My Jet Xpress Airlines Sdn Bhd v Muhammad Allif Qayyum Bin Mohd Din (WA-22NCC-93-02/2023)

MUHAMMAD ALLIF QAYYUM BIN MOHD DIN

AZRUL HISHAM BIN DATO’ ABDUL WAHAB

ZEN AVIATION SDN BHD

KHAW CHIN HUAT

INFINITY FREIGHT SERVICES & SOLUTIONS PTE LTD

QUAH LING MING

PATRICK CHEAH POH JIN (NRIC NO.: 771128-07-5729) ... DEFENDANTS JUDGMENT [1] Before the court is an application to re-amend an Amended Writ and Amended Statement of Claim to introduce substantial new claims, primarily relating to fuel surcharges under Block Space Agreements, which would increase the total claim amount by approximately RM27 million. The application comes after extensive discovery proceedings under an Anton Piller Order and is made on the eve of trial, some 17 months after the relevant documents came into the Plaintiff's possession. The proposed amendments are opposed by the 3rd to 6th Defendants on multiple grounds including undue delay, lack of bona fides, prejudice, change in the character of the suit, and the existence of binding arbitration clauses governing the new claims sought to be introduced. Background facts [2] The Plaintiff, MY Jet Xpress Airlines Sdn Bhd, is a private limited company incorporated in Malaysia on 5.9.2007, providing cargo transportation services. The company was previously known as Neptune Air Sdn Bhd. Its registered address is at Lot 407C, Kompleks Diamond, Bangi Business Park, 43650 Bandar Baru Bangi, Selangor. [3] The 1st Defendant, Muhammad Allif Qayyum Bin Mohd Din (“D1”), joined the Plaintiff on 1.2.2018 as Vice President (Admin & Finance) and was later appointed as Chief Financial Officer in October 2020. Azrul Hisham Bin Dato' Abdul Wahab served as Chief Executive Officer of the Plaintiff from 1.11.2019 to 30.11.2022 and was also a director from 7.12.2017 to 29.3.2022. [4] The Plaintiff provided cargo services to the 3rd Defendant, Zen Aviation Sdn Bhd (“D3”), from 27.7.2020 until their business relationship terminated on 12.12.2022. D3 is directed by the 4th Defendant, Khaw Chin Huat (“D4”) who owns 50% of its shares. The Plaintiff also provided cargo services to the 5th Defendant, Infinity Freight Services & Solutions Pte Ltd (“D5”) from 9.8.2022. D5 is directed by the 6th Defendant, Quah Ling Ming (“D6”), who is married to the 7th Defendant, Patrick Cheah Poh Jin (“D7”). [5] After Shafie bin Shamsuddin joined the Plaintiff as Deputy Chairman and Chief Executive Officer on 1.11.2022, internal audits and investigations were conducted which revealed certain financial irregularities. the Plaintiff issued a show cause letter to D1 on 10.12.2022 and terminated his employment on 25.1.2023 following meetings on 14.12.2022, 19.12.2022 and 21.12.2022. [6] On 27.1.2023, D3 issued a letter of demand to the Plaintiff claiming RM6,279,361.32 comprising deposit payments and credit notes. The Plaintiff denied this claim on 8.2.2023. Subsequently, D3 filed a writ and statement of claim dated 14.2.2023 in Suit No. WA-22NCC-261-05/2023 (“Suit 261”) seeking this amount from the Plaintiff. [7] The Plaintiff commenced the present action against the defendants in this action, alleging various financial improprieties including acceptance of cash payments by D1 and issuance of undervalued invoices. The matter is now before the court on the Plaintiff's application dated 20.8.2024 to re-amend its Amended Writ and Amended Statement of Claim herein to include additional claims, particularly regarding fuel surcharges under Block Space Agreements. [8] The proposed amendments would increase the total claim amount by approximately RM27 million to RM43,759,280.10. This includes alleged uninvoiced fuel surcharges of RM23,862,140.35 from D3 and RM2,911,517.41 from D5 under Block Space Agreements for various routes including Shenzhen-Kuala Lumpur, Shenzhen-Kota Kinabalu and Macau-Manila between July 2022 and December 2022. [9] The amendments arise following investigations and discovery proceedings, including those conducted under an Anton Piller Order granted on 27.2.2023 and extended by Ad Interim Orders on 10.3.2023 and 15.3.2023. The execution of these orders took place between 2.3.2023 and 14.3.2023. [10] Separately, there are related proceedings in the Shah Alam High Court (Civil Suit No. BA-22NCC-147-11/2023) between the Plaintiff and Infinity Freight Services & Solutions Sdn Bhd (“Infinity Malaysia”), which is related to D5, regarding the Shenzhen-Kuala Lumpur and Shenzhen-Kota Kinabalu routes, where summary judgment was granted on 7.6.2024. Enclosure 411 [11] The application in Enclosure 411 is by the Plaintiff to re-amend its Amended Writ and Amended Statement of Claim pursuant to Order 20 Rule 5 of the Rules of Court 2012. The main prayers are: (1) for liberty to amend the Amended Writ of Summons and Amended Statement of Claim according to the proposed amended versions marked in green ink and annexed as Annexure 'A'; (2) for an adjournment of the trial pending determination of the amendment application; (3) for costs of the application to be costs in the cause; and (4) such further orders as the court deems fit and proper. [12] The grounds of the application, as stated in the affidavit supporting the application, are:

the proposed amendments are necessary to ensure all matters in dispute can be effectively and completely determined and adjudicated by the court; (b) the amendments are bona fide and would not prejudice the Defendants as they are free to amend their Defence as provided under the Rules of Court 2012; and (c) the prejudice to the Plaintiff would be greater than any prejudice to the Defendants if the amendments are not allowed. The Plaintiff contends that when documents and facts arose during pre-trial preparation that needed to be included in their case, which were previously unknown to them, they promptly filed this application. Amendments sought [13] There are two main categories of amendments sought in the Amended Statement of Claim. [14] The first category relates to increasing the amounts claimed for undervalued invoices. The Plaintiff seeks to amend paragraphs 4(c), 5, 6(b)(ii), 66, 93, 100, 100(b)(ii), 116, 117, 133 and 135 to increase the total price difference alleged for undervalued invoices against the D5 from USD167,000.00 to USD268,000.00. However, the alleged six undervalued invoices remain the same. [15] The second and more substantial category introduces entirely new claims regarding fuel surcharges through the addition of paragraphs 130 to 132. These amendments allege uninvoiced fuel surcharges under Block Space Agreements: RM23,862,140.35 claimed against D3 and RM2,911,517.41 claimed against D5. These surcharges relate to specific routes: Shenzhen (SZX) - Kuala Lumpur (KUL), Shenzhen (SZX) - Kota Kinabalu (BKI), and Macau (MFM) - Manila (MNL) between July 2022 and December 2022. [16] The amendments also include a claim for RM1,500,000.00 against D3 and D4 for their logos on the Plaintiff's aircraft, which appears as a new prayer in paragraph 135(h). [17] The cumulative effect of these amendments would increase the total claim amount by approximately RM27 million, bringing the total claim to RM43,759,280.10. Procedural history [18] The procedural history relating to Enclosure 411 began with the Plaintiff's solicitors writing to the court on 13.8.2024, informing that the Plaintiff and D1 had agreed to enter into a consent judgment. The letter also requested for the trial dates on 19.8.2024 and 21 to 23 August 2024 to be vacated and rescheduled, as the consent judgment would change the nature of the entire claim against the other defendants and significant amendments would be required to the pleadings. [19] During the case management on 15.8.2024, the court heard submissions from all parties regarding the proposed amendments and adjournment request. While the Plaintiff sought time to file the amendments, the other Defendants objected, citing prejudice and the late timing. The court directed that: a) The trial date of 19.8.2024 be vacated; b) The Plaintiff to file their amendment application by 19.8.2024; c) The amendment application to be heard on 21.8.2024 at 10am; and d) All parties to file and exchange witness statements by 19.8.2024. [20] Subsequently, on 20.8.2024, the Plaintiff filed Enclosure 411 (Notice of Application to re-amend the Amended Writ and Amended Statement of Claim) along with Enclosure 412 (Affidavit in Support by Sathianathan Gnanaskanthan). The same day, D3 and D4 filed their affidavit in reply Enclosure 417 opposing the amendments. The following morning, before the hearing of Enclosure 411 on 21.8.2024, D5 and D6 filed an affidavit in reply that morning to also oppose the amendments. No Written Submssions were filed. [21] On 21.8.2024, the court heard oral submissions on Enclosure 411 in full. [22] The court then delivered its decision on Enclosure 411 at 3 pm on 21.8.2024 dismissing Enclosure 411 with costs of RM5,000.00 for D3 and D4, and parties to bear their own costs for D6 and D7. Respective parties’ submissions [23] The Plaintiff submits that there is a substantial difference of RM27 million between the previous claim and the present claim, bringing the total claim to RM43,759,280.10. The major amendment relates to fuel surcharges found at paragraphs 130-132, amounting to RM26,773,657.76. The Plaintiff argues that the amendment is crucial and changes the dynamics of the case, particularly following D1’s consent judgment which brought these documents to light. They contend that if not allowed, they will be unable to claim the uninvoiced amounts against the other Defendants. [24] D5 and D6 oppose the application on three grounds: undue delay in making the application after 17 months of discovery under the Anton Piller Order; lack of bona fides as the amendments are not properly articulated and some claims are against the wrong entity; and prejudice that cannot be compensated by costs due to the Plaintiff's impecuniosity. They argue that the amendments would change the suit's character from conspiracy to contract and that an adjournment would cause substantial costs to them when their witnesses are ready to testify. [25] D3 and D4 adopt the submissions on lack of bona fides and prejudice, adding that they are owed RM140,000 in costs by the Plaintiff. They further argue that the Block Space Agreements contain an arbitration clause requiring disputes to be settled by arbitration, making these amendments improper for court proceedings. They note that no similar amendments are sought in suit 261 where D3, so that suit can proceed. [26] The 3rd Party makes no submissions on the amendment but reserves rights to claim contribution or indemnity if relevant allegations are included. Analysis and findings Undue delay and lack of cogent reasons [27] The Plaintiff contends that there has been no undue delay in making the amendment application, arguing that they had informed the court and all parties on 13.8.2024 that a substantial amendment would be made. The Plaintiff further submits that amendments can be allowed at any stage, including on appeal, and emphasises that the amendments involve a significant sum of approximately RM50 billion. The Plaintiff alleges in paragraph 5 of their supporting affidavit (Enclosure 412) that certain documents and facts had been hidden, which necessitated the late amendment. [28] D3, D4, D5 and D6 (“the Defendants”) strongly oppose this position arguing that there has been unreasonable delay in bringing the amendment application. They point specifically to the fact that the Plaintiff had conducted extensive discovery under an Anton Piller Order between 2.3.2023 and 14.3.2023, and submit that with reasonable diligence, the application could have been made much earlier. The Defendants contend that the Plaintiff's bare assertion about hidden documents lacks credibility after a delay of 17 months and fails to explain how these documents came to light or who allegedly hid them. [29] Having carefully considered the submissions of both parties, I find that there has been an inordinate and unreasonable delay in bringing this amendment application. The evidence before me shows that the Plaintiff obtained an ex-parte Anton Piller Order on 27.2.2023 (Enclosure 20) which was extended by Ad Interim Orders on 10.3.2023 (Enclosure 45) and 15.3.2023 (Enclosure 64). This Order was executed between 2.3.2023 and 14.3.2023, providing the Plaintiff with extensive discovery rights. Despite having this opportunity for thorough investigation more than 17 months ago, the Plaintiff only now seeks to make these substantial amendments. [30] The Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301, per Zulkefli CJ (Malaya), established clear principles regarding late amendments to pleadings. The court held that where there is a delay in making an amendment application, the onus falls squarely on the applicant to furnish a reasonable explanation for such delay. The Federal Court specifically noted that “The Courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay.” [31] In the present case, the Plaintiff's explanation in paragraph 5 of Enclosure 412 merely makes a vague allegation about documents being hidden, without providing any particulars of how these documents came to light, when they were discovered, or who had allegedly hidden them. This falls far short of the cogent explanation required by the Hong Leong Finance principles. The Plaintiff's contention that they informed the court on 13.8.2024 about a forthcoming amendment does not excuse the preceding 17-month delay after obtaining extensive discovery through the Anton Piller Order. [32] Furthermore, while the Plaintiff emphasises the substantial sum involved, this actually reinforces the imperative for prompt and diligent investigation of their claim. Given the magnitude of the alleged claims, particularly the fuel surcharge claims amounting to RM26,773,657.76, it was incumbent upon the Plaintiff to exercise reasonable diligence in investigating and pleading these claims at a much earlier stage. [33] The prejudice to the Defendants from such a late amendment is significant and cannot be adequately compensated by costs, particularly given the Plaintiff's apparent impecuniosity as evidenced by their failure to satisfy existing cost orders. This factor weighs heavily against allowing the amendment at this late stage. [34] For these reasons, I find that the delay in bringing this amendment application is both inordinate and inexcusable. The Plaintiff has failed to discharge their burden of providing a reasonable explanation for the delay, as required by the Federal Court in Hong Leong Finance. The application must therefore be dismissed on this ground. Lack of bona fides [35] The Plaintiff contends that their proposed amendments are bona fide, arguing that payments were made by D5 and that the invoices are connected to agreements with D5. They submit that any technical points raised by the Defendants can be addressed through further affidavit evidence. The Plaintiff also emphasises that the Defendants have not specifically denied the existence and quantum of the claimed fuel surcharges. [36] The Defendants vigorously oppose the amendments on the grounds of lack of bona fides. D5 and D6 argue that the proposed amendments are inadequately particularised, pointing out that while the amendment seeks to increase the alleged price difference for undervalued invoices from US$167,000.00 to US$268,000.00, no explanation is provided for this substantial increase despite the underlying six invoices remaining unchanged. They further challenge the proposed fuel surcharge claims of RM2.9 million, highlighting that the Shenzhen-KL and Shenzhen-Kota Kinabalu routes were contracted with Infinity Malaysia, not D5, as evidenced by the agreements at pages 313 and 321 of Enclosure 412. [37] After careful consideration of the evidence and submissions, I find that the proposed amendments lack bona fides. The deficiencies in the Plaintiff's proposed amendments are substantial and manifold. First, regarding the increase in claimed price differences for undervalued invoices from US$167,000.00 to US$268,000.00, the Plaintiff has provided no explanation or particularisation for this significant increase of US$101,000.00. This is particularly concerning given that the six invoices forming the basis of this claim remain unchanged. The absence of any explanation for how this additional sum is calculated seriously undermines the credibility of the proposed amendment. [38] The proposed amendments regarding fuel surcharges are even more problematic. The documentation provided by the Plaintiff itself contradicts their position. The agreements for the Shenzhen-KL and Shenzhen-Kota Kinabalu routes, exhibited at pages 313 and 321 of Enclosure 412, clearly show that these agreements were between the Plaintiff and Infinity Malaysia, not D5. This fact is further reinforced by the existence of Shah Alam High Court Suit BA-22NCC- 147-11/2023, where these very routes were the subject of litigation between the Plaintiff and Infinity Malaysia. Notably, Infinity Malaysia obtained summary judgment against the Plaintiff on 7.6.2024, and although the Plaintiff appealed this decision, they never raised any allegations regarding fuel surcharges in those proceedings. [39] The claim regarding the Macau-Manila route is equally problematic. The Block Space Agreement for this route, found at pages 15-22 of D5 and D6's affidavit in reply, explicitly states that the fees are inclusive of fuel based on the prevailing price in September 2022. The Plaintiff's own evidence regarding MOPS (Mean of Platts Singapore) pricing, exhibited at pages 545-547 of Enclosure 412, shows that the September 2022 price was US$3.2267, which then decreased to US$2.7445 in October 2022, and slightly rose to US$3,0281 in November 2022. These figures do not demonstrate the 10% increase from the prevailing September price that would be necessary to trigger any surcharge. Furthermore, the evidence shows there were no Macau-Manila flights operated in November 2022, making any surcharge claim for this period entirely baseless. [40] The Plaintiff's suggestion that these serious deficiencies can be remedied through further affidavit evidence is not persuasive. When seeking to make substantial amendments at such a late stage, it is incumbent upon the applicant to ensure that the proposed amendments are properly particularised and supported by adequate evidence at the time of making the application. The Federal Court in Hong Leong Finance emphasised that proposed amendments must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same. [41] In light of these serious deficiencies, I find that the proposed amendments lack bona fides and have no reasonable prospect of success. The application must therefore be dismissed on this ground as well. Prejudice to the Defendants and inadequacy of costs as compensation [42] The Plaintiff contends that any prejudice to the Defendants would be minimal, arguing that D3 and D4's claim for deposit money is entangled in this suit and involves the same witnesses and issues. The Plaintiff further submits that an adjournment is justified due to the substantial increase in the quantum claimed, which has changed the dynamics of the case. They cite Lee Ah Tee v Ong Tiow Pheng & Ors [1984] 1 CLJ (Rep) 187 and Mohanlal Gordhandas Sheth v Ban Guan & Co [1956] 1 MLJ 13 to support their position that an adjournment should be allowed due to the substantial difference in claim amount. [43] The Defendants strongly oppose this position on grounds of prejudice. D5 and D6 submit that the delay in bringing the application prejudices them in a manner that cannot be compensated by costs, particularly given the Plaintiff's impecuniosity. D3 and D4 adopt this position and further note that the Plaintiff already owes them RM140,000.00 in costs. They emphasise that they have incurred substantial costs and their witnesses are ready to testify, with cross-examination estimated to take no more than 1.5 hours. [44] After careful consideration, I find that allowing the proposed amendments would cause substantial prejudice to the Defendants that cannot be adequately compensated by costs. The Federal Court in Hong Leong Finance specifically held that “lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs.” This principle is particularly relevant here given the Plaintiff's demonstrated inability to satisfy existing cost orders. [45] The prejudice to the Defendants is multifaceted. First, there is clear financial prejudice. The evidence shows that the Plaintiff already owes D3 and D4 RM140,000.00 in costs. This existing liability, coupled with the Plaintiff's apparent impecuniosity, strongly suggests that any further costs order would be ineffective in compensating the Defendants for the additional expense and preparation time necessitated by these amendments. [46] Second, there is significant procedural prejudice. The Defendants have prepared their defence and readied their witnesses based on the existing pleadings. The proposed amendments would substantially alter the nature of the case by introducing new claims for fuel surcharges amounting to RM26,773,657.76 and increasing the undervalued invoice claim by over US$100,000.00. This would require the Defendants to essentially restart their preparation on these new aspects. [47] The Plaintiff's reliance on Lee Ah Tee and Mohanlal Gordhandas Sheth is misplaced. While these cases discuss the court's discretion to grant adjournments, they must be read in light of more recent authorities like Dato' Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor and other appeals [2022] MLJU 1938, where the Federal Court emphasised that such discretion must be exercised judiciously based on proper consideration of all relevant circumstances, including prejudice to the opposing party. [48] Furthermore, the Plaintiff's argument that the deposit claim is “entangled” in this suit does not address the fundamental prejudice that would be caused by introducing entirely new causes of action at this late stage. The proposed amendments would effectively transform what began as a conspiracy claim into a complex contractual dispute involving fuel surcharges under various Block Space Agreements. As noted by D5 and D6 in their affidavit, this change in the suit's character from conspiracy to contract would prejudice their defence strategy and preparation. [49] The magnitude of the proposed amendments - increasing the claim by approximately RM27,423,562.26 to a total of RM43,759,280.10 - actually heightens rather than diminishes the prejudice to the Defendants. Such a substantial increase in liability exposure at this late stage, combined with the Plaintiff's demonstrated inability to meet costs orders, creates a situation where the Defendants face significant financial risk with no realistic prospect of being compensated for their additional costs and preparation time. [50] In these circumstances, I find that the prejudice to the Defendants cannot be adequately addressed through a costs order or adjournment. The application must therefore be dismissed on this ground as well. Amendments introducing new causes of action and changing character of suit [51] The Plaintiff contends that the proposed amendments do not change the character of the suit, arguing that the Block Space Agreement between the Plaintiff and D5 was previously pleaded in Enclosure 84 filed on 30.3.2023. The Plaintiff submits that since this agreement was already introduced against D5 to D7, the amendments merely elaborate on existing claims rather than introducing new causes of action. [52] D5 and D6 strongly object to the proposed amendments on the basis that they would fundamentally alter the character of the suit. They argue that the new causes of action based on the Block Space Agreements are inherently inconsistent with the Plaintiff's original claim, which was founded on allegations of conspiracy. The Defendants contend that this transformation from a conspiracy-based claim to a contractual dispute would prejudice their defence and significantly change the nature of the proceedings. [53] Upon careful examination of the Amended Writ and Amended Statement of Claim (Enclosure 365), I find that the original claim was fundamentally premised on allegations of conspiracy, fraud and breach of duties. The Amended Statement of Claim specifically pleads that the Defendants “wrongfully and with intent to injure the Plaintiff by unlawful means conspired and combined together to damage the Plaintiff's pecuniary interests.” The claims against the D1 to D4 were primarily based on their positions as employees and/or directors of the Plaintiff, with allegations centered on the misappropriation of funds and breach of fiduciary duties. [54] The proposed amendments, however, seek to introduce an entirely different basis of liability through the fuel surcharge claims under the Block Space Agreements. These amendments would add claims totaling RM26,773,657.76, comprising RM23,862,140.35 for D3 and RM2,911,517.41 for D5. This represents a significant departure from the original conspiracy-based claim. The Federal Court in Hong Leong Finance emphasised that when dealing with amendments which introduce a new case in the claim or defence on the eve of trial, the court must consider whether the application is a tactical manoeuvre and whether the proposed amendment has a real prospect of success. [55] The distinction between the original claim and the proposed amendments is particularly evident in the nature of the relief sought. The original claim sought recovery of allegedly misappropriated funds based on conspiracy and fraud, whereas the proposed amendments seek to enforce specific contractual obligations under the Block Space Agreements. This shifts the focus from tortious and fiduciary duties to pure contractual interpretation and enforcement. [56] The Plaintiff's argument that the Block Space Agreement was previously mentioned in Enclosure 84 does not address this fundamental transformation of the suit's character. Mere reference to an agreement in earlier pleadings does not automatically entitle a party to introduce new causes of action based on that agreement, particularly when such causes of action materially alter the nature of the proceedings. [57] Furthermore, the evidence shows that some of the Block Space Agreements relied upon by the Plaintiff were actually between the Plaintiff and Infinity Malaysia, not D5. This is evident from the agreements exhibited at pages 313 and 321 of Enclosure 412 regarding the Shenzhen-KL and Shenzhen-Kota Kinabalu routes. Attempting to enforce these agreements against D5 not only changes the character of the suit but also raises serious questions about the validity of the proposed amendments. [58] In these circumstances, I am satisfied that allowing the proposed amendments would fundamentally alter the character of the suit from one based on conspiracy and fraud to one substantially concerned with contractual interpretation and enforcement. Such a transformation would prejudice the Defendants' ability to defend the claims and effectively create a new suit under the guise of amendments. The application must therefore be dismissed on this ground as well. Binding effect of the Arbitration Agreement [59] The Plaintiff contends that it is not appropriate for the Defendants to raise arbitration at this stage, arguing that since court proceedings have already commenced, the Defendants should have brought a stay application earlier rather than raising this issue in response to the amendment application. The Plaintiff submits that these points regarding the Block Space Agreement are unnecessary to address in the Singapore suit and merely support their claim for fuel surcharges. [60] D3 and D4 strongly object to the amendments on the basis that the relevant Block Space Agreements contain mandatory arbitration clauses. They point specifically to Clause 14 of the agreements exhibited at pages 349-355 of Enclosure 412, which stipulates that disputes “shall be finally settled under the rules of conciliation and arbitration.” They argue that these fuel surcharge disputes must be referred to arbitration rather than being litigated in court, relying on the Federal Court decision in Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd [2020] 3 MLJ 545. [61] I find the Defendants' position on the arbitration issue to be compelling. The Plaintiff's argument that the arbitration point should have been raised earlier fundamentally misunderstands the sequence of events. The fuel surcharge claims, which the Plaintiff now seeks to introduce through amendment, were not part of the original pleaded case. Therefore, the issue of arbitration in relation to these specific claims could only arise at this stage, when the Plaintiff seeks to introduce them. It would have been impossible for the Defendants to raise this objection earlier as these claims did not previously form part of the proceedings. [62] The Federal Court in Tindak Murni established clear principles regarding the enforcement of arbitration agreements. The court held unequivocally that “unless the arbitration agreement is null, void, inoperable or incapable of being performed, all disputes arising under the governing contract are to be referred to arbitration.” The court emphasised that allowing litigation in breach of an arbitration agreement would effectively render that agreement nugatory. [63] Examining the Block Space Agreements in question, it is clear that Clause 14 creates a mandatory obligation to refer disputes to arbitration. The language used - “shall be finally settled under the rules of conciliation and arbitration” - leaves no room for discretion. The fuel surcharge claims, which total RM26,773,657.76 (comprising RM23,862,140.35 for D3 and RM2,911,517.41 for D5), undoubtedly fall within the scope of these agreements as they arise directly from the interpretation and application of the agreements' terms. [64] The Plaintiff has not suggested that the arbitration clauses are in any way invalid, void, or inoperative. Instead, they merely argue that court proceedings have already commenced. However, as the Federal Court noted in Tindak Murni, “from the statutory perspective, even when a judgment in default has been procured, s 10 [of the Arbitration Act] remains applicable.” This principle applies with even greater force here, where the claims subject to arbitration have not yet been introduced into the proceedings. [65] Furthermore, the Plaintiff's suggestion that the Block Space Agreement merely supports their claim for fuel surcharges mischaracterises the nature of these claims. The fuel surcharges are not incidental to some other cause of action; they are claims arising directly from the interpretation and enforcement of the Block Space Agreements. As such, they fall squarely within the scope of the arbitration clauses. [66] Allowing these amendments would effectively permit the Plaintiff to circumvent its contractual obligation to arbitrate these disputes. Such an outcome would, as the Federal Court warned in Tindak Murni, “effectively render that agreement nugatory.” This cannot be permitted. The application must therefore be dismissed on this ground as well. Conclusion [67] For the reasons set out above, I find that the Plaintiff's application to re-amend the Amended Writ and Amended Statement of Claim should be dismissed. The Plaintiff has not provided any reasonable explanation for the inordinate delay in bringing these amendments, and the application appears to be an afterthought following the Plaintiff's extensive discovery under the Anton Piller Order more than 17 months ago. The proposed amendments are also not properly particularised and lack bona fides, as they attempt to bring in claims against the wrong parties based on agreements that do not support the Plaintiff's contentions. [68] Further, allowing the amendments would be highly prejudicial to the Defendants given the last-minute nature of the application and the Plaintiff's poor financial standing which makes it unlikely that any prejudice can be adequately compensated by costs. The amendments also seek to introduce new causes of action which change the character of the suit against D5 to D7. In any event, the fuel surcharge claims are subject to an arbitration agreement between the parties which the Plaintiff cannot avoid by bringing these claims in court. [69] For all these reasons, Enclosure 411 is hereby dismissed with costs of RM5,000.00 to be paid by the Plaintiff to D3 and D4, and parties to bear their own costs for D5 to D7. The trial dates on 22 and 23 August 2024 are maintained and the matter will proceed on the basis of the Amended Writ and Amended Statement of Claim in Enclosures 364 and 365 respectively. 13 January 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Harjit Singh Sandhu with Navinjit Singh Golen, Ranusha and Ras Harynni (PDK) (Messrs Harjit Sandhu, Wan & Associates) For the 3rd and 4th Defendants: Ravi Neeko with Pushpa Ratnam, Ling Ying Xin and Nadia Amira (Messrs Nekoo) For the 6th and 7th Defendants: Dason Raj with Loh Ze Rong (Messrs Dason Raj & Partners)