Infra Puri Sdn. Bhd. v Avenue S2 Sdn. Bhd. (WA-22IP-91-08/2025)

This is my grounds of judgment in respect of the Plaintiff's Notice of Application dated 10.12.2025 ("Encl. 33") seeking the following principal reliefs:

An order that one Woo Mun Wei ("WMW"), the director and majority shareholder of the Defendant, be joined as the Second Defendant in this suit pursuant to Order 15 rule 6(1) and rule 6(2)(b) of the Rules of Court 2012 ("ROC 2012"); and

Leave to amend the Plaintiff's Statement of Claim (Encl. 12) consequent upon the joinder.

Infra Puri Sdn Bhd ("Plaintiff"), is the registered proprietor of a Utility Innovation ("UI") filed on 26.02.2020 and a Patent filed on 15.06.2021 with the Intellectual Property Corporation of Malaysia ("MyIPO"), both relating to an Asphalt Pavement Repair Vehicle. The Plaintiff commenced this suit against Avenue S2 Sdn Bhd ("Defendant"), alleging infringement of the said UI and Patent through the promotion, operation, and commercialisation of a product known as the "Pothole Patcher."

The present application before this Court concerns solely the question of whether WMW ought to be joined as a party to this suit.

On 27.3.2026, I dismissed enclosure 33 with costs of RM 3000. I now state the reasons for my decision.

The material background facts, drawn from the pleadings and affidavit evidence, may be summarised as follows:

The Plaintiff was incorporated on or about 2019 and is in the business of, inter alia, the development and commercialisation of asphalt pavement repair vehicles.

WMW served as a director of the Plaintiff from 03.06.2019 until 29.12.2022. He is also named as a co-inventor in the Plaintiff's UI and Patent applications filed with MyIPO.

During the period of WMW's directorship, the Plaintiff filed its UI application on 26.02.2020 and its Patent application on 15.06.2021. Both applications have since proceeded to grant and remain valid and subsisting.

WMW resigned as director of the Plaintiff on 29.12.2022.

On 28.07.2023, approximately seven months after his resignation, WMW was appointed as director of the Defendant. He is also the majority shareholder of the Defendant, holding approximately 80% of its shares. The Defendant is engaged in engineering construction projects, including asphalt pavement repair equipment.

Around 07.12.2024, the Plaintiff discovered that the Defendant was promoting and operating a product called the "Pothole Patcher" through brochures and online videos, which the Plaintiff alleges incorporates a system strikingly similar to the features protected under the Plaintiff's UI and Patent.

The Plaintiff commenced this suit on 14.08.2025 against the Defendant alone, alleging infringement of the UI and Patent. The Statement of Claim (Encl. 12) makes reference to WMW as a former director and co-inventor who allegedly had possession of certain confidential information belonging to the Plaintiff, including customer lists, pricing schedules, and marketing strategies.

On 14.08.2025, the Plaintiff also filed an application for an interim injunction (Encl. 2), which was heard and dismissed by this Court on 10.10.2025.

Following the dismissal of the injunction application, the Plaintiff filed the present joinder application (Encl. 33) on 10.12.2025. C. THE PARTIES' SUBMISSIONS

The Plaintiff's case for the joinder of WMW may be summarised as follows:

WMW, as co-inventor of both the UI and Patent and as a former director of the Plaintiff, had direct access to all technical specifications, drawings, design details, supporting documentation filed with MyIPO, customer lists, pricing structures, marketing strategies, and confidential technical processes and manufacturing methodologies.

After resigning from the Plaintiff, WMW re-emerged in the same industry as the controlling mind and majority shareholder of the Defendant, a company that launched a competing product the "Pothole Patcher" which the Plaintiff alleges mirrors the Plaintiff's protected intellectual property.

The Plaintiff contended that WMW personally breached his duty of confidence by diverting the Plaintiff's proprietary technology and business opportunity to the Defendant, and that this breach of confidence is inextricably linked with the infringement claim against the Defendant.

The Plaintiff relies on Order 15 rule 6(2)(b)(i) of the ROC 2012, arguing that WMW is a person "who ought to have been joined as a party" or "whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon."

The Plaintiff argued that its joinder application seeks to avoid multiplicity of proceedings, so that all issues of infringement and breach of confidence can be determined in a single proceeding.

The Plaintiff relies on the cases of Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn Bhd & Anor [2016] 3 MLJ 417 and Inhome Group Sdn Bhd v Dream Home Structural Works Sdn Bhd & Anor [2025] 6 MLRH 340 as authorities supporting the proposition that breach of confidence claims in commercial IP settings often involve former directors and employees who transfer technology and confidential strategy to a rival entity, and that such persons are ordinarily proper and necessary parties.

Regarding Prayer (2) of Enclosure 33, which sought leave to amend the Statement of Claim, the Plaintiff submitted that any amendment is merely ancillary and consequential to the joinder, and not a free-standing amendment application under Order 20, Rule 5 of the Rules of Court 2012.

The Defendant opposed the joinder on the following grounds:

Enclosure 33 only cites Order 15 rule 6(1) and rule 6(2)(b) of the ROC 2012 in its intitulement. It does not cite Order 20 rule 5 of the ROC 2012, which governs amendments of pleadings. The Defendant argues that the Plaintiff is bound by the provisions cited in the intitulement and cannot seek relief outside the scope of those provisions. The Defendant relies on cases of Cheow Chew Khoon (T/A Cathay Hotel) v Abdul Johari Abdul Rahman [1995] 1 MLRA 679; Puncak Klasik Sdn Bhd v All Persons in Occupation [1995] 1 MLRH 231; Dato' Sri Tai Hean Leng @ Tek Hean Leng v Tai May Chean & Anor [2016] MLRHU 1563 and S & S Quest Resources Sdn Bhd v Jewel Builders & Resources (M) Sdn Bhd [2023] 4 MLRH 606 in support of its proposition.

The Plaintiff conceded in its Affidavit in Reply (Encl. 40) that its main cause of action is the alleged infringement of the UI and Patent against the Defendant, not against WMW personally. As such the key issues in the suit namely whether the Defendant's Pothole Patcher contains the essential integers of the UI and Patent and whether the Defendant has performed infringing acts under Sections 36 and 58 of the Patents Act 1983 can be fully determined without WMW being made a party.

The Defendant submitted that the breach of confidence claim against WMW is an unsubstantiated afterthought. The Defendant argued that the Plaintiff has materially shifted and expanded its case across three documents: the Statement of Claim (Encl. 12), the Affidavit in Support (Encl. 35), and the Written Submission (Encl. 43). In the Statement of Claim, the alleged confidential information was limited to customer lists, pricing schedules, and marketing strategies all commercial in nature, with no reference to technical information relating to the UI or Patent. It was only in the Affidavit in Support that the Plaintiff alleged WMW had access to "all technical information, supporting documents, and commercial strategies related to the invention." Further expansions appeared in submissions. The Defendant characterises this as impermissible evidence from the bar.

The Defendant submitted that the Plaintiff despite having pleaded that WMW allegedly possessed confidential commercial information as a former director, did not include him as a party from the outset and did not seek any relief against him in the Statement of Claim. The suit was filed as a patent and UI infringement action against the Defendant. The introduction of breach of confidence and breach of fiduciary duty claims against WMW would transform the nature of the proceedings.

The Defendant suggests that the application was filed following the dismissal of the Plaintiff's injunction application and represents a strategic manoeuvre rather than a genuine attempt to ensure complete adjudication. D. ISSUES FOR DETERMINATION

Having considered the submissions and authorities, the following issues arise for determination: a) Whether Prayer (2) of Encl. 33 seeking leave to amend the Statement of Claim ought to be dismissed on the preliminary ground that Order 20 rule 5 of the ROC 2012 was not cited in the intitulement of Encl. 33. b) Whether the requirements of Order 15 rule 6(2)(b)(i) and/or rule 6(2)(b)(ii) of the ROC 2012 have been met, such that WMW ought to be joined as a party to this suit. c) Whether the joinder of WMW would impermissibly change the character of the suit. d) Whether the application is made bona fide.

The Defendant's preliminary objection to Prayer (2) is that Encl. cites only Order 15 rule 6(1) and rule 6(2)(b) of the ROC 2012 in its intitulement, and not Order 20 rule 5 which governs amendments to pleadings. The Defendant relies on the line of authorities beginning with Cheow Chew Khoon (supra), which establishes that a party is bound by the statutory provisions or rules stated in the intitulement and cannot shift from one rule to another at its convenience.

In Cheow Chew Khoon (supra), the Court of Appeal held that the purpose of stating the specific rule involved in the intitulement is to prevent a party from shifting from one rule to another at its convenience. The Court of Appeal in this regard held as follows: “… How, might one ask, is a defendant or the court to determine which rule of court the plaintiff is invoking unless he explicitly specifies it? If a defendant and the court should have to conduct a close examination of the supporting affidavit in each case in order to determine the particular jurisdiction or power that is being invoked by an originating summons or other originating process that requires an intitulement, then a plaintiff will be at liberty to shift from one rule to another or indeed from one statute to another as it pleases him without any warning whatsoever to his opponent or the court. It would make a mockery of the principle that there must be no surprise in civil litigation…”

Flowing from the above, learned counsel for the Defendant submitted that it is trite that a party is bound by the statutory provisions or rules stated in the intitulement. Accordingly, the party is only entitled to seek reliefs that are related to the specified statutory provisions or rules.

Learned counsel also placed reliance on the case of Puncak Klasik Sdn Bhd (supra) where the High Court held that the plaintiff will be bound by the provisions of the law stated in their intitulement. The High Court held as follows: “By way of digression, I must say that the plaintiffs have intituled the originating summones with the relevant provisions of the law. This was indeed a wise move. In this way, the defendants would not be caught off-guard and would know what to expect and would be able to mould their defences well in advance. The plaintiffs too would be shackled in that they cannot roam elsewhere by shifting from one rule to another or from one law to another, instead the plaintiffs will have no choice but to stick to their intitulement…”

Reference was also made to the case of Dato’ Sri Tai Hean Leng (supra), where Mohd Nazlan JC (as His Lordship then was) held that by relying on a specific provision in the intitulement, the plaintiff must be taken to have elected to bind himself to that statutory requirement, and no other. The Court held as follows: “It is a sound proposition of law that requires legal proceedings to validly specify a real and credible nexus between the statutory or regulatory rules stated in the intitulement to the action on the one party and the prayers sought for in the same action on the other part (see TS Land Management Sdn Bhd v Pengarah, Pejabat Tanah dan Galian Shah Alam Selangor Darul Ehsan [2016] 10 MLJ 740). By making the conscious decision to state his reliance on Section 144 of the CA in the intitulement to the originating process, the plaintiff must be taken to have elected to bind himself to only that statutory requirement, and no other.”

Further in S & S Quest Resources (supra), Nadzarin Work Nordin J (as his Lordship then was) dismissed certain prayers in the originating summons as the relevant legal provision for the reliefs was not cited in the intitulement. His Lordship held as follows: “I have consequently examined OS 16 and the prayers 1 - 4 therein and find that the Specific Relief Act 1950, in particular section 41 thereto, was not cited in the intitulement in OS16. Based on the aforementioned cited cases, I hold that the said prayers 1 – 4 in OS 16 are fundamentally defective due to the failure to cite the said provision in the intitulement in OS 16. As they are in my view incurable, the said prayers have to be dismissed.”

I accept the general principle articulated in Cheow Chew Khoon and the subsequent authorities cited by the Defendant namely Puncak Klasik, Dato' Sri Tai Hean Leng, and S & S Quest Resources that a party must specify the legal basis of its application in the intitulement, and that this serves the dual purpose of preventing surprise to the opposing party and ensuring clarity for the Court as to the jurisdiction or power being invoked.

However, I must consider the nature and purpose of Prayer (2) in its proper context. Prayer (2) seeks leave to amend the Statement of Claim as a consequence of the joinder. The Plaintiff's position is that this is not a free-standing amendment application under Order 20 Rule 5 of the ROC 2012, but rather an ancillary and consequential relief flowing naturally from the joinder itself.

There is force in this argument as a matter of principle. When a Court exercises its power under Order 15 rule 6 of the ROC 2012 to add a party, it is often necessary and indeed inevitable that the pleadings be amended to reflect the presence of the newly added party, to plead the cause of action against that party, and to seek reliefs against that party. The power to order consequential amendments is, in many instances, an inherent consequence of the joinder application. To hold otherwise would create an absurd scenario whereby the Court has the power to add a party but not to direct the necessary consequential steps to give effect to that addition.

Notwithstanding the foregoing, I find some force in the Defendant’s argument in that the Plaintiff's failure to include a draft amended Statement of Claim with Encl. 33 is a significant procedural deficiency. In the absence of proposed amendments before the Court, it is impossible for the Court and the Defendant to assess with precision:

the exact nature of the cause of action to be pleaded against WMW;

the specific reliefs to be sought against WMW;

whether such amendments would change the character of the suit; and

whether the amendments would cause prejudice to the Defendant that cannot be compensated by costs.

In my considered view, this is not merely a procedural technicality. The requirement for a draft amended pleading is a fundamental safeguard that ensures transparency, prevents surprise, and enables the Court to exercise its discretion on an informed basis. Without sight of the proposed amendments, the Court would effectively be granting the Plaintiff a blank cheque to amend its pleadings in any manner it sees fit after obtaining the joinder order— a result that would be contrary to the principles of procedural fairness.

The Plaintiff suggests that this concern can be addressed by case management directions for example, by granting the joinder and then directing the Plaintiff to file a draft Amended Statement of Claim within a specified time. While I acknowledge this as a theoretically possible approach, I am not persuaded that it is appropriate in the circumstances of this case. The question of whether the joinder itself should be allowed is intertwined with the question of what cause of action and reliefs are to be pursued against the proposed party. These questions cannot be properly assessed in a vacuum. Issue 2: Whether the Requirements of Order 15 Rule 6(2)(b) Are Met

Order 15 rule 6(1) and 2(b) of the ROC 2012 provides as follows: “(1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interest of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application – …

order any of the following persons to be added as a party, namely –

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

The discretion to order joinder is a broad one, but it is not unfettered. The Court of Appeal in Mohamed Azmal Noor a/l Naina Mohd Noor v Arab-Malaysian Finance Bhd & Anor [2003] 1 MLRA 157 held at paragraph [15]: "It is clear to me from a reading of those provisions that the purpose of adding a party to a cause or matter is to contribute to the effective, complete and global disposal or determination of the dispute in the cause or matter or of the relief or remedy that is claimed in it…"

In Trudy Ranjini Ganendra v Dato' Dennis Ganendra & Anor [2023] MLRHU 692, the High Court considered the application of Order 15 rule 6(2)(b)(i) and emphasised the importance of there being a nexus between the proposed party and the cause of action, as well as the existence of reliefs sought against the proposed party. The Court held at paragraphs [41]-[43]: “[41] In the context of the present case the Plaintiff have not shown through her pleadings namely the Originating Summons and Enclosure 2 that: i) Dato’ Wan Razali and Dato’ Sri Roslan were “so connected to the oppressive, detrimental or prejudicial conduct of the 1st Defendant as alleged “that it would be fair and just to impose liability” against them for such conduct; and ii) in this regard that there was no remedy/relief that the Plaintiff sought against Dato’ Wan Razali and Dato’ Sri Roslan personally and as such there can be no issue of any liability being attached to them which is crucial and necessary in an oppression action. [42] Hence, in summary there is no nexus between Dato’ Wan Razali and Dato’ Sri Roslan and the alleged oppressive conduct complained of by the Plaintiff. [43] Though the requirements under Order 15 Rule 6(2)(b)(i) and (ii) ROC are to be read disjunctively, however, as the above cited cases show, in the absence of any relief prayed for against the proposed party intended to be joined as a defendant, it is unlikely that Order 15 Rule 6(2)(b)(i) would have been met. And in the present case, the requirement of Order 15 Rule 6(2)(b)(i) was not met as the shareholding of the 1st Defendant is not an issue in the Originating Summons.”

In Hee Awa & Ors v Syed Muhamad Sazalay & Anor [1988] 1 MLJ 300, the Federal Court considered the scope of the court’s discretion under Order 15 rule 6(2)(b) of the Rules of the High Court. The Court held that the provision confers a discretion on the court to add a person as a party to the proceedings, whether on its own motion, upon the application of an existing party, or upon the application of a person seeking to intervene. However, the Court emphasised that a person cannot be added as a plaintiff without his consent. The Federal Court further explained that the person sought to be added must either be a person who ought to have been joined as a party, or a person whose presence before the court is necessary to ensure that all matters in dispute may be “effectually and completely determined and adjudicated upon”. The relevant passage reads as follows: “From the provision of Order 15 rule 6(2)(b)) RHC, it is clear that the court has a discretion to grant or refuse the order of making any person as a party with the exception that such order cannot be made to add a person as a plaintiff without his consent. The order can be granted either on the court's own motion or on the application of any person who is already a party, or of an intervener who wishes to be added as a party. The person to be added as a party must be a person who ought to have been joined as a party or whose presence in court is necessary to ensure that all matters in dispute may be “effectually and completely determined and adjudicated upon”.

From these authorities, I distil the following principles applicable to a joinder application under Order 15 rule 6(2)(b):

The purpose of joinder is to contribute to the effective, complete, and global disposal of the dispute;

There must be a sufficient nexus between the proposed party and the matters already in dispute in the suit;

The Court must consider whether any relief or remedy is sought or can properly be sought against the proposed party;

The absence of any relief sought against the proposed party in the existing pleadings is a strong indicator that the proposed party's presence is not necessary;

The discretion must be exercised judicially, having regard to all the circumstances, including considerations of fairness, convenience, and the avoidance of multiplicity of proceedings;

The proposed joinder must not impermissibly change the character of the suit or introduce causes of action that are separate and distinct from those already before the Court.

Drawing together the threads of my analysis as stated above, I summarise my findings as follows:

The existing pleaded causes of action do not require WMW's presence

The Plaintiff's Statement of Claim (Encl. 12) is founded upon the alleged infringement by the Defendant, Avenue S2 Sdn Bhd, of the Plaintiff's UI and Patent under the Patents Act 1983. The central issues to be determined in this suit are:

whether the Defendant's "Pothole Patcher" contains all the essential integers of the Plaintiff's UI and Patent; and

(ii) whether the Defendant has performed infringing acts within the meaning of Sections 36 and 58 of the Patents Act 1983.

The Plaintiff itself conceded in paragraphs 9 and 10 of its Affidavit in Reply (Encl. 40) that it is not the Plaintiff's case that WMW is the owner of the UI or Patent, and that the Plaintiff's main cause of action is the alleged infringement by the Defendant. These concessions are significant. They confirm that the determination of the infringement claims does not require WMW to be a party. In the circumstances it is clear that Avenue, as the entity alleged to have manufactured, promoted, and operated the "Pothole Patcher," is the proper and sufficient defendant for the purposes of the patent and UI infringement claims. The presence of WMW is not necessary for the effectual and complete determination of those claims.

The breach of confidence claim against WMW is an afterthought and a material departure from the pleadings

I have carefully examined the progression of the Plaintiff's allegations regarding WMW's alleged possession of and access to confidential information. The Defendant has helpfully set out in tabular form the evolution of these allegations across three stages — the Statement of Claim (Encl. 12), the Affidavit in Support of the joinder application (Encl. 35), and the Plaintiff's Written Submission (Encl. 43). This progression reveals a troubling pattern of material escalation. This is a matter of significant concern. I set out the progression in the table below: Document Alleged Confidential Information Statement of Claim (Encl. 12), Para 27 WMW, as former director, had possession of confidential documents and information including:

customer lists;

pricing schedules; and

marketing strategies. Affidavit in Support (Encl. 35), Para 8 WMW, as director, had "direct access to all technical information, supporting documents, and commercial strategies relating to the invention." Written Submission (Encl. 43), Para 18 WMW had:

direct access to all technical specifications, drawings, and design details of the UI and Patent;

knowledge of all supporting documentation filed with MyIPO;

access to customer lists, pricing structures, and marketing strategies; and

control over confidential technical processes and manufacturing methodologies. Written Submission (Encl. 43), Para 28 WMW had access to detailed vehicle designs, power system configuration, repair workflow, customer lists, pricing structures, and marketing strategies.

In the Statement of Claim at paragraph 27, the Plaintiff pleaded that WMW, by virtue of his position as a former director, had possession of confidential commercial information, namely:

customer lists;

pricing schedules; and

marketing strategies.

Notably, there was no allegation whatsoever that WMW had access to technical information relating to the UI or Patent, nor any allegation of breach of confidence as a distinct cause of action against WMW personally. The references to WMW in the Statement of Claim were descriptive and contextual identifying him as a co-inventor and former director but did not ground any claim or relief against him.

In the Affidavit in Support (Encl. 35), the Plaintiff significantly expanded the scope of the alleged confidential information by asserting for the first time that WMW had "direct access to all technical information, supporting documents and commercial strategies relating to the invention" ("akses langsung kepada semua maklumat teknikal, dokumen sokongan dan strategi komersial berkaitan rekacipta tersebut"). This was a material departure from what was pleaded in the Statement of Claim, which was confined to commercial information only.

The expansion continued further in the Plaintiff's Written Submission (Encl. 43), where at paragraph 18, the Plaintiff asserted that WMW had:

direct access to all technical specifications, drawings, and design details of the UI and Patent;

knowledge of all supporting documentation filed with MyIPO;

access to customer lists, pricing structures, and marketing strategies; and

control over confidential technical processes and manufacturing methodologies. At paragraphs 21, 26, and 28, the Plaintiff further introduced references to "MyIPO working documents," "tender strategy," "power system configuration," and "repair workflow" — none of which were pleaded in the Statement of Claim or even deposed in the affidavits.

It is trite law that a party's case is defined by its pleadings, and a party cannot improve its case through submissions from the bar. As the Court of Appeal held in Tan Khee Wan [Jerry] v Mohd Ali bin Abdul Majid [2024] 3 MLRA 169, submissions of counsel, however eloquent, cannot take the place of pleadings.

In my considered view the attempt by the Plaintiff to progressively widen the scope of the alleged confidential information from purely commercial information in the pleadings, to technical information in the affidavit, to detailed technical specifications, manufacturing methodologies, and MyIPO working documents in submissions is impermissible and amounts to an attempt to build a case from the bar table.

I am fortified in this view by the fact that the Plaintiff did not seek any relief against WMW in its Statement of Claim. As held by the High Court in Trudy Ranjini Ganendra at paragraphs [41]-[43], in the absence of any relief prayed for against the proposed party intended to be joined as a defendant, it is unlikely that the requirement under Order 15 rule 6(2)(b)(i) would be met. There must be a nexus between the proposed party and the alleged wrongful conduct complained of, and that nexus must be reflected in the pleadings. Where no remedy or relief is sought against the proposed party, there can be no question of liability attaching to that person, and their joinder as a defendant cannot be said to be necessary.

Furthermore, the Plaintiff's counsel had conceded during submissions on the Plaintiff's earlier injunction application (Encl. 2) that references to WMW were merely to "complete the picture." This concession is telling. It reveals that the Plaintiff did not, at the time of filing suit, genuinely consider WMW to be a party against whom a substantive claim lay. The belated attempt to recast WMW as a necessary party, following the dismissal of the injunction application, strongly suggests that the joinder is an afterthought rather than a genuine assertion of a claim that was always intended to be pursued.

The Plaintiff offered no satisfactory explanation as to why the joinder application was filed only after the dismissal of its injunction application, when all the facts now relied upon WMW's directorship, his role as co-inventor, his resignation, and his subsequent involvement in the Defendant were matters within the Plaintiff's knowledge from the inception of this suit. As the Court of Appeal observed in Mohamed Azmal Noor at paragraph [15], the purpose of adding a party is to contribute to the effective, complete and global disposal of the dispute. Where the matters relied upon have been known all along but no action was taken to join the proposed party from the outset, and the joinder is sought only after an adverse interlocutory outcome, the Court is entitled to view the application with circumspection.

The Plaintiff's reliance on Dynacast and Inhome Group is misplaced

The Plaintiff relied on two authorities in support of its contention that breach of confidence is a proper basis for WMW's joinder. In relying on the Federal Court case of Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn Bhd & Anor [2016] 3 MLJ 417, learned counsel for the Plaintiff submitted that the misuse of confidential information is often established by circumstantial evidence and inference: “[31] Learned counsel for the plaintiffs submitted that the general rule of information sought to be protected as confidential information must have the necessary quality of confidence to it and applies only in circumstances where there is no applicable confidential clause operative between the parties. The rule does not apply where as in this instant case an express clause has been agreed by the parties. It then becomes only an enforcement of a contractual clause. This submission appears to echo what Megarry J said in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at pp 4647: In the case before me, it is common ground that there is no question of any breach of contract, for no contract ever came into existence. Accordingly, what I have to consider is the pure equitable doctrine of confidence, unaffected by contract. In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, MR in the Saltman case on p 215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

By virtue of Dynacast (Melaka) Sdn Bhd & Ors (supra), learned counsel for the Plaintiff submitted that this is exactly the type of issue which can only be fully ventilated with WMW before the Court as a co-Defendant.

Further, the Plaintiff also made reference to the case of Inhome Group Sdn Bhd v Dream Home Structural Works Sdn Bhd & Anor [2025] 6 MLRH 342 whereby in this case, the plaintiff claimed that its former insiders had taken confidential technical works and construction information and deployed them through a new corporate vehicle in direct competition with the plaintiff. The Court accepted that information and works developed within the plaintiff’s business and not disclosed to the public had the necessary quality of confidence, that they were obtained in circumstances importing an obligation of confidence, and that using them in a rival business without consent amounted to a breach of confidence.

It is the Plaintiff’s position herein that its case is on all fours with Inhome Group Sdn Bhd (supra). The Plaintiff’s confidential technical solution which is the integrated design reflected in the UI and Patent and its non‑public commercial information such as the customer focus, pricing, tender strategy was developed internally, given to WMW in the course of his role, and then used, through the Defendant, to create and market the competing “Pothole Patcher”. As in the referred case, this amounts to a paradigm instance of breach of confidence.

The starting point will be my discussions on both the authorities relied on by the Plaintiff. The first is the Federal Court decision in Dynacast (Melaka) Sdn Bhd & Ors. In that case, the Federal Court set out the three elements for establishing breach of confidence as articulated by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41:

the information must have the necessary quality of confidence;

(ii) the information must have been imparted in circumstances importing an obligation of confidence; and

(iii) there must be unauthorised use of the information to the detriment of the communicating party.

With respect, I find that the Plaintiff's reliance on Dynacast does not assist its joinder application. Dynacast was a decision on the merits of a breach of confidence claim where the parties were already before the court and the factual matrix including express confidentiality clauses was fully developed. The case does not stand as authority for the proposition that a proposed defendant should be joined merely because a breach of confidence claim might be articulated against him. The question before me is not whether the three Coco v Clark elements are theoretically capable of being established, but whether the Plaintiff has sufficiently pleaded and demonstrated a basis for such a claim in its existing pleadings to justify joinder. As I have found above, it has not.

The second authority is Inhome Group Sdn Bhd , where the Court found that information developed within the plaintiff's business and not disclosed to the public had the necessary quality of confidence. Again, Inhome Group was a case decided on its own facts where the breach of confidence claim was properly pleaded and particularised from the outset. It does not assist the Plaintiff in the present case, where the alleged breach of confidence against WMW was not pleaded as a cause of action, no relief was sought against WMW, and the factual allegations have been materially expanded beyond the four corners of the Statement of Claim through successive affidavits and submissions.

WMW's role can be adequately addressed as a witness

I accept the Defendant's submission that WMW's involvement in the matters in dispute can be adequately canvassed through his testimony as a witness at trial.

In this regard, I cite with approval the case of Neo Pei Chi @ Leo Pei Chi v Hup Tien Plantations Sdn Bhd & Anor [2024] MLJU 1905, where the High Court held that: “[74] If there are factual allegations surrounding the issuance of the vouchers for the repayments, there is nothing to stop Plaintiff from calling or subpoenaing these proposed Defendants as witnesses. [75] In Maya Maju (M) Sdn Bhd v. Dato' Raja Azwane Raja Ariff & Anor [2010] 12 MLRH 719, His Lordship Mohamad Arif Md Yusof J was faced with a situation where the proposed parties to be added were potential witnesses and His Lordship found as follows: "After hearing submissions of the parties, I was of the view that it was not strictly necessary to add Dato' Man and Nizam as parties in this action since on the facts it would not be "just and convenient" to join them as parties. Obviously, Dato' Man and Nizam would be material witnesses for the Plaintiff Company, and to add them as Defendants would be highly prejudicial and embarrassing to the Plaintiff Company. The short point is, it will be extremely odd to allow material witnesses for the Plaintiff to be added as Defendants in the present circumstances. In any event, I could not see any injustice being caused to Raja Azwane and Dato' Ir Tan Kim Kuan, as Defendants, by excluding Dato' Man and Nizam as Defendants. In fact, if the latter were included as Defendants, the court would be witnessing the spectacle of two Defendants giving evidence in favour of the Plaintiff, or being subpoenaed or called as witnesses for the Plaintiff 4 Company. I would have thought it would be "just and convenient" to the Defendants as well not to have them added as parties.Further, I was of the view that it was obvious the Plaintiff Company would have no cause of action against Dato' Man and Nizam, since they had expressly agreed to repay the company. To this extent there would be no cause of action against them." [76] Hence in my view, the proposed Defendants can be material witnesses for the 1st Defendant company and they can also be called or subpoenaed by the Plaintiff as witnesses. [77] Plaintiff's claim was never premised on lifting the veil of incorporation of the 1st Defendant company to make two of the proposed Defendants as directors personally liable. … [80] Henceforth, it's my finding that the Plaintiff is attempting to add parties who are not proper and necessary to her action. This cannot be allowed in accordance with the principle propounded by the Supreme Court in Tajjul Ariffin Bin Mustafa (supra). Therefore, in my judgment, the proposed Defendants are not necessary and proper parties to be joined for the effectual and complete determination and adjudication to be made by the court of all questions and issues between the parties which arise for decision. [81] Next, I note that the Plaintiff in the guise of joining these proposed Defendants, is seeking to introduce new causes of action. She is now seeking damages in respect of fraud, conspiracy to commit fraud, to injure the Plaintiff and or breach of contract or negligence. [Underlined Emphasis Added]

WMW has already affirmed affidavits in these proceedings (Encl. and Encl. 38) and there is no suggestion that he would be unavailable to testify. His knowledge of the technical aspects of the Plaintiff's UI and Patent, as well as the development of the Defendant's "Pothole Patcher," can be tested through cross-examination. The Plaintiff has not demonstrated that there is any issue that cannot be effectually and completely determined without WMW being made a party.

The Plaintiff's argument that WMW's "personal liability" for breach of confidence cannot be determined if he remains a non-party is circular. It presupposes the existence of a properly pleaded cause of action against WMW for breach of confidence, which, as I have found, does not exist in the current Statement of Claim. The Plaintiff cannot rely on the absence of a claim that it failed to plead as justification for joining a party in order to plead that very claim. To permit this would be to allow the joinder application to serve as a vehicle for introducing an entirely new cause of action against a new party — a purpose for which Order 15 rule 6 is not designed.

The "component by component" comparison was not pleaded

I note that in its Written Submission (Encl. 43) at paragraphs 30–32, the Plaintiff introduced for the first time a "component by component" comparison of the Plaintiff's machines and the Defendant's Pothole Patcher in an attempt to demonstrate the similarity between the two products and thereby strengthen the inference of misuse of confidential information. This comparison was neither pleaded in the Statement of Claim (Encl. 12) nor mentioned in the Plaintiff's Affidavit in Support (Encl. 35) or Affidavit in Reply (Encl. 40). As such, it constitutes a further impermissible attempt to introduce new factual material through submissions. I attach no weight to it for the purposes of this application.

For the reasons set out above, I find that the Plaintiff has failed to satisfy the requirements of Order 15 rule 6(2)(b)(i) of the Rules of Court 2012. WMW is not a person who "ought to have been joined as a party" to this suit, nor is his presence "necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon." The existing pleaded causes of action Patent and UI infringement can be effectually determined as between the Plaintiff and the Defendant without WMW being a party. The alleged breach of confidence claim against WMW is not properly pleaded, has been materially expanded beyond the pleadings through affidavits and submissions, and bears the hallmarks of an afterthought advanced to justify a belated joinder.

For completeness, I also consider whether joinder would be justified under the alternative limb of Order 15 rule 6(2)(b)(ii), which empowers the Court to add as a party "any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."

The requirements under Order 15 rule 6(2)(b)(i) and (ii) are to be read disjunctively. However, as noted in Trudy Ranjini Ganendra at paragraph [43], in the absence of any relief prayed for against the proposed party, it is unlikely that either limb would be satisfied.

While I accept that there is a factual connection between WMW and the subject matter of the dispute in that he is a co-inventor of the UI and Patent, a former director of the Plaintiff, and the current director and majority shareholder of the Defendant — this factual connection alone does not make it "just and convenient" for his joinder. The question or issue that the Plaintiff seeks to ventilate against WMW (i.e., breach of confidence) is, as I have found, not properly pleaded, and the Plaintiff has not sought any relief against WMW. In these circumstances, joining WMW under this limb would not serve the interests of justice, but would instead complicate and potentially delay the proceedings by introducing an inadequately pleaded claim against a new party.

Accordingly, I also find that Order 15 rule 6(2)(b)(ii) of the ROC 2012 is not satisfied. Issue 3- Whether the joinder of WMW would impermissibly change the character of the suit.

The Defendant submitted that the joinder of WMW would change the character of the suit from a Patent and UI infringement action into one that encompasses breach of confidence and/or breach of fiduciary duty. In substance, the Defendant contended that the action as presently constituted is a statutory intellectual property dispute confined to whether the Defendant's "Pothole Patcher" incorporates the essential integers of the Plaintiff's Patent and UI, and whether the Defendant has committed the infringing acts under Sections 36 and 58 of the Patents Act 1983. To graft onto this a personal claim against WMW grounded in equity would, the Defendant argued, fundamentally recast the proceedings. The Plaintiff, on the other hand, contended that the breach of confidence claim is merely ancillary, arises from the same continuous factual sequence, and does not alter the essential character of the proceedings.

I agree with the Defendant on this point. The current suit is squarely a Patent and UI infringement action under the Patents Act 1983, the determination of which turns on the construction of the registered claims and a component-by-component comparison of the competing products. The joinder of WMW on the basis of an alleged breach of confidence would introduce an entirely separate cause of action, founded on equitable principles and/or common law, with materially different elements of proof. As the Federal Court recognised in Dynacast, a breach of confidence claim requires proof that the information possessed the necessary quality of confidence, that it was imparted in circumstances importing an obligation of confidence, and that there was an unauthorised use of that information to the detriment of the party communicating it. These enquiries are wholly distinct from the integer-by-integer analysis required to establish patent or UI infringement.

The joinder would therefore transform the nature of the proceedings from a statutory intellectual property infringement action against a single corporate Defendant into a composite action against two parties, involving distinct legal theories, separate burdens of proof, and divergent factual inquiries directed at WMW's conduct, knowledge and fiduciary position as a former director.

While it is true that the courts have, in appropriate cases, permitted the joinder of parties even where doing so introduces related claims, this is only permissible where the new claims are properly pleaded and arise from substantially the same factual matrix. The power under Order 15 rule 6(2)(b) of the ROC 2012 is directed at ensuring that all matters in dispute are "effectually and completely determined and adjudicated upon", and not at affording a plaintiff a vehicle to reconstitute its case at an interlocutory stage. Here, the breach of confidence claim is not properly pleaded, and the factual basis for it has been materially expanded beyond the Statement of Claim. As rightly submitted by learned counsel for the Defendant, paragraph 27 of the Statement of Claim confined WMW's alleged possession of confidential information to commercial materials, namely the customer lists, pricing schedules and marketing strategies, with no allegation whatsoever that he had access to technical information relating to the Patent and UI. It was only in the Affidavit in Support, and subsequently amplified in submissions from the bar, that the Plaintiff sought to introduce allegations concerning WMW's access to technical specifications, design details, supporting documentation filed with MyIPO and manufacturing methodologies.

This represents a material departure from, and impermissible expansion of, the pleaded case, and it is trite that a party may not improve its case through submissions. To permit the joinder in these circumstances would be to allow the Plaintiff to fundamentally reshape its case at an interlocutory stage, converting a focused infringement action into a multi-faceted dispute, which would cause real prejudice both to the Defendant and to WMW, who would be required to meet allegations that were never properly articulated against them in the first instance.

The learned counsel for the Defendant submitted that Encl. 33 was not made bona fide, pointing to the timing of the application filed after the dismissal of the Plaintiff's injunction application and the release of the Grounds of Judgment in respect thereof and the progressive escalation of the allegations levelled against WMW. The Defendant characterised the joinder application as a belated and tactical manoeuvre, calculated to resurrect a claim that the Plaintiff had not seen fit to pursue against WMW at the commencement of the suit, rather than a genuine attempt to bring a necessary party before the Court.

While I am slow to impute bad faith without clear and compelling evidence, I observe that the circumstances surrounding the filing of Encl. 33 do raise legitimate concerns that cannot be lightly dismissed.

In Poh Chee Leng & Anor v Cheah Slew Huen & Anor [2019] MLJU 887, the High Court dismissed the amendment application as the facts giving rise to the amendments have been known by the plaintiff at the inception of pleading. The Court held as follows: “[15] Upon examination of the fact of this case, to my mind, the Plaintiff would have known the involvement of the proposed Third and Fourth Defendant leading towards the transfer of the said Land by the First and Second Defendants. This is because the Plaintiffs had pleaded their involvements in the Original Statement of Claim and had known this fact even before filing this action. In such a situation, the Plaintiff could have brought the proposed Third and Fourth Defendants as parties when first filing this action. Nevertheless, what had happened is that the Plaintiffs had proposed to make substantial amendment in the Statement of Claim and to include the Third and Fourth Defendants only after the disposal of the Injunction Application and at the close of pleadings. Furthermore, the Plaintiff is now seeking to include new particulars of fraud, conspiracy to defraud and breach of fiduciary duties against the First and Second Defendant including the proposed Defendants which were not pleaded in the Original Statement of Claim. An examination of the facts pursuant to the Proposed Amendment shows that the proposed particulars of fraud were at all material times known to the Plaintiff. It was never pleaded in the Original Writ and Statement of Claim in that in his capacity as a financial advisor, the Proposed Third Defendant had fraudulently misrepresented facts to the Plaintiffs, causing the Plaintiffs to execute a Power of Attorney and a Trust Deed in favour of the First Defendant through the proposed Fourth Defendant. To this effect, I hardly find any explanation or any reasonable excuses by the Plaintiff as to why the particulars of fraud were not fully expounded upon in the Original Writ and Statement of Claim and in the Plaintiff Ex-Parte Injunction application notwithstanding the facts were known to the Plaintiffs at all material times. It is my considered view that the Proposed Amendments and Joinder must be accurately particularized at the inception of pleading. To include in this Proposed Amendment would tantamount to an afterthought and Enclosure 35 is not made in good faith.” [ Underlined Emphasis Added]

Similarly, in the present case, the Plaintiff has pleaded in its Statement of Claim that WMW was a former director of Infra, allegedly had access to the purported confidential information, was one of inventors of the purported Patent and UI, and incorporated Avenue after leaving Infra. However, the Plaintiff elected not to name WMW as a party, and did not plead any cause of action against him.

The Plaintiff had full knowledge of all the facts now relied upon at the time of filing this suit. WMW's status as co-inventor and former director, the period of his directorship, his subsequent appointment as director and majority shareholder of the Defendant, and the launch of the "Pothole Patcher" were all matters squarely within the Plaintiff's knowledge from the outset and were, in fact, expressly pleaded in the Statement of Claim. Despite this, the Plaintiff made a deliberate legal choice not to join WMW as a defendant, and its counsel expressly characterised the references to WMW as being merely to "complete the picture" during the injunction hearing. That concession is telling, for it indicates that, at the material time, the Plaintiff did not regard WMW as a party against whom substantive relief was sought, but as a peripheral figure in the narrative.

The joinder application was filed only after the injunction was dismissed and the Grounds of Judgment for that dismissal were released, which lends force to the inference that the application is reactive in nature. Of greater concern is the progressive and incremental expansion of the allegations against WMW confined to commercial information (customer lists, pricing schedules and marketing strategies) in the Statement of Claim, broadened to encompass technical information relating to the inventions in the Affidavit in Support, and expanded yet further into detailed technical specifications, design details, power system configurations and manufacturing methodologies in submissions from the bar. This shifting and escalating characterisation of the alleged confidential information, unsupported by any corresponding amendment to the pleadings, materially undermines the Plaintiff's assertion that the claim against WMW was always genuinely contemplated, and instead suggests a case being reconstructed and fortified after the event to justify the joinder.

As I have alluded to earlier while I do not go so far as to make a definitive finding of bad faith, and I bear in mind that the threshold for such a finding is a high one requiring cogent evidence, I am nonetheless satisfied that the unexplained delay, the timing of the application in the wake of the dismissed injunction, and the progressive enlargement of the allegations are relevant considerations that, taken cumulatively, weigh against the exercise of the Court's discretion in favour of the joinder. The discretion under Order 15 rule 6 of the ROC 2012 is to be exercised judicially and in the interests of justice, and these surrounding circumstances are matters properly to be placed in the balance, and which in the present case tilt that balance against allowing the joinder.

In the circumstances, I agree with the submissions advanced by learned counsel for the Defendant’s that the Plaintiff should not be permitted a second bite at the cherry by seeking to improve its case through this joinder application following the dismissal of its injunction application, and after having had the benefit of hearing the Defendant’s submissions.

In Dato' Richard Dilaan Morais v Raam Kumar M Suppiah & Ors [2025] MLRHU 1110, the High Court held that an amendment application under Order 20 rule 5 should be dismissed if it constitutes a tactical ploy rather than a legitimate amendment. The Court in Dato Richard Dilaan Morais held that: “[26] Now, at this late stage, the plaintiff seeks to introduce the 2nd Will by way of an amendment. The Court must consider whether this move is bona fide or a calculated afterthought. The failure to enforce and/or decide not to enforce the 2nd Will at the material time and only to rely on it now raises serious doubts about the credibility and consistency of the plaintiff's action in these proceedings. [27] The plaintiff's action is self-serving, as I have noted in a previous decision delivered by this court on 16 December 2024, in this case also an interlocutory security for costs application, where this Court observed that:"...the plaintiff's action appears to be not genuine and intended for the benefit of the deceased's estate but rather for his own personal interest...""...the plaintiff's objections to a legitimate intervenes application by a beneficiary further indicate that his actions are self-serving and not genuinely for the estate's benefit".(Note: I am aware the said decision of this court is pending appeal nevertheless until it is reversed and/or set aside, this court will be consistent in its finding of its view formed earlier) [28] The Court of Appeal in Everise Hectares Sdn Bhd v. Citibank Bhd (supra) held that amendment applications constituting a tactical manoeuvre or delay tactic should be disallowed. The plaintiff's inconsistent pleadings suggest an improper motive, reinforcing the finding of bad faith. [29] Further, in the case of Looi Guan Kway v. Low Lean Bok And Others [1939] 1 MLRH 80; [1939] 1 MLJ 224, the court held that amendments should not be allowed where they introduce a new cause of action inconsistent with the original claim. The plaintiff's proposed amendments fundamentally alter the nature of the suit, warranting rejection.” [Underlined Emphasis Added]

For the foregoing reasons, I dismiss the Plaintiff's application in Encl. 33 in its entirety. The joinder of WMW as Second Defendant is refused, and Prayer (2) for leave to amend the Plaintiff's pleadings is likewise refused.

Costs of this application are to be paid by the Plaintiff to the Defendant in the sum of RM 3,000.00. Dated this day of 10th June 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff: Nai Mei Kei (Messrs. Y.Y. Ho & Lee) For the Defendant: Woo Xiao Thong (Messrs. C H Tay & Partners)