Randy Ng Kai Sheng v Bemed (Ptj) Sdn. Bhd. (WA-22NCC-46-01/2025)

On 02-04-2025, I heard two applications.

The plaintiff filed for summary judgment of his claim. [See Enclosure 17].

The defendant filed under Enclosure 24- i. To strike out an amendment made by the plaintiff to paragraph 21 of the Statement of Claim dated 04-06-2024 pursuant to Order 20 rule 4(2) and Order 18 rule 19 of the Rules of Court 2012 [“ROC 2012”]; and ii. To strike out paragraphs 7 (a), (b) (f), 10 (b), (j), (k) (m) and 12

of the plaintiff’s Reply dated 26-08-2024 under Order 18 rule 19 ROC 2012. [4] I granted partly the plaintiff’s application in Enclosure 17 and made the following order: Defendant shall pay the Plaintiff RM200,000 being the Tranche (2) payment under the Share Sale Agreement with interest set out at prayer (5). Defendant shall pay the Plaintiff RM 10,000 being incentive fee with interest. Costs of RM10,000 to be paid by the Defendant to Plaintiff subject to allocatur. The rest of the claim to go for trial including Tranches 3 and 4. [5] I dismissed the defendant’s application in Enclosure 24 with costs of RM 5,000 subject to allocatur. Trial is now fixed for 4th ,15th, 17th, 21st and 22-09-2026. [6] On 24-04-2025, the defendant has appealed to the Court of Appeal against my dismissal of Enclosure 24. The defendant did not appeal against my summary judgment order for Enclosure 17. [7] These are my Grounds of Judgment for my decision in Enclosure 24. Material facts of the case [8] The plaintiff’s claim against the defendant is based on the defendant’s alleged breach of a Share Sale Agreement between the plaintiff and the defendant dated 01-12-2022 (“Share Sale Agreement”) and alleged breach of a Consultant Agreement dated 01-12-2022 (“Consultant Agreement”). [9] I shall start with the Share Sale Agreement. Share Sale Agreement [10] Pursuant to the Share Sale Agreement, the defendant had agreed to purchase 150,000 shares which constitutes 100% of the equity interest in a company called RJ Drugstore Sdn Bhd (“Shares”) from the plaintiff at a purchase consideration of RM 1,450,000.00. The payment of the purchase consideration was divided into four tranches of payment. [11] Upon the signing the Share Sale Agreement, the defendant has appointed its own directors in RJ Drugstore Sdn Bhd and took control of the company. [12] Upon transfer of all the Shares to the defendant, Tranche 1 payment was paid in full by the defendant to the plaintiff. [13] Tranche 2, Tranche 3 and Tranche 4 payments are subject to the Plaintiff fulfilling the conditions of achieving the yearly net profit guarantee of RM 200,000.00 for RJ Drugstore Sdn Bhd for the financial years 2022, 2023 and 2024 and the continue servicing of the banking facility which was procured by RJ Drugstore Sdn Bhd on April 2022. [14] It is undisputed that the plaintiff has fully settled the banking facility. [15] Disputes arose between the parties whether the plaintiff are entitled to the Tranche 2, Tranche 3 and Tranche 4 payments. Consultant Agreement [16] Pursuant to a Consultant Agreement, the defendant had appointed the plaintiff as the Principal Consultant for the defendant’s company for a period of 36 months beginning 01-12-2022. [17] One of the terms in the Consultant Agreement is that the plaintiff is entitled to receive an incentive fee of RM 10,000.00 for every successful outlet opening. [18] The plaintiff alleged that despite having successfully assisted the defendant to open a new outlet of pharmacy located at 70, Jalan MP 10, Taman Merdeka Permai, Batu Berendam, 75350 Melaka, the defendant did not pay the plaintiff the RM 10,000.00 incentive fee as per the Consultant Agreement. Suit at the Sessions Court [19] The plaintiff thus filed a suit at the Sessions Court against the defendant on 04-06-2024. The defendant filed a Defence and Counterclaim dated 15-07-2024. The plaintiff then filed an Amended Statement of Claim and Reply which did not require leave of court. Application by defendant to strike out an amendment made by plaintiff to the Statement of Claim and certain paragraphs of the Reply [20] On 11-10-2024, the defendant applied in Enclosure 24 pursuant to Order 20 rule 4(2) and Order 18 rule 19 of the ROC 2012 to strike out an amendment made by the plaintiff to paragraph 21 the Statement of Claim and to strike out paragraphs 7 (a), (b) (f), 10 (b), (j), (k) (m) and 12 (e) of the Reply under Order 18 rule 19 ROC 2012. [21] The basis as stated in the Notice of Application is that: i. The amendment made to paragraph 21 of the Statement of Claim dated 04-06-2024 should be disallowed under Order 20 rule 4(2) and Order 18 rule 19 of the ROC 2012 as it was drastic and inconsistent and had caused serious prejudice to the defendant and is an abuse of the process of the court. ii. Paragraphs 7 (a), (b) (f), 10 (b), (j), (k) (m) and 12 (e) of the Reply dated 26-08-2024 constitute a change from the facts pleaded pre-amendment to paragraph 21 of the Statement of Claim and should be struck out under Order 18 rule 19 ROC 2012. Transfer to the High Court [22] Enclosure 24 was not heard at the Sessions Court. This is because as the sums claimed in the Counterclaim exceed RM 1 million the suit was transferred on 16-01-2025 to the High Court for hearing. [See Enclosure 45]. Issues [23] The issues therefore are: i. Whether the amendment made to paragraph 21 of the Statement of Claim dated 04-06-2024 should be disallowed under Order 20 rule 4(2) and Order 18 rule 19 of the ROC 2012; and ii. Whether under Order 18 rule 19 ROC 2012 paragraphs 7 (a), (b)

(f), 10 (b), (j), (k) (m) and 12 (e) of the Reply dated 26-08-2024 should be struck out. Issue 1 - whether the amendment made to paragraph 21 of the Statement of Claim dated 04-06-2024 should be disallowed under Order 20 rule 4(2) and Order 18 rule 19 of the ROC 2012 The defendant’s contentions [24] The defendant contends in its Notice of Application [See Enclosure 24] – Pindaan yang dibuat oleh Plaintif di perenggan 21 Pernyataan Tuntutan, yang menukar kedudukan Plaintif daripada menyatakan bahawa Perjanjian Jualan Saham dan Perjanjian Konsultan "hendaklah dibaca bersama sebagai suatu transaksi keseluruhan" kepada "perjanjian yang berasingan dan berdikari (separate and independent) antara satu sama lain. Terma-terma dalam kedua-dua perjanjian tidak mengikat antara satu sama lain," adalah bercanggah secara mendadak dengan kedudukan asal Plaintif. Unquote. [25] The defendant relies on Yamaha Motor Co. Ltd. v Yamaha (M) Sdn. Bhd. & Ors. [1983] 1 CLJ 191 FC and Smijaya Sdn Bhd v Perwira Affin Bank Bhd [2011] 2 CLJ 609 CA and contends that the amendments are not bona fide, the injustice caused to the defendant cannot be compensated by costs and the amendments would in effect turn the suit from one character into a suit of another and inconsistent character. [See defendant’s written subs Enclosure 34 paragraph 19]. [26] In addition, the defendant contends that the plaintiff had wrongly stated that its amendment made without leave of court was pursuant to Order 20 rule 1 ROC 2012 when it should be Order 20 rule 3 ROC 2012. The plaintiff’s contentions [27] The plaintiff disagrees that the amendments are not bona fide, the injustice caused to the defendant cannot be compensated by costs and the amendments would in effect turn the suit from one character into a suit of another and inconsistent character. [28] On the argument that the plaintiff had wrongly stated that its amendment made without leave of court was pursuant to Order 20 rule 1 ROC 2012 when it should be Order 20 rule 3 ROC 2012, the plaintiff submits that it was merely a clerical error. The clerk should have endorsed on the top right corner of the Amended Statement of Claim Order 20 rule 3 ROC 2012 and not Order 20 rule 1 ROC 2012. [29] The plaintiff submits that the typo can be cured by the court under Order 2 rule 1(1) ROC 2012 citing Bukit Waha Quarry Sdn Bhd v Teguh Permata Sdn Bhd [2000] 1 CLJ 781 HC and Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang-Undang, Malaysia [2009] 4 MLRA 346 CA. Court’s analysis Law [30] In its application to strike out the amendment made to paragraph 21 of the Statement of Claim the defendant is relying on Order 20 rule 4(2) ROC 2012. [31] Order 20 rule 4(2) ROC 2012 allows a court to order an amendment made under rule 1(1) or rule 3(1) - which allows amendments to be made without leave of court before the pleadings are deemed to be closed - to be struck out if the court is satisfied that if an application for leave to make the amendment in question had been made under rule 5 at the date when the amendment was made under rule 1(1) or rule 3(1) leave to make the amendment would have been refused. [32] Order 20 rule 4(2) ROC 2012 reads as follows- ‘2) Where the Court hearing an application under this rule is satisfied that if an application for leave to make the amendment in question had been made under rule 5 at the date when the amendment was made under rule 1(1) or rule 3(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part to be struck out.’ [Emphasis added] Application to facts [33] In my view, the defendant’s application is without merits. When the amendment was made by the plaintiff on 26-08-2024 [See Amended Statement of Claim in Enclosure 11] pleadings had not closed. No trial dates have been fixed yet. In fact, trial is now fixed before me next year on 4th, 15th, 17th, 21st and 22nd September 2026. [34] The amendment to paragraph 21 of the Statement of Claim [Enclosure 2] was also minor in nature from-i. “In the premises, the Share Sale Agreement and the Consultant Agreement must be read together as a whole transaction”; to ii. “Although the Share Sale Agreement and the Consultant Agreement were entered at the same time, however both the agreements are separate and independent from one another. The terms of both the agreements do not bind one another”. [See Amended Statement of Claim in Enclosure 11]. [35] In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230 FC, the Federal Court said- “It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made 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.” Meaning of ‘prejudice’ that cannot be compensated by costs [36] As to what is prejudice caused to the defendant that cannot be compensated by costs, this is what the courts said on the meaning of ‘prejudice’ in this context. [37] In China Orient Asset Management Corporation v Alexma Corporation Sdn Bhd [2018] 2 MLRA 680 CA, the Court of Appeal said- “[14] … we hasten to observe that although it is quite usual for parties in amendment applications to shout “prejudice”, there is a common misappreciation of what “prejudice” means (see ASM Development Sdn Bhd v. Hijjas Kasturi Associates Sdn Bhd [2008] 3 MLRA 290). “Prejudice”, in the context of amendment applications, cannot mean that if the amendment is allowed, the chances of success of the litigation of the affected party will be severely diminished. “Prejudice” simply means that if the amendment is allowed, the party affected will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, and which is necessitated by the amendment, is lost or no longer available. In such a case, the prejudice is clearly seen. In every other case, where no such prejudice arises, the party can be compensated with costs. [15] In our respectful view, this was not such a case where the appellant was prejudiced in the sense that they will be unable to counter the allegations as put forward in the amendments allowed by the High Court. They may be put to some bother in doing so but the general principle is that parties must be allowed every latitude to define the issues between them as that is the core function of pleadings. Even in the case where there had been an omission or mistake, it is a matter of right to have it corrected, if it can be done without injustice, and where it is not made at too late a stage of the proceedings, so that the court can deal with the real question in controversy between the parties (see GL Bakar Ltd v. Medway Building & Supplies Ltd [1958] 1 WLR 1216 as cited with approval by the Supreme Court in Hock Hua Bank Bhd v. Leong Yew Chin [1986] 1 MLRA 225).” [Emphasis added] [38] In Tusk Construction Support Services (Pty) Ltd and another v Independent Development Trust [2020] ZASCA 2218, the Supreme Court of Appeal of South Africa said- “[19] It bears emphasising that the fact that the amendment sought might lead to the defeat of the opposing party is not the sort of prejudice that is contemplated.” Reference to Order 20 rule 1 ROC 2012 when it should be Order 20 rule 3 ROC 2012 [39] I now move to the next point of the defendant that the plaintiff had cited the wrong rule when making its amendment. The plaintiff submits that the typo can be cured by the court under Order 2 rule 1(1) ROC 2012 citing Bukit Waha Quarry Sdn Bhd v Teguh Permata Sdn Bhd [2000] 1 CLJ 781 HC and Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang-Undang, Malaysia [2009] 4 MLRA 346 CA. [40] Order 2 rule 1(1) and (2) ROC 2012 read as follows-Non-compliance with Rules (O. 2, r. 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. [41] I agree the typo is not fatal. It can be cured under Order 2 rule 1(1) ROC 2012. The courts exist to do justice to citizens. We should not allow pedantic objections by counsel. I am indeed disappointed that counsel raises such a pedantic point. [42] The court can invoke Order 2 rule 1(1) ROC 2012 to cure the typo. In Bukit Waha Quarry Sdn Bhd v Teguh Permata Sdn Bhd [2000] 1 CLJ 781 HC, Abdul Malik Ishak J invoked Order 2 rule 1(1) ROC 2012 to cure a mistake of the plaintiff who had referred to the wrong rule when amending the Statement of Claim without leave of court- “But I would construe O. 2 r. 1(2) as being so framed as to give the court the widest possible power in order to do justice. … Next, it was argued that the wrong procedure was adopted by the plaintiff in amending the statement of claim. The endorsement at the top right-hand corner of encl. 9 should be O. 20 r. 1 and not r. 20 O. 1. The mistake was admitted by the plaintiff and even the SAR overlooked this mistake. I accordingly invoked O. 2 r. 1(1) of the RHC to cure this obvious irregularity. There was no prejudice suffered by the defendant at all as a result of this minor irregularity and I so hold accordingly.” [Emphasis added] [43] Further the Court of Appeal in Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang-Undang, Malaysia [2009] 4 MLRA 346 CA said- “[12] …. To this court, justice of the case should prevail. A person or litigant should not be deprived of his/her day in a court of law just on technical procedural grounds like in the present case. Even if the appellant had commenced the application by way of originating summons (not by way of Form 111A as required under O. 53), all the relevant facts and evidence for consideration had been forwarded to the court. No prejudice was ever occasioned to any party in the proceedings, including the court. To strike out the appellant’s application at this stage of the proceedings (without hearing the merits) is obviously unfair to the appellant who came to court to seek justice and a fair hearing. … [14] Such procedural technical objections (as in the present case) should not be allowed to obstruct the process of justice to the deserving. As we move towards the era of facilitating the process of litigation, the raising of objection on technical grounds would certainly and clearly be a thing of the past. It is clearly the intention and wisdom of the Rules Committee to provide for the smooth administration of the due process and administration of justice by way of substantial merits of the case and not merely on procedural technical defaults. (see: Beauford Baru Sdn Bhd v. Gopala Krishnan a/l VK Gopalan [2002] 1 MLRH 490; [2002] 6 MLJ 134; [2002] 3 CLJ 686; [2002] 4 AMR 4462). [Emphasis added] [44] In addition, the defendant contends that the amendment to paragraph 21 of the Statement of Claim can be struck out under Order 18 rule 19 ROC 2012. [45] In my view this is a frivolous contention. The defendant had not adduced any affidavit evidence to support its contention. [46] I now move to issue 2. Issue 2 - whether under Order 18 rule 19 ROC 2012 paragraphs 7 (a),

(f), 10 (b), (j), (k) (m) and 12 (e) of the Reply dated 26-08-2024 should be struck out The defendant’s contentions [47] The defendant contends in its Notice of Application [See Enclosure 24] - Perenggan 7 (a), (b) dan (f), perenggan 10 (b), perenggan 10 (j), (k) dan (m), serta perenggan 12 (e) dalam Jawapan kepada Pembelaan & Pembelaan kepada Tuntutan Balas bertarikh 26.8.2024 (Kand. 12) merupakan satu perubahan daripada pliding terdahulu Plaintif dalam Pernyataan Tuntutan, yang asalnya menyatakan bahawa Perjanjian Jualan Saham dan Perjanjian Konsultan "hendaklah dibaca bersama sebagai suatu transaksi keseluruhan." Unquote. [48] In my view, this is a frivolous contention. The defendant had not adduced any affidavit evidence to support its contention that paragraphs 7 (a), (b) (f), 10 (b), (j), (k) (m) and 12 (e) of the Reply dated 26-08-2024 should be struck out.

[49] For the reasons above, I dismiss the defendant’s application in Enclosure 24 with costs of RM 5,000 subject to allocatur. …………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 09th June 2025. COUNSEL: 1) Kennie Ang Joo Koon and Goh Jing-Wen for plaintiff. (Ang Adila (Puchong)) 2) Foo Wen Cong and Gan Boon Yi for defendant. (Foo Leong Tan & Chan (Kuala Lumpur)) CASES REFERRED TO: 1) Amirthanayaki Kumarasamy v Lembaga Kelayakan Profesion Undang-Undang, Malaysia [2009] 4 MLRA 346 CA. 2) ASM Development Sdn Bhd v. Hijjas Kasturi Associates Sdn Bhd [2008] 3 MLRA 290. 3) Beauford Baru Sdn Bhd v. Gopala Krishnan a/l VK Gopalan [2002] 1 MLRH 490; [2002] 6 MLJ 134; [2002] 3 CLJ 686; [2002] 4 AMR 4462. 4) Bukit Waha Quarry Sdn Bhd v Teguh Permata Sdn Bhd [2000] 1 CLJ 781 HC. 5) China Orient Asset Management Corporation v Alexma Corporation Sdn Bhd [2018] 2 MLRA 680 CA. 6) GL Bakar Ltd v. Medway Building & Supplies Ltd [1958] 1 WLR 1216. 7) Hock Hua Bank Bhd v Leong Yew Chin [1986] 1 MLRA 225, [1987] 1 MLJ 230 FC. 8) Smijaya Sdn Bhd v Perwira Affin Bank Bhd [2011] 2 CLJ 609 CA. 9) Tusk Construction Support Services (Pty) Ltd and another v Independent Development Trust [2020] ZASCA 2218. 10) Yamaha Motor Co. Ltd. v Yamaha (M) Sdn. Bhd. & Ors. [1983] 1 CLJ 191 FC. LEGISLATION REFERRED TO: 1) Rules of Court 2012, Order 2 rule 1(1), Order 18 rule 19, Order 20 rule 1, Order 20 rule 3, Order 20 rule 4(2)