matrix, the overlapping liability issues, and the recurrence of parties across suits, these three actions are inherently interconnected. They must be viewed not in isolation but within a broader litigation context. CLARIFICATION PROCEEDING ON 4.6.2025 AND THE IMPENDING

Chronological Overview of the Related Suits

At the clarification proceeding held on 4.6.2025, I raised an issue concerning the chronological overview of the three related suits and directed the parties to provide clarification. Learned counsel for the Plaintiffs, as well as for the First, Second, Third, and Fourth Defendants, duly addressed the matter by outlining both the current status of the respective suits and the intended course of action moving forward. Although this issue does not form the direct subject matter of the amendment application in Enclosure 31, it nonetheless constitutes a relevant contextual framework, furnishing the factual and procedural backdrop against which all three actions must properly be understood - particularly in relation to the amendment application filed by the Third and Fourth Defendants. 6

Stripped to its essentials, the following matters emerged upon clarification: Suit 326 is presently fixed before this Court (Sessions Court 2), whereas Suit 163 and Suit 279 are pending before

On 31.1.2025, the Plaintiffs in Suit No. 326 filed Enclosure 26, an application seeking the transfer of Suit No. 326 to Sessions Court 1 and its consolidation with Suit No. 163 and Suit No.

Withdrawal of the Transfer and Consolidation Application For reasons best known to the Plaintiffs in Suit 326, the transfer and consolidation application via Enclosure 26 was not pursued, as became apparent during the Case Management A-Track proceeding on 14.4.2025 before the Former Sessions Court Judge. At the clarification proceeding convened on 4.6.2025, learned counsel for the Plaintiffs confirmed that the application had been withdrawn. Accordingly, Suit 326 now proceeds as a separate and independent action before this Court. 7 In the meantime, the trial proceedings in Suit 163 and Suit 279 in Sessions Court 1 have commenced, and several witnesses have already given evidence. This Court (Sessions Court 2) was informed that the parties across all three suits had arrived at a clear and mutual understanding concerning the treatment of the liability issue. Notwithstanding the earlier non-pursuance of the Plaintiffs’ consolidation application, and in the absence of any consolidation order for Suit 326, the eventual finding to be rendered by Sessions Court 1 on the issue of liability in Suit 163 and Suit 279 would be adopted as the corresponding finding on liability in Suit 326 before this Court.

Inter-Suit Agreement on Quantum Finding The parties further conveyed that the issue of quantum, distinct from the question of liability, would remain within the domain of Suit 326 and be determined exclusively by this Court (Sessions Court 2). 8

(ii) The Legal Standing of the Mutual Agreement to Adopt Findings Across Parallel but Unconsolidated Suits

Building on the foregoing, I raised a further issue regarding the legal standing of the so-called mutual agreement reached between parties, especially given that the three suits remain unconsolidated and are pending before different Sessions Courts. It is imperative to clarify how any prospective liability findings in Suit 163 and Suit 279, arising from separate proceedings before Sessions Court 1, could legitimately underpin the determination of quantum in Suit 326, which remains an unconsolidated and independent action before this Court (Sessions Court 2). Without such clarification, there is a significant risk of procedural confusion and potential injustice, as the foundational basis for assessing damages in Suit 326 could be improperly influenced by unrelated, unresolved matters.

Counsel for the Plaintiffs and for the First, Second, Third, and Fourth Defendants addressed the issue, leading to a substantive exchange of positions. Following that, it became apparent that proper instructions would be required, particularly from counsel not involved in Suit 326 but acting in the related suits before Sessions Court 1, as well as from the litigants themselves. Given the procedural mechanisms available under either Order 4 or Order 57 of the ROC 2012, I accordingly directed the parties to confer and determine the appropriate litigation pathway to be adopted in respect of the three related suits, and to apprise this Court of their stance at the next case management proceeding. 9

With the preceding interrelated suits in chronological order in mind, I shall now proceed to consider the amendment application in Enclosure 31.

Order 20 Rule 5 of the ROC 2012 reads: "20 Amendments … 10 (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued. notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.’’ THE FEDERAL COURT’S FOURFOLD COMPASS FOR

Before proceeding to the reasons bolstering my decision, I find it apt to first elucidate the fundamental principles that govern amendments.

In the constellation of principles governing amendment, two decisions of the Federal Court shine as guiding stars. The first is Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] CLJ Rep 428, where the Apex Court set the foundational compass, expressed in terms both clear and enduring: "The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions 11 should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. (See Mallal's Supreme Court Practice page 342). If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim..."

To this foundation, the Federal Court in Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1 added a further dimension, holding that delay, absent justification, may in itself defeat an application for amendment: "[25] 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 a delay. They seem to have considered this as an additional factor to the Yamaha Motor 's rules."

Together, these authorities trace a fourfold test to be satisfied for amendment: (i) bona fides; (ii) compensable prejudice; (iii) preservation of the claim’s essential character; and (iv) the obligation to justify delay. 12

I now turn to consider the opposing contentions concerning the amendment application in Enclosure 31

Learned counsel for the Plaintiff opposed the amendment on the grounds of delay, prejudice, and procedural unfairness. They argued that the Third and Fourth Defendants failed to adequately explain the delay, relying only on submissions from the Bar Table rather than a proper affidavit. Arguing further, they submitted that the proposed amendment which was filed after several witnesses had testified would disrupt the trial, potentially require the recall of witnesses, and impose additional burdens in preparing responsive pleadings. Concluding their argument, they contended that the amendment introduced new elements, namely a counterclaim and set-off, which would unfairly expand the scope of the case at a late stage, thereby prejudicing their ability to respond effectively.

Rebutting the preceding argument, learned counsel for the Third and Fourth Defendants argued that the amendment was made in good faith and arose from a genuine omission identified during a review of pleadings in the context of overlapping related suits. He maintained that the amendment did not change the substance of their Defence but merely added a counterclaim and set-off grounded in the same facts and legal framework. Submitting further, he submitted that the explanation for the timing was sufficiently set out in their affidavit, and that the amendment would aid in resolving the real issues without causing irreparable prejudice. Any inconvenience to the Plaintiffs, he argued, could be addressed through costs and case management. 13

In arriving at my decision, I have been mindful of the intricate factual tapestry underpinning this matter, as well as the two cognate proceedings presently before Sessions Court 1.

My reasons for allowing the Third and Fourth Defendants’ amendment application in Enclosure 31 will be addressed in the following headings:

The Amendment Enhances Rather Than Alters the Character of the Defence

I have well in mind that in the crucible of justice, the Court must discern genuine intent from artifice. Taken as a whole, I am satisfied that the Third and Fourth Defendants' application to amend the Defence is grounded in legitimate purpose and is meritorious. It does not seek to alter the nature or substance of their Defence, but rather to incorporate a counterclaim and set-off grounded in their existing case. In terms of liability, it appears apparent essentially from the outset that:

The Third and Fourth Defendants' Defence filed on 8.10.2024 established their stance that the Third and Fourth Defendants denied that the trailer lorry No. KEL 8002 was involved in the accident as alleged in the Statement of Claim and put the Plaintiffs to strict proof; or 14 Defendant, but was instead the result of an accident that could not have been avoided by him despite the exercise of reasonable care (See: Paragraphs 3 to 4 of the Third and Fourth Defendants’

In my assessment, the preceding positions go beyond a mere denial of involvement and includes an alternative plea attributing causation to factors other than the Third Defendant’s negligence, implicitly raising the possibility of contributory fault on the part of the First Plaintiff.

In determining whether the amendment here alters the character of a pleading, I have had regard to several key considerations: The factual substratum of the Third and Fourth Defendants' Defence remains unchanged. From the outset, they have maintained that the accident was not solely attributable to the negligence of the Third Defendant but also involved the fault of other parties. 15 defamation or breach of contract running athwart the Defence, it would undoubtedly have altered the legal complexion of the case and thereby transformed the character of the pleading. The present amendment does no such thing. It continues to address the issue of liability grounded in negligence within the same established legal framework. This approach finds support in the Court of Appeal’s decision in YB Datuk Dr Soon Choon Teck v YB Datuk Robert Lau Hoi Chew & Ors [2010] 7 CLJ 931; [2009] 3 MLJ 785, where it was observed that: "Even if the proposed amendment gives rise to a new cause of action, but it does not turn the suit from one character into another... In our view, even though the proposed amendment appears to be massive, but in reality, it merely seeks to supplement what has been earlier pleaded..."

The First Plaintiff is already privy to the proceedings and the issues in dispute. The amendment does not require him to confront a fundamentally different claim. Rather, it builds upon matters already pleaded and introduces no unfamiliar or extraneous issues that would necessitate a fresh counter-strategy in response to the counterclaim and set-off. 16

Thus, I find that the amendment is not a wrecking-ball move that demolishes the fundamental character of the Third and Fourth Defendants’ Defence. Rather, it is a coherent and consistent expansion, firmly rooted in the same foundational facts and legal issues already before the Court.

(ii) The Counterclaim Arises from the Same Factual and Legal Framework

Drawing upon the Third and Fourth Defendants' Defence as originally pleaded, I am persuaded that the amendment introduces a counterclaim that neither deviates from the established factual matrix nor alters the legal foundation of the case. Rather, it serves to consolidate and reinforce their position by advancing claims intrinsically linked to the same incident and parties already before the Court. Although the amendment seeks to include a counterclaim and set-off against the First Plaintiff (the rider of the motorcycle bearing registration no. DBS 1732), I find that it remains firmly rooted in a common set of operative facts across all three Suits - characterised by interrelated parties, a shared cause of action, uniform legal representation, and substantially overlapping circumstances.

Far from constituting an eleventh-hour stratagem, I view the counterclaim as a coherent and foreseeable evolution of the Third and Fourth Defendants' Defence. Its introduction serves not to ambush the Plaintiffs but to advance the just, expeditious, and cost-effective resolution of the real issues in dispute. 17

From my standpoint, permitting the amendment would facilitate a more comprehensive and efficient adjudication, while at the same time avoiding duplicative litigation and the fragmentation of proceedings, thus aligning with the overarching objectives of procedural economy and judicial coherence.

(iii) Delay and Its Explanatory Justification for the Amendment

Mr. Samreet Singh for the Plaintiffs took the position that learned counsel for the Third and Fourth Defendants had not explained the delay by way of affidavit, but merely from the Bar Table. With respect, I am unable to agree. Viewed in its entirety, I find myself in agreement with Dato’ Saranpal Singh Gill for the Third and Fourth Defendants that they have provided a reasonable and sufficient explanation for the timing of their amendment application, particularly when assessed against the broader backdrop of parallel proceedings stemming from a common incident.

In their supporting affidavit, paragraphs 3 to 5 disclose that, upon reviewing the Defence dated 8.10.2024, the Third and Fourth Defendants discovered a material omission i.e.: the failure to assert that the First Plaintiff, as the rider of motorcycle No. DBS 1732 (whether as agent, servant, or with the consent of the registered owner), was negligent in causing the collision that resulted in injury to the Second Plaintiff. 18

I am further mindful of the trite position that there is no strict or formulaic requirement for an explanation for delay to appear in a separate section or be couched in any particular manner within an affidavit. In this case, paragraphs 3 to 5 of the affidavit set out a clear and cogent explanation for the timing of the application. This is not a situation of complete silence or intentional omission. On the contrary, the affidavit presents a coherent and contextually grounded justification for the amendment, stemming from the Third and Fourth Defendants’ review of their existing pleadings in light of the broader context of parallel proceedings.

The present Suit 326 (filed in 2024) arises from the same accident that forms the subject matter of Suit 163 and Suit 279 (both filed in 2022). To my mind, the involvement of the Third and Fourth Defendants in those earlier proceedings underscores the factual and legal interconnectedness of all three suits.

That complexity is evident to me in the fact that, even during the clarification proceeding, the issues of consolidation and the mutual understanding regarding a bifurcated hearing on liability and quantum remained unresolved, despite the trial proceedings for Suit 163 and Suit 279 having already commenced before Sessions Court 19

Given this complexity and interconnection, it appears to me that amendment to the Third and Fourth Defendants' Defence becomes essential to uphold fairness and accuracy in the proceedings. Should delay bar amendment in complex circumstances where the factual matrix is intertwined and the claims are overlapping, despite the suits being unconsolidated yet interconnected? To my mind, the answer should be a resounding 'No'.

Procedural Fairness and Necessity of Amendment

Also, I hold the view that such a review of the defence, especially in ongoing proceedings involving multiple suits, is not only reasonable but necessary to ensure consistency and procedural fairness. The amendment application, though brought after the close of pleadings and the testimony of several witnesses, was filed promptly upon the discovery of the omission.

As I observe it, the explanation provided is not indicative of neglect or delay without cause, but rather a considered effort to align the pleadings with the actual facts and issues in controversy.

In these circumstances, I find that the Third and Fourth Defendants have adequately accounted for the timing of their application. The delay, viewed in its proper context, is justified. The amendment is therefore necessary for the just disposal of the matter and ought to be allowed. 20

(iv) Amendment Application after Trial Has Commenced

While it is true that the amendment application in Suit 326 was only brought after the trial proceedings had commenced in Suit 163 and Suit 279 before Sessions Court 1, I am of the view that its timing does not undermine its legitimacy. No judgment has yet been delivered, and I do not regard the amendment as either opportunistic or dilatory. In my assessment, the Third and Fourth Defendants acted reasonably promptly upon realising the need to amend, and their conduct does not suggest any element of surprise or procedural unfairness.

Crucially, I am not persuaded that the Plaintiffs are placed at any irremediable disadvantage. Any inconvenience arising from the amendment can, in my view, be adequately addressed through appropriate consequential directions. Upon allowing the Third and Fourth Defendants’ application, the Plaintiffs retain the right to file an Amended Pleading in response. I would accept that the position might well have been different had the Plaintiffs been deprived of the opportunity to do so. Procedural rules, while vital in ensuring the orderly conduct of litigation, are ultimately a means to an end, and that end being the just and fair resolution of disputes.

Where an amendment allows the Court to address the real issues more comprehensively, and where no undue prejudice is caused to the opposing party, I believe it ought to be allowed. To deny such an application in circumstances where the amendment is both relevant and properly motivated would, in my view, risk excluding matters that deserve full judicial scrutiny, thereby compromising the fairness and integrity of the proceedings. 21

Having considered the amendment application in full, I am satisfied that it was made bona fide. In my view, there is nothing in the manner of its filing that points to any mala fide intent. I do not see it as a tactical manoeuvre, nor do I regard it as an attempt to ambush the opposing party or to gain an unfair procedural advantage. On the contrary, it strikes me as a genuine and candid attempt to place all relevant matters properly before the Court.

What reinforces this impression is the response of the Third and Fourth Defendants upon discovering the omission. As soon as it came to light, immediate steps were taken to regularise the position through a formal application. That conduct, to my mind, reflects transparency and responsibility rather than delay or opportunism. I am therefore unable to conclude that the application was made mala fide. In my judgment, it bears the clear marks of good faith and procedural fairness.

(vi) Evaluation of Prejudice and Litigation Impact

I apply the trite principle that justice demands no party be ensnared in procedural webs that impair fair play. The Plaintiffs have raised legitimate concerns regarding potential delay, the inconvenience of recalling witnesses, and the added burden that may result from the amendment. These considerations are not immaterial and, in my judgment, deserve due attention. However, I take the view that in the context of multi-party litigation, where factual interconnections are inevitable as in the present case, such procedural consequences, though inconvenient, do not constitute irreparable prejudice or amount to a denial of fair trial rights. 22

To my mind, the possibility of recalling witnesses (if necessary), should not be regarded as inherently prejudicial, particularly where any inconvenience can be mitigated through costs. Rather, I consider it an evidential safeguard, ensuring that the Court remains equipped to arrive at a just and informed outcome. The revisiting of evidence, far from being a disruptive detour, reinforces the Court’s core duty to uncover the more probable version of events. What matters is not the presence of inconvenience per se, but whether it undermines the integrity of the trial proceedings. In the present instance, I am satisfied that it does not. In my judgment, any resulting concerns can be effectively managed through tailored case management directions, including measures for the timely filing of amended pleadings (if the need arises), without disrupting the continuity of hearing dates.

Conversely, real and substantial prejudice would, in my view, befall the Third and Fourth Defendants if the amendment were refused. It would preclude them from pursuing their counterclaim and set-off for contribution and indemnity - issues that are factually and legally intertwined with the central subject matter of this suit. As I assess it, this prejudice is particularly acute given that three related actions arising from the same incident involve overlapping facts, parties, and issues. A refusal of amendment would not only risk inconsistent adjudication and duplicative litigation, but could also bar the Third and Fourth Defendants procedurally from ventilating these claims in any future forum due to limitation risks or the application of res judicata. In this light, I consider that the balance of prejudice strongly favours allowing the amendment. 23

(vii) Procedural Safeguards and Remedying Inconvenience Through Costs

Where legitimate concerns about procedural disruption arise, I am mindful that the law recognises costs as an appropriate and proportionate remedy. In the present case, the Plaintiffs’ objection, though falling short of establishing material prejudice, nonetheless warrants a fair procedural response. Delay, the administrative burden of filing responsive pleadings, and the potential recall of witnesses are not insignificant as they carry practical and resource-related implications. However, I am satisfied that these can be reasonably and effectively addressed through an award of procedural costs.

Significantly, I find that the amendment does not alter the core trajectory of the litigation, nor does it introduce wholly new issues that would require a fundamental re-litigation of the matter. Rather, it seeks to align the pleadings with the factual matrix already before this Court. In such circumstances, I take the view that costs operate not only as a procedural compensatory mechanism, but also as a safeguard of fairness within the litigation process. They ensure that the integrity of proceedings is preserved without unduly burdening parties with the consequences of developments beyond their control, while remaining distinct from the primary compensatory relief sought in the suit. 24

The Federal Court in Alloy Consolidated Sdn Bhd & Anor v Dato’ Dr Hj Adam bin Harun [2011] 5 CLJ 705 reinforced this view by holding that: "The rule permits amendments at any stage and it does not matter whether the original omission arose from negligence or carelessness but such amendments are allowed only when they occasion no injury and cause no injustice to the opposite party or where they can be sufficiently compensated by costs or other terms imposed by the court."

(viii) Harmonisation of Claims and Parties Across Suits

I see harmony in pleadings across parallel suits as a vital means of promoting clarity, coherence, and procedural consistency. In response to a question posed by Mr Gurdip Singh for the Plaintiffs, Dato’ Saranpal Singh Gill for the Third and Fourth Defendants confirmed that the counterclaim and set-off are directed solely against the First Plaintiff (the rider of the motorcycle bearing registration no. DBS 1732) and not the Second Plaintiff (the pillion passenger of the same) (See: Affidavit in Support, Enclosure 32 – Exhibit A-1, paragraphs 15 to 17 of the Amended Pleading in Draft).

Plainly, the First Plaintiff is already a party to these proceedings, as well as to two related actions presently before Sessions Court 1. Plainly too, he is neither a stranger nor an interloper to the litigation. Just as plainly, he has been actively engaged in all three suits, with full awareness of the factual and legal contours that traverse each. No less plainly, he cannot now credibly claim surprise or prejudice in the face of an amendment that merely reflects the intrinsic interconnectedness of these proceedings. 25

From my perspective, this alignment fortifies coherence between the parties, their respective pleadings, and the broader litigation architecture. It introduces no novel or disruptive element but rather advances consistency across all three suits stemming from the same underlying incident.

(ix) Procedural Efficiency, Judicial Economy, and Timely Progression of Proceedings

I am well aware that the wheels of justice must turn without needless impediment or delay. While the hearing on liability has commenced, I note that no findings have been made and no judgment pronounced. Viewed holistically, I am confident that the amendment will not unduly prolong or disrupt the trial.

Should the recalling of witnesses be necessary, it appears to me that it would not require substantial re-entry into the witness box (whether by way of examination-in-chief, cross-examination, or re-examination), as it would involve the same witnesses previously called. The anticipated extent of examination is limited and manageable.

More broadly, I am persuaded that the amendment will not compromise the efficiency of the trial or burden the Court’s resources. The issues raised by the amendment remain within the same factual and legal framework already engaged in the suit. Efficiency in the administration of justice must never be sacrificed without cause, and I do not find any such cause here. 26

The more probable version of events finds its shape only when all are heard in full and in fairness, a principle I have held closely throughout these proceedings. The allowance of this amendment, in my judgment, enhances the Court’s ability to engage with the true contours of the dispute and ensures that no voice is artificially curtailed. It enables the Third and Fourth Defendants to set out their defence and counterclaim in full, while affording the Plaintiff ample opportunity to respond.

At the same time, I am satisfied that the amendment does not infringe upon the Plaintiffs' right to a fair trial. Rather, it fortifies procedural fairness by allowing the Court to address the issues genuinely in controversy, without allowing form to defeat substance. Evidently as it is, no irreparable prejudice has been demonstrated by the Plaintiffs, and any procedural inconvenience may be addressed by case management directions or an award of costs.

Viewed through the prism of justice, I consider the amendment to be in alignment with the Court’s primary duty to uphold due process, ensuring that proceedings are conducted fairly and that all parties are afforded opportunity to be heard. 27

(xi) Comparing Precedents Through a Factual Lens

By comparison, I find the precedents relied upon by learned counsel for the Plaintiffs to be clearly distinguishable, both in fact and in context. The cases cited rest on factual circumstances and procedural postures that, in my assessment, diverge materially from the present matter. They occupy a different legal terrain that does not, in my view, map meaningfully onto the issues now before me and thus falls wide of the mark. Hence, I do not regard those authorities as posing any real obstacle to the amendment here.

From the foregoing, a comparative analysis naturally emerges:

Ice Man Sdn Bhd concerned tampering with an electricity supply meter, which led to a claim against the defendant for loss of revenue and cost. The Court declined to allow the defendant’s amendment on the ground that it introduced facts arising after 2013, well beyond the period pleaded in the plaintiff’s original claim, which was confined to 6 September 2010 to 21 March 2012. The amendment not only failed to address the substance of the plaintiff’s case but also gave rise to internal contradictions within the Defence, thereby materially altering the character of the suit.

64.

Klass Corporation (M) Sdn Bhd v. MKRS Management Sdn Bhd [2016] 4 CLJ 438

In Klass Corporation, the Court dismissed the defendant’s amendment as it contradicted the existing Defence and contemporaneous documents. The proposed set-off and allegation of improper billing based on industry practice were unsupported by the final quotation, purchase order, or invoices, all stated in cubic meters, accepted, and partly paid without objection. The amendment was viewed as a tactical shift mid-trial, and its inconsistency and lateness rendered it neither bona fide nor procedurally fair.

In sharp distinction, the amendment in this case does not introduce a counterclaim and set-off arising from foreign facts independent of the factual matrix already pleaded. There is no contradiction with the existing Defence, which had already raised contributory negligence. Nor is there any inconsistency with any contemporaneous documents. On the whole, the amendment is consistent with the original case theory and does not represent a tactical pivot.

Kaplands Sdn Bhd v. Lee Chin Cheng Dengkil Oil Palm

In Kaplands Sdn Bhd, the plaintiff’s amendment application, filed approximately two years after the suit was commenced, was dismissed primarily because it was unsupported by a valid affidavit. 29 The supporting affidavit, deposed by the plaintiff’s solicitor, was rejected as improper due to disputed facts requiring affirmation by someone with personal knowledge. In the absence of a proper affidavit, and in light of the unexplained long delay, the plaintiff failed to meet the conditions for leave to amend.

The present case differs. Here, the amendment application is properly supported by an affidavit affirmed by a party with direct knowledge of the facts, which was not disputed. Paragraphs 3 to 5 of the Affidavit in Support at Enclosure 32 reasonably explain the delay. Unlike Kaplands Sdn Bhd, there is no procedural irregularity or evidentiary deficiency. The application satisfies both the formal and substantive requirements.

Dato’ Tan Heng Chew v. Tan Kim Hor & Ors [2008] 7 CLJ 776

In Dato' Tan Heng Chew, the Court dismissed the amendment application due to serious prejudice to the defendants. The proposed amendment would have fundamentally changed the nature of the claim, from one based on the natural meaning of the alleged defamatory statements to one grounded in innuendo and extrinsic facts. This shift came late in the proceedings, after agreed facts and issues had been settled, and would have required a complete reframing of the defence. The Court held that such prejudice was not compensable by costs and amounted to procedural unfairness and an abuse of process. 30

Unlike a substantive shift in position, the present amendment leaves the core of the Third and Fourth Defendants’ Defence intact, merely building upon the factual foundation already pleaded. There is no shift in legal theory, no reliance on extrinsic facts, and no departure from the original framework. The amendment causes no prejudice beyond what costs can cure, and in fact promotes clarity and consistency across related suits stemming from the same factual matrix. It is not late in any prejudicial sense nor tactically motivated, but rather advances fair, efficient, and coherent adjudication.

Lee Tsing Choy v. Johari Jaalam [1984] 2 CLJ Rep 148

Relying on Lee Tsing Choy, which held that “the inclusion of a counterclaim for the first time after the close of pleadings is undesirable,” learned counsel for the Plaintiffs argued that the original defence by the Third and Fourth Defendants merely denied involvement, and that the proposed amendment alters the structure and character of the case (see paragraphs 44–45 of the Plaintiffs’ Written Submission). That contention, however, misrepresents the pleadings. The original defence not only denied involvement but also attributed the accident, in part, to the contributory negligence of other parties (See: Paragraphs 3 to 4 of the Third and Fourth Defendants’ Statement of Defence). More crucially, Lee Tsing Choy describes such amendments as “undesirable,” not prohibited. The distinction is clear in which it does not operate as an operative bar. Whether to allow them remains a matter of judicial discretion, to be exercised based on the facts of each case. 31

K Rajashekar Kanapathy & Ors v. Palm Court Condominium &

In K Rajashekar Kanapathy, the court dismissed the amendment application due to an inordinate and unexplained delay of nearly four years. The proposed amendments were substantial, shifting the original claim, from losses arising from the closure of an entrance, into a wholly new and inconsistent cause of action based on the alleged illegality of tenancy agreements and a claim for restitution, thereby fundamentally altering the character of the suit.

The delay in the present case is completely at odds with the circumstances in K Rajashekar Kanapathy, where the amendment was sought years after the period pleaded in the original claim. Here, the delay spans only a matter of months. More significantly, the amendment does not introduce a new or inconsistent cause of action, nor does it recast the nature of the suit. It merely builds upon the Third and Fourth Defendants' Defence already on record, preserving the essential character of the proceedings while extending and completing the issues in dispute.

Chuah Eng Chang v. Paya Trubong Estate Sdn Bhd & Anor [2024] 4 CLJ 919

In Chuah Eng Chang, the Court dismissed the plaintiff’s application to amend on the ground that it fundamentally altered the character of the suit. The original claim was limited to conspiracy involving other parties and contained no allegation of fraud against the second defendant. The proposed amendments sought to introduce 32 fraud, actual notice, and ownership, introducing new causes of action inconsistent with the initial pleadings. These additions shifted both the factual and legal foundation of the claim, prejudiced the second defendant, and were regarded as a tactical afterthought rather than a genuine refinement.

As opposed to that, the amendment in this case does not alter the fundamental nature of the suit, which remains firmly rooted in negligence. Notably, the Third and Fourth Defendants have themselves pleaded contributory negligence. Although the amendment introduces a claim and set-off, it neither injects a new narrative nor diverges from the established factual framework. Instead, it is consistent with the pleaded Defence and serves to refine and expand the scope of the issues, ensuring that all relevant matters are addressed comprehensively. Summing – up

Seen in the round, the present case stands apart from the precedents relied upon by learned counsel for the Plaintiffs. Those authorities are factually distinguishable, and the present application does not offend the principles laid down therein. 33

In the end, I am compelled to ask myself this crucial question: Should this Court turn away from the legal weight of the Third and Fourth Defendants’ move to introduce a counterclaim and set-off against the First Plaintiff by way of amendment, particularly when viewed against the broader factual matrix encompassing all three suits, their evident interrelation, and the fact that the amendment satisfies the fourfold test laid down by the Federal Court in Yamaha Motor Co Ltd and Hong Leong Finance Bhd?

In my judgment, the gavel should fall firmly on ‘No’.

And overall, I am satisfied that the Third and Fourth Defendants’ application at Enclosure 31 ought to be allowed with costs. Costs are accordingly fixed at RM1,000.00 to be paid within seven days from the date of this decision by the Third and Fourth Defendants to the Plaintiffs.

80.

The Third and Fourth Defendants shall file their Amended

Defence within three (3) days from the date of this order -

6.2025; 34

(ii) The First Plaintiff shall, if so advised, file Defence to Counter Claim and Set-Off within seven (7) days of service of the Amended Defence - 13.6.2025; and

(iii) All parties are at liberty to recall any witness or to call such further witness or witnesses as may be necessary during the trial to address matters arising from the amendments.

81.

The Plaintiffs have also filed an application vide Enclosure 42 to transfer Suit 326 to Sessions Court 1 and to consolidate it with Suit 163 and Suit 279. As no objection was raised by the remaining parties, the application was duly allowed. Dated 1.7.2025 Noorhisham Mohd Jaafar Judge Sessions Court Klang, Selangor 35 Counsel for the Plaintiffs : Gurdip Singh Samreet Singh Solicitors for the Plaintiffs : Messrs. Gurdip, Sarjit & Co. No. 20, First Floor, Jalan Dato Hamzah, 41000 Klang, Selangor Counsel for the First and Dato Saranpal Second Defendants : Singh Gill (MOB) Solicitors for the First and Messrs. Murali B Second Defendants : Pillai & Associates Suites 1507 15th Floor Wisma Lim Foo Yong, 86 Jalan Raja Chulan,50200 Kuala Lumpur. Counsel for the Third and Dato Saranpal Fourth Defendant : Singh Gill Solicitors for the Third and Messrs. Kenneth Fourth Defendant : William & Associates No. 2, Jalan Ss 24/26 Taman Megah Petaling Jaya, 47301, Selangor 36 Counsel for the First and Rathnadevi a/p Irusan Second Third Parties : Solicitors for the First and Messrs. Shan & Su Second Third Parties : No.29-3, Petaling Jaya Commercial City, Jalan PJS 5/30, Kampung Ghandi, 46150 Petaling Jaya, Selangor