However, now under O 34 of the Rules of Court 2012, the progress of the case was no longer left in the hands of the litigants but with the court in the driver’s seat. Courts in Malaysia had consistently held that where there was a delay in making an amendment application, the onus was on the applicant to furnish a reasonable explanation for such as delay and this was in effect an additional factor to the Yamaha Motor’s rules. In the present case, there had been five case managements since 2011 and there had been no indication at all Page 9 of 21 that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these two new issues were not pleaded when preparing for trial. Such an explanation could not be acceptable. In the circumstances, the Court of Appeal fell into an error of law when it applied the principles in Yamaha Motor without appreciating that those principles by themselves were insufficient to deal with an application to amend, which introduced two new defences on the eve of a trial. The Court of Appeal had also failed to appreciate that the defendant had to bear the burden of producing material and cogent reasons to explain why the change was sought so late (see paras 18, 25, 27, 29 & 33)”. No surprise nor prejudice [21] It is, in the instant case before me, the primary contention of the defendant that the plaintiff had failed to provide any reasonable explanation for the delay in its application to amend its pleadings. This assertion is not without basis. Nothing has been stated in the affidavits in support of this application as to why the plaintiff decided to take this course of action only at this stage, and not earlier when the objection was first raised. [22] Is this fatal to the amendment application? After a careful examination of the circumstances and justice of the case, I ruled in the negative. At the hearing, counsel for the plaintiff agreed that the amendment application came late in the day, but maintained that the law as set out in Order 20 r 5 (1) of the RC 2012 envisages that leave could still be given for amendment to pleadings applied for at any stage of the proceedings, and that the decision whether or not to allow amendment is Page 10 of 21 eminently within the discretion of the trial judge considering the circumstances of the case. [23] It should be stated that an important reason for the decision in Hong Leong Finance, as mentioned in the passage reproduced earlier is the introduction of the new RC 2012, in respect of which, it is worthy of emphasis, that Zulkefli CJ (Malaya) (now PCA) had also instructively held as follows:- “[18] …Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80)”. [24] The imperative of meeting the objective of the RC 2012 in ensuring timely disposal of cases is further highlighted by His Lordship in the following passages of the judgment:- “[26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management Page 11 of 21 procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. [27] In our instant case, there had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable”. [25] The application in the instant case before me is not one made before trial. But this is not to suggest that an application after trial has commenced is less objectionable than one before trial starts. Far from it. It must instead surely depend on the circumstances and facts of each case. But the important point is that there is absolutely no issue of the amendment application delaying the trial for it has started and even concluded. There could be a slight delay in that my decision on the amendment application should first be made before I give the decision on the main suit; but otherwise, the risk of the trial being delayed or postponed did not arise. [26] Thus in the circumstances of the case, the factor of time of application alone cannot, even in the absent of a cogent reason for the delay in making the application, without more, be a basis to decline the request, unless mala fide is shown. But none is shown by the defendant. Page 12 of 21 [27] It is to be observed regardless that as submitted by the defendant, there is a distinction between an amendment application made before trial commences and one after conclusion of one. The latter, like the situation presently, could be said to confer on the apparently unsuccessful party who is seeking the amendment, an unfair opportunity to renew its claim against his opponent on the basis of an entirely new or different set of previously un-pleaded facts (see the Court of Appeal decision in Pfizer Ireland Pharmaceuticals v Ranbaxy (Malaysia) Sdn Bhd [2013] 2 CLJ 61). In this sense, the ground for the amendment concerning the need to strengthen the overall claim of the plaintiff, as stated by the plaintiff, as referred to earlier, is patently misconceived. [28] But in the instant case, the alleged un-pleaded issues (particularly on the duty to supply slop oil) had been raised by the plaintiff to its own and to the defendant’s witnesses. They all gave their versions of responses to those issues. And the defendant’s counsel had in response cross-examined the plaintiff’s witnesses on their replies to those issues, as did learned counsel for the defendant’s own witnesses, in re-examination. [29] In my observation, it became increasingly clearer, as the trial progressed, and as more testimonies were heard, that an especially key issue of controversy or primary bone of contention between the parties is the alleged failure of the defendant to supply slop oil to the plaintiff in violation of the JVA. All the relevant witnesses were asked questions on this, by both the counsel for the parties. It is the real question in controversy between the parties, and whilst bearing in mind the Page 13 of 21 prevailing law as enunciated in Hong Leong Finance, it is nevertheless not for the Courts to punish the mistakes of the parties in the proceedings by disregarding this important question and rejecting the amendment application. [30] It would not be in the interest of justice that the true issue of controversy be disregarded by this Court only on account of it being un-pleaded as alleged by the defendant. Even though the issue was not specifically stated in the list of issues to be tried filed by the parties, the issue had in fact been raised and dealt with extensively by the answers given by most of the witnesses. In the exercise of my discretion to consider this amendment application, I must not only consider whether the amendment would cause injustice to the defendant, but more critically, also determine whether in the circumstances of this case, it is just for me to grant leave. [31] After all, the crux of the case of the plaintiff as presently pleaded is the alleged breach of the JVA by the defendant, principally by reason of the latter’s unlawful termination of the lease and the JVA, by having failed to maintain the infrastructure on the Land to ensure proper operations of the slop oil facility managed by the plaintiff, failed to perform any marketing of the business, and for having refused entry to the plaintiff to the Land, despite the plaintiff having expended much on machinery and development of the facility. [32] Thus, even though the defendant argued that the plaintiff did not state specifically the obligation of the defendant to deliver slop oil to the plaintiff in its statement of claim, it cannot be denied that it is a key Page 14 of 21 term of the JVA that as part and parcel of and consistent with the contractual arrangement between the parties, where the defendant provided the Land and related infrastructure to enable the plaintiff to build and operate the slop oil treatment facility, it was clearly agreed that the plaintiff was to treat slop oil received from the defendant under the JVA, as indeed stipulated under clause 1.2 therein. [33] As such, I do not think that the defendant can be said to be genuinely prejudiced by the amendment now sought to be introduced. Even without a pleading on that specific clause, the thrust of the obligations of the defendant in the JVA included its alleged duty to deliver slop oil, which was the very subject matter of slop treatment facility business envisaged in the JVA. There is no new cause of action. There is no transformation of the character of the suit. It is still very much about the alleged breach of the JVA. And the JVA itself has been specifically pleaded. Neither has bad faith been shown. I agree the tardiness of the plaintiff in moving this application is far from laudatory. But this does not, without more, amount to bad faith. [34] In this regard, I can thus do no better than make reference to the following often-quoted passages from the judgment of Raja Azlan Shah CJ (Malaya) (as his Highness then was) in the Federal Court decision in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10:- “In the present case, the material facts relating to the acknowledgement was not pleaded in the statement of claim; it was also not pleaded in the reply apart from stating that the law of limitation does not apply to the present action. That in our opinion is bad pleading. But it is a matter of indifference to the court whether the plea Page 15 of 21 of acknowledgement is pleaded in the statement of claim or in the reply. If it is raised in the statement of claim, it would make a reply unnecessary and so reduce costs. A further advantage of pleading an acknowledgement in the statement of claim is that the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area of discovery and reducing costs: see Bullen & Leake (12th edition) at page 638. Since the material facts and circumstances were not pleaded in the statement of claim, it should have been pleaded in the reply. Be that as it may, this aspect of the case has been satisfactorily presented and developed in the proceedings before the High Court and we think there are materials on the record from which a decision to that effect could be arrived at. As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded”. [emphasis added] [35] Similarly in the instant case, I did not think the defendant was truly taken by surprise. Even if it were, probably at the early stage when the issue had been first raised by the plaintiff and objected to by the defendant, the issue was subsequently dealt with by the witnesses in their answers such that it could be certainly said that it had been “satisfactorily presented and developed in the proceedings”. Exclusion of the testimony of the various witnesses on this issue by dismissing this application would in my judgment constitute a greater injustice to the parties and does little to promote the ends of justice. [36] The situation would in my view be somewhat, if not entirely different if the application was made after the conclusion of trial because Page 16 of 21 it could in that event be said that even though the defendant had been able to cross examine and re-examine witnesses on the issue, the defendant did not have the knowledge that the plaintiff sought to formally apply to amend its pleadings. In that situation, the defendant could argue that if it had known or that if the application had been made before the conclusion of trial, the defendant could have exercised its right to recall witnesses or even to call new witnesses to deal with the issue. [37] But as it turned out, the plaintiff did apply before the end of trial, and the defendant was contented with the examination of the witnesses without making any application to recall witnesses who have been released or call new ones. [38] In a situation where an objection on a matter said to be un-pleaded is made and recorded, the fact that upon the exercise of judicial discretion, no ruling is made by the trial judge at that juncture whether to allow or disallow until after conclusion of the trial upon submission of the parties, which I believe is not uncommon, the objecting party, in this adversarial system of ours, certainly should not assume that the objection will be eventually sustained and not take steps during the course of trial in response thereto, in order to address the alleged un-pleaded issue by having the same rebutted by witnesses, including by seeking to call new ones or by tendering new documents. [39] This would be expected of the objecting party if the alleged un-pleaded issue had turned into one of the real questions in controversy, as indeed was the situation in the instant case, where it became crystal clear, at the latest, definitely by the close of the plaintiff’s Page 17 of 21 case, in that the issue had become one of considerable importance in the proceedings. [40] This is not to suggest that the defendant did not in this case take steps to counter the alleged un-pleaded issue. The defence counsel had in fact reacted admirably in this regard by her meticulous examination and re-examination on virtually each and every answer given by the witnesses touching on this issue, as she indeed did on most other issues. In short, I do not think the defendant truly additionally intended to recall or call any other witnesses or introduce any new documents to deal with the alleged un-pleaded issues especially when I had permitted the tendering of documents not in the bundle, and as a result, where appropriate, the recall of witness in the course of trial. The defendant could have done so before the end of trial and in truth decided it did not have to. [41] Any suggestion on the part of the defendant, as indeed averred in the affidavit in reply by the defendant’s managing director to the plaintiff’s application herein that the amendment would result in the introduction of a new issue necessitating the calling of witnesses would in my view, considering the circumstances of this case as I have just described, be unconvincing and lacking in substance. No prejudice would thus be occasioned to the defendant if the amendment is allowed. Neither would it be unjust if it is allowed. [42] The Federal Court in Hong Leong Finance further held that the principles of Yamaha Motor should not be the sole consideration when an application to amend is made at a very late stage. The Federal Court then listed the following factors for consideration: Page 18 of 21 a) When dealing with an application to amend the pleadings, which introduce new case in the claim or defence, on the eve of the trial, the principles of Yamaha Motor are not the sole considerations. b) The principles in Yamaha Motor applies to cases where the application to amend pleadings is made at an early stage of the proceedings. c) That there has to be cogent and reasonable explanation in the application’s affidavit as to why the application was filed late. d) That the application to amend the pleadings is not a tactical manoeuvre. e) That the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same. f) That lateness in the application to amend the pleadings cannot necessarily be compensated by costs. [43] As I have stated, in the instant case, the lateness in the making of the amendment application is not in the context of the stage just before commencement of trial which would otherwise have the effect of potentially delaying trial and frustrating the objective of Order 34 of the RC 2012 to achieve the just, expeditious and economical disposal of cases. The delay was well after commencement of trial. [44] On the one hand, there would be a concern on the advantage to the plaintiff that could work unfairly against the defendant as observed above. But on the other hand, there is no real risk of Page 19 of 21 postponement of trial. As such, in the instant case, the concern on the advantage to the plaintiff must be examined against the backdrop of the progress of the proceedings in order to determine if there is any real prejudice to the defendant, and whether it is just for the application to be allowed. [45] As I stated, the issue alleged to be un-pleaded has been satisfactorily presented and developed in the nature observed in KEP Mohamed Ali, with sufficient materials on the issue now available before the Court based on the testimony of and documents tendered by various witnesses that in my assessment, militates against the finding of prejudice to the defendant. [46] Additionally, the following observation of the Federal Court in Karuppannan a/l Ramasamy & Anor v Elizabeth Jeevamalar Ponnampalam & Ors (Sundaram a/l Marappa Goundan & Anor, interveners and Raya Realti, third party) and another appeal [2010] 1 MLJ 156 is no less relevant:- “[37] Nevertheless, in our judgment, the learned trial judge was right in not paying heed to this pleading issue, and we do not agree with the Court of Appeal that he had misdirected himself in this respect. The purpose of a pleading is to enable the other party to know the precise case that he has to meet. A defect in a pleading that does not catch the other party by surprise or embarrass or prejudice him ought not to bring harm to the case of the party pleading. In this case, as we have shown, the plaintiffs' failure to plead the option did not embarrass or prejudice the six defendants in any way. From the very outset they knew that it was the second option that was the true basis of the plaintiffs' claim. This is nothing but a trivial issue”. Page 20 of 21 The issue of slop oil supply is already pleaded [47] The other reason for my allowing the amendment application is that a careful review of the pleadings would readily reveal that the issue of the alleged failure in the supply of slop oil by the defendant is in actuality not entirely absent from the pleadings of the plaintiff. This contention was not highlighted even by the plaintiff but the fact is, it was already stated in paragraph 4.3 (viii) of the statement of claim that the defendant was to undertake marketing activities for the slop oil business and in paragraph 13.3 that the defendant had failed to do any such activities. [48] Much more directly, paragraph 10.2 of the plaintiff’s reply to the defence specifically, and in unmistakable terms, stated that the defendant had failed in its obligation to supply slop oil. It reads thus:- “The Defendant at the time of entering the said Agreement had represented to the Plaintiff that the Defendant would obtain at least 20,000 cubic meters of slop oil per month to process. Based on that representation, Plaintiff has expended over RM6 million to set up the plant. When the plant was ready and operational, the Defendant failed in its obligation to supply or find suitable suppliers of 20,000 cubic meters of slop oil or at all”. [emphasis added] [49] A reply to defence is also part of pleadings under Order 18 of the RC 2012. In any event, surely, this averment in the statement of reply by the plaintiff to the defence of the defendant puts paid to any argument by the defendant that the latter had been caught by surprise or in any fashion prejudiced by the questions on the slop oil supply. On this basis alone, I find that the plaintiff’s application is in essence merely Page 21 of 21 to further clarify what has already been pleaded, and should therefore be allowed. Conclusion [50] For the above reasons, in my judgment, the plaintiff has established its case for leave be granted to amend the statement of claim, as prayed for, albeit to the extent only of the proposed inclusion of the pleadings concerning the alleged failure of the defendant to supply slop oil to the plaintiff. I therefore allow enclosure 88 to such effect. Dated: 18 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: For the Plaintiff M Johnson Messrs Zain Johnson & Associates Petaling Jaya, Selangor Counsel For The Defendant Lam Wai Tze Messrs Lam Wai Tze & Co Petaling Jaya, Selangor