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BA-22NCvC-53-02/2023
High Court of Malaysia14 May 2026
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“es of action or occasion prejudice to the Defendants, as opposed to being confined to clarificatory refinements of the existing pleadings. As was held in Spektra Segmen Sdn Bhd v TC Autoworld Sdn Bhd [2017] MLJU 946, the proposed amendments would give rise to new claims for reliefs and or damages that substantially alt”
“istory. They should not be compelled to meet a materially reconfigured case at the eleventh hour. 35. Furthermore, as was recognised in Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd & Ors [2021] MLJU 132, the question of prejudice in amendment applications is not confined merely to whether costs may be award”
“15. Similarly, in Abdul Majid bin Mohd Yusoff v BTS Buildtrade Supply Sdn Bhd & Anor [2025] MLJU 1908, the Kuala Lumpur High Court, guided by Hong Leong Finance, dismissed a late amendment application after trial dates had been fixed, recognising that a change of solicitors cannot justify a late amen”
“sion that the amendment is a belated strategic attempt to recast the case, not a longstanding necessity. 31. As was rightly observed in Bukit Kiara Properties Services Sdn Bhd v Gunalan & Associates [2025] MLJU 2291, even a seemingly technical amendment may be refused where the surrounding circumstances indicate that i”
“14. This strict approach to late amendments has been consistently applied by courts at all levels. In Public Bank Bhd v National Feedlot Corp Sdn Bhd & Ors and Another Appeal [2018] MLJU 938, the Court of Appeal set aside an order allowing a mid-trial amendment to include a further claim for special damages, holding th”
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PROF. DATO’ IR Ts. DR. HJ. MOHD FOZI ALI
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PROF. MADYA DR. HAIDAR DZIYAUDDIN ... DEFENDANTS GROUNDS OF JUDGMENT
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This judgment concerns an application by the Plaintiff for leave to amend the Statement of Claim dated 2 February 2023, just before the commencement of trial in July / August 2026. The amendments sought are directed towards inserting additional paragraphs and appending particulars of special damages quantified at 23/07/2026 12:03:05 BA-22NCvC-53-02/2023 Kand. 133 RM3,911,238.00. The Plaintiff contends that the proposed amendments are procedural, clarificatory in nature and are necessary to ensure that the real issues between the parties are properly ventilated at trial.
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This suit was instituted by the Plaintiff, MY-Partners Video Technology Solutions SB against University Technology Mara in February 2023. Pleadings were thereafter closed on or about 21 April 2023 and the matter proceeded towards trial on the basis of the pleadings as they then stood. From the close of pleadings until the filing of Enclosure 95, the case has traversed a substantial pre-trial history.
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Approximately twenty-five case management sessions were convened before this Court, two mediation sessions were also held on 9 November 2023 and 3 February 2026. Both premised upon the existing pleadings, all relevant pre-trial documents, save for witness statements which were at the final stages of preparation. All of which had been filed on the footing of the original Statement of Claim for the trials fixed for to take place in July / August 2026.
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It is further pertinent that the matter has come before three different learned Judges, including this Court and has thus advanced significantly to the point of trial. On or about 26 February 2026, the Plaintiff effected a change of solicitors, as evidenced in Enclosure 94 and shortly thereafter, on 10 March 2026, the new solicitors wrote to Defendant’s solicitors seeking consent to the proposed amendments pursuant to Order 20 Rule 12, without recourse to a formal application.
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However, the consent was refused by the Defendants by letter dated 18 March 2026 even after a further request was made on 8 April
2026
Consequently, Plaintiff then filed Enclosure 95, nearly three years after the close of pleadings, following extensive case management, two mediation attempts, as well as pre-trial case management due in July/ August 2026.
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The proposed amendments, as set out in Lampiran A of Enclosure 95, are described by the Plaintiff as falling into two limited categories. Firstly, the insertion of paragraphs 15.1A and 15.5, intended to tie the pleaded breaches to the contractual provisions already identified in the Statement of Claim, thereby clarifying the legal basis of the Plaintiff’s claim.
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The second, the amendment of paragraph 20(a) together with the inclusion of Lampiran A, designed to particularise the Plaintiff’s claim for special damages in the sum of RM3,911,238.00. The Plaintiff submitted that these amendments are limited, necessary, bona fide, that they introduce no new cause of action and rely upon no new facts and that they occasion no prejudice to the Defendants which cannot be compensated by costs.
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The Defendants, however, contend that the amendments are substantive in nature and not merely clarificatory. In particular, they argue that the amendment to paragraph 20(a), read with Lampiran A, seeks to transform what was previously pleaded as a bare global figure into a newly articulated and itemised claim for special damages, a head of claim not previously pleaded in the Statement of Claim as originally filed. The Defendants further submit that the application is inordinately late, not bona fide and would occasion real and irremediable prejudice to their defence and trial preparation.
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The Court’s power to allow amendments to pleadings is conferred by Order 20 Rule 5(1) of the ROC 2012, 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.”
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The foundational 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 (“Yamaha Motor”), wherein the Federal Court held that three basic questions must be considered to determine whether injustice would or would not result:
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Whether the application is bona fide;
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(ii) Whether the prejudice caused to the other side can be compensated by costs; and
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(iii) Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.
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The Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2016] 1 MLJ 301 (“Hong Leong Finance”) subsequently clarified that the principles in Yamaha Motor were specifically laid down in respect of an application to amend made at an early stage of the proceedings, in particular before the trial commences. Where an amendment is sought at a very late stage, the Court must go beyond the Yamaha Motor framework and apply additional and stricter requirements.
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The Federal Court in Hong Leong Finance laid down the following additional considerations applicable to late amendment applications:
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There must be a cogent and reasonable explanation in the applicant’s affidavit as to why the application was filed late;
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The application to amend must not be a tactical manoeuvre;
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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
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Lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs.
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The Federal Court in Hong Leong Finance further emphasised that under the new case management regime, a different and stricter approach must be taken to prevent delay in the progress of a case to trial and for its completion. The Court expressly stated that: “There is therefore a heavy onus placed on the defendant in the present case to justify this application for amendment to the pleading. There is a heavy burden on a party who seeks to raise a new and significantly different case so late as the opening of the trial. The party applying to amend needs to show why the change is sought so late and was not sought earlier.”
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This strict approach to late amendments has been consistently applied by courts at all levels. In Public Bank Bhd v National Feedlot Corp Sdn Bhd & Ors and Another Appeal [2018] MLJU 938, the Court of Appeal set aside an order allowing a mid-trial amendment to include a further claim for special damages, holding that:
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The amendment for special damages altered the nature of the plaintiff’s original claim;
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Change of solicitors did not afford a reasonable excuse for the delay; and
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the resulting prejudice could not simply be compensated by costs.
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Similarly, in Abdul Majid bin Mohd Yusoff v BTS Buildtrade Supply Sdn Bhd & Anor [2025] MLJU 1908, the Kuala Lumpur High Court, guided by Hong Leong Finance, dismissed a late amendment application after trial dates had been fixed, recognising that a change of solicitors cannot justify a late amendment once trial dates have been fixed.
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The law is also well settled that special damages must be specifically pleaded and strictly proved. In Ong Ah Long v Dr S Underwood [1983] 2 MLJ 22 (FC), the Federal Court held that special damages must be specifically pleaded and particularised, as they are recoverable only where they can be included in the proper measure of damages and are not too remote.
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This principle was reaffirmed in Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd [2016] 7 MLJ 183, where it was unequivocally stated that “the body of case law is clear and unambiguous. The procedural rule relating to pleading special damages is simple but strict. Special damages must be specifically pleaded. If the statement of claim is devoid of any pleading on special damages, then evidence on special damages cannot be adduced.” ANALYSIS AND FINDINGS OF THIS COURT
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In my opinion, I find that Enclosure 95 was filed after inordinate delay. The application was filed on 26 March 2026, nearly three years after the close of pleadings on 21 April 2023. By that stage, the matter had progressed through management sessions, mediation sessions and in the final stages of trial preparation with trial dates fixed.
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This Court notes that Plaintiff was at all material times in possession of all relevant facts, contractual documents and the alleged losses that are now sought to be particularised through Lampiran A. These are not newly discovered facts or supervening circumstances. The alleged losses forming the basis of the proposed special damages claim were known to and in the possession of the Plaintiff from the outset of these proceedings.
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When an application to amend is made at so late a stage, the burden falls squarely upon the applicant to furnish a cogent material and satisfactory explanation for the delay. As the Federal Court in Hong Leong Finance directed, a bare assertion, a general excuse or a mere narrative of events does not suffice.
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The sole explanation submitted by the Plaintiff for the delay is the change of solicitors on 26 February 2026 and the present solicitors, upon coming on record, acted promptly in identifying and filing the proposed amendments. This Court is unable to accept this explanation as constituting a cogent or satisfactory reason in law for the following reasons:
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A change of solicitors is an internal matter entirely within the control of the client. It does not excuse the obligation to properly and timeously plead material particulars. As held by the Court of Appeal in Public Bank Bhd v National Feedlot Corp, “a change of solicitors does not afford a reasonable excuse to explain a delay. The fact that the other sets of solicitors failed or forgot to plead special damages is an insufficient excuse in light of the overriding objective of achieving a just, expeditious and economical disposal of a case.”
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The explanation offered by the Plaintiff speaks only to what occurred after the change of solicitors. It wholly fails to explain why, during the period from the close of pleadings in April 2023 until the change of solicitors in February 2026, a period of nearly three years, no steps were taken by the Plaintiff or its former solicitors to seek the proposed amendments.
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In my view, the facts and documents underlying Lampiran A were not something that is newly discovered. There is a fundamental obligation by them to plead material particulars of special damages from the inception of this action.
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Accordingly, I find that the Plaintiff has failed to discharge the burden of providing any material, cogent or satisfactory explanation for the inordinate delay in filing Enclosure 95. This finding alone is sufficient ground to dismiss the application. B. The Proposed Amendments Are Substantive, Not Merely
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The proposed amendments, in particular the amendment to paragraph 20(a) read together with Lampiran A, in my view, are not merely clarificatory as contended by the Plaintiff but substantive in nature and effect.
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In the original Statement of Claim, the Plaintiff’s claim for damages amounted to nothing more than a bare global figure. The head of claim was not characterised or pleaded as special damages, nor was it particularised with any breakdown or itemisation. Through the proposed amendments, the Plaintiff now seeks to convert that bare global figure into a structured and itemised claim for special damages, supported by a detailed schedule of alleged losses in
Lampiran
Lampiran A. In my opinion, this is not a procedural tidying-up exercise but a fundamental alteration of the nature of the damage’s claims. 25. It is of utmost importance to highlight that the true inquiry before this Court does not lie in the mere number of paragraphs sought to be amended, but rather in the legal effect and practical consequence of such amendments. In my view, the Court’s task is to assess whether the proposed insertions and particulars alter the substantive nature of the claim, introduce new causes of action or occasion prejudice to the Defendants, as opposed to being confined to clarificatory refinements of the existing pleadings. As was held in Spektra Segmen Sdn Bhd v TC Autoworld Sdn Bhd [2017] MLJU 946, the proposed amendments would give rise to new claims for reliefs and or damages that substantially alter the nature and character of the original claim, including the introduction of a new head of special damages without its particulars having been previously pleaded. 26. The law is clear, that special damages must be specifically pleaded and particularised from the beginning. As held in Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd, “the absence of any pleadings for special damages in the statement of claim is fatal.” If the Plaintiff’s claim was truly one for special damages and the proposed amendment proceeds on the basis that it is, then those particulars ought to have appeared in the SOC from the beginning, in which, they did not. The Plaintiff cannot now invoke the pleading requirement for special damages as justification for a late amendment. The requirement highlights the inadequacy of the original pleading, not the bona fides of the amendment application. 27. Accordingly, this Court finds that the proposed amendments are substantive in nature, seek to cure a defective pleading and are aimed at fundamentally recasting the Plaintiff’s damages claim at a very late stage of the proceedings. C. The Application Is Not Bona Fide 28. This Court further finds that Enclosure 95 does not satisfy the requirement of bona fide and the Court is entitled to examine the surrounding circumstances, including the timing of the application, the stage of the proceedings, the explanation for the delay and the true legal effect of the amendment sought. 29. A bona fide amendment is one brought promptly to ensure that the real issues in dispute may be fairly tried. It is not one brought at a very late stage, after proceedings have advanced substantially, for the purpose of curing a defective pleading and strengthening the applicant’s case. 30. The surrounding circumstances in the present case strongly weigh against a finding of bona fides, namely: (a) The application is filed almost three years after the close of pleadings, with no satisfactory explanation for the intervening delay; (b) The amendment was only raised after the Plaintiff changed solicitors, strongly suggesting that it is a reactive and curative exercise by new solicitors rather than a genuine clarification of issues; (d) The application was filed only after two mediation sessions had been conducted on the basis of the original pleadings and only after trial dates had been fixed; (e) Plaintiff itself acknowledged in its affidavit that the amendment is necessary to “clarify”, “crystallise” and avoid “technical objection”, language that reveals an awareness that the existing pleading is deficient or insufficiently particularised; and (f) Based on the chronology of the facts, the Plaintiff’s request from the Defendants for consent was refused. It was only after refusal that Enclosure 95 was formally filed. This sequence reinforces the conclusion that the amendment is a belated strategic attempt to recast the case, not a longstanding necessity. 31. As was rightly observed in Bukit Kiara Properties Services Sdn Bhd v Gunalan & Associates [2025] MLJU 2291, even a seemingly technical amendment may be refused where the surrounding circumstances indicate that it is an afterthought and mala fide in character. This Court, having regard to the totality of the circumstances, finds that Enclosure 95 bears the hallmarks of a belated tactical attempt to repair and fortify the Plaintiff’s case after the matter has advanced to the threshold of trial and not a bona fide application. D. Real and Substantial Prejudice to the Defendants 32. I find that allowing Enclosure 95 would occasion real, substantial and irremediable prejudice to the Defendants. The Defendants have for nearly three years conducted their defence, prepared their case, engaging in case management and mediation, compiled their documents and evidence and structured their trial strategy, all on the basis of the original SOC. The damages claim as originally pleaded was a bare global figure and the Defendants were required to answer no more than that. 33. If Lampiran A is permitted at this late stage, the Defendants would be compelled to answer a newly itemised and structured claim for special damages, encompassing specific heads of loss with their respective factual bases, causation, remoteness and legal recoverability. As this Court observes, answering a structured special damage claim carries materially different legal consequences from answering a bare global figure. It raises different questions of proof, demands different documentary evidence and imposes a substantially different burden in terms of cross-examination strategy, witness preparation and overall trial preparation. 34. Subsequently the prejudice to the Defendants is aggravated by the procedural history. They should not be compelled to meet a materially reconfigured case at the eleventh hour. 35. Furthermore, as was recognised in Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd & Ors [2021] MLJU 132, the question of prejudice in amendment applications is not confined merely to whether costs may be awarded. In my opinion, costs are not the sole measure of justice. The Court must also consider the defendants’ need to have the case heard and disposed of expeditiously. 36. On another note, the present matter has progressed before three different learned Judges. It has been the subject of approximately 25 case management sessions and trial dates have been fixed. In such circumstances, the allowance of a substantive amendment would either require the vacation of the fixed trial dates thereby undermining the court-managed system and causing further delay to all parties and the Court or would require the Defendants to proceed to trial on the expanded pleadings without fair opportunity to answer the restructured case. In my opinion, either outcome is prejudicial and the party responsible for the delay should bear the consequences of its own delay. Accordingly, the prejudice occasioned by the proposed amendment is real, substantial and not adequately compensable by costs alone. E. The Amendment Alters the Character of the Suit 37. The third limb of the Yamaha Motor test requires the Court to consider whether the proposed amendment would in effect turn the suit from one character into a suit of another and inconsistent character. 38. A bare and unparticularised global sum is one thing. A newly itemised and structured claim for special damages, supported by a detailed schedule of alleged losses particularised across multiple heads, is quite another. The latter is a fundamentally different conception in pleading terms, carrying different evidentiary requirements and imposing a different burden of proof. The proposed amendment does not merely clarify the existing claim, it restructures it in a material way. For this additional reason, the proposed amendment fails the third limb of the Yamaha Motor test. CONCLUSION 39. In arriving at this decision, I am guided by the overarching principle that the court-managed system of administration of justice exists to ensure just, expeditious and economical disposal of cases. The progress of a case is no longer left entirely in the hands of the litigants but is managed by the Court in the interests of all parties and the judicial system as a whole. Where a party has through its own fault allowed a pleading deficiency to subsist for nearly three years, the Court is not an instrument through which that party may repair its case at the expense and prejudice of its opponent at the very threshold of trial. For all the foregoing reasons, the Plaintiff’s application in Enclosure 95 is dismissed with costs. Date: 21st July 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: Pavitra Pillai a/p Ramesh Pillai with Manisha Ann a/p Vijayakumar [MESSRS M DAVID MORAIS (KUALA LUMPUR)] Solicitor for the Defendants 1,2,3: Khalid bin Yusoff with Syed Muhammad Danielliaziq (PDK) [MESSRS ABU TALIB SHAHROM (KUALA LUMPUR)]
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