Orezon Engineering Sdn Bhd v Radicare (M) Sdn Bhd (WA-22NCC-88-02/2024)

This decision concerns the Defendant’s application in Enclosure 54 for leave to file a further affidavit. The purpose of the filing is to oppose the Plaintiff’s summary judgment pending before me.

The Defendant sought to place before the Court further materials said to have been discovered upon a change of solicitors. This includes an internal audit, price benchmarking documents, purchase order terms and an authority manual.

The application was resisted by the Plaintiff. The Plaintiff contended that the Defendant had long since filed its affidavits in opposition to the summary judgment. So the Plaintiff contends that all relevant evidence ought already to have been before the Court. Hence, the present attempt was a belated effort to reopen and reshape the Defendant’s case after the matter had been fixed for hearing more than once.

It is important to highlight that the Defendant had also filed an application to amend the Defence. Some of the materials sought to be adduced via this further affidavit concern averments raised in the proposed amendments. I heard and had dismissed that application. The Defendant has also filed an appeal against the dismissal. The reasons for the dismissal have been furnished in my grounds of judgment.

Having considered the affidavits, submissions and authorities cited by the parties, I dismissed the application with costs.

The Plaintiff commenced this action claiming a substantial sum said to be due for goods supplied and services rendered to the Defendant. Thereafter, the Plaintiff filed an application seeking summary judgment.

The summary judgment application had been in progress for some time. Affidavits had already been exchanged. Hearing dates had also been fixed and adjourned on earlier occasions. Shortly before the scheduled hearing, the Defendant changed solicitors. This occasioned another adjournment. Thereafter, this application was filed seeking leave to introduce a further affidavit with additional exhibits.

The Defendant’s proposed additional affidavit relied principally on four categories of documents, namely: i. an internal audit over 22 claims; ii. Defendant’s price benchmark (an internal document of the Defendant); iii. purchase order terms and conditions; and iv. an authority manual said to regulate who could verify claims (another internal document of the Defendant).

The Defendant submitted that the Court has a broad discretion under Order 3 Rule 5 of the Rules of Court 2012 and its inherent jurisdiction to permit the filing of a further affidavit where justice requires. It argued that the new solicitors, upon reviewing the file, discovered material evidence not previously placed before the Court.

It was said that the proposed evidence was highly relevant because it showed that certain works claimed by the Plaintiff could not be identified. Secondly, that the prices claimed were inflated when compared with benchmark pricing. Thirdly, that payment terms were governed by purchase order conditions. Finally, that certain employees of the Defendant lacked authority to verify the Plaintiff’s documents.

The Defendant further contended that no prejudice would be caused because the Plaintiff could always answer the further affidavit. The amount claimed being large, the Court was urged to admit all available material so that the summary judgment application could be determined on a complete evidential footing.

Reliance was placed on authorities where further affidavit evidence had been permitted. In particular, the Defendant referred to cases where courts adopted a justice-oriented approach in receiving material evidence.

The Plaintiff opposed the application on the basis that the Defendant had already had ample opportunity to file all evidence necessary to resist summary judgment. The Defendant had in fact filed affidavits earlier, and no satisfactory explanation was given as to why these materials were not produced then.

The Plaintiff submitted that a change of solicitors cannot be used as a tactical device to restart the litigation process. Litigation must proceed with finality and discipline. If parties were permitted to revisit their evidential position each time solicitors changed, orderly case management would be undermined.

It was further contended that the proposed materials were neither fresh nor decisive. They were documents already within the Defendant’s own possession or power. If genuinely material, they would naturally have been filed at the earlier stage when affidavits opposing the summary judgment were prepared.

The Plaintiff also stressed prejudice by delay. The summary judgment application had already been delayed and the Plaintiff should not be compelled to meet a shifting case at the eleventh hour.

I begin with the applicable principle. In resisting the application, much reliance was placed by the Plaintiff on Ladd v Marshall [1954] 3 All ER 745. In my judgment, that authority is classically concerned with fresh evidence sought to be adduced at the appellate stage after trial or after judgment. The familiar requirements are well known: “first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given it would probably have an important influence on the result of the case; though it need not be decisive; third, the evidence must be such as is presumably to be believed…”

Strictly speaking, this is not a post-judgment case. It concerns a pending interlocutory application. Accordingly, Ladd v Marshall (supra) does not apply in its full rigour as if it were an appellate fresh evidence motion. Nevertheless, the considerations embodied in that case remain highly instructive. They reflect common sense judicial controls against late evidential ambush.

Thus, where a party seeks to file a further affidavit late in the day, the Court is entitled to ask at least the following four questions: i. could the material have been produced earlier with reasonable diligence; ii. is the material sought to be adduced truly relevant and necessary; iii. would it materially assist determination of the pending issue; and iv. what prejudice or delay would be caused to the opposing party.

Applying those considerations here, I am not satisfied that the delay has been adequately explained. The central explanation advanced was that new solicitors had taken over conduct of the matter and discovered additional materials. That is patently insufficient. A change of solicitors is not a licence to shift litigation goal posts. A litigant acts through whichever solicitors it appoints. Internal transitions between legal representatives do not erase prior procedural defaults. If it was otherwise, a litigant unhappy with a procedural step taken could always change solicitors as a pre-cursor to shifting litigation parameters.

Further, the documents sought to be introduced were not newly discovered external materials. They were, on the Defendant’s own case, internal documents such as internal audit papers, internal price benchmarks and internal authority manuals. These were plainly within the Defendant’s possession and control all along. They could and should have been produced earlier if genuinely relied upon.

I was also not persuaded as to necessity. If these materials were truly central to defeating summary judgment, one would have expected them to feature prominently in the original affidavit in opposition to the summary judgment application. Their absence from the earlier evidential architecture significantly weakens the present claim of indispensability.

As to prejudice, while it is true that the Plaintiff might theoretically answer the new affidavit, that is not the end of the matter. Procedural prejudice includes being compelled to respond repeatedly to an evolving case, incurring further cost, delay and disruption to scheduled hearings. Justice is owed to both parties, not merely to the defaulting party.

It seems the norm presently that a party in the Defendant’s predicament exhorts the Court to negate prejudice by an award of costs. Such echo must be halted. Neither litigant nor his solicitor, who is his amanuensis, ought to have the false notion that dabbling costs for defaults is a panacea for indolence or laxity.

I also considered that the Defendant sought to introduce voluminous internal materials touching multiple merits issues at a very late stage. That is not mere supplementation. This amounts in substance an attempted reconstruction of the Defence. I am of the view that such attempt, at a very late stage, was not only prejudicial but most unfair to the Plaintiff.

Even taking the Defendant’s case at its highest, the proposed evidence would still not justify the indulgence sought. The Court is not obliged to permit every late filing merely because a party asserts relevance. Case management would become unworkable if timetables could be displaced whenever a party later re-evaluates its litigation strategy.

In the premises, I found no sufficient basis to exercise my discretion in favour of the Defendant.

For the reasons above, I dismissed the Defendant’s application with costs and proceeded to hear the summary judgment application. For the record, the summary judgment application was allowed and the Defendant has since filed an appeal against my decision. Dated the 19th day of April 2026 -sgd- ……………………………………………………………………… MUHAMMAD ADAM @ EDWARD BIN ABDULLAH Judicial Commissioner (Commercial Division NCC 4) High Court of Malaya In the Federal Territory of Kuala Lumpur, Malaysia Counsel for the Plaintiff : Wai Chong Khuan together with Derek Chin Tze Qi Messrs. Tetuan Low & Partners Counsel for the Defendant : Aisha Mubarak together with Annesha Mary Koshy Messrs. Aisha Mubarak & Co.

Ladd v Marshall [1954] 3 All ER 745

Order 3 Rule 5 of the Rules of Court 2012