Ee Chong Pang v Ee Joo Guat (MA-22NCvC-43-10/2022)

Ong Chor Wei (Alan Ong) [No. K/P : 690804-10-6531/A 1364691] (sebagai Wasi Tunggal/Eksekutor Harta Pusaka Ee Joo Guat, si mati)

Southern Sierra Sdn Bhd [No. Syarikat: 199701010330 (425826-V)]

Pendaftar Hakmilik Tanah Negeri Melaka

Pentadbir Tanah Daerah Alor Gajah ... Defendan-Defendan GROUNDS OF JUDGMENT (Lampiran 199: Permohonan Plaintif untuk meminda Pembelaan dan Jawapan kepada Tuntutan Balas Defendan Pertama) A. INTRODUCTION [1] By a notice of application filed on 19.06.2026 (Enclosure 199), the Plaintiff seeks leave to amend his Reply and Defence to the First Defendant's Counterclaim dated 20.02.2023 (Enclosure 52). The application is made under Order 20 rule 5 of the Rules of Court 2012, with Order 92 rule 4 invoked in aid. The proposed amendments are set out, underlined in red, in the proposed Amended Reply and Defence to the First Defendant's Counterclaim annexed as Lampiran A to Enclosure 199 ("the Proposed Amendments"). [2] The application comes at a late chapter in the life of this action. The suit was commenced on 04.10.2022. On 20.05.2026 this Court dismissed the First Defendant's application under Order 33 of the Rules of Court 2012 for the disposal of the action upon preliminary issues (Enclosure 65), and fixed the action for trial commencing on 12.08.2026. Enclosure 199 was filed within a month of that direction, but within some eight weeks of the trial itself. [3] The application is opposed by the First Defendant. Four features give it its particular complexion. First, the amendments are sought after the dismissal of an application for the determination of preliminary issues which occupied the parties for more than three years, and upon the threshold of trial. Secondly, the party against whom the amended pleading would principally operate the late Ee Joo Guat, the original First Defendant and the counterclaiming party passed away on 05.02.2025, and her estate, now represented in these proceedings by her sole executor, maintains that she alone could have answered the new matters sought to be pleaded. Thirdly, aspects of the proposed pleading are said to contradict the Plaintiff's existing pleaded position and his own earlier affidavit evidence. Fourthly, the matters now sought to be pleaded were first deposed to in affidavits filed upon the continued hearing of the preliminary-issues application, where objection was at once taken to them as unpleaded, and it was only thereafter that this application was made. [4] The real controversy on this application is accordingly threefold: first, which framework of principles governs an amendment sought at this stage of the proceedings the settled considerations in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (FC), or the stricter discipline laid down in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC) for late amendments which introduce a new case; secondly, whether the timing of the application is cogently explained, or instead discloses an afterthought or a tactical manoeuvre; and thirdly, whether the Proposed Amendments occasion prejudice to the First Defendant which cannot be remedied by costs or by directions, in particular by reason of the demise of the late Ee Joo Guat. A further question, subsidiary but not immaterial, is whether the pleas of abandonment, estoppel and laches are the particularisation of a case already pleaded, or a new and fundamental case which ought to have been pleaded at the outset. [5] These Grounds set out the material facts and procedural history, the substance of the Proposed Amendments, the issues for determination, the governing principles, and the Court's analysis and determination of each issue in turn. B. MATERIAL FACTS AND PROCEDURAL HISTORY The Partnership, the 22 Lands and the 1992 Instruments [6] The Plaintiff and the late Ee Joo Guat were siblings. At the commencement of this action, they were the only surviving partners of a partnership known as Ladang Getah Heng Lee ("the Partnership"), established on 17.01.1973 by five founding partners to carry on a rubber estate business. The Plaintiff pleads that twenty-nine pieces of land were acquired in January and February 1973, and that the transfers to the five registered proprietors were registered on 21.03.1973 in proportion to their respective equity in the Partnership; that seven parcels were transferred to the parties' late mother on 22.09.1982, leaving twenty-two parcels ("the 22 Lands"); and that, from 03.02.1983, the equity in the Partnership, and the corresponding undivided shares in the 22 Lands, stood at one-sixth for the Plaintiff and five-sixths for the late Ee Joo Guat. The Plaintiff's case is that the 22 Lands are partnership property held by the registered proprietors upon trust for the Partnership; the First Defendant, for his part, admits the registered shares and the existence of the Partnership, but denies that the 22 Lands, or the twenty-nine parcels from which they derive, were partnership property or were held upon trust for the Partnership. That characterisation accordingly stands for trial. [7] Two instruments dated 14.05.1992 lie at the centre of the First Defendant's Counterclaim: a Memorandum of Agreement ("the MOA") and a Declaration of Trust ("the DOT"), the latter being described in the Defence and Counterclaim as the Trust Deed and in the Reply as the Declaration of Trust. By paragraph 45.1 of the Defence and Counterclaim dated 30.01.2023 (Enclosure 37), it is pleaded that the late Ee Joo Guat never held her five-sixths undivided share in the 22 Lands upon trust for the Partnership, and that the Plaintiff himself held his one-sixth undivided share upon trust for her. The terms of the MOA are reproduced at paragraph 47 of that pleading, and disclose an exchange: the late Ee Joo Guat was to transfer to the Plaintiff 29,850 shares in Art Printing Works Sdn Bhd ("APW") and 13,470 shares in Good Deal Holdings Sdn Bhd ("Good Deal"), and the Plaintiff was in consideration thereof to transfer his one-sixth co-proprietary interest in the lands to her. The recitals are, upon their face, expressed prospectively. By paragraph 51 it is pleaded that the late Ee Joo Guat performed her part, in that the shares in APW and Good Deal were transferred to the Plaintiff. [8] In 2020, the late Ee Joo Guat sold her five-sixths undivided shares in four of the 22 Lands held under GRN 6165 (Lot 913), GRN 6166 (Lot 914), GM 61 (Lot 915) and GM 59 (Lot 378), all in Mukim Sungei Petai, Daerah Alor Gajah, Melaka ("the 4 Disputed Lands") to the Second Defendant under a sale and purchase agreement dated 15.09.2020. It is common ground that the charges over those lands were discharged, and that the transfers to the Second Defendant were registered, in January 2021. The pleaded cases differ as to the precise dates. The Plaintiff pleads discharge on 21.01.2021 and registration of all four transfers on 28.01.2021. The First Defendant pleads discharge on 19.01.2021, and registration on 27.01.2021 in respect of GM 61 (Lot 915) and GM 59 (Lot 378) and on 28.01.2021 in respect of GRN 6165 (Lot 913) and GRN 6166 (Lot 914). Nothing in the present application turns upon that difference. [9] The Plaintiff pleads that he discovered the transfer in March 2022; that he objected to it; that he lodged private caveats in April 2022, the First Defendant pleading their registration on 21.04.2022; and that in July 2022 he caused notices of demand to be issued requiring the Second Defendant to refrain from dealing with the 4 Disputed Lands. Solicitors' correspondence was exchanged between August and September 2022, in the course of which both the late Ee Joo Guat and the Second Defendant denied the Partnership's ownership of the 22 Lands. The Plaintiff commenced this action on 04.10.2022. The Pleadings [10] The First Defendant's Defence and Counterclaim is dated 30.01.2023 (Enclosure 37). The Plaintiff's Reply and Defence to the First Defendant's Counterclaim the pleading now sought to be amended is dated 20.02.2023 (Enclosure 52). The First Defendant's Reply to the Plaintiff's Defence to the Counterclaim is dated 06.03.2023 (Enclosure 61). [11] Paragraph 25 of Enclosure 52 is the fulcrum of the present application. By it, the Plaintiff pleaded that he retained no copy, and had no recollection, of the MOA and the DOT; that he nevertheless disputes their validity and enforceability; that the late Ee Joo Guat never insisted upon, produced, or demanded performance of either instrument at any time before these proceedings; and that, in all her previous correspondence with him, she acknowledged the Plaintiff as the registered owner of the one-sixth undivided share in the 22 Lands. For her part, the late Ee Joo Guat pleaded, at paragraph 13.4(1) of Enclosure 61, that she had transferred part of her shares in APW and Good Deal to the Plaintiff according to the MOA. It is material to note, for the purposes of the analysis which follows, that by paragraph 51 of Enclosure 37 it was also pleaded that the late Ee Joo Guat had performed her responsibility under the MOA and the DOT, in that the shares in APW and Good Deal had been transferred to the Plaintiff. No date was ascribed in that pleading to those transfers. Enclosures 21, 22 and 65 [12] On 23.12.2022, the Plaintiff applied to extend his private caveats over the 4 Disputed Lands (Enclosure 21) and to restrain the Second Defendant from dealing with them (Enclosure 22). Both applications were allowed on 24.05.2023, up to the disposal of Enclosure 65. The Second Defendant's appeals against those orders were dismissed by the Court of Appeal on 02.10.2025 with costs. [13] Enclosure 65 was the late Ee Joo Guat's application, filed on 20.03.2023, for the disposal of the action upon preliminary issues under Order 33 rules 2 and 5 of the Rules of Court 2012. It was heard in part on 18.09.2024 and 22.11.2024. On 05.02.2025, the late Ee Joo Guat passed away, and the further hearing was adjourned to enable the substitution of the representative of her estate. By order dated 22.08.2025, Ong Chor Wei (Alan Ong), the sole executor of her estate, was substituted as the First Defendant. [14] On 20.11.2025, the First Defendant applied for leave to adduce further evidence for the continued hearing of Enclosure 65 (Enclosure 161). Leave was granted on 16.04.2026, whereupon the First Defendant's additional affidavit affirmed by Ong Chor Wei on 19.11.2025 (Enclosure 181) came onto the record. There followed the Plaintiff's affidavit in reply affirmed on 30.04.2026 (Enclosure 183), the affidavit of the Plaintiff's son, Ee Soon Wei, affirmed on 30.04.2026 (Enclosure 184), and the First Defendant's further affidavit in reply affirmed on 05.05.2026 (Enclosure 186). [15] Enclosure 181 is of central importance to the present application. It exhibited directors' resolutions, Forms 32A under the Companies Act 1965, cancelled share certificates and extracts from the registers of members of APW and Good Deal, and upon that material the position was advanced, on the continued hearing of Enclosure 65, that shares held by the late Ee Joo Guat in those companies had been transferred to the Plaintiff on 05.05.1992 that is, before the MOA and the DOT were executed on 14.05.1992 in consideration of the Plaintiff's one-sixth share in the lands, the transfers being at the same time characterised as performance under those very instruments. That account of the timing of performance sits uneasily with the account which the late Ee Joo Guat had herself given in her lifetime: in her affidavits affirmed on 20.03.2023 (Enclosure 66) and 08.05.2023 (Enclosure 77, paragraphs 10.1 and 10.2), she deposed that the share transfers had been effected according to the MOA, and her pleading at paragraph 13.4(1) of Enclosure 61 was to the same effect. Neither the pleading nor the affidavits identified the date upon which those transfers were effected. [16] On 20.05.2026, this Court dismissed Enclosure 65. The Grounds of Judgment delivered upon that dismissal are referred to below as "the Enclosure 65 Grounds". At paragraphs [79] to [84] of the Enclosure 65 Grounds, the Court held that the question whether the trust declared in 1992 has been performed, varied, abandoned, or rendered unenforceable in equity by reason of the conduct of the parties in the intervening decades — engaging the doctrines of laches, acquiescence and estoppel by representation, and the discretionary character of the remedy of specific performance — depends upon disputed primary facts which are properly the subject of evidence at trial, and is not amenable to summary determination on affidavit. At paragraph [89], the Court recorded the tension between the account of performance advanced upon Enclosure 181 and the terms in which the late Ee Joo Guat had herself pleaded and deposed, observing that the recharacterisation appears neither in the pleadings nor in Enclosure 77, and that it is upon its face in tension with the prospective wording of the recitals. Upon the dismissal of Enclosure 65, the action was fixed for trial commencing on 12.08.2026. [17] Enclosure 199 was filed on 19.06.2026. It is supported by the Plaintiff's affidavit affirmed on 16.06.2026 (Enclosure 200), opposed by the affidavit in reply of Ong Chor Wei affirmed on 01.07.2026 (Enclosure 205), and answered by the Plaintiff's further affidavit affirmed on 15.07.2026 (Enclosure 208). Pursuant to case management directions given on 17.07.2026, the Plaintiff filed a Comparative Schedule together with clean and marked-up copies of the proposed pleading (Enclosure 209), and the First Defendant filed a Prejudice Schedule (Enclosure 212). An agreed core bundle of the material papers was filed pursuant to the same directions. C. THE PROPOSED AMENDMENTS [18] The Proposed Amendments fall into four groups. [19] The first group is formal: amendments to the title and to paragraphs 1, 2 and 25 of the pleading, introducing "Amended" references and the defined terms "MOA", "DOT" and "Alleged Documents". [20] The second group comprises new paragraphs 25(b)(iii) and (iv). Paragraph 25(b)(iii) pleads that in January 2018 the late Ee Joo Guat also acknowledged the Plaintiff as the registered owner of the one-sixth undivided share in the 22 Lands, in that she requested, through the Plaintiff's son Ee Soon Wei, that the Plaintiff execute a deed of gift of his one-sixth undivided share in the 22 Lands in her favour, a sale and purchase agreement with Midas Bonus Sdn Bhd a company related to the Second Defendant in respect of five of the 22 Lands, and the corresponding Forms 14A (collectively, "the 2018 Documents"). Paragraph 25(b)(iv) pleads that the Plaintiff declined to execute those documents; that he thereafter received, through his second son Ee Soon Seng, a message from one Mr Loh, a close acquaintance of the late Ee Joo Guat, conveying her offer to give up the Royal Press Company a family partnership of which she and the Plaintiff are partners if he agreed to execute the deed of gift and the Midas Bonus sale and purchase agreement; and that he again declined. The existing paragraphs 25(b)(iii) and (iv) are renumbered as paragraphs 25(b)(v) and (vi), with the dates of the solicitors' correspondence relied upon 07.06.2018, 20.04.2022 and 11.08.2022 now inserted. [21] The third group comprises new paragraphs 25A to 25C. Paragraph 25A, pleaded expressly in relation to the existing paragraph 25(b)(i), pleads an implied understanding between the Plaintiff and the late Ee Joo Guat, arising from their familial relationship and their mutual dealings, that neither would insist upon strict enforcement of the obligations owed by the one to the other. The particulars, at subparagraphs (a) to (l), concern: the estate of their late mother, Lim Kim Bee, who died intestate on 08.02.1999; the trust deed dated 20.03.2001 by which the late Ee Joo Guat declared herself trustee of shares in six public listed companies, defined in the proposed pleading as "the 6 ListedCo Shares", held under the estate of the late Lim Kim Bee; a guarantee dated 30.03.2001 given by the parties' eldest brother, the late Ee Chong Wah, of her performance as trustee; objections by three of their sisters, Chee Ah Moy @ Ee Joo Har, Ee Joo Hoon and the late Ee Joo Ping, to the 2001 trust deed and to the proposed treatment of the 6 ListedCo Shares; a settlement agreement dated 27.07.2001 entered into by all the beneficiaries of the estate; the arrangement thereafter proposed by the late Ee Joo Guat, by which the Plaintiff would take over the 6 ListedCo Shares, satisfy the payments due to the three sisters, and permit her to continue holding the shares in her name as trustee for him; the Plaintiff's payment of RM52,935.72 to each of the three sisters in August 2001, RM158,807.16 in the aggregate; the continued registration of the 6 ListedCo Shares in the late Ee Joo Guat's name as trustee for the Plaintiff, and her continued updates concerning the shares and the dividends; and the Plaintiff's financial support of the late Ee Joo Guat and of their late mother, including monthly payments averaging RM3,000.00 from about 1993 until 08.02.1999. Paragraph 25B pleads the reciprocity said to follow: that the Plaintiff did not insist upon strict enforcement of his rights in relation to the 6 ListedCo Shares, and that correspondingly the late Ee Joo Guat did not insist upon performance of the MOA and the DOT but treated them as abandoned, while continuing to acknowledge the Plaintiff as the legal and beneficial owner of his one-sixth undivided share in the 22 Lands. Paragraph 25C then pleads the legal consequences said to arise from the facts pleaded: that the late Ee Joo Guat abandoned such rights, if any, as she had under the MOA and the DOT; that she is estopped from denying that the Plaintiff is the registered owner of the one-sixth undivided share in the 22 Lands; and that the Plaintiff further relies upon the defence of laches. [22] The fourth group comprises consequential amendments to paragraphs 29,31,33,36,37,39,46 and 49, cross-referring to paragraphs 25 and 25A to 25C and aligning the balance of the pleading with them. Paragraph 31 goes a little beyond bare cross-reference: it states in terms that the late Ee Joo Guat abandoned her rights under the MOA and the DOT and that the Plaintiff relies upon laches, while maintaining, without prejudice thereto, his existing denial of any failure, neglect or refusal to perform his own obligations. [23] The opposition, as it emerges from the affidavit in reply (Enclosure 205) and the Prejudice Schedule (Enclosure 212), raises four objections. First, that the Proposed Amendments reverse the Plaintiff's pleaded stand at paragraph 25 of Enclosure 52 that he retained no copy and had no recollection of the 1992 instruments and contradict paragraph 11 of his affidavit affirmed on

02.2023 (Enclosure 56), which described the objective of the MOA and the DOT as the facilitation of an exchange of interests. Secondly, that the 2018 Documents and the related exchange were in the Plaintiff's possession or knowledge from 2018, and the estate-related materials from 2001, so that their omission from the pleading was a conscious election, and the present application an afterthought made at the eleventh hour. Thirdly, that only the late Ee Joo Guat could have answered the allegations of an implied understanding, abandonment, estoppel and laches, and that her demise renders the resulting prejudice incapable of remedy by costs or by directions. Fourthly, that the particulars concerning their late mother's estate are irrelevant to the causes of action concerning the 22 Lands. [24] Two further objections fall for consideration, and the Court has considered them. The first is one of timing and motive: that the matters now sought to be pleaded were deployed by affidavit on 30.04.2026, that objection was at once taken to them as unpleaded, and that the application which followed on 19.06.2026 is on that account a reactive measure and an afterthought rather than a bona fide application. The second is one of consequence: that leave, if granted, will require the amendment of witness statements, the assembly of further documents, and the interviewing and possible calling of additional witnesses, and may place the trial dates in jeopardy. D. ISSUES FOR DETERMINATION [25] The following issues arise for determination:

the governing framework: whether the application falls to be determined under the principles in Yamaha Motor (supra), or attracts the stricter considerations in Low Thiam Hoe (supra) applicable to late amendments introducing a new case;

(ii) whether the application is bona fide, and in particular whether the timing of the application is supported by a cogent and reasonable explanation and is free of tactical purpose;

(iii) whether the Proposed Amendments would alter the character of the Plaintiff's defence to the Counterclaim, or are impermissibly inconsistent with his existing pleading and his earlier affidavit evidence;

(iv) whether the Proposed Amendments arise out of the same or substantially the same facts as the case already pleaded, disclose sufficient particulars, and are relevant to the matters in controversy;

whether the Proposed Amendments occasion prejudice to the First Defendant which cannot be compensated by costs or cured by directions, in particular by reason of the demise of the late Ee Joo Guat; and

(vi) whether, if leave were to be granted, the position of the First Defendant can be adequately protected by consequential directions and by an order for costs. E. GOVERNING LAW AND FRAMEWORK [26] Order 20 rule 5(1) of the Rules of Court 2012 confers upon the Court a discretion, exercisable at any stage of the proceedings, to allow a party to amend his pleading on such terms as to costs or otherwise as may be just, and in such manner as the Court may direct. Order 20 rule 5(5) provides that an amendment may be allowed notwithstanding that its effect is 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 by the party applying for leave. A word of precision is required as to that rule. Rule 5(5) operates, by force of rule 5(2), where leave is sought after the expiry of a period of limitation current at the date of issue of the writ; and it speaks of a new cause of action. No question of limitation arises upon the present application, and the pleading sought to be amended is a Reply and Defence to a Counterclaim rather than one which advances a cause of action. The condition which rule 5(5) embodies that the new matter arise out of the same or substantially the same facts as the case already pleaded is nevertheless the measure which the authorities apply where a party seeks to introduce a new line of defence, and it is in that sense, and no other, that the rule is referred to in these Grounds. [27] The governing considerations were settled by the Federal Court in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (FC) at pages 214 to 215: an amendment ought to be allowed, at any stage of the proceedings, if it is bona fide; if it would not cause prejudice to the other side which cannot be compensated by costs; and if it would not turn the suit from one character into a suit of another and inconsistent character. [28] Those conditions were restated by the Federal Court in MGG Pillai v Tan Sri Dato' Vincent Tan Chee Yioun [2002] 2 MLJ 673 (FC), where it was held that amendments seeking no more than to correct a defect in the pleadings are normally always allowed in law, provided that they do not change the character of the dispute into another and inconsistent character, are made bona fide on the part of the applicant; and cause no prejudice to the respondent which cannot be compensated in costs. The three conditions are stated conjunctively, and an applicant must satisfy each of them. [29] The general rules were collected and restated by the Court of Appeal in U-Meng Holdings Sdn Bhd & Anor v Tan Sri Datuk Ibrahim Mohamed; AmBank (M) Bhd (Third Party) [2010] 9 CLJ 411 (CA) at paragraphs [56] to [63]. The Court of Appeal there emphasised that the rules so collected are guidelines only, because each case must be examined separately and no two cases are the same; that an amendment will be allowed if the opposing party suffers no injustice as a result of the proposed change; that the discretion requires the Court to consider the position of the parties by assessing the effect of the amendment upon each of them; that the exercise of the discretion to allow a late amendment involves balancing two competing situations, namely the desirability that every point a party wishes reasonably to put forward be ventilated, against the disruption occasioned to other litigants awaiting the hearing of their causes; that an amendment which does not change the character of the dispute, is made bona fide, and causes no prejudice incapable of compensation in costs will be allowed; that an amendment will not be allowed where the resulting prejudice cannot be compensated in costs; and that an amendment will not be allowed where the facts, or substantially the same facts, did not accrue at the commencement of the action. The Court of Appeal further adopted the two requirements identified in Taisho Company Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 MLJ 359; [1999] 1 CLJ 703 (CA): that the facts of the case remain the same or substantially the same, and that the justice of the case is with the applicant; failure in either is failure altogether. [30] In the same judgment, at paragraph [66] thereof, the Court of Appeal adopted the observations of Lord Griffiths in Ketteman and Others v Hansel Properties Ltd and Others [1987] AC 189 (HL) at page 220. An amendment is not to be allowed merely because the opposing party would not be prejudiced by it. Justice cannot always be measured in terms of money. A judge is entitled to weigh in the balance the strain which litigation imposes upon litigants, particularly personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. And a judge must weigh the pressure upon the courts caused by the great increase in litigation, and the consequent necessity, in the interests of the whole community, that legal business be conducted efficiently; the indulgence which a more leisured age could show towards the negligent conduct of litigation is no longer affordable. [31] Those considerations apply with equal force to the amendment of a defence. In Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 MLJ 629 (CA) at page 640, the Court of Appeal observed that the authorities strongly indicate that the courts should lean towards granting applications for amendment even when a new cause of action or a new line of defence is raised, provided it is based on the same facts or arises out of the same transaction, subject to an award of costs for any injustice caused. In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230 (SC) at page 232, the Supreme Court confirmed that the Court has power to grant an amendment even after the expiry of the limitation period, notwithstanding that its effect is to add or substitute a new cause of action, upon the important condition that the new cause of action arises out of the same or substantially the same facts as the cause of action in respect of which relief has already been claimed. Whether the facts are the same or substantially the same is, as the High Court held in Palaniappan v Universiti Pertanian Malaysia [1995] 1 MLJ 353 (HC) at page 367, essentially a question of fact and substantially a matter of impression. [32] As to prejudice, the Court of Appeal in ASM Development Sdn Bhd v Hijjas Kasturi Associates Sdn Bhd [2011] 6 MLJ 228 (CA) at paragraph [15] explained that the question whether it would be unjust to grant leave requires a balancing of the applying party's need to amend against the prejudice to the opposing party's interest; that prejudice in this context means that the opposing party will or may have difficulty in meeting the claim, specifically at the trial; and, critically, that any relevant prejudice must be prejudice resulting from the amendment — as where the opposing party, in reliance upon the case originally pleaded, altered its position so as to make it more difficult to meet the new case. In Dato' Tan Heng Chew v Tan Kim Hor and another appeal [2009] 5 MLJ 790 (CA) at paragraphs [43] and [46], the Court of Appeal emphasised that the courts exist for the administration of justice and the decision of the real matter in controversy; that the position of the applicant must be balanced against the interest of the opposing party; and that where the trial proper has not begun and the opposing party will still have its day in court, the injustice of shutting the applicant out from a material plea may well be the greater. [33] As to lateness, the Court of Appeal in YB Datuk Dr Soon Choon Teck v YB Datuk Robert Lau Hoi Chew & Ors [2009] 3 MLJ 785 (CA) at paragraph [16] restated the general principle that leave to amend is readily given at any stage of the proceedings, however late, provided that it causes no injustice to the parties; and in HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd [2004] 4 MLJ 398 (CA), it was held that delay alone is not a ground for refusing leave: the time at which an amendment is sought is a relevant consideration, but it is not necessarily decisive, and delay per se does not equate to prejudice or injustice. It was also held in that case that the merits of the proposed plea are not a prerequisite to leave, the merits being a matter for the trial. [34] The stricter discipline is that of the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 (FC). In that case, the application to amend the defence was made four days before the trial; it sought to introduce two new and distinct defences; the amendments were sought about 13 years and seven months later after the suit was filed; the proposed amendments did not disclose full particulars enabling the Court to ascertain whether the new defence had a real prospect of success; and the supporting affidavit contained no cogent explanation for the delay. The Federal Court, restoring the decision of the High Court dismissing the application, held at paragraph [33] : (a) that where an application to amend introduces a new case in the claim or the defence on the eve of trial, the principles in Yamaha Motor (supra) are not the sole considerations; (b) that the principles in Yamaha Motor (supra) apply to cases where the application is made at an early stage of the proceedings; (c) that there must be a cogent and reasonable explanation in the applicant's affidavit as to why the application was filed late; (d) that the application must not be a tactical manoeuvre; (e) that the proposed amendment must disclose full particulars for the Court to ascertain whether there is a real prospect of success in proving the same; and (f) that lateness in applying to amend cannot necessarily be compensated by payment of costs. The rationale is that of the case management era: as the High Court observed in Tropical Profile (M) Sdn Bhd v Cantilever Bumi Sdn Bhd [2025] MLJU 2922 (HC) at paragraphs [15] and [16], the landscape of civil procedure has changed with the introduction of pre-trial case management under Order 34 of the Rules of Court 2012, and the Court now takes an active role in preventing delay in the progress of a case to trial. That discipline has been consistently applied. In E & O Trading Sdn Bhd v Americk Singh Sidhu & Ors & Another Appeal [2018] MLRAU 168 (CA) at paragraphs [25], [27] and [28], the Court of Appeal held that where an application to amend is filed at an advanced stage of the proceedings a heavy onus lies upon the applicant to justify a new and significantly different case sought very late in the day; that the applicant must show more than some prospect or chance of success in the proposed amendments; and that the Court ought to consider the reason why the application was filed late and whether there has been a cogent and reasonable explanation. In GllB Holdings Berhad v Wong Weng Yew & Ors [2026] 3 MLRH 511 (HC) at paragraphs [14] to [17], the High Court restated the guiding rule as a sliding scale: the later the amendment, the greater the justification required to commend it, and, inevitably, the greater the prejudice to the opponent, so that monetary compensation may be inadequate. It was there also observed, upon Taisho Company Sdn Bhd v Pan Global Equities Bhd & Anor (supra), that a failure to explain delay may itself demonstrate a want of bona fides, and, upon Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 2 MLRA 91 (CA), that a dawdling litigant bears the burden of rendering a satisfactory explanation for his procrastination, relief being liable to be refused to the indolent. [36] Three recent decisions of the High Court illustrate the application of these principles to particular fact patterns. In Langkah Utara Sdn Bhd v Norazman Hamidun & Ors [2025] MLRHU 3298 (HC) at paragraph [78], an amendment sought only after a procedural objection had been raised was held to be a reactive measure which undermined any pretension of a bona fide application and rendered it an afterthought, the applicant having furnished no cogent or satisfactory reason for the delay in filing the application itself. In Law Soon Pin v Lau Soon Huat & Anor [2019] MLRHU 1060 (HC) at paragraphs [17] to [19], leave was refused where the proposed amendment changed the character of, and was inconsistent with, the pleaded case, and where a fundamental issue which ought to have been pleaded at the outset of the case was raised so late as to raise the possibility of an afterthought designed to secure a tactical advantage. In Gainhill Marketing Sdn Bhd v PDC Auto (Kuantan) Sdn Bhd [2026] MLRHU 902 (HC) at paragraphs [21] to [24], an amendment which materially altered the case as to representations, as to the involvement of particular parties, and as to the chronology of facts, and which depended in part upon facts said to have occurred some twenty-four years earlier, filed about two years after the commencement of the action and without satisfactory explanation for the delay, was refused as apt to alter the character of the original claim and to occasion prejudice to the defendant not curable by costs alone. Leave was granted in that case in respect of those parts of the proposed amendment which conformed to the principles in Yamaha Motor (supra); it is the opposed portion alone which was refused. [37] Two authorities address the particular situation in which the person best placed to answer the proposed plea has died. In Smijaya Sdn Bhd & Yang Lain Iwn Perwira Affin Bank Bhd [2009] 4 MLRH 753 (CA), the defendants sought leave to amend their defence so as to plead a collateral contract and implied terms founded upon representations said to have been made by one Encik Hoh Choon Seong. Upon the chronology recorded in that judgment, the original defence had been filed in October 2000, Encik Hoh Choon Seong died on 19.03.2001, the plaintiff informed the defendants of the death, and the application for leave to amend was made only several years afterwards, in May 2005. The Court of Appeal held that the trial judge had not erred in finding that the amendment would prejudice the plaintiff in a manner incapable of compensation in costs, characterised the defendants' conduct as an attempt to take advantage by fishing in troubled waters, and affirmed that an application which is not bona fide must be refused. In Siah Lian Huet v Ang Kim Siong [2018] MLRHU 1368 (HC) at paragraph [18], the High Court cautioned that courts should be slow to displace the express intention of an individual by drawing inferences from circumstantial evidence, especially where that individual is no longer available to testify. That caution was expressed in the course of a determination upon the merits, and not upon an application for leave to amend; and it was expressed only after the Court had examined the contemporaneous documentary record and the conduct of the deceased, the inferences relied upon being held to be manifestly refuted by his own letters of nomination, and the conclusion being reached upon the evidence taken in its totality; but it identifies with accuracy the evidential difficulty attending a case built upon inference against the settled written act of a person now deceased. [38] The two lines of authority are not in conflict; they occupy different points on a single spectrum. Low Thiam Hoe (supra) governs the late amendment which introduces a new case upon the eve of trial; Yamaha Motor (supra) governs the application made at an early stage; and between those poles, the Court applies the Yamaha Motor (supra) conditions with a rigour commensurate with the lateness of the application, insisting upon the disciplines identified in Low Thiam Hoe (supra) a cogent explanation, the absence of tactical purpose, and sufficient particularity in proportion to the proximity of the trial. That calibrated approach is reflected in the treatment of Low Thiam Hoe (supra) in the High Court authorities: in Illustrasi Hikmat Sdn Bhd v Tan Sri Dato' Seri Syed Mokhtar Shah Syed Nor & Ors [2016] 1 LNS 923 (HC) at paragraphs [9] to [12], where the amendment application had been filed early and held in abeyance by agreement, the Court held that there was no issue of delay requiring explanation and no tactical manoeuvre, and that the requirement of full particulars falls to be seen in the context of a late application; and in Andrew a/I J Alfred v Margaret Mary a/p Alfred & Anor [2023] MLJU 908 (HC) at paragraphs [24] and [25], the Yamaha Motor (supra) considerations were applied where the application was not made at a late stage of the suit and the pre-trial process had not progressed beyond the pleadings. [39] Three further principles bear upon the categories of amendment proposed here. First, it is trite law that legal results do not have to be pleaded: See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank Bhd and another appeal [2019] 1 MLJ 25 (FC) at paragraph [66]. Secondly, estoppel may be raised as a matter of law where the material facts giving rise to it are sufficiently pleaded: Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (FC). Thirdly, in IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860 (CA) at paragraphs [330] to [332], the Court of Appeal, adopting the statement of Lord Denning MR in In re Vandervell's Trusts (No 2); White and Others v Vandervell Trustees Ltd [1974] Ch 269 (CA) at pages 321 to 322, held that it is sufficient for the pleader to state the material facts and that he need not state the legal result; if, for convenience, he does so, he is not bound by, or limited to, what he has stated, and may present in argument any legal consequence of which the facts permit. Those principles do not, however, dispense with the pleading of the material facts themselves. A party who has not pleaded the facts from which abandonment, waiver or estoppel is to be inferred ordinarily cannot rely upon those doctrines merely because their legal labels need not be pleaded; and it is precisely because that is so that leave to plead the facts is now sought. Finally, the extent of an amendment is not, of itself, an index of its want of bona fides. In MK Samy Madasamy v Koperasi Serbaguna Sungai Gelugor Berhad & Ors [2016] 1 LNS 112 (HC) at paragraphs [19] and [20], extensive amendments to a defence, expanding it from sixteen to forty-three paragraphs, were allowed on the footing that they set out the real question in controversy; and it was there observed that there is often great difficulty in discerning the limit between stating material facts and introducing evidence, that the two invariably overlap, that fuller particularisation does no harm, and that detailed pleas should not be rejected unless they are irrelevant or superfluous. F. ANALYSIS AND DETERMINATION F.1 The Governing Framework [41] The first task is to situate this application upon the spectrum described at paragraph [38] above. Enclosure 199 was filed on 19.06.2026, thirty days after the dismissal of Enclosure 65 and the fixing of the trial dates on 20.05.2026, and approximately eight weeks before the commencement of trial on 12.08.2026. No pre-trial case management under Order 34 of the Rules of Court 2012 had taken place before that date, because the action's progress to trial had been held in abeyance pending the disposal of Enclosure 65 an application which, if successful, would have disposed of the action without a trial. [42] The application therefore does not present the paradigm with which Low Thiam Hoe (supra) was concerned. There, the amendment was sought four days before the trial, more than fourteen years after the suit was filed, to introduce a completely new defence, without particulars and without any explanation for the delay. Here, the application was made within a month of the first occasion on which trial dates existed at all, before any pre-trial case management, and for the reasons developed below in response to an identifiable development in the evidential landscape of the action. At the same time, the application cannot claim the indulgence extended to an amendment sought at an early stage: the suit is in its fourth year, and the trial is imminent. [43] In placing the application upon that spectrum, the Court does not lose sight of the sliding scale described in E & O Trading (supra) and GIIB Holdings (supra). Whatever the explanation for the timing may be, the application is made in the fourth year of the action and upon the threshold of trial. The justification required to commend it is correspondingly high, and the Court has approached it upon that footing, and not upon the more indulgent footing which an early application would attract. [44] In those circumstances, the safest and the strictest course and the course fairest to the First Defendant is to determine the application by reference to the Yamaha Motor (supra) conditions, while testing it against each of the additional considerations identified in Low Thiam Hoe (supra) at paragraph [33]: the cogency of the explanation for the timing; the presence or absence of tactical purpose; the sufficiency of the particulars disclosed; and the adequacy of costs as a remedy for the lateness. If the application satisfies that composite and more exacting standard, the debate as to which framework strictly governs ceases to matter. That is the approach the Court adopts. F.2 Bona Fides and the Explanation for the Timing of the Application [45] The explanation for the timing of this application is anchored in the procedural chronology set out at paragraphs [13] to [16] above, and it is corroborated by that chronology at every step. [46] Until 16.04.2026, the question of the performance of the MOA stood upon the footing which the late Ee Joo Guat had herself laid in her lifetime: that she had transferred part of her shares in APW and Good Deal to the Plaintiff according to the MOA. That was her pleaded case at paragraph 13.4(1) of Enclosure 61, and it was her sworn account at paragraphs 10.1 and 10.2 of Enclosure 77. Neither the pleading nor the affidavits identified the date upon which the transfers were effected. Upon the admission of Enclosure 181, a materially different position was advanced on behalf of her estate: that the share transfers had been completed on 05.05.1992, nine days before the MOA and the DOT were executed on 14.05.1992, while being characterised at the same time as performance under those instruments. The divergence is therefore twofold. It concerns the date upon which the shares moved, and it concerns the causal and legal characterisation of that movement. The Enclosure 65 Grounds record that very tension at paragraph [89], where the description of the transfers as made according to or pursuant to the MOA is set against their later characterisation as anticipatory or advance performance. The Court there observed that the recharacterisation appears neither in the pleadings nor in Enclosure 77; that it is upon its face in tension with the prospective wording of the recitals; and that whether transfers effected before the execution of the MOA can properly be treated as performance of the obligations which that instrument created or whether some other characterisation, such as part of an antecedent and separate arrangement, is to be preferred is itself a matter upon which evidence may need to be heard. The Court further recorded the competing explanation then advanced: that the transfers of 05.05.1992 were effected in connection with a proposed listing of APW upon the Kuala Lumpur Stock Exchange, reliance being placed upon a Bumiputra Merchant Bankers Berhad listing proposal exhibited to Enclosure 183, and upon the circumstance that on the same date the late Ee Joo Guat also transferred shares in both companies to a further sibling, Ee Chong Kok, who is not a party to the 1992 instruments. That explanation was denied, but without any positive contemporaneous record being offered in answer; and the Court recalled, upon the observation of the Court of Appeal in Superintendent of Lands and Surveys Kuching Division & Anor v Mohamad Rambli Kawi [2014] 1 LNS 851 (CA) that denials unsupported by evidence carry no probative weight, the limits of summary inquiry into matters of contemporaneous intention. Whether the explanation can ultimately be made good is for the trial; what matters for present purposes is that its emergence marks the point at which the chronology of performance became a contested issue upon the record. The difference is not a matter of detail. Upon the estate's case, the consideration said to support the 1992 instruments had already passed before those instruments came into existence; and the question when, and pursuant to what obligation, the shares moved became a central battleground in the action. [47] A contrary view of that development requires consideration, namely that nothing new emerged at all, because the transfer of the shares in APW and Good Deal to the Plaintiff was pleaded from the outset, at paragraph 51 of Enclosure 37, as performance of the obligations under the MOA and the DOT, so that no occasion for amendment can have arisen from Enclosure 181. The premise is correct so far as it goes, but it does not meet the point. What paragraph 51 of Enclosure 37 asserted was the fact of performance. What it did not assert, and what the affidavits of the late Ee Joo Guat did not assert, was the date of performance, or its relation in time to the execution of the 1992 instruments. It was the material admitted in April 2026 which first fixed the transfers at 05.05.1992, and thereby raised, for the first time, the question how a transfer completed nine days before the execution of the MOA and the DOT can constitute performance of obligations which those instruments created. That is not the refinement of an existing plea; it is a new proposition of fact upon a matter going to the root of the Counterclaim, and it legitimately invited an answer. [48] It was in answer to that new chronology that the January 2018 events and the familial dealings first entered the evidence. The Plaintiff's affidavit affirmed on 30.04.2026 (Enclosure 183, paragraphs 10 to 18 and 19 to 33) deposed to the 2018 Documents, the offer conveyed through Mr Loh, and the intra-familial dealings now sought to be pleaded at paragraphs 25A and 25B; the affidavit of Ee Soon Wei affirmed on 30.04.2026 (Enclosure 184) gave first-hand evidence of the 2018 events; and the First Defendant answered those matters, by denial and by objections to their relevance and authenticity, in the affidavit affirmed on 05.05.2026 (Enclosure 186). The material so adduced was not of a general character. It comprised a deed of gift, seven Forms 14A, and a draft sale and purchase agreement between Midas Bonus Sdn Bhd as purchaser and the late Ee Joo Guat and the Plaintiff as vendors, said to have been prepared by Messrs Lim Chong Phang & Amy, the late Ee Joo Guat's former solicitors, and handed by her to Ee Soon Wei on 27.01.2018. The Forms 14A bear the name of one Timothy Soon of that firm as the proposed attesting solicitor, and the file reference appearing upon the deed of gift and the sale and purchase agreement indicates, upon its face, that the firm's file had been opened in 2015. The message relayed through Mr Loh is a message dated 18.05.2018 addressed to the Plaintiff's other son, Ee Soon Seng. The Court recorded these matters at paragraph [90] of the Enclosure 65 Grounds as pointing firmly away from summary determination. The forensic significance of the January 2018 events is apparent on their face: if, in January 2018, the late Ee Joo Guat sought from the Plaintiff a fresh deed of gift, a fresh sale and purchase agreement, and fresh instruments of transfer in respect of the very share which — upon the Counterclaim — the Plaintiff already held upon trust for her under the 1992 instruments, that conduct is capable of supporting the inference that she did not herself regard the 1992 instruments as subsisting and enforceable. The Proposed Amendments track that evidence; they do not outrun it. [49] The objection that the application is an afterthought rests principally upon the proposition that the 2018 Documents were within the Plaintiff's possession or knowledge from 2018, and the estate-related materials from 2001, so that their omission from the pleading settled on 20.02.2023 must have been a conscious election. The premise is accepted; the conclusion does not follow. Possession of a document is not the same thing as an appreciation of its forensic significance. When Enclosure 52 was settled, the live question was whether the 1992 instruments were valid and enforceable at all, in circumstances where — on the pleaded case of both siblings — neither had adverted to them for decades. The precise timing of the share transfers relative to the execution of the MOA was not then in controversy: the late Ee Joo Guat's own case was that the transfers were made according to the MOA. It was Enclosure 181 which, for the first time, placed the chronology of performance at the centre of the action; and it was in preparing the answer to Enclosure 181 that, as deposed in the Plaintiff's affidavit affirmed on 15.07.2026 (Enclosure 208), the 2018 Documents were retrieved and their significance appreciated. The sequence of the affidavits bears that account out: the 2018 events surfaced in Enclosure 183, in direct response to Enclosure 181, and not for the first time in support of this application. The explanation is cogent, and the Court accepts it. [50] It is right to be precise as to what the Court does and does not accept. The requirement of a cogent and reasonable explanation insisted upon in Low Thiam Hoe (supra), and the observation drawn from Taisho Company (supra) that a failure to explain delay may itself demonstrate a want of bona fides, are not satisfied by a bare assertion that documents long held were overlooked. Had the explanation rested upon that assertion alone, it would not have sufficed. A party who has held documents for years and offers no reason beyond inadvertence for their omission from his pleading stands in a position analogous to that of the applicant in Gainhill Marketing (supra), where no satisfactory explanation was given for the delay, and comes close to the entire absence of explanation which, upon that same observation, is itself capable of demonstrating a want of bona fides. The explanation here is of a different order. It locates the omission in the state of the controversy as it stood when the pleading was settled, and the discovery and deployment of the documents in an identified evidential development occurring in April 2026; and it is corroborated by the sequence of the affidavits on the record. The Court's acceptance rests upon that corroboration, and not upon the assertion of oversight. A separate strand of the timing requires attention: the application was not made during the pendency of Enclosure 65, although the material upon which it rests was on the record from 30.04.2026. The explanation that an amendment application interposed at that point would have further delayed the disposal of a part-heard application which had already been protracted by the demise of the late Ee Joo Guat and by Enclosure 161, and might itself have invited the charge of tactical manoeuvring is a rational forensic judgment, not evidence of bad faith. Enclosure 65 invited the summary disposal of the action upon the existing pleadings; had it succeeded, the amendment would have been academic. The application was filed on 19.06.2026, within a month of the dismissal of Enclosure 65 and the fixing of trial dates. That was, in practical terms, the first realistic juncture at which the application could responsibly be brought. [52] The characterisation of the application as no more than a reactive measure, prompted by the objection that the material deposed to on 30.04.2026 was unpleaded, requires a direct answer. In Langkah Utara (supra), an amendment sought only after a procedural objection had been raised was held to be an afterthought lacking bona fides. The reasoning there turned upon the timing of the application, which the Court regarded as revealing a calculated reactive measure and an afterthought, and upon the applicant's failure to furnish cogent and satisfactory reasons for the delay, a burden which lay squarely upon the applicant. The position here differs in a respect which is decisive. An objection that material is unpleaded is not an accusation of bad faith; it is, in substance, an invitation to regularise the pleadings. A party who, upon being told that the matters he has deposed to are not upon his pleadings, applies for leave to plead them, does what the law of pleading requires of him. To treat that response as itself the badge of bad faith would place a litigant in a position from which there is no proper exit: criticised for leading unpleaded evidence, and criticised again for seeking to plead it. The Court is nevertheless alive to the appearance which the sequence creates, and has for that reason scrutinised the explanation for the timing with the care recorded at paragraphs [46] to [50] above. [53] Nor does Law Soon Pin (supra) carry the matter further. The principle there applied that a fundamental issue ought to be pleaded at the outset of the case, and that its introduction at a late stage raises the possibility of an afterthought designed to secure a tactical advantage is unexceptionable. Its application depends upon identifying what the fundamental issue is. In Law Soon Pin (supra) the proposed plea of illiteracy and non est factum was inconsistent with the pleaded case and advanced a wholly different explanation of the transaction in suit. Here, the fundamental issue whether the late Ee Joo Guat maintained, or had abandoned, such rights as she had under the 1992 instruments has been upon the pleadings since 20.02.2023, at paragraph 25 of Enclosure 52. What is now sought is the fuller particularisation of that issue and the naming of the doctrines which it engages. The distinction is between the introduction of a fundamental issue and the articulation of one already joined. [54] Nor does the application bear any of the indicia of a tactical manoeuvre of the kind condemned in Low Thiam Hoe (supra). It does not seek the vacation of the trial dates, and none is required. It does not spring a new case upon the opposing party for the purpose of defeating a pending application. And — decisively — it seeks to plead matters which this Court has already identified, in the Enclosure 65 Grounds at paragraphs [81] to [83], as live issues for the trial: whether the late Ee Joo Guat so conducted herself as to be precluded by laches, acquiescence or estoppel from asserting rights under the 1992 instruments, and whether the discretionary remedy of specific performance ought in all the circumstances to be granted. An amendment which conforms the pleadings to the issues the Court has itself held to be triable is the opposite of an ambush. [55] The Court finds that the application is bona fide, and that the timing is supported by a cogent and reasonable explanation within the meaning of Low Thiam Hoe (supra) at paragraph [33] (c) and (d), and that the application is not a tactical manoeuvre within that paragraph. F.3 Character of the Defence and the Alleged Inconsistencies [56] The third issue is whether the Proposed Amendments would turn the Plaintiff's defence to the Counterclaim into one of another and inconsistent character, or are impermissibly inconsistent with his existing pleading and his earlier affidavit evidence. [57] The existing paragraph 25 of Enclosure 52 already disputes the validity and enforceability of the MOA and the DOT upon the footing that the late Ee Joo Guat never demanded performance of either instrument, never mentioned them in her previous correspondence with the Plaintiff, and acknowledged the Plaintiff as the registered owner of the one-sixth undivided share. The first and third of those matters are pleaded, respectively, at paragraphs 25(b)(i) and 25(b)(iii) of that pleading, and the amendments now proposed are tied to them expressly: the new paragraph 25(b)(iii) pleads a further acknowledgment of the same character, and paragraph 25A is pleaded in relation to paragraph 25(b)(i). The first group of substantive amendments — the January 2018 events — particularises that case: the request for the 2018 Documents, and the offer conveyed through Mr Loh, are pleaded as conduct of the late Ee Joo Guat inconsistent with the continued assertion of the rights now advanced in the Counterclaim. The second group — the familial dealings at paragraphs 25A and 25B — supplies the context said to explain why neither sibling insisted upon strict enforcement of obligations owed by the one to the other over three decades. Neither group founds a separate claim or seeks any new relief. Both are directed to the question already implicit in paragraph 25: whether, having regard to her non-enforcement and subsequent conduct, the late Ee Joo Guat maintained or had abandoned such rights as she had under the 1992 instruments. The amendments add factual particulars and expressly identify the doctrines of abandonment, estoppel and laches, but the essential character of the pleading a defence resisting the enforcement of the 1992 instruments remains unchanged. [58] The legal component of the Proposed Amendments paragraph 25C and the consequential cross-references expressly pleads abandonment, estoppel and laches as the legal consequences said to arise from the pleaded facts. Upon the principles stated at paragraph [39] above, the absence of those express labels from the existing pleading is not necessarily fatal where the material facts giving rise to the doctrines have been sufficiently pleaded. Paragraph 25 of Enclosure 52 already pleads, in substance, that for more than twenty-nine years after the MOA and the DOT were executed on 14.05.1992, the late Ee Joo Guat neither demanded their performance nor relied upon them in her correspondence, and continued to acknowledge the Plaintiff as the registered owner of the one-sixth undivided share in the 22 Lands. The Proposed Amendments particularise that correspondence by identifying the dates 07.06.2018, 20.04.2022 and 11.08.2022, and introduce the further facts pleaded at paragraphs 25A and 25B as context for the alleged non-enforcement and abandonment. The express articulation of the equitable doctrines does not alter the essential character of the Plaintiff's defence to the Counterclaim; it identifies with greater precision the issues which the trial Court must resolve, including issues which the Enclosure 65 Grounds have already recognised as engaged. The amendments arise from the same underlying controversy concerning whether the late Ee Joo Guat maintained or abandoned such rights as she possessed under the MOA and the DOT, and are conducive to the orderly determination of that controversy at trial. [59] Gainhill Marketing (supra) is distinguishable upon the material features which governed it. There, the amendment materially altered the case as to the representations relied upon and the parties involved; it depended in part upon a chronology extending some twenty-four years which formed no part of the case as originally framed; and it was filed approximately two years after the commencement of the action without a satisfactory explanation for the delay. Here, the principal allegations concern the conduct and course of dealing between the same two siblings whose respective rights under the MOA and the DOT have been in issue from the outset. Although the proposed particulars refer also to other family members and intermediaries, no new party is joined and no new relief is sought. The explanation for the timing of the application has been addressed at paragraphs [46] to [51] above. It is right to acknowledge that the particulars concerning the parties' familial dealings in 2001 arise from transactions distinct from the instruments executed in 1992 and reach considerably into the past. Whether those particulars are sufficiently relevant, and whether their introduction would occasion irremediable prejudice, are addressed at paragraphs [65] and [66] below. Their antiquity is nevertheless not, without more, determinative, particularly where the Counterclaim itself seeks the enforcement of instruments executed on 14.05.1992 and places the parties' subsequent conduct in issue. [60] As to the alleged inconsistency with paragraph 25 itself: the plea that the Plaintiff retained no copy, and had no recollection, of the MOA and the DOT is a plea about the 1992 instruments. The proposed paragraphs 25(b)(iii) and (iv) concern distinct documents a deed of gift, a sale and purchase agreement with Midas Bonus Sdn Bhd, and Forms 14A presented through his son for the Plaintiff's execution in January 2018. There is no contradiction between an absence of recollection of instruments executed in 1992 and a recollection of different documents presented more than twenty-five years later. Indeed, the two pleas cohere: upon the Plaintiff's case, the very fact that fresh instruments of disposition were sought in 2018 tends to confirm that the 1992 instruments had not been treated by either sibling as governing their affairs. [61] As to the alleged inconsistency with paragraph 11 of the Plaintiff's affidavit affirmed on 28.02.2023 (Enclosure 56): in that paragraph the Plaintiff stated, to the best of his recollection, that the objective and purpose of the MOA and the DOT was to facilitate a smooth exchange of interests between himself and the late Ee Joo Guat. A statement of recollection as to the object of a document is not an admission that the document is valid, enforceable, performed, or that it remained capable of enforcement after nearly three decades of mutual inaction. Paragraph 25 of Enclosure 52 has, from the outset, expressly challenged validity and enforceability upon the ground of the late Ee Joo Guat's conduct over the years. There is no inconsistency; and even if a tension were thought to arise, an inconsistency between a proposed plea and earlier affidavit evidence is, without more, a matter for cross-examination and for weight at the trial, not a ground for refusing the party leave to plead a case which is neither irrelevant nor plainly unsustainable. [62] The Court accordingly finds that the Proposed Amendments do not turn the defence into one of another and inconsistent character. Even if the pleas of abandonment, estoppel and laches were to be regarded as a new line of defence, they would remain permissible upon the principle in Abdul Johari (supra), which is directed to precisely that case, and would satisfy the same-facts condition described at paragraph [26] above, because they arise out of the same facts and the same transaction as the case already pleaded the point to which the Court now turns. F.4 Same or Substantially the Same Facts, Particularity and Relevance Whether a proposed amendment arises out of the same or substantially the same facts is substantially a matter of impression: Palaniappan (supra). The impression here admits of little doubt. The Proposed Amendments remain anchored in the same principal protagonists, the same Partnership, the same 22 Lands and the same 1992 instruments, although they add contextual facts involving other family members and related dealings; and they are directed to the central question which has been raised by the defence to the Counterclaim since 20.02.2023 — whether the late Ee Joo Guat remained entitled to assert such rights as she had under the MOA and the DOT, or had abandoned or become precluded from asserting them. The same-facts condition described at paragraph [26] above is accordingly satisfied; and the test for which Hock Hua Bank (supra) stands — whether the new matter arises out of the same or substantially the same facts as that already pleaded — is met, although that decision was concerned with a new cause of action sought to be added after the expiry of a period of limitation rather than with a new line of defence. [64] Two of the general rules collected in U-Meng Holdings (supra) are conveniently applied at this point. The first is that an amendment will not be allowed where the facts, or substantially the same facts, did not exist at the commencement of the action. That disqualifying circumstance does not arise here, by reason of the very circumstances relied upon in opposition: the events of 2001 and January 2018, and the documents which evidence them, all pre-date the commencement of this action on 04.10.2022. The Proposed Amendments introduce no supervening fact and no matter post-dating the writ. The second is the pair of requirements adopted from Taisho Company (supra): that the facts of the case remain the same or substantially the same, and that the justice of the case be with the applicant. The first is met for the reasons given at paragraph [63] above. The second falls to be determined upon the whole of the material, including the question of prejudice addressed below. [65] The particulars concerning the late mother's estate the 2001 trust deed, the guarantee, the sisters' objections, the settlement agreement of 27.07.2001, and the payments of August 2001 stand upon a different footing from the January 2018 events, and the objection that they range beyond the 22 Lands has force at the level of first impression. But the pleaded purpose of those particulars is explanatory: they are relied upon as the course of intra-familial dealing from which the implied understanding of mutual non-enforcement is to be inferred, and as shedding light upon why the late Ee Joo Guat did not enforce any rights over the Plaintiff's one-sixth share for more than three decades. Whether that inference should ultimately be drawn, and what weight the dealings will bear, are quintessentially matters for the trial Court. That is not a novel view of these dealings. At paragraph [92] of the Enclosure 65 Grounds this Court recorded that the Plaintiff had sought to explain the three-decade hiatus between the execution of the 1992 instruments and their first invocation by reference to a history of familial dealings including the provision of financial support to the late Ee Joo Guat before the death of their mother on 08.02.1999, and his subsequent intervention to assist her in resisting litigation by their sisters concerning the administration of their mother's estate and held that the proper characterisation of the relationship between the parties over the intervening years, and the inferences to be drawn from the conduct on either side, are not amenable to resolution upon an affidavit record and will require evidence, examination and measured factual assessment at trial. The particulars now sought to be pleaded are, in substance, the pleaded form of that same account. At the amendment stage, detailed particulars should not be rejected merely because they overlap with evidence; MK Samy Madasamy (supra) at paragraph [20] indicates that such particulars may properly remain unless they are irrelevant or superfluous. Particulars capable of supporting an inference of a mutual understanding of non-enforcement, in an action where the Enclosure 65 Grounds have held at paragraphs [81] to [83] that the parties' conduct over the intervening decades bears directly upon laches, acquiescence, estoppel and the equitable discretion, cannot be so characterised. The Court does not determine the ultimate merits of the plea upon an application for leave: HSBC Bank Malaysia (supra). That does not dispense with the requirement in Low Thiam Hoe (supra) that a late amendment introducing a new case disclose sufficient particulars to enable the Court to ascertain whether it has a real prospect of success. Because the objection upon relevance is a serious one, the Court states expressly the limits of what is now permitted, so that the scope of this leave is not misunderstood. First, leave to plead those particulars is not a finding that they are relevant; it is a determination that they are not so plainly irrelevant or superfluous that they should be excluded in advance of the evidence. Secondly, they are permitted to be pleaded for the limited purpose identified as the course of intra-familial dealing from which the alleged understanding of mutual non-enforcement is said to be inferred and for no other. It will remain open to the trial Court to find that they establish nothing, or that they have no bearing upon the 22 Lands or upon the Partnership, and to disregard them accordingly. Understood in that way, the authorities which insist that an amendment arise out of the same facts are not offended, and the principle in Dato' Tan Heng Chew (supra) is applied rather than strained: the transaction in suit remains the MOA, the DOT and the parties' conduct in relation to the Plaintiff's one-sixth share, and the 2001 dealings enter the pleading as contextual material facts from which an inference concerning that conduct is sought, and not as a separate transaction founding separate relief. Nothing in this paragraph qualifies what is said at paragraph [65] above. Having already held that the characterisation of the parties' relationship over the intervening years requires evidence, it would be incongruous for the Court to hold in the same breath that the facts constituting that relationship may not be pleaded. [67] The requirement of full particulars in Low Thiam Hoe (supra) at paragraph [33] is also met. The Proposed Amendments identify the instruments by date, the payments by amount and month, the actors by name, and the correspondence by date. This is not the unparticularised new defence which troubled the Federal Court in that case. The contemporaneous instruments, correspondence and payment records identified in the proposed pleading provide an evidential foundation upon which the pleas may realistically be proved. That conclusion is reinforced by the circumstance that the substance of those matters was found, in the Enclosure 65 Grounds, to raise triable questions not amenable to summary determination. Taken together, that material demonstrates more than a merely speculative prospect or chance of success and satisfies the heavier standard identified in E & O Trading (supra) for an application made at an advanced stage. [68] The final and most substantial issue is prejudice. The principal prejudice asserted is that the late Ee Joo Guat passed away on 05.02.2025 and cannot now answer the new matters: the January 2018 events, the alleged implied understanding, and the pleas of abandonment, estoppel and laches. The point deserves, and has received, the Court's most anxious consideration, for it is the one feature of this application which no order for costs could ever restore. [69] The starting point is the principle in ASM Development (supra) at paragraph [15]: the relevant prejudice is prejudice resulting from the amendment. The demise of the late Ee Joo Guat preceded this application by more than sixteen months. It preceded Enclosure 181 and the estate's own new evidential case by more than nine months. It is a grievous circumstance of this litigation; it is not a consequence of the Proposed Amendments. The true question is therefore a narrower one: whether the Proposed Amendments enlarge the field of controversy, beyond that which would in any event be traversed at the trial, in a manner which the estate cannot fairly meet without the testimony of the deceased. [70] Upon examination, they do not, for five reasons. [71] First, the core of the amended case — non-enforcement of the 1992 instruments for three decades, coupled with the solicitors' acknowledgments has been on the pleadings since 20.02.2023, at paragraph 25 of Enclosure 52. The late Ee Joo Guat answered that case in her lifetime: by her Reply at paragraph 13.4(1) of Enclosure 61, and by her affidavits at Enclosures 66 and 77. Her sworn account of the 1992 transaction and of the share transfers stands upon the record. The equitable inquiries to which the amendments give a name laches, acquiescence, estoppel, and the discretionary character of specific performance were held in the Enclosure 65 Grounds at paragraphs [81] to [84] to be issues which the trial must in any event resolve upon the facts as ultimately found. The amendments conform the pleadings to that reality; they do not create it. [72] Secondly, the genuinely new narratives are, in their nature, documentary in substantial measure, though not exclusively so. The January 2018 events rest upon the 2018 Documents themselves, a contemporaneous message conveyed through Mr Loh, and the solicitors' correspondence which followed; the familial dealings rest upon the trust deed of 20.03.2001, the guarantee of 30.03.2001, the settlement agreement of 27.07.2001, and the payment records of August 2001. The Court does not overlook that the request said to have been transmitted through Ee Soon Wei, the message said to have been relayed through Mr Loh, and the alleged implied understanding of mutual non-enforcement will depend also upon oral testimony, upon proof of intention, and upon findings as to credibility. Those, however, are the ordinary materials of a trial, and nothing in them disables the estate from meeting the amended case. Documents of that kind are tested by production, by cross-examination of the witnesses who speak to them the Plaintiff and Ee Soon Wei among them and by the countervailing documents in the custody of the estate. The First Defendant, as executor, is in a position to obtain the deceased's files and estate records, to approach her former solicitors the authors of the correspondence of 07.06.2018, 20.04.2022 and 11.08.2022 and to approach the relevant family members and company secretaries, as the estate's own application at Enclosure 161 and the affidavit at Enclosure 181 themselves demonstrate. It is material that the First Defendant has nowhere deposed that he is without access to the deceased's files and records; nor that the persons concerned in the dealings now pleaded cannot be approached one of them being his own mother, Chee Ah Moy @ Ee Joo Har, herself a beneficiary of the estate of the late Lim Kim Bee and one of the three sisters whose objections led to the settlement agreement of 27.07.2001; nor that the late Ee Joo Guat's former solicitors cannot be asked why the 2018 Documents were prepared. Upon the material before the Court, each of those avenues is open. A possible answer that a solicitor could do no more than take his client's instructions and cannot speak to her intention understates the value of contemporaneous professional records. It also understates what the record already discloses: a file reference upon the deed of gift and the draft sale and purchase agreement indicating a file opened in 2015, and Forms 14A naming the intended attesting solicitor. Instructions taken, drafts prepared and letters written at the time are themselves evidence of what was then intended, and they lie within the estate's reach. [73] Thirdly, the estate's own conduct of this litigation since 05.02.2025 tells against the proposition that it cannot fairly meet historical issues without the deceased's testimony. Through Enclosures 161 and 181, the estate itself assembled and deployed, after the demise, a detailed evidential case concerning corporate events of 1991 to 1993 directors' resolutions, statutory forms, cancelled certificates and register extracts obtained from records, relatives and company secretaries. The estate has thereby demonstrated precisely the capacity which it now disclaims: the capacity to reconstruct and to litigate decades-old events from documents and from third parties. It would sit ill for the estate to advance a new documentary case reaching back to 1992 while contending that the Plaintiff must be shut out from pleading his documentary answer because the deceased is unavailable. [74] Fourthly, the absence of the deceased's viva voce evidence is a feature of the trial whether or not the amendments are allowed, although its effect will not necessarily be uniform across all issues. The late Ee Joo Guat addressed certain aspects of the existing case in Enclosures 61, 66 and 77, but had no equivalent opportunity to answer the newly particularised January 2018 events, the alleged implied understanding or the detailed 2001 dealings. That distinction must be taken into account when prejudice is assessed. Subject to the applicable rules of evidence and to any directions or rulings of the trial Court concerning admissibility, the trial Court will assess the documentary and testimonial evidence as a whole, including such portions of the deceased's affidavits as are properly receivable, and will determine what weight and inferences the evidence justifies in light of her unavailability. The evidential difficulties arising from the passage of time and from her death are therefore material considerations, but they do not necessarily require the exclusion, in advance of trial, of a line of defence whose essential foundation — prolonged non-enforcement and the subsequent acknowledgments of the Plaintiff's registered interest — already appears in paragraph 25 of Enclosure 52. Paragraph [82] of the Enclosure 65 Grounds treated the related questions of forgetfulness, the lapse of three decades and the parties' subsequent course of conduct as matters requiring investigation at trial rather than summary determination. [75] Fifthly, the prejudice which remains capable of procedural cure includes the need to plead responsively, to gather answering documents and to prepare for an enlarged, though substantially foreshadowed, field of crossexamination. The trial has not begun. The factual subject matter of the Proposed Amendments was placed on the record in the affidavits filed for the continued hearing of Enclosure 65, namely Enclosures 183 and 184, and was answered by denial and objections to relevance and authenticity in Enclosure 186. It has since been the subject of the broader prejudice objections advanced in Enclosure 205. There is therefore no forensic surprise as to the general nature of the case now sought to be pleaded, although the Court does not treat those affidavits as constituting a discrete factual answer to every proposed sub-paragraph. Subject to appropriate directions, the First Defendant may amend his Reply consequentially, adduce answering evidence and cross-examine the Plaintiff and his witnesses. Those measures, together with an appropriate order for costs, are capable of addressing the additional procedural burden occasioned by the amendments. The Court has not overlooked the caution in Low Thiam Hoe (supra) at paragraph [33] that lateness cannot necessarily be compensated by costs. Nor does it overlook that the interval between April and June 2026 reduced the time available for preparation before trial. That interval did not, however, cause or aggravate the irreversible feature upon which the First Defendant principally relies: even if the application had been made promptly after Enclosure 181 was admitted on 16.04.2026, the late Ee Joo Guat had already been deceased for approximately fourteen months. In striking the balance contemplated in Dato' Tan Heng Chew (supra) at paragraph [46], the Court considers that the remaining procedural prejudice can be addressed by directions and costs, whereas requiring the parties to proceed to trial upon pleadings which do not fully articulate issues already identified as material would occasion the greater injustice. Three matters bearing directly upon prejudice of this character require specific attention. The first is Smijaya (supra), which bears a sufficiently close resemblance to warrant careful consideration. There, the original defence was confined to representations concerning the purchase of United States currency and the plaintiff's alleged failure to advise the first defendant to make that purchase before the currency crisis. The proposed amendment introduced additional representations attributed to a branch manager who had died, together with an alleged collateral contract and implied terms. Although the defendants had relied upon those representations when resisting summary judgment in 2001, they did not seek amendment until 18.05.2005 and furnished no satisfactory explanation for the delay. The Court of Appeal upheld the finding that the application was not bona fide. Those features are not reproduced here. The Proposed Amendments do not seek to erect an entirely new collateral agreement upon previously unpleaded oral representations. They rest in substantial measure upon contemporaneous documents said to have originated from, been prepared for or passed through the late Ee Joo Guat, her former solicitors or third parties, and they are directed principally to the existing defence of prolonged non-enforcement and acknowledgment of the Plaintiff's registered interest. That defence was pleaded on 20.02.2023 while she was alive. She answered aspects of it in Enclosure 61 and in her affidavits, principally by asserting that the share transfers were effected according to the MOA and by addressing the relevant correspondence. The January 2018 events are supported by documents bearing her former solicitors' file reference, by subsequent solicitors' correspondence and by the evidence of Ee Soon Wei, although the alleged instructions and intentions remain matters for proof at trial. The Plaintiff's explanation, supported by the sequence of Enclosures 181, 183 and 199, is that the occasion for amendment arose from the documentary case advanced by the estate after the deceased's death, rather than from the death itself. Smijaya therefore remains an important caution, but its combination of an entirely new oral case, prolonged unexplained delay and absence of bona fides is not replicated upon the present record. [77] The second is Siah Lian Huet (supra). That case did not concern an application to amend a pleading. It concerned whether interests in properties registered in the plaintiff's name were gifts or were held upon resulting trust. The Court examined the circumstances of the transfers together with the contemporaneous letters of nomination, which expressly recorded the deceased's intention to give the interests for natural love and affection, and held that the documentary evidence negated the alleged resulting trust. The case therefore illustrates the caution required before an inference drawn from surrounding circumstances is permitted to contradict an intention expressly recorded in contemporaneous documents, particularly where the maker is no longer available to testify. That caution will apply at the trial of the present action. It is, however, directed to the evaluation of evidence and the drawing of inferences; it does not establish that a competing case supported by pleaded facts and admissible evidence must be excluded at the amendment stage. The Proposed Amendments seek to place before the trial Court the Plaintiff's case concerning the parties' subsequent conduct and the alleged non-enforcement of the MOA and the DOT. Whether that conduct is sufficient to establish abandonment, estoppel or laches, or otherwise to affect the enforceability of the rights asserted under those instruments, is a separate question which must be determined upon the evidence. The burden of proving the material facts supporting those doctrines rests upon the Plaintiff. In discharging that burden, he must confront the terms of the instruments dated 14.05.1992 and the evidence advanced by the estate concerning their alleged performance. The late Ee Joo Guat's unavailability to answer the newly particularised allegations is a material circumstance which the trial Court must take into account, together with the whole of the documentary and testimonial record, when deciding whether the inferences for which the Plaintiff contends should be drawn. [78] The third is the contention, founded upon ASM Development (supra), that the First Defendant faces not merely an evidential disadvantage but an absolute evidential void because he cannot call the late Ee Joo Guat to rebut the alleged implied understanding. ASM Development (supra) requires the Court to consider whether the amendment would cause the opposing party difficulty in defending the amended case at trial and to balance that prejudice against the applicant's need to amend. Part of the prejudice asserted here does arise from the amendments: although prolonged non-enforcement and the acknowledgments were already pleaded, the alleged implied understanding and the detailed 2001 dealings were not. The late Ee Joo Guat had no opportunity to answer those newly particularised allegations in her lifetime. The disadvantage is therefore real and cannot be dismissed on the footing that it would have existed in precisely the same form without amendment. It is not, however, an absolute evidential void. Her account of the 1992 transaction and the alleged share transfers appears in Enclosure 61 and in her affidavits, subject to the rules governing their admissibility and use at trial. The estate may also rely upon the contemporaneous documents and such evidence as is available from the former solicitors, family members and other relevant witnesses. As to Ketteman (supra), the Court has taken into account the strain of prolonged litigation, the anxiety occasioned by new issues and the public interest in the efficient despatch of legal business. Those considerations weigh against amendments which disrupt an advanced trial and create prejudice incapable of compensation. In the present case, the trial has not commenced, the factual subject matter has already been disclosed in Enclosures 183 and 184 and answered in Enclosure 186, and the trial dates can be preserved by appropriate directions. The related objection founded upon natural justice must nevertheless be considered separately. Formal notice and a fair opportunity to answer are necessary, but they do not eliminate the evidential disadvantage caused by the deceased's unavailability. Here, the amendments provide notice through the prescribed pleading process, while the directions set out below permit a consequential Reply, answering evidence and cross-examination. The Court is satisfied, upon balancing those safeguards against the disadvantage identified, that the First Defendant will retain a fair opportunity to contest the amended case. He may challenge the authenticity, admissibility and weight of the documents, cross-examine the witnesses who speak to the alleged dealings and contend at trial that the implied understanding is unsupported, the documentary inferences are strained and the Plaintiff's account is self-serving. [79] Having found at paragraph [67] above that the Proposed Amendments disclose sufficient particulars and more than a merely speculative prospect of success, it remains to record that the residual objections that the allegations are untrue, that the inferences contended for should not be drawn, and that the equitable pleas will fail upon the facts concern the ultimate merits. They are matters of evidence, legal effect and weight for the trial; they are not grounds for refusing leave to plead a case which is neither irrelevant nor plainly unsustainable: HSBC Bank Malaysia (supra); MK Samy Madasamy (supra). The trial dates are unaffected: no vacation of the trial dates commencing on 12.08.2026 has been sought, and none is warranted. F.6 Consequential Compliance, the Trial Dates and Costs [80] The objection founded upon consequential compliance is a practical one, and it deserves a practical answer. If leave is granted, the First Defendant may need to plead responsively, to amend or supplement witness statements, to assemble further documents, and to consider whether further witnesses should be called. Those are real burdens. They are also the very burdens which an order for costs and appropriate directions exist to meet, and they do not touch the fairness of the trial provided that time is given. Time can be given without displacing the trial dates. The Proposed Amendments add no party and no relief; the documents to which they refer are already exhibited upon the record; and the witnesses to whom they speak are, so far as the material discloses, already identified. The Court is satisfied that the directions set out below will enable the First Defendant to meet the amended case within the time remaining before

08.2026, and it records that if, upon compliance, the First Defendant should find himself genuinely unable to be ready, liberty to apply is expressly reserved. The Court is informed that the documents required for pre-trial case management have not yet been settled or exchanged. The directions below are framed accordingly. They are staged, so that the pleadings close before the statements of case and the bundles are settled; they provide expressly for the position where the parties are unable to agree, so that disagreement upon any of those documents does not itself become a source of delay; and they fix a case management date shortly before the trial at which the Court will satisfy itself that each party is ready to proceed. Those directions are given upon the footing that the trial dates, commencing 12.08.2026, stand. Because the time remaining is short and the trial dates are to be held, those directions are not merely exhortatory. They carry a sanction: a party who does not comply is not to rely at the trial upon what it has filed or served out of time, save by leave. A sanction of that kind bears upon the defaulting party alone, and does not visit the default upon the trial itself. [81] As to costs, the position is straightforward. The Plaintiff seeks an indulgence at a late stage in a long action, and the First Defendant has been put to the expense of resisting an application which, however explicable its timing, was occasioned in part by the Plaintiff's own failure to plead at the outset facts which lay within his knowledge. Costs must follow that reality, and must do so in any event, irrespective of the outcome of the action. G. CONCLUSION [82] The issues identified at paragraph [25] above are answered as follows. Although the application was made late in the life of the action, it was filed within one month of the dismissal of Enclosure 65 and the fixing of the trial dates. For the reasons already given, the Court accepts the Plaintiff's explanation that the need to amend was appreciated following the admission of Enclosure 181 and the preparation of the answering evidence in Enclosures 183 and 184. The application withstands scrutiny under the stricter framework in Low Thiam Hoe (supra), and the choice between that framework and Yamaha Motor (supra) is therefore immaterial to the result. The application is bona fide, is supported by a cogent explanation and has not been shown to be a tactical manoeuvre. The Proposed Amendments do not alter the essential character of the Plaintiff's defence to the Counterclaim, which remains a challenge to the enforceability of the rights asserted under the MOA and the DOT. Paragraph 25 of Enclosure 52 already pleaded prolonged non-enforcement and acknowledgment of the Plaintiff's registered one-sixth share. The amendments expressly identify the equitable doctrines said to arise from that conduct and add factual particulars, including the January 2018 events and the alleged implied understanding, which were not previously pleaded. Those matters arise out of the same facts and the same transaction as the case already pleaded, and form part of the same underlying controversy concerning whether the late Ee Joo Guat continued to assert, or had abandoned or become precluded from enforcing, rights under those instruments. The particulars concerning the late mother's estate stand upon a different footing. As paragraphs [65] and [66] above record, they are admitted not as a separate transaction founding separate relief, but only as contextual evidence of the alleged course of intra-familial dealing from which the Plaintiff seeks to infer an understanding of mutual non-enforcement. Their relevance, admissibility and ultimate sufficiency for that purpose remain matters for the trial Court. The death of the late Ee Joo Guat creates a real and irreversible evidential disadvantage, particularly in relation to the newly pleaded allegations concerning her intentions and personal dealings. The Court has taken that disadvantage fully into account. It is nevertheless satisfied that substantial parts of the new case are documentary, that the First Defendant has had prior notice of their factual subject matter through Enclosures 183 and 184, and that appropriate directions will afford him a fair opportunity to plead responsively, adduce evidence and cross-examine the available witnesses. On balance, the prejudice does not outweigh the injustice of preventing the parties from placing the fully articulated controversy before the trial Court. [83] The authorities relied upon in opposition have been considered individually and cumulatively. Smijaya (supra) demonstrates that the death of the person alleged to have made previously unpleaded oral representations may constitute irremediable prejudice where the amendment is pursued years after the applicant became aware of the death and without sufficient justification. Siah Lian Huet (supra) cautions against displacing a deceased person's express written intention by inferences drawn from circumstantial evidence. For the reasons already given, the documentary foundation, procedural history and scope of the Proposed Amendments distinguish the present case; the remaining difficulty is one of proof at the trial. Langkah Utara (supra), Law Soon Pin (supra) and Gainhill Marketing (supra) turned, in differing combinations, upon unexplained or reactive delay, tactical purpose, inconsistency with the existing case and substantial departure from the original pleadings. Those features are absent here. E & O Trading (supra) and GIIB Holdings (supra) prescribe a high standard of justification for a late amendment, which the Court has applied and, in its judgment, finds satisfied. Applying the three conjunctive conditions in Yamaha Motor (supra), as restated in MGG Pillai (supra) and collected in U-Meng Holdings (supra), together with the additional considerations in Low Thiam Hoe (supra) and the broader considerations of justice and efficient case management identified in Ketteman (supra), the justice of the case within the meaning of Taisho Company (supra) lies with the granting of leave upon terms. [84] Enclosure 199 is accordingly allowed, upon the terms and subject to the directions set out below. H. ORDERS OF THE COURT [85] The Court makes the following orders:

leave is granted to the Plaintiff to amend the Reply and Defence to the First Defendant's Counterclaim dated 20.02.2023 (Enclosure 52) in the terms set out in Lampiran A to Enclosure 199;

the Amended Reply and Defence to the First Defendant's Counterclaim shall be filed and served on or before 30.07.2026;

the First Defendant shall be at liberty to file and serve a consequentially amended Reply to the Plaintiff's Defence to the Counterclaim, if so advised, on or before 03.08.2026;

the Bundle of Pleadings shall be filed and served on or before 04.08.2026, and the parties shall by that date have exchanged all documents intended to be relied upon at the trial;

the parties shall file and serve, on or before 06.08.2026, the Statement of Agreed Facts, the Statement of Issues to be Tried, the Common Bundle of Documents (Parts A, B and C) and the List of Witnesses; where agreement upon any of those documents cannot be reached, each party shall by that date file and serve its own statement or bundle, identifying precisely what is agreed, what is not agreed, and the reason for the disagreement;

each party shall file and serve its Statement of Case, and shall exchange the witness statements of the witnesses it intends to call, on or before 07.08.2026;

the action shall be fixed for pre-trial case management on 10.08.2026, when the Court will satisfy itself as to compliance with sub-paragraphs (b) to (f) above and as to the readiness of the parties for trial; the times fixed by those sub-paragraphs are peremptory, and any application to extend them shall be made promptly and supported by an affidavit explaining the default; and a party who has not complied with sub-paragraph (d), (e) or (f) shall not be at liberty to rely at the trial upon any document, statement or witness statement filed or served out of time, save with the leave of the trial Judge, which shall be granted only where the default is satisfactorily explained and the opposing party would not thereby be prejudiced;

no further amendment to the pleadings shall be made without leave of the Court, and the trial shall proceed on the dates fixed, commencing 12.08.2026;

the costs of this application, and the costs occasioned by the amendments, fixed in the sum of Rm 10,000.00 shall be paid by the Plaintiff to the First Defendant in any event; and

there shall be liberty to apply. Dated 29 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Encik Andrew Chiew Ean Vooi Bersama Cik Ho Ai Ting & Encik Man Weng Keat Tetuan Lee Hishammuddin Allen & Gledhill Peguambela dan Peguamcara Level 6, Menara 1 Dutamas, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur. Lawyer For Defendants : Encik Joshua Vijayan Dharmaraj Tetuan Bell & Lee Peguambela dan Peguamcara No. 183-A, Jalan Merdeka, Taman Melaka Raya, 75000 Melaka. (b/p Defendan Pertama) Encik Andre Wee Enclik Andre Wee Tetuan Yap Koon Roy & Associates Peguambela dan Peguamcara No. 47-B (1$^{st}$ Floor), Jalan Ong Kim Wee, 75300 Melaka. (b/p Defendan Kedua)