Kenanga Investors Berhad v 1. ) Zulrafq Capital Sdn Bhd (WA-22NCC-141-03/2023)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (COMMERCIAL DIVISION) SUIT NO.: WA-22NCC-141-03/2023 BETWEEN KENANGA INVESTORS BERHAD [Registration No. 199501024358 (353563-P)] … PLAINTIFF

Lampiran

Lampiran A (“The Proposed Amendments”) to the Notice of Application. This application was supported by an Affidavit in Support affirmed by TSZ on 14.3.2025. [20] The Defendants seek to amend their Defence and Counterclaim filed on 9.5.2023 at multiple paragraphs. The key amendments sought include: a) Paragraph 3a - Amendments to remove the phrase “dan Defendan-Defendan yang disediakan oleh Plaintif yang mana” (and the Defendants prepared by the Plaintiff which), changing it to “antara Plaintif yang mana” (between the Plaintiff which). This seeks to alter the pleading about who prepared the documents and correspondence regarding the Put and Call Option Agreements that were subsequently placed on the First Defendant's letterhead; b) Paragraphs 9(aa), 9(ba), 9(d) - Introduction of a new individual named Muna Naim as a financial advisor, and amendments removing the original pleading that Taqiuddin introduced Kenanga and Ismitz to the Defendants. The amendments now allege that Taqiuddin introduced Muna Naim to the Defendants, and it was Muna Naim who introduced Ismitz to them; c) Paragraph 9A - Addition of new allegations regarding the initial RM2.6 million payment arrangement, pleading that to satisfy banking procedures, the First Defendant through Muna Naim gave a RM2.6 million cheque to Kenanga to process the loan facility, which Kenanga allegedly deliberately failed to process and returned to the Defendants; d) Paragraph 10A - Introduction of new allegations regarding payment through Dato' Michael Chew and Amanah Capital Group Limited, replacing the original pleading that Taqiuddin made the advance payment of RM2.6 million directly to Kenanga. The amended version alleges that Taqiuddin made the payment through these third parties instead; e) Paragraph 10AA - Addition of new pleading to clarify that at all material times during meetings, Taqiuddin gave a clear undertaking in the presence of Kenanga and Ismitz that any payment related to the share selection process would be paid by Taqiuddin; f) Paragraph 11A - New allegations of direct involvement by Ismitz, including that he gave advice to Taqiuddin regarding facilities, made direct representations to him, received payments, and deliberately failed to process certain payments; g) Paragraph 12 - Amendments to the conspiracy and misrepresentation allegations to incorporate the new parties (Muna Naim and Dato' Michael Chew) and the altered narrative regarding payment arrangements and the loan facility scheme; h) New claims - Addition of a distinct claim alleging Ismitz's involvement in various deliberate wrongful actions relating to payments made, and enhanced allegations of misrepresentation and inducement involving the new parties. [21] The main reliefs sought are: a) Leave to amend the Defence and Counterclaim dated 9.5.2023 as per the Proposed Amendments in Annexure A; b) Consequential orders for service and filing of the amended pleadings within specified timelines; and c) Costs in the cause. THE LEGAL FRAMEWORK FOR AMENDMENT APPLICATIONS [22] The power to allow amendments to pleadings is conferred on the court by Order 20 Rule 5 of the ROC, which provides: “(1) Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.” [23] This wide discretionary power must be exercised judiciously, having regard to the circumstances of each case. [24] The principles governing the exercise of this discretion were authoritatively established by the Federal Court in Yamaha Motor Co. Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213. The Federal Court held: “Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.” [25] These three limbs must be satisfied cumulatively. If an applicant fails on any one limb, the application must fail in its entirety. [26] However, the principles in Yamaha Motor have been importantly qualified by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301. The Federal Court held at paragraph [33]: “Having considered the facts and the circumstances of the present case, our views are as follows: (a) when dealing with an application to amend the pleadings, which introduce a new case in the claim or defence, on the eve of the trial, the principles in Yamaha Motor are not the sole considerations; (b) the principles in Yamaha Motor applies to cases where the application to amend the pleadings is made at an early stage of the proceedings; (c) that there has to be a cogent and reasonable explanation in the applicant'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; and (f) that lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs.” [27] The Federal Court in Hong Leong Finance Bhd also quoted with approval the observations of Lord Griffiths in Ketteman and Others v Hansel Properties Ltd [1988] 1 All ER 38 at paragraph [19]: “Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are 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. Furthermore, to allow an amendment before a trial begin, it is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.” [28] In distilling these principles, the court must consider whether the three limbs of the Yamaha Motor test are satisfied. Where amendments are sought at a late stage, particularly after trial dates have been fixed, additional considerations arise: the applicant must provide cogent and reasonable explanations for the delay, the application must not be a tactical manoeuvre, and the court must assess whether compensation by costs adequately addresses any prejudice caused. The court retains an overarching discretion to be exercised according to where justice lies in the particular circumstances of the case. RESPECTIVE PARTIES' SUBMISSIONS Submissions of the Defendants [29] The Defendants submitted that the proposed amendments are bona fide and are necessary to elaborate on facts already pleaded in the Defence and Counterclaim. They argued that the amendments do not change the nature and character of the Defence and Counterclaim but merely provide fuller particulars of facts that were already in issue. [30] The Defendants contended that the core of their defence remains unchanged, namely that they entered into the agreements based on Taqiuddin's undertaking to make all payments, and that there was a conspiracy between Kenanga, Taqiuddin and Ismitz to injure them. [31] The Defendants submitted that the amendments flow naturally from the evidence already contained in their previous affidavits filed in support of earlier applications, particularly the Affidavit in Support dated 8.12.2023 (Enclosure 53) and the Affidavit in Support dated 14.5.2024 (Enclosure 133) filed in Suit 489. They argued that the facts sought to be pleaded have already been disclosed to the opposing parties through these affidavits. [32] The Defendants emphasised that the trial dates in September 2025 provide sufficient time for the opposing parties to respond to the amendments, and that any prejudice can be adequately compensated by an award of costs. [33] The Defendants further submitted that they would be severely prejudiced if the amendments are not allowed, as they would be unable to present their full case at trial. They argued that refusing these amendments would cause severe prejudice to proper case presentation. Submissions of Kenanga [34] Kenanga submitted that the proposed amendments are substantial and fundamentally alter the nature and character of the Defence and Counterclaim. The amendments introduce entirely new factual matrices, new parties, and a completely different narrative of events. [35] Kenanga emphasised that the application was made at a very late stage in the proceedings, approximately 22 months after the Defence and Counterclaim was first filed. By the time the amendment application was filed, trial dates had been fixed, pre-trial documents had been exchanged, and the parties had proceeded through multiple interlocutory applications based on the original pleadings. [36] Kenanga argued that the Defendants have failed to provide any material or cogent reasons to explain the delay in making the application. The matters sought to be pleaded were within the Defendants' knowledge from the outset and should have been included in the Defence and Counterclaim when it was first filed, or at the very least, in an amendment application made at a much earlier stage. [37] Kenanga submitted that many of the proposed amendments seek to introduce matters of evidence rather than material facts, contrary to the requirements of Order 18 Rule 7 of the ROC. The introduction of detailed narratives about cheque processing, conversations with Muna Naim, and elaborate payment schemes are matters of evidence that should be adduced at trial, not pleaded. [38] Kenanga argued that allowing the amendments at this late stage would cause irremediable prejudice that cannot be compensated by costs. The pleadings would have to be reopened, pre-trial documents would have to be revised, and there would be a real risk of the September 2025 trial dates being vacated. [39] Kenanga relied on authorities supporting the proposition that the court should be less ready to allow very late amendments, and that a heavy onus lies on a party seeking to make such amendments to justify the delay. Submissions of Taqiuddin [40] Taqiuddin adopted substantially the same submissions as Kenanga and additionally emphasised that the proposed amendments fundamentally change the case he has to meet. The original Defence and Counterclaim alleged that Taqiuddin directly introduced parties, directly communicated with Kenanga and Ismitz, and directly made payment of RM2,600,000.00 to Kenanga. [41] The proposed amendments seek to replace this narrative with an entirely different version involving Muna Naim as the introducer, an elaborate cheque arrangement that was allegedly deliberately not processed, and payments routed through different entities and individuals namely Dato' Michael Chew and Amanah Capital Group Limited. [42] Taqiuddin further argued that the facts sought to be amended were within the Defendants' knowledge from the beginning and should have been pleaded when the Defence and Counterclaim was first filed on 9.5.2023. The amendment application was only filed in March 2025, representing an almost 22-month gap. During this period, various applications have been disposed of based on the original pleaded position, including summary judgement and Taqiuddin's striking out application. The Defendants provided no cogent explanation for this delay. [43] Taqiuddin submitted that the amendments are not bona fide but constitute a tactical manoeuvre to avoid the consequences of their originally pleaded position and to introduce new defences at a late stage when the trial is imminent. Submissions of Ismitz [44] Ismitz adopted the submissions of Kenanga and Taqiuddin and further emphasised the substantial prejudice that would be caused to him personally if the amendments were allowed at this late stage. [45] Ismitz submitted that the original Defence and Counterclaim made general and unparticularised allegations of conspiracy against him. The proposed amendments now seek to introduce elaborate new allegations involving Muna Naim, loan facility arrangements, and specific undertakings allegedly made in his presence, all of which were never mentioned in the original pleading. [46] Ismitz argued that these are not mere elaborations but constitute entirely new causes of action that fundamentally change the case he has to meet. He would be required to investigate and respond to allegations about events and persons that were never previously pleaded, at a time when memories may have faded and documentary evidence may no longer be readily available. [47] Ismitz submitted that the Defendants' failure to plead these matters from the outset, despite them being within their knowledge, demonstrates a lack of bona fides and constitutes an abuse of process. PRELIMINARY OBJECTION [48] Both Taqiuddin and Ismitz raised a preliminary objection that the Proposed Amendments in Lampiran A were not attached to the Defendants' Notice of Application dated 17.3.2025. The Lampiran A was only attached in the Defendants' Affidavit in Support without any certificate of verifying exhibit. They submitted that this constitutes a non-compliance with Order 41 Rule 11 of the ROC, and therefore the Lampiran A should not be admitted as evidence. They also argued that certain amendments in the Proposed Amendments are not underlined in red ink, contrary to the applicable Practice Directions of the Court. Taqiuddin pointed to specific paragraphs, particularly paragraph 3a, 4, 6c and 9c, where changes have been made but were not properly underlined as required. [49] The Defendants in their Affidavit in Reply dated 24.4.2025 (Enclosure 119) acknowledged that they had inadvertently filed the Affidavit in Support dated 14.3.2025 without the required certifying exhibit, due to an inadvertent error or oversight. To rectify this, the Defendants exhibited the Proposed Amendment along with the certifying exhibit in their Affidavit in Reply. [50] The Defendants submitted that even if such non-compliance were established (which is strictly denied), it has not resulted in any substantial miscarriage of justice or caused irreparable prejudice that cannot be remedied by way of amendment or an appropriate order for costs. [51] The Defendants relied on the Court of Appeal decision in Kenanga Investment Bank Bhd v Swee Joo Bhd & Ors and another appeal [2017] MLJU 2095, wherein the court emphasised that substantive justice should take precedence over procedural non-compliance: “Things changed in the last few decades. Legislation as well as rules of court were in place to ensure that courts provide substantive justice and matters are not decided based on procedural non-compliance or technicalities without giving an opportunity to the litigant to correct the mistakes and/or non compliance. Lord Woolf's report and the subsequent amendment to the Rules of Court were meant to bury the application of micro jurisprudence on procedure and/or technicalities and to advance an inquisitorial and/or holistic approach to attain substantive justice. That is to say, the court has to play a part to give directions to avert the procedural and/or technical issues to cater for substantive justice. In short, court was obliged to apply macro jurisprudence to arrive at substantive justice and the game of adversarial justice on procedural non-compliance was intended to be made obsolete.” [52] The Defendants also referred to this court's decision in Hermie bin Md Tahir v AmBank Bhd [2020] MLJU 2385 wherein I dismissed a preliminary objection raised by the appellant due to the respondent's erroneous reference to the provision in the ROC for the amendment application: “I regard the erroneous reference to O. 20 r. 1 of the ROC 2012 to be merely a technical non-compliance with these rules. Despite making a reference to the incorrect rule, the Respondent was indeed seeking leave of the Court. The Appellant opposed the application by raising the usual issues when opposing an application to amend pleadings under O.20 r. 5 ROC 2012. This demonstrates that all parties concerned were aware under which actual provision the Amendment Application was made and the Respondent was actually seeking leave from the Court for the application. The Appellant was not prejudiced by the wrong reference to the rules in the Notice of Application. Having regard to the justice of the matter I dismissed the Appellant's procedural objection.” [53] Having considered the submissions, I am satisfied that the preliminary objection must be dismissed. Whilst it is true that Order 41 Rule 11 of the ROC requires proper exhibits to be attached with certifying certificates, and that the Defendants initially failed to comply fully with this requirement, the Defendants have since rectified the deficiency by exhibiting a properly certified version of the Proposed Amendments in their Affidavit in Reply dated 14.3.2025. All parties were aware of the nature of the amendments sought and had adequate opportunity to respond to them. The Defendants sought leave from the court for the amendments. Taqiuddin, Ismitz and Kenanga were able to fully address the merits of the proposed amendments in their written and oral submissions. [54] This is a technical non-compliance that has not resulted in any substantial miscarriage of justice or caused irreparable prejudice. The courts have consistently held that procedural non-compliance should not defeat substantive justice where the deficiency can be cured and where the opposing party has not been prejudiced in presenting their case. As emphasised in Kenanga Investment Bank Bhd v Swee Joo Bhd, the modern approach is to apply macro jurisprudence to arrive at substantive justice rather than allowing procedural technicalities to determine the outcome. Similarly, in Hermie bin Md Tahir v AmBank Bhd, I held that technical non-compliance should not defeat an application where all parties are aware of what is being sought and the opposing party has not been prejudiced. Accordingly, I dismiss the preliminary objection and proceed to examine the substantive merits of the amendment application. ANALYSIS AND FINDINGS OF THE COURT Whether the Proposed Amendments Would Turn the Suit from One Character into a Suit of Another and Inconsistent Character [55] I now turn to examine whether the proposed amendments would turn the suit from one character into a suit of another and inconsistent character. [56] The proper approach is to compare the original pleading with the proposed amended pleading to determine whether the essential character of the case has been changed. Amendments that merely elaborate on or provide particulars of facts already pleaded will not ordinarily be regarded as changing the character of the suit. However, amendments that introduce entirely new factual foundations, new causes of action, or fundamentally different narratives of events may well be regarded as changing the character of the suit. [57] Having carefully examined the original Defence and Counterclaim dated 9.5.2023 and the proposed amendments set out in Lampiran A, I am satisfied that the proposed amendments do indeed seek to turn the suit from one character into a suit of another and inconsistent character. [58] The original Defence and Counterclaim presented a case based on certain fundamental factual allegations. In particular, paragraph 9 of the original Defence and Counterclaim pleaded that: “On or around the month of August 2021, Taqiuddin approached the Defendants pertaining to the proposal to purchase KNM Group Berhad's shares and subsequently introduced the Plaintiff and the Plaintiff's representative, Ismitz for the said transaction. Further, at all material times, Taqiuddin communicated with the representative of KNM Group Berhad and the Plaintiff and Ismitz with regards to the purchase of KNM Group Berhad Shares.” [59] Paragraph 9(b) of the original Defence and Counterclaim further pleaded: “In line with the understanding and agreement between the parties upon the First Defendant 'signing' the Put and Call Option Agreement, Taqiuddin had paid the initial payment of RM 2,600,000.00 to the Plaintiff and has accepted by the Plaintiff.” [60] These pleadings established a clear and straightforward narrative: Taqiuddin was the principal actor who approached the Defendants, introduced the Plaintiff and Ismitz to the Defendants, handled communications, and made the initial payment. [61] The proposed amendments seek to replace this narrative with an entirely different version of events. Under the proposed amendments: a) Paragraph 9 is sought to be amended to introduce a previously unmentioned financial adviser named Muna Naim. b) New paragraph 9(aa) seeks to plead that “Taqiuddin introduced a financial advisor, Muna Naim, to the Defendants to realise the Proposal.” c) New paragraph 9(ba) seeks to plead that “Muna Naim introduced Ismitz to Taqiuddin, and advised Taqiuddin regarding the steps to obtain the financial facility.” d) New paragraph 9A seeks to introduce an entirely new narrative about Taqiuddin allegedly giving an undertaking in the presence of Ismitz, and about using Muna Naim to process a loan facility arrangement. e) The original pleading that Taqiuddin paid RM2,600,000.00 is sought to be deleted and replaced with a complex narrative involving a cheque that was allegedly deliberately not processed by Kenanga, and subsequent payments made through Dato' Michael Chew and Amanah Capital Group Limited – both of whom were never mentioned in the original pleading. [62] These are not mere elaborations or particulars of facts already pleaded. They constitute a fundamental rewriting of the factual foundation of the Defence and Counterclaim. The introduction of Muna Naim as a central figure, the complete recharacterisation of the payment arrangements, and the introduction of new third parties are substantial changes that alter the very nature of the case. [63] The Defendants' attempt to characterise these as mere elaborations is untenable. A comparison of the original and proposed pleadings reveals that the amendments do not simply add detail to existing allegations – they replace core factual allegations with entirely different versions of events. [64] In ASM Development Sdn Bhd v Hijjas Kasturi Associates Sdn Bhd [2011] 6 MLJ 228, the Court of Appeal considered whether proposed amendments changed the character of the suit. The court held that the amendments sought were based on existing facts which were substantially the same facts as the original claim. Crucially, the court found that the amendments arose out of documents produced by the defendant in the exchange of documents exercise, and that the amendments merely elaborated on the same professional fees claim arising from the same contract. [65] The present case is distinguishable from ASM Development. Here, the amendments do not arise from any discovery process. The Defendants’ discovery application in Suit 489 was dismissed by this court on 23.9.2024, and no new evidence has emerged to justify or necessitate these amendments. Unlike ASM Development, where the amendments merely elaborated on the same claim using documents from the defendant’s own possession, the amendments here fundamentally alter the cast of characters and the transactional narrative. [66] In Smijaya Sdn Bhd & Ors v Perwira Affin Bank Bhd [2010] 3 MLJ 54, the Court of Appeal considered whether the proposed amendments would fundamentally alter the nature of the suit. The court observed that the new version of the defence was markedly different from the original. The amendments introduced issues relating to the plaintiffs’ involvement in providing advice and in estimating the defendants’ profits - matters that had not formed part of the initial defence, which had been confined to the plaintiff’s advice on purchasing USD during the financial crisis. The court concluded that the changes were substantial rather than minor, carried a risk of significant prejudice to the plaintiff, and were not put forward in good faith. [67] The Court of Appeal in Smijaya further observed that the proposed amendment was not bona fide, stating at paragraph [16]: “[16]...Pada hemat kami pihak defendan mengambil kesempatan dengan menangguk di air keroh. Permohonan yang bukan bona fide harus ditolak.” [In our view, the defendant took advantage by fishing in troubled waters. An application that is not bona fide should be rejected.] [68] The principles in Smijaya are directly applicable to the present case. The proposed amendments here, like those in Smijaya, represent a major change in the pattern of the pleaded case rather than a minor elaboration. The original Defence and Counterclaim portrayed a direct relationship between Taqiuddin and the transactions, whereas the proposed amendments introduce an entirely different cast of intermediaries and a fundamentally altered narrative of how payments were made and agreements were reached. This is precisely the type of change in character that the courts have consistently held should not be permitted through late amendment applications. [69] I therefore find that the proposed amendments would turn the suit from one character into a suit of another and inconsistent character, thereby failing this limb of the Yamaha Motor test. Whether the Application is Bona Fide [70] I now turn to examine whether the application was made bona fide. This requires consideration of whether there has been delay in bringing the application, and if so, whether cogent reasons have been provided to explain the delay. [71] The Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe held that if an amendment application is made at a later stage of proceedings, especially after the trial dates have been fixed, the applicant must provide material and cogent reasons to explain the delay in making the application for amendment where such application is made at a late stage in the proceedings. Such an unexplained delay in making an amendment application is often associated with a lack of good faith unless the delay is excusable and has been sufficiently explained. This is fatal to an amendment application. [72] In the present case, the Defence and Counterclaim was filed on 9.5.2023. The amendment application was only filed on 17.3.2025, a gap of approximately 22 months. During this 22-month period, the Defendants had ample opportunity to identify any deficiencies in their pleadings and to seek amendments. [73] The Defendants. argument that there is no delay because trial has not yet commenced is unpersuasive. The definition of “advanced stage” is inherently fact-sensitive and depends on the context and circumstances of each case. It is not confined merely to whether trial has physically commenced. [74] As was observed by the High Court in Gurbachan Singh & Ors v Tetuan Muthu & Lee & Anor [2001] MLJU 82, after pleadings are deemed closed, an amendment can only be made with the leave of court. When a party requires discretion to be exercised in its favour, delay is always a relevant consideration because a court will only assist the vigilant and not the indolent. [75] Furthermore, the case ofJPK (M) Sdn Bhd (dalam likuidasi mendakwa melalui Cheng & Co Corporation Recovery Sdn Bhd) v Sunny Tech (M) Sdn Bhd & Ors [2018] MLJU 945 which the Defendants rely upon to argue that their Amendment Application was not filed at an "advanced stage" of the proceedings, does not support their position as it pertains to an application to withdraw an action and is entirely unrelated to any amendment of pleadings. [76] The present case must be considered in its proper context. By the time this amendment application was filed, trial dates had been fixed for 8, 9, 10, 11, 17, 18 and 19 September 2025. The parties were in the midst of preparing pre-trial documents. The Bundle of Pleadings and the Summaries of Case of the respective parties had already been filed. Multiple interlocutory applications had been heard and determined based on the original pleadings. The action had progressed significantly beyond the stage where amendments can be made as of right or without serious disruption to the litigation process. [77] I am guided by the High Court’s decision in Stanlan Golf Services Sdn Bhd v Aim Realty Construction Sdn Bhd [2022] MLJU 393, where the court dismissed an amendment application despite the trial not having commenced. The court held that despite case management sessions and pre-trial directions given to ensure just, expeditious, and economical disposal of the action, the defendant made a late application. The court found this was a clear case of delay, and the defendant bore a heavy burden to provide material and cogent reasons for the delay. At paragraph [38] of the grounds of judgement, the court emphasised that the application was not made because of recent occurrences or the uncovering of new facts pursuant to any discovery process, but rather, due to the defendant’s indolence in not pleading these facts when it has knowledge of the same since the inception of the suit. The court stated it could not condone such apathy and lackadaisical attitude. At paragraph [44], the court pointed out that the issue was not a recent occurrence and the pleadings would have to be reopened, more documents would have to be exchanged between the parties for purposes of the Bundle of Documents for the trial and the other pre-trial documents would have to be reviewed. The court held that this is certainly most undesirable considering the history of the proceedings where these new claims and relief are within the defendant’s knowledge from the beginning and should have been included in the Statement of Defence and Counterclaim in the first place or at the very least, in an amendment application made at a much earlier stage of the proceedings. [78] Similarly, in Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd & Ors [2021] MLJU 132, the High Court found that an amendment application was made at a late stage of proceedings after the action had been set down for full trial. At paragraph [31] of the grounds of judgement, the court noted that by the time the plaintiff filed its amendment application, twelve case management sessions had been conducted and the plaintiff did not notify the court of its intention to apply for amendment of writ or Statement of Claim prior to the application. By the time the amendment application came up for hearing and decision, all the parties’ respective Witness Statements had been filed, and the action had been fixed for full trial. At paragraph [32], the court held that according to the principle decided by the courts, cogent explanation for the delay is required, and the failure to provide such explanation is fatal, especially where the amendments sought are substantial in nature. At paragraph [40], the court found and concluded that there was delay in the plaintiff’s amendment application and the plaintiff had not provided material and cogent reasons for the delay. The court also found that the delay in amendment application would prejudice the full trial dates set by the court for the case. [79] The Defendants’ contention that the amendment application was a natural flow of proceedings following the discovery and interrogatory applications is without merit. The discovery application in Suit 489 was filed on 16.10.2023 and dismissed on 23.9.2024. Instead of filing the amendment application immediately subsequent to the discovery application being dismissed, the Defendants waited another six months until 17.3.2025 to file the amendment application. The Defendants’ assertion that the amendment application was made immediately subsequent to the discovery application is clearly unsubstantiated and devoid of merit. After a lapse of approximately six months from the dismissal of the discovery application, and a lapse of 22 months from the filing of the Defence and Counterclaim, the Defendants filed this application for amendment. This sequence of events undermines the Defendants’ explanation that the amendment was filed immediately upon discovering a need for clarification subsequent to the discovery application. [80] In Klass Corp (M) Sdn Bhd v Mkrs Management Sdn Bhd [2016] MLJU 1857, the High Court held at paragraph [16] that it is axiomatic that the longer the delay the more cogent and convincing the reasons must be explaining the cause of the delay. It is only too evident that an application to amend one’s pleadings either just before trial or after trial has started, has a disruptive effect on the trial, often derailing and delaying it further. Precisely because of this deleterious effect that a late application for amendment has on a trial, it is often associated with a lack of good faith unless the delay is excusable as in having been sufficiently explained. [81] In K Rajashekar a/l Kanapathy & Ors v Palm Court Condominium & Ors [2014] 9 MLJ 297, the court held at pages 307 to 308 that the authorities make it clear that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it. The later an application is made, the stronger would be the grounds required to justify it. The delay must be explained and justified. A failure to explain the delay is fatal especially where the amendments sought are substantial in nature. Last minute applications are to be discouraged as they would inevitably entail an adjournment, and an award of costs may not adequately compensate someone who is desirous of concluding a piece of litigation which has been hanging over his head. [82] I therefore find that there has been an inordinate delay in bringing this amendment application, and the Defendants have failed to provide any cogent or material reasons to explain or justify this delay. This failure to explain the delay is fatal to the application, particularly given the substantial nature of the proposed amendments. [83] The principle that courts should assist the vigilant and not the indolent, as stated in Gurbachan Singh, is applicable to the present case. The Defendants had every opportunity to plead their case properly from the outset, but failed to do so. The Defendants have demonstrated indolence rather than vigilance in the conduct of this litigation. [84] I therefore find that the application was not made bona fide and is tainted with mala fides, thereby failing this limb of the Yamaha Motor test. Whether Allowing the Amendments Would Cause Prejudice That Cannot Be Compensated by Costs [85] I now turn to examine another limb of the Yamaha Motor test, namely whether allowing the amendments would cause prejudice to the opposing parties that could not be compensated by costs. [86] First, the trial dates have been fixed for 8, 9, 10, 11, 17, 18 and 19 September 2025. Considerable time and resources have been invested by all parties and by the court in progressing this matter towards trial. The parties have exchanged draft Issues To Be Tried, draft Agreed Facts, and Proposed Bundle of Documents. To allow the amendments at this late stage would undermine all that preparatory work and necessitate its repetition. [87] The pleadings would have to be reopened. More documents would have to be exchanged between the parties for purposes of the Bundle of Documents for the trial, and the other pre-trial documents would have to be reviewed. The reopening of pleadings and review of the parties’ Case Summaries, the Agreed Facts, the Issues To Be Tried and List of Witnesses would be required. This is certainly most undesirable considering that these matters were within the Defendants’ knowledge from the beginning and should have been included in the Defence and Counterclaim in the first place or at the very least, in an amendment application made at a much earlier stage of the proceedings. The consequence would be wasteful and inefficient, and would undermine the diligent case management that has brought this matter to the brink of trial. [88] Second, this is not an isolated piece of litigation. There are two other related suits (Suit 140 and Suit 489) involving overlapping parties and similar issues. The same amendment applications have been filed in those suits. A decision to allow amendments in this suit would have ramifications for the conduct of those related suits as well. The interests of efficient and coordinated case management across all three related suits militate against allowing belated amendments. In Suit 140, the Notice of Application was dated 17.3.2025 (Enclosure 119) with Affidavit in Support dated 17.3.2025 (Enclosure 120). In Suit 141, the Notice of Application was dated 17.3.2025 (Enclosure 112) with Affidavit in Support dated 17.3.2025 (Enclosure 113). In Suit 489, the Notice of Application was dated 25.1.2025 (Enclosure 182) with Affidavit in Support dated 27.1.2025 (Enclosure 183). The staggered filing of these applications across the three related suits, with no satisfactory explanation for the different dates and timing, further reinforces the conclusion that these applications are not bona fide but rather constitute a calculated tactical manoeuvre. [89] Third, the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe emphasised that justice is not always measured in monetary terms. The Federal Court observed that a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are 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. Furthermore, allowing an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. In the present case, the trial is imminent. To allow the amendments at this late stage would raise false hopes for the Defendants, cause anxiety to the opposing parties who must face new issues, and undermine the legitimate expectation of all parties that the issues are settled and the trial will determine those issues one way or the other. [90] Fourth, the argument advanced by the Defendants that the amendment application is merely a natural flow of the proceedings following the Order 14, Order 18, discovery and interrogatory applications is without merit. The fact that multiple applications have been filed and disposed of in this matter only underscores the protracted nature of these proceedings and the need for finality. The dismissal of the discovery and interrogatory applications by this court on 23.9.2024 ought to have brought closure to those matters. Instead, the Defendants have sought to circumvent those dismissals by introducing, through amendment, matters that overlap substantially with items sought in those applications. This demonstrates a lack of bona fides and a tactical manoeuvre to delay the proceedings. [91] Fifth, the contention by the Defendants that refusing the amendments would cause severe prejudice to their case presentation is not persuasive. If the Defendants did not know the facts they now seek to plead, there is no basis for pleading them. If they did know those facts, there is no excuse for not pleading them earlier. The Defendants cannot have it both ways, alleging that they need discovery of information whilst simultaneously pleading that same information as established fact. This demonstrates the tactical and non-bona fide nature of the application. The matters sought to be pleaded can be addressed through evidence at trial. Witnesses can be subpoenaed. Documentary evidence can be adduced. The Defendants are not prevented from proving their case; they are merely being held to the facts as pleaded in their Defence and Counterclaim. [92] Sixth, the nature and extent of the proposed amendments are such that they would fundamentally alter the case that the opposing parties have to meet. Taqiuddin and Ismitz would have to revisit their entire defence strategy, potentially call different witnesses, and address an entirely different factual matrix. Kenanga would similarly have to reconsider its position. This goes far beyond prejudice that can be compensated by costs. It represents a fundamental disruption to the orderly conduct of litigation. [93] In Smijaya cited earlier, the court found that the proposed amendment was “not minor but a major one to the extent of causing extensive prejudice to the plaintiff” and that “the proposed amendment was also not bona fide.” The same can be said of the present case. The amendments are major, not minor. They cause extensive prejudice to the opposing parties. They are not bona fide. [94] I therefore find that allowing the amendments would cause prejudice to the opposing parties that cannot be compensated by costs, thereby failing this limb of the Yamaha Motor test. The Court’s Discretion and Overall Justice of the Case [95] Even if the Defendants had satisfied the three limbs of the Yamaha Motor test, which they manifestly have not, the court retains an overarching discretion whether to allow an amendment based on where justice lies in the particular circumstances of the case. [96] In Low See Hua & Anor v Chin Yok Fa & Ors [2017] MLJU 1615, the High Court emphasised that in exercising its discretion, the court must be minded that the decision will be based on the facts and circumstances of the individual case. No two cases are alike, and the circumstances of the case vary from case to case. Each case must be considered on its own merits. [97] Having regard to all the facts and circumstances of this case, I am satisfied that justice favours the dismissal of the amendment application for the following reasons. [98] First, the cumulative effect of the various factors I have identified is decisive. The proposed amendments fundamentally change the character of the suit. There has been an inordinate and unexplained delay of approximately 22 months. The application was made at an advanced stage when trial dates have been fixed and pre-trial preparations are well underway. The amendments seek to introduce evidence rather than material facts. The application is not bona fide but rather constitutes a tactical manoeuvre. The prejudice to the opposing parties cannot be compensated by costs. [99] Second, the courts can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings. The Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe, quoting with approval the observations of Lord Griffiths in Ketteman and Others v Hansel Properties Ltd, emphasised that a judge is entitled to weigh in the balance the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. [100] Third, allowing the amendments at this late stage would be contrary to the policy of the court-managed system of administration of justice to dispose of cases smoothly, expeditiously and economically. The parties have been working towards trial in September 2025 based on the pleadings as currently constituted. To reopen the pleadings at this late stage would derail those preparations, waste the time and resources already invested, and potentially necessitate an adjournment of the trial dates. [101] Fourth, the Defendants must bear the consequences of their failure to plead their case properly from the outset, or at least to seek amendments at an earlier stage when such amendments could have been accommodated without significant disruption. The interests of efficient administration of justice, the rights of the opposing parties, and the proper conduct of litigation all militate against allowing amendments at this late stage in the circumstances of this case. [102] Fifth, I accept the submission that this amendment application is a tactical manoeuvre by way of an afterthought and not bona fide. The timing of the filing of Enclosure 112 in March 2025, some 22 months after the filing of the Defence and Counterclaim, and approximately six months after the dismissal of the discovery and interrogatory applications, suggests a calculated attempt to introduce new matters after seeing the positions taken by the opposing parties and after previous applications have been dismissed. The staggered filing of similar applications across the three related suits further reinforces this conclusion. The Defendants have provided no satisfactory explanation for the timing and manner of these applications. [103] Sixth, the opposing parties are entitled to proceed to trial on the basis of the pleadings as currently constituted. They are entitled to the finality and certainty that comes from having settled pleadings. They are entitled to have their legitimate expectation of trial in September 2025 fulfilled without further delay or disruption. [104] Seventh, to countenance the kind of belated and inadequately explained amendment application made in this case would encourage similar applications in other cases, to the detriment of the efficient administration of justice. [105] For all these reasons, even if the Defendants had satisfied the technical requirements of the Yamaha Motor test, I would still exercise my discretion to refuse the amendments on the basis that justice, properly understood, requires that parties be held to their pleadings and that litigation be conducted efficiently and without avoidable delay. CONCLUSION [106] In summary, I find that the Defendants' amendment application fails on all three limbs of the Yamaha Motor test. The proposed amendments would turn the suit from one character into a suit of another and inconsistent character. The application was not made bona fide and is tainted with mala fides. The prejudice that would be occasioned to the opposing parties cannot be compensated by costs. [107] Additionally, many of the proposed amendments seek to introduce matters of evidence rather than material facts, contrary to the requirements of Order 18 Rule 7 of the ROC. [108] There has been an inordinate and unexplained delay of approximately 22 months in bringing this application. The application was made at an advanced stage of the proceedings when trial dates had been fixed and parties were engaged in pre-trial preparations. [109] Having regard to all the circumstances and applying the established legal principles, justice clearly favours the dismissal of the amendment application. [110] The opposing parties are entitled to proceed to trial on the basis of the pleadings as currently constituted. They are entitled to the finality and certainty that comes from having settled pleadings. They are entitled to have their legitimate expectation of trial in September 2025 fulfilled. [111] The Defendants must bear the consequences of their failure to plead their case properly from the outset, or at least to seek amendments at an earlier stage when such amendments could have been accommodated. The interests of efficient administration of justice, the rights of the opposing parties, and the proper conduct of litigation all militate against allowing amendments at this late stage in the circumstances of this case. [112] Accordingly, the Defendants' Notice of Application dated 17.3.2025 (Enclosure 112) is hereby dismissed with costs. [113] Costs are fixed at RM5,000.00 (subject to allocatur) to be paid by the Defendants to each of the opposing parties, namely Kenanga, Taqiuddin, and Ismitz respectively. [114] For the avoidance of doubt, the Defendants shall proceed to trial on the basis of the Defence and Counterclaim dated 9.5.2023 (Enclosure 8) as currently pleaded, without the benefit of the proposed amendments set out in Lampiran A to the Notice of Application. 24 November 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff/First Defendant in Counterclaim: Shaikh Abdul Saleem with Teoh Jo Vi (Messrs Shaikh David & Co) For the Defendants/Plaintiffs in Counterclaim: Datuk J Shamesh with Poh Jun Yang (Messrs Jeeva Partnership) For the Second Defendant in Counterclaim: Shirlena A/P Yogeswaran (Messrs James Monteiro) For the Third Defendant in Counterclaim: Victor Pang Chee Siong (Messrs Justin Voon Chooi & Wing)