Langkah Utara Sdn.Bhd. v 1. ) Norazman Bin Hamidun (KA-22NCvC-50-08/2020)

AND NORAZMAN BIN HAMIDUN (NRIC No: 640622-08-5551)

NORDIN BIN HAMIDON (NRIC No: 550707-08-6079)

PERMODALAN KEDAH BERHAD (Company No.: 287561-V) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 90 and Enclosure 101) Introduction 1. These applications concern the Plaintiff's attempts to reinstate proceedings that were previously dismissed for non-attendance, and subsequently, to amend the initial reinstatement application. The Plaintiff sought reinstatement on the ground of alleged medical incapacity yet failed to furnish the requisite medical certificate or to comply with the statutory time limit prescribed under Order 35 rule 2 of the Rules of Court 2012. Thereafter, by way of an amendment application, the Plaintiff sought to amend the reinstatement 01/11/2025 23:27:58 KA-22NCvC-50-08/2020 Kand. 129 …page 2 application so as to expressly invoke the missing order and to include a prayer for extension of time. It is against this backdrop that the Court now considers the merits of the applications. Facts and the Dispute 2. The main suit was filed to claim damages in relation to a mining agreement with Istikia Sdn Bhd. The Third Defendant (D3) was involved in the termination of the mining agreement with Istikia Sdn Bhd via a Deed of Cancellation dated 22 August 2017. The Plaintiff claimed they continued making significant financial investments in the mining operations, believing the agreement was still active, as they were not notified of the termination.

At the trial's commencement, Koh Wing Kee ('Koh'), the Plaintiff's designated primary witness, was scheduled to testify on 6 May

However, on that date, the court was informed by the Plaintiff's solicitor that Koh was receiving treatment at Pantai Hospital Sungai Petani for severe chest discomfort experienced the previous day. He had also purportedly sought treatment at Sultan Abdul Halim Hospital on 5 May 2025.

The Plaintiff's solicitor requested an adjournment due to Koh's medical condition. Accordingly, the trial was postponed to 2.00 PM, and he was instructed to obtain a medical certificate as proof of the Koh’s medical condition failing which, the trial must continue whether physically or by Zoom. Neither instruction was heeded. …page 3

To date, the Plaintiff has failed to produce a medical certificate substantiating the witness's alleged unfitness to attend the trial. Only the following documents were produced to support the Plaintiff was medically unfit:

(i). Referral Letter from Hospital Sultan Abdul Halim dated 5 May 2025 at 1:58 PM

(ii). A bill and receipt from Hospital Sultan Abdul Halim dated 5 May 2025 at 10:40 AM

(iii). Attendance record from Pantai Hospital Sungai Petani dated 6 May 2025 at 09:22 AM;

(iv). Official receipt from Pantai Hospital Sungai Petani dated 6 May 2025 at 09:25 AM; and

(v). Coronary angiogram / angioplasty report from Pantai Hospital Sungai Petani which appears to be dated either 15 December or 23 May, but the year is unclear.

On that day, the Defendants argued that the submitted reports merely indicated Koh's presence at the hospital but did not conclusively demonstrate that he had been certified unfit to appear in court. In the absence of the medical certificate and supporting documents and despite half a day was accorded to the Plaintiff to produce such documents, none was tendered. I agree with this bearing in mind that during the final pre-trial case management conducted prior thereto, I had made it clear to the parties that no postponement or adjournment of the matter would be granted. Consequently, I ordered the case struck out when no witness for the Plaintiff appeared in court that day. The Plaintiff was obviously not interested in pursuing the trial and was attempting to delay the case. …page 4

The Plaintiff's applications in Enclosures 90 and 101 stem from this striking out, and I will address them collectively in this judgment. The Parties’ Submissions 8. The following are the parties’ submissions for each enclosure.

Enclosure 90 9. Enclosure 90 constitutes the Plaintiff's application for reinstatement of the primary civil action. The Plaintiff's primary justification for seeking reinstatement is that Koh's absence was neither deliberate nor intentional, but resulted from a sudden deterioration in health, specifically exacerbated chest pain necessitating immediate medical attention on 6 May 2025. The Plaintiff, alleged that, having a history of heart disease, Koh’s condition is unpredictable and beyond his control. The Plaintiff explains that he was discharged from Hospital Sultan Abdul Halim on 5 May 2025 and initially believed he could attend the trial on 6 May 2025, but his condition deteriorated the next morning, forcing him to seek treatment at Pantai Hospital based on a referral letter. The Plaintiff insisted that the Defendants' claim that illness was used as a mere pretext is "unreasonable" and are "empty claims".

Concerning procedural compliance and the matter of delay, the Plaintiff acknowledges that the application was filed on 4 June 2025, exceeding the 14-day limit prescribed by Order 35 Rule 2(2) of the Rules of Court 2012 (ROC 2012) by fifteen days. However, the Plaintiff argues that this is ‘not an inordinate delay’ and is justified because Koh, who was the director liaising with the solicitor, was …page 5 unwell and needed time to recover and consult the company's shareholders before giving instructions to file. Further, the application was filed under the court’s inherent jurisdiction, Order 92 rule 4 ROC 2012, where no time limit is specified. The Plaintiff earnestly implores the court to prioritize the overriding interests of justice over strict adherence to technical compliance.

Moreover, the Plaintiff contends that their case possesses substantial merit, noting that the High Court had previously struck out the suit, only for it to be reinstated by the Court of Appeal and remanded for trial. The Plaintiff contends that denying the application would cause great injustice and severe prejudice by permanently prejudicing their claim based solely on a health condition he could not control. Addressing the Defendants’ use of the adverse inference rule, the Plaintiff argues that Section 114(g) of the Evidence Act 1950 is inapplicable because they did not withhold material evidence, and the rule does not apply to a failure to obtain evidence.

Conversely, the Defendants oppose the reinstatement, primarily contesting the veracity of Koh’s absence. The Defendants highlight the Plaintiff's failure to comply with the court’s instruction on the trial date to produce a medical certificate, arguing that this failure suggests the reason for absence is dishonest and constitutes a disregard for the court's directive. In a similar vein, it was argued that no documents could confirm that Koh was unfit to attend court that day, branding the claims as "speculative". The Defendants also allege that the Plaintiff attempted to mislead the court regarding …page 6 whether he underwent an angiogram procedure on the trial date, noting that the documents provided were insufficient or irrelevant.

The Defendants surmise that the absence was a deliberate act or a conscious decision to protract the proceedings. The Defendants argue that the adverse inference rule under Section 114(g) of the Evidence Act 1950 should be applied due to the lack of supporting medical proof. It was further stressed that the Plaintiff, being a company, is not solely dependent on one individual and could have ensured representation by other directors or witnesses with knowledge of the case. This, they assert, demonstrates a lack of diligence and constitutes intentional negligence.

The Defendants argue, on procedural grounds, that the application is irredeemably flawed due to its having been filed beyond the mandatory 14-day period stipulated under Order 35 rule 2(2). The Defendants further argue that since the Plaintiff failed to apply for an extension of time or show any exceptional circumstances, the application must be dismissed for failing to comply with the deadline. The Defendants vehemently reject the Plaintiff's explanation for the 15-day delay as a "hindsight" argument, reiterating that the burden of justifying the delay rests entirely on the Plaintiff.

In conclusion, the Defendants maintain that the Plaintiff has failed to adduce new evidence or substantive legal grounds, instead merely reiterating arguments previously dismissed by the court on 6 May 2025, conduct that could be construed as an abuse of process. …page 7 They maintained that there was no real miscarriage of justice because the dismissal was a standard procedural outcome of the Plaintiff witness's own absence. The Defendants stress that allowing reinstatement would prejudice them by causing further delays and incurring additional financial and legal burdens in defending a case that had already been legitimately dismissed.

Enclosure 101 16. The arguments pertaining to Enclosure 101, the Plaintiff's application to amend Enclosure 90, centred upon matters of procedural compliance, justification for the delay, and the resultant prejudice. In Enclosure 101, the Plaintiff seeks leave to amend Enclosure 90 by adding reference to Order 35 rule 2 of ROC 2012 and including a relief for an extension of time to file the application outside the statutory 14-day limit. The necessity for this amendment arose because the Defendants had objected to the original Enclosure 90, which aimed to reinstate the Writ and Amended Statement of Claim after they were dismissed by the Court, arguing it was filed late and under the wrong legal authority.

The Plaintiff argues that Enclosure 101 should be permitted under Order 20 rule 8 ROC 2012, which allows for the correction The primary justification advanced is that the amendment was filed as a measure of, and motivated by an \"abundance of caution,\" to ensure Enclosure 90 is 'regularised' for the Court's deliberation. The Plaintiff maintains that the amendment did not alter the nature or character of the original application, which was always about reinstatement, making the new inclusion of Order 35 rule 2 …page 8 consistent with the relief sought. Furthermore, the Plaintiff argues that the Defendants are not prejudiced or taken by surprise by either Enclosure 90 or 101.

The Plaintiff attributes the delay in filing the reinstatement application under Enclosure 90 to Koh's ill health, who manages communications with the solicitors, asserting that he required time for recuperation and consultation with shareholders. The Plaintiff apologises for the delay and asserts that it was not an inordinate delay. The Plaintiff cited Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, in supporting the principle that amendments should be allowed if they cause no injustice.

The Defendants, in staunch opposition, contended that the Plaintiff failed to discharge the burden of justifying the considerable delay in filing Enclosure 101 itself. Although the procedural issue concerning Order 35 was raised by the Defendants in June 2025, the Plaintiff only filed Enclosure 101 on 5 August 2025, which represents an unexplained delay of 41 days. The Defendants characterize the amendment as both an afterthought and an opportunistic endeavor to rectify procedural deficiencies identified by the Defence. Furthermore, it is argued that the amendment was substantive because it sought to revive dismissed proceedings.

The Defendants argue that the prejudice suffered is real, forcing them to bear unreasonable costs and prolonging proceedings that …page 9 began in 2020. They reject the Plaintiff's health explanation, noting that the referral letter dated 5 May 2025 did not prove incapacity throughout the entire delay period, nor did it explain the delay in filing Enclosure 101. Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2016] 1 MLJ 301 is cited in support of this contention. The Defendants posit that the Plaintiff has not provided a reasonable, cogent, and sufficient explanation for the delay. Findings and Decision of the Court 21. Having carefully considered the written submissions of both the Plaintiff and the Defendants, and having heard the arguments presented in conjunction with a thorough examination of the evidence, I have resolved to dismiss the Plaintiff's applications in both Enclosure 90 and 101.

Enclosure 101 22. I will begin with Enclosure 101. The application was made primarily under Order 20 rule 8 and it seeks to insert Order 35 rule 2 in Enclosure 90. The stated rationale is straightforward: the Plaintiff seeks to incorporate Order 35 rule 2 'out of an abundance of caution' to regularize Enclosure 90. For discussion, Order 20 rule 8 is reproduced below: Amendment of certain other documents (O 20 r 8)

For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as …page 10 to costs or otherwise as may be just and in such manner, if any, as it may direct.

This rule does not have effect in relation to a judgment or order.

Order 20 rule 8 delineates the procedures and empowers the court to grant leave for amendments to documents, excluding writs and other originating processes, appearances, pleadings, and judgments. These include interlocutory applications which are the subject of this application.

The fundamental principle governing the allowance of an amendment application, including those under Order 20 rule 8, rests on whether the amendment would engender injustice, as articulated in the seminal case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 at [214–215]. Mohamed Azmi FJ's decision delineates three fundamental questions to be addressed in determining whether allowing an amendment would result in injustice: The general principle is that the court will allow such amendments as will cause no injustice to the other parties. 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. [ Emphasis added]

As elucidated at [215], all three conditions must be satisfied, and if they are, the court is vested with broad authority to even introduce or substitute a new cause of action. …page 11 If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim. [ Emphasis added]

Having duly considered the circumstances, I conclude that allowing Enclosure 101 would result in injustice to the Defendant. The Plaintiff could not show that all three conditions were, in fact, fulfilled.

1.1. Timing of Enclosure 101 suggests it is an afterthought

Beyond the considerations delineated in Yamaha Motor, the timing of the amendment, made at a notably late stage, is a further pertinent factor. This was discussed in the decision of Zulkefli CJM in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 at [309]. In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80). [ Emphasis added]

To more clearly illustrate the timeline of Enclosure 101, a chronological overview of both Enclosure 90 and Enclosure 101 is provided below: …page 12 Date Particulars 06/05/2025 Main suit was struck out 04/06/2025 Encl. 90 filed together with Affidavit in Support [Enclosure 91] to reinstate the main suit 19/06/2025 D3 filed Affidavit in Reply to Enclosure 91 26/06/2025 D1 and D2 filed Affidavit in Reply to Enclosure 91 16/07/2025 Plaintiff filed Affidavit in Reply 31/07/2025 Parties filed written submissions for Encl. 05/08/2025 Encl. 101 filed. 07/08/2025 Encl. 101 served on the Defendants 29. Despite the delay in filing Enclosure 101 (which will be addressed later in this judgment), I find the timeline problematic. The Defendants' concerns are well-founded, and their submission that Enclosure 101 was filed after the submissions stage for Enclosure 90 in order to amend the same enclosure, suggests that the amendment application was indeed an afterthought designed to rectify errors in their earlier application. The Plaintiff’s reason for “regularising” the Encl. 90 out of “abundance of caution” does little to contradict this.

The Plaintiff, however, vehemently asserted that Enclosure 101 was filed out of an abundance of caution solely for the purpose of regularising Enclosure 90, and was not a knee-jerk reaction to the substance of the Defendants' submissions. …page 13

In support of their application, the Plaintiff cited the decision of Wong Kian Kheong JC (as he then was) in Pentamaster Instrumentation Sdn Bhd v QAV Technologies Sdn Bhd & Ors [2017] 11 MLJ 233 at [248], wherein his Lordship suggested to the plaintiffs that they should have filed an amendment by way of Order 20 rule 8 to include two additional defendants to properly ventilate their application. Unfortunately, apart from that an application under the same rule would not cause injustice, the Plaintiff offered little explanation in their submissions as to how the decision in Pentamaster would assist their case. I could only infer that it is the intention of the Plaintiff to impose on me that, by virtue of such a suggestion reported in a judgment, their strategy of amending their application is ‘judicially endorsed’—so to speak—and should be given a free pass. With respect, it must be underscored that the doctrine of stare decisis does not operate in the manner presented.

Having considered the foregoing, I am of the opinion that the Plaintiff’s interpretation of Pentamaster is entirely misguided. The judgment clearly mentions that there are both legal and ethical reasons for disallowing the plaintiff’s amendment application. The legal reason was that, not only was the filing procedure incorrect; by wrongly filing the amendment application, the plaintiff had deprived the intended additional defendants from the opportunity to contest the amendment application proper. There was a deprivation of a fundamental right to be heard on part of the defendants.

Such is not the situation in this case before me. Enclosure 90 is the Plaintiff’s application and after the Plaintiff felt the remedies prayed …page 14 for in Enclosure 90 were inadequate, it sought to amend Enclosure 90 to fill in the gaps. From the timeline of events, the logical corollary is that this gap was identified by the Defendants in their objections stated in the submissions.

The discussion in Dato' Seri Anwar bin Ibrahim v Khairy Jamaluddin [2014] 1 MLJ 911 at [922] also lends authority that greater scrutiny and strong justification should be given to amendment applications filed at the last minute. The intended amendments should lead the court to the real question in controversy and not for delaying the trial. [27] It is clear from the authorities that the court will allow amendments up to the twelfth hour to permit the real dispute between the parties to be adjudicated upon. However, in my view, late applications made after a case is set down for trial, unlike applications made prior to that, require extremely close scrutiny, and strong justification, for there are wider considerations in play than mere presence or absence of prejudice. The court must be vigilant in identifying amendments which seek to raise "the real question in controversy between the parties" from those not made in good faith, but made for the purpose of derailing the trial. It is imperative and necessary that consideration be given to anxieties and the inconvenience caused to the other parties, the legitimate expectations of the other party of an early trial and the efficient conduct of litigation. [ Emphasis added]

From the above authorities, it is sufficiently set out that although the principles in Yamaha Motor allow for last-minute amendments in the interest of justice, it does not mean that the application is not subject to intense scrutiny to ensure justice is met for both parties of a suit and not an underhanded tactic to paint over a weak case. As often repeated, the court’s role is to secure justice for both parties …page 15 in a suit, and thus the power to amend a document must be exercised judiciously.

Hence, it is my view that allowing Enclosure 101 would mean that any party is able to touch up their pleadings and applications until the eleventh hour at the fifty-ninth minute after all players have shown their hand. In short, the circumstances strongly suggest that it was an application made in afterthought and cannot be considered bona fide. It follows that the Defendants are undoubtedly prejudiced by Enclosure 101 bearing in mind all affidavits and submissions have already been exhausted.

1.2. The strain of unnecessary litigation cannot be compensated by costs 37. The Plaintiff’s submission under this heading is simple. They argue that the Defendants could not possibly be prejudiced by the application as Enclosure 101 was filed out of abundance of caution and that the Defendants did not aver in their affidavits that they had suffered prejudice.

As part of a catch-all argument, the Plaintiff also argues that the application was filed under Order 92 rule 4 and urged this court to exercise its inherent jurisdiction to guard against injustice as the situation calls for it in light of merits of the claim have not been heard by way of trial. …page 16

The Defendants argue that the Plaintiff cannot rely upon the excuse of having no prejudicial effect without fulfilling the burden of justifying the delay in making the application. It was further contended the application results in unwarranted delays and unnecessary additional costs.

Once again, Low Thiam Hoe brings perspective on the best approach to deal with such a situation. In Zulkefli CJM’s judgment, he discussed the ratio of Worldwide Corporation Limited v GPT Limited and another [1998] EWCA Civ 1894 where consideration should be given to the strain of litigation on parties and a late amendment application. The relevant passage in Worldwide Corporation Ltd is reproduced below as quoted at [310]: … in previous eras it was more readily assumed that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation to that opponent. In the modern era it is more readily recognised that in truth the payment of costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) ‘mucked around’’ at the last moment. Furthermore, the courts are now more conscious that in assessing the justice of a particular case the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales… …We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and …page 17 other litigants, requires him to be able to pursue it. [ Emphasis added]

The strain of this unnecessary litigation caused by Enclosure 101 is obviously apparent. This suit has languished for 5 years: it has brought parties through a summary judgment in the High Court, an appeal at the Court of Appeal, and finally ending up again at the High Court for trial. When the hard-fought day in court came, Koh, the Plaintiff’s star witness, mysteriously and suddenly comes down as ill and could not attend his trial. This undoubtedly brought enormous strain on the Defendants who came prepared. Just as the Defendants thought the dust has settled, the Plaintiff came bearing with an application for reinstatement, which they dutifully contested and to add the proverbial cherry on top, the Plaintiff sought to improve their position with Enclosure 101 to introduce a new provision to be added to their arsenal—which the Defendants also fought against in the short time I have instructed them to. It is therefore justified for the Defendants to claim that Enclosure 101 brought unwarranted delays.

Furthermore, it is trite that the applicant bears the onus to justify for any delays in filing an application. Enclosure 101 has already passed its 14-day deadline and the reason provided by the Plaintiff was that Koh was unable to instruct his solicitors in time due to his ill-health. This court is not unsympathetic to Koh’s illness but the course of events that led to Enclosure 90 and 101 remains suspect at best whether the reason provided is genuine or a tactical manoeuvre for a more favourable condition. The combination of a continuous strain of litigation over the Defendants and procedural …page 18 delay is recognised in Worldwide Corporation Ltd as a situation that cannot be adequately compensated with costs. It goes further that shortly after the Defendants breathed a sigh of relief for getting rid of a 5-year suit, they were tossed back into an unnecessarily extended litigation. Thus, this court is agreeable with the Defendants that the prejudice Enclosure 101 has caused the Defendants cannot be compensated with costs.

1.3. The amendment does not change the nature of the suit 43. Under this heading, the Plaintiff argues that the proposed amendment did not alter the fundamental nature or character of the original application, which was consistently for the reinstatement of the Writ of Summons and Amended Statement of Claim, thereby affirming that the Defendants could not have been caught or taken by surprise.

Conversely, the Defendants vigorously oppose the application, contending that the amendment was a belated and unwarranted procedural manoeuvre. It was explicitly argued that the proposed amendment was substantive because, on the facts, it was an attempt to revive proceedings that had already been struck out, thereby fundamentally changing the procedural status of the case.

In order to answer this question, the intended amendment needs examination. In Enclosure 101, the Plaintiff seeks to insert a reference to Order 35 rule 2 of ROC 2012 and additional relief …page 19 beyond the 14-day period stipulated within Order 35 rule 2(2). For ease of reference, the provision is reproduced below: Judgment given in absence of party may be set aside (O 35 r 2)

Any judgment or order obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

An application under this rule shall be made within fourteen days after the date of the judgment or order sought to be set aside without prejudice, however, to the power of the Court to extend the period.

In considering an application made under this rule, the Court shall have regard to the following matters:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be compensated by an order of costs.

Originally, Enclosure 90 only relied on this court’s inherent powers under Order 92 rule 4 as authority for amendment. There were other rules cited but chiefly relied on this court’s inherent powers. However, does the addition of Order 35 rule 2 substantially change the suit to another of inconsistent character?

I am of the view that the amendment does not cross this threshold. Authorities have shown that in order to considerably and substantially change thecharacter of a suit; such a change requires a drastic change that unhinges the intended reliefs and required preparations of parties. …page 20

In Firos bin Abdul Jalil (as the administrator of the estate of Abdul Jalil bin Idrus (the deceased)) & Ors v Kewira Jaya Sdn Bhd & Ors [2013] 5 MLJ 59, Tengku Maimun JCA (as she then was) discussed an amendment application which changes the character of a suit. The appellant of the case was found to have substantially changed their defence from a sale and purchase agreement from having already been accepted but rescinded to the agreement having never been executed in the first place due to want of acceptance. This was observed to have exposed another defendant to a suit of professional negligence and thus the proposed amendments were consequential.

In contrast, in Wood View Engineering Sdn Bhd v Lim Chan Kwang [2006] 5 CLJ 62, the plaintiff merely wanted to correct the details of the amount paid to them by the defendant. The application to amend was not a controversial one and had no effect on the claim itself. It did not change the characters of the suit, nor did it require the defendant to change his preparation for the case.

In the current case, Enclosure 90 sought to reinstate the struck-out Writ and Amended Statement of Claims. The intended amendment under Enclosure 101 does not derogate away from the intended outcome i.e. for reinstatement. It only attempts to properly characterise the application, or in the words of the Plaintiff, “to regularise” the application so that proper authority is exercised. Although the Defendants would have had to respond in a lengthier submission to refer specifically to Order 35 rule 2, the crux of their …page 21 objection remain valid. This does not change a character of a suit within the meaning under Yamaha Motor.

1.4. Enclosure 101 does not satisfy the considerations required under Yamaha Motors 51. Although the baseball adage calls for three strikes to be considered out, Yamaha Motor requires only one strike. In this case, the Plaintiff were unable to satisfy that their application would not cause prejudice to the Defendants. This is especially on the timing of the application could not have been considered bona fide, and is more likely a strategic move or tactical manoeuvre. Thus, I dismiss the Plaintiff’s application in Enclosure 101.

Enclosure 90 52. As Enclosure 101 is now dismissed, I will now move on to Plaintiff’s application to reinstate the Writ and Amended Statement of Claim under Enclosure 90.

The judgment of Zaleha Zahari JCA (as she then was) in Kesatuan Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd v Malaysia Shipyard & Engineering Sdn Bhd & Anor [2010] 6 MLJ 306 highlights the principles to consider in a reinstatement application: [30] In making a considered decision for an application for reinstatement such as this, in the interests of the due administration of justice, three trite principles were borne in mind. Firstly, an applicant could not require a court to reinstate a matter which has been struck out as of right. It …page 22 is not merely a matter of partaking in an automatic formal exercise. Secondly, reinstatement involves an exercise of the court’s discretion. Thirdly, there must be sufficient material before the court to enable it to exercise its discretion in the applicant’s favour. [ Emphasis added]

It is pertinent to note that the principles outlined are not tests per se that a party seeking reinstatement must fulfil, but a form of guidance to enable the court to exercise its discretion.

The Plaintiff relied on the case of Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) & Anor [2010] 4 MLJ 17 to substantiate their submissions for reinstatement under Order 92 rule 4 where Hasan Lah JCA (as he was then) exercised the court’s inherent powers under Order 92 rule 4 to reinstate a suit even after a 3-month delay. Hasan Lah JCA accepted the appellant’s impecuniosity as reasonable as they had shown their solicitors intended to withdraw over unpaid fees.

Read together, the principles in Kesatuan Pekerja-Pekerja Malaysia Shipyard and the exercise of Order 92 rule 4 in Hatara are not mutually exclusive. It only demonstrates that the power for reinstatement is indeed a discretionary power vested upon the court. Therefore, the Plaintiff’s application for reinstatement remains valid even without the insertion of Order 35 rule 2(2) as intended by Enclosure 101 and this court is seized with jurisdiction to hear it under its inherent powers. …page 23

2.1. Disparity in evidence regarding witness absence 57. The core factual dispute centres on whether the non-attendance of the Plaintiff's sole witness, Koh, was justified by his alleged serious medical condition on 6 May 2025.

The Plaintiff alleges that Koh suffered chest pain and had received treatment at Hospital Sultan Abdul Halim on 5 May 2025. He subsequently sought urgent follow-up treatment at Pantai Hospital on the morning of the trial (6 May 2025) due to his pre-existing heart condition. The Plaintiff maintains that the absence was unintentional and due to circumstances beyond Koh’s control.

The Defendants, however, challenge the veracity and sufficiency of this medical explanation. It was argued that the claim of ill-health was speculative and pointed out that no single document from a doctor or hospital confirmed the witness was medically unfit to attend the trial on 6 May 2025. It was particularly highlighted the critical failure of the Plaintiff to comply with this court’s specific instruction on the trial date to produce a medical certificate. The Defendants cited Diana Choo Mei Ling (the executor of the estate of Chew Gaik Cheng, deceased) v Choo Lee Choy & Ors [2001] 6 MLJ 160, establishing that medical conditions relied upon for non-attendance must be clearly and formally stated.

In my reading of Diana Choo Mei Ling, I find the factual matrix of the case has certain similarities. The plaintiff in the case had …page 24 postponed the trial for 12 years, some with and some without reason. On the trial day, the plaintiff tendered a medical certificate that Kamalanathan Ratnam J describes as ‘defective’. There was no certification that the plaintiff was unfit for travel; the name of the issuing doctor was missing; and the solicitor in charge was not informed of the actual circumstances of the plaintiff’s illness. Hence, accordingly struck out the case.

Bearing in mind the case was heard in a time before the Rules of Court 2012 and its strict compliance measures, Diana Choo Mei Ling provided detailed description of how a proper medical certificate would constitute: it must be sufficiently detailed to describe the illness of the affected party, as to whether they are fit for the required presence, and properly signed off by an identified medical practitioner.

In the present case, as recounted in detail by the Defendants, the Plaintiff did not submit a medical certificate on the day of the trial despite my strict instructions to do so, or afterwards when this application (Enclosure 90) was made. In its place, the Plaintiff tendered the following documents to supplement its claim of Koh’s illness as reflected in Exhibit K-1 and K-2:

(i). A referral letter from Hospital Sultan Abdul Halim dated 5 May 2025 at 1:58 PM

(ii). A bill and receipt from Hospital Sultan Abdul Halim dated 5 May 2025 at 10:40 AM

(iii). An attendance record from Pantai Hospital Sungai Petani dated 6 May 2025 at 09:22 AM; …page 25

(iv). An official receipt from Pantai Hospital Sungai Petani dated 6 May 2025 at 09:25 AM; and

(v). Coronary angiogram / angioplasty report from Pantai Hospital Sungai Petani which appears to be dated either 15 December or 23 May, but the year is unclear.

Upon closer inspection, the exhibited referral letter dated 5 May 2025 was annotated by the examining doctor: KK to review ST. Already done angiogram & stable angina ECG-sinus rhythm. Plan 1) review ST at KK 2) If persistent chest pain, refer notes for cardiac assessment 64. What is evident here is that Koh had already been examined for his chest pain. I would not interpret further without the assistance of a medical practitioner, but what is apparent is that the annotations suggest that an angiogram was conducted by the hospital on 5 May

However, no medical certificate was produced. Again, when Koh admitted himself to Pantai Hospital Sungai Petani on the day of the trial, no medical certificate was produced. It is common knowledge that a cardiac illness is not something to be trifled with. Therefore, the lack of any further intervention e.g. admission, or even a certification that the Koh was unfit by doctors from two hospitals casts serious doubt on the claim that he was genuinely incapacitated or unable to attend court as witness and suggests that this is a tactical manoeuvre to adjourn an already extended suit.

I also note the caveat at the conclusion of the referral letter, which states that it does not constitute a formal medical report and cannot be used in court. The letter is to be regarded solely as …page 26 contemporaneous evidence of the events that transpired at the hospital.

In the absence of concrete medical evidence, I would agree with the Defendants’ submission that the provisions of section 114(g) of the Evidence Act 1950 should apply, it is reasonable for this court to infer that the withheld evidence i.e. the medical certificate if it was issued, would be unfavourable to the Plaintiff. The Defendants suggested that the non-attendance in court was a deliberate choice aimed at delaying proceedings, indicative of a lackadaisical attitude towards the litigation, which I have explained in agreement in my reasonings above. Reasonably, it was also questioned why the Plaintiff, being a corporation, did not utilise other directors or witnesses to represent the company, suggesting a failure to take the matter seriously.

2.2. The Plaintiff’s absence was likely a deliberate action 67. The principles governing reinstatement applications require the applicant not only to demonstrate sufficient material to persuade the Court to exercise its discretion but also to provide compelling justification, particularly when there is a delay or non-attendance.

Referring to the submissions of the Defendant, which cited Chew Vee Lyn v David Mauricio Velez Hernandez [2023] MLJU 2929, the paramount consideration in setting aside a judgment given in the …page 27 absence of a party is the reason for the absence, and if the absence is deliberate, the court is unlikely to allow a re-hearing.

In Chew Vee Lyn, Evrol Mariette Peters J (as she then was) discussed the application of Order 35 rule 2 of ROC 2012 derived from Mah Siew Seng & Anor v Seema Development Sdn Bhd & another case [2013] 8 CLJ 1058; [2014] 7 MLJ 372 affirmed that the predominant consideration for the court in a reinstatement after any judgment or order obtained where one party does not appear at the trial is “the reason why the applicant had absented himself.

The considerations of the court in such circumstances were explained and quoted most prominently from the English case Shocked v Goldschmidt [1998] 1 All ER 372, where it was also featured in many cases involving setting aside a judgment in the absence of a party. The relevant passage from Leggatt LJ’s judgment at [381] is as follows:

(i). Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(ii). The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(iii). Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the …page 28 judgment, or third parties have acquired rights by reference to it.

(iv). In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. and

(v). A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

Given the failure of the Plaintiff to produce the medical certificate or any robust medical report to certify Koh’s unfitness to attend trial, despite having been explicitly instructed to do so by the Court on 6 May 2025, it is my finding the Plaintiff's claim of ill-health to be a bare assertion unsupported by evidence. The Defendants have successfully cast doubts on whether Koh’s illness was genuine. Furthermore, I note the gravity of the litigation, which had commenced in 2020 and is now entering its fifth year (and soon, the sixth year). The Plaintiff’s conduct demonstrated a lack of diligence and a failure to treat the proceedings with the necessary seriousness. I am inclined to find the absence as deliberate, and thus I remain unsatisfied on the Plaintiff’s grounds for reinstatement. …page 29

2.3. Enclosure 90 was filed out of time 72. Ultimately, ROC 2012 has specific provisions for applying for reinstatement in any judgment or order obtained where one party does not appear at the trial.

It is undisputed that the Plaintiff has filed Enclosure 90 out of time— that is after 29 days from the date the struck out was handed down. However, the Plaintiff argued that the delay of only 15 days beyond the 14-day limit was not an inordinate delay. It was asserted that the delay caused no prejudice to the Defendants, and that this court should prioritise paramount interest of justice over technical non-compliance with Order 35 rule 2 in accordance with Order 1A.

The Defendants have conceded that this court possess the necessary discretion to extend time under rule 2(2), but cogent reasons must be given (See Mah Siew Seng v Seema Development Sdn Bhd [2014] 7 MLJ 372; [2013] 8 CLJ 1058 at [384]).

As already established above, I am reluctant to accept the Plaintiff’s claim that there was a genuine medical emergency that necessitated Koh’s absence as a witness in this already 5-year suit. To this court, it is most likely a tactical manoeuvre to delay the proceedings. Therefore, the Plaintiff plainly does not possess the requisite cogent reasons for leave of extension. …page 30

Thus, the Plaintiff’s application under Enclosure 90 not only is unable to fulfil the considerations outlined within Order 35 rule 2(3) but also is non-compliant with the technical requirements of rule 2(2). The delay of 15 days beyond the 14-day statutory period is most definitely an inordinate delay given that there is insufficient evidence to show that the circumstance for delay are cogent.

Based on the cumulative procedural deficiencies: the unjustified filing delay, the lack of medical certification notwithstanding a direct ‘unless order’ required by this Court during the trial that morning, and the absence of new or cogent evidence beyond what was previously rejected, there is insufficient material to justify the exercise of the court's discretion in favour of reinstatement.

Enclosure 101 78. I am not persuaded that the application merits consideration. The timing of the amendment sought reveals it to be a reactive measure, prompted only after the procedural objection had been raised. Such conduct undermines any pretention of a bona fide application and renders it an afterthought. Moreover, I find that the application was lodged too late, appearing to be a calculated, reactive attempt to accommodate the objections raised by the opposing parties. Furthermore, notwithstanding the inclusion of a relief for an extension of time in the proposed amendment, the Plaintiff has failed to furnish cogent and satisfactory reasons to justify the delay in filing the application for amendment itself, a burden that lies squarely …page 31 upon the applicant. Consequently, Enclosure 101 is hereby dismissed.

Enclosure 90 79. I am unable to accept the basis advanced in support of the application. The argument is undermined by both evidential and procedural deficiencies which go to the root of the matter.

First, I have expressly directed the production of medical documentation to substantiate the claim of incapacity. No medical certificate or report is tendered till to date, and the materials relied upon fall short of the evidentiary threshold required. I must concur with the submissions of the Defendants that such reliance is inadequate and does not discharge the burden of proof.

Secondly, the application was filed outside the time prescribed under Order 35 rule 2(2) of the Rules of Court 2012. The onus lay upon the Plaintiff to provide a cogent explanation for the delay. No satisfactory justification has been offered, and the statutory requirement cannot be disregarded. In light of the protracted history of this suit, the conduct of the Plaintiff reflects a want of diligence in pursuing the matter. Such an approach is inconsistent with the orderly administration of justice and cannot be condoned.

For these reasons, I am not persuaded that the circumstances warrant the exercise of discretion in favour of reinstatement. The application is accordingly dismissed. …page 32

Costs 83. For the dismissal of Enclosure 101, costs are awarded at RM2,500 payable by the Plaintiff to each of the Defendants and for the dismissal of Enclosure 90, costs are awarded at RM2,500 payable by the Plaintiff to each of the Defendants. Dated: 1st November, 2025 ..................................................................................... Dr. John Lee Kien How @ Mohd Johan Lee Judge High Court Malaya Alor Setar For the Plaintiff: Hari Prassaad Rao Messrs. Chandra Segaran Advocates & Solicitors For the First and Second Defendants: Abd Halim bin Abdul Karim Messrs. Mazri Halim & Partners Advocates & Solicitors For the Third Defendant: Ahmad Syateer bin Izzat Messrs. Izzat Othman & Co Advocates & Solicitors …page 33 Index of Authorities Statutes Evidence Act 1950, section 114(g) ....................................................... 27 Rules of Court 2012, Order 20 rule 8 .............................................. 10, 11 Rules of Court 2012, Order 35 rule 2 .... 19, 20, 21, 23, 28, 30, 31, 32, 33 Rules of Court 2012, Order 92 rule 4 .................................. 16, 20, 23, 30 Cases Chew Vee Lyn v David Mauricio Velez Hernandez [2023] MLJU 2929 . 28 Dato' Seri Anwar bin Ibrahim v Khairy Jamaluddin [2014] 1 MLJ 911 ... 15 Diana Choo Mei Ling (the executor of the estate of Chew Gaik Cheng, deceased) v Choo Lee Choy & Ors [2001] 6 MLJ 160 ................. 24, 25 Firos bin Abdul Jalil (as the administrator of the estate of Abdul Jalil bin Idrus (the deceased)) & Ors v Kewira Jaya Sdn Bhd & Ors [2013] 5 MLJ 59 ............................................................................................... 21 Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) & Anor [2010] 4 MLJ 17 ............................................................................................ 23 Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 ....................................................................................... 12, 17 Kesatuan Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd v Malaysia Shipyard & Engineering Sdn Bhd & Anor [2010] 6 MLJ 306 ..................................................................................................... 22, 23 Mah Siew Seng & Anor v Seema Development Sdn Bhd & another case [2013] 8 CLJ 1058; [2014] 7 MLJ 372 .......................................... 28, 31 Pentamaster Instrumentation Sdn Bhd v QAV Technologies Sdn Bhd & Ors [2017] 11 MLJ 233 ....................................................................... 14 Shocked v Goldschmidt [1998] 1 All ER 372 ......................................... 28 Wood View Engineering Sdn Bhd v Lim Chan Kwang [2006] 5 CLJ 62 21 Worldwide Corporation Limited v GPT Limited and another [1998] EWCA Civ 1894 ........................................................................... 17, 18 Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 ................................................................................... 11, 12, 15, 22