Rozana Binti Mohamed v Kenaf Venture Global Sdn. Bhd. (WA-22NCC-736-10/2023)

After the Plaintiff filed and served the Writ and Statement of Claim on the Defendant, the Defendant filed an application vide Enclosure 7 to strike out the Plaintiff’s action.

In the meantime, the Plaintiff filed Enclosure 11, an application to amend its Writ and Statement of Claim after receiving the Defendant’s Defence and Counterclaim.

Both Enclosures 7 and 11 were heard together and after hearing oral submissions from counsel, I dismissed the Defendant’s Enclosure 7 and allowed the Plaintiff’s Enclosure 11.

Being dissatisfied, the Defendant has appealed against my decision in respect of Enclosure 11.

The Plaintiff’s action is based on a Sales Representative Agreement dated 09.04.2021 (“the Agreement”) entered into between the Plaintiff and the Defendant.

The Plaintiff was appointed under the Agreement as the “Marketing Representative” of the Defendant in relation to the Defendant’s Kenaf Development Fund. The Agreement provides, amongst others (as per the Plaintiff’s paragraph 3 of its Statement of Claim): a) that the Defendant appoints the Plaintiff as a Marketing Representative (‘Wakil Pemasaran’) for the Defendant’s Company effective from 01.04.2021 until 31.03.2023 (one year period) and the period can be extended until its terminated through a three (3) months notice; b) the Plaintiff as the Marketing Representative, was to market an investment product known as Kenaf Development Fund on behalf of the Defendant to the investors and client/customer; 3 c) in return, the Defendant shall pay a commission to the Plaintiff at the rate of 14% from the investment amount, and 5.5% until 6.6% from the amount of the investment for the period of 12 months; d) the said commission has to be paid by the Defendant to the Plaintiff at the end of each calendar month; and e) the obligation/responsibility under the Agreement shall be effective for a period of two (2) years from the date of termination.

The Plaintiff thereon further claimed that during the period of the Agreement, the Plaintiff had performed its obligations as the Marketing Representative and the Defendant has paid its commission at the rate of 14% and the monthly commission at the fixed rate of 6% as agreed by the Plaintiff and the Defendant.

However, after the Defendant terminated the Agreement, the Plaintiff claimed that the Defendant has failed to pay the commissionss still due and owing to her. Thus, the filing of this action.

In the Defendant’s Statement of Defence and Counterclaim, the Defendant has pleaded that the Agreement entered into between the Plaintiff and the Defendant is void ab initio as the Plaintiff was not a registered Marketing Representative.

Arising from the aforesaid, the Plaintiff then filed Enclosure 11 4 which is a Notice of Application to amend her Writ and Statement of Claim to add an additional party as a defendant and to plead a cause of action for fraud and negligent misrepresentation.

In resisting the application, the Defendant contended as follows: a) The Plaintiff has erroneously moved the Court under Order 20 Rule 1 of the Rules of Court 2012 (“ROC 2012”) when the appropriate provisions ought to be Order 15 which provides for joinder of parties; b) The application lacks bona fide, is prejudicial to the Defendant and in effect turns the character of the suit.

The Plaintiff’s application is made at an early stage of the action. Pleadings have not closed yet. There is therefore ample time for the Defendant and the new party to plead their case and to prepare for the trial of the action if the amendments are allowed.

The fact that the Plaintiff has not referred to Order 15 of the ROC 2012 is not fatal to the application. The Defendant has not been deprived of the opportunity to address and or submit to the Court on the said Order 15. There is no element of surprise and the Defendant suffers to prejudice by reason of the omissions. Further, the Defendant can always amend its Defence in response to the amendments.

There is also no lack of bona fide in the application. The initial facts pleaded had alluded to previous payments made by the Defendant to the Plaintiff under the Agreement. In other words, the Defendant had not taken the position that the Agreement was void ab initio. However, in the Defence filed in response to the Statement of Claim, the Defendant is alleging for the first time that the Agreement is null and void.

The aforesaid prompted the Plaintiff to file the application to amend the Statement of Claim to cater for the Defendant’s contentions and to raise a cause of action consequential upon the contentions taken by the Defendant in its Defence. In this regard, the proposed amendments will place before the Court all the issues and bring relevant parties to the Agreement for determination of the Plaintiff’s claims.

The proposed amendments include claims of fraud and/or negligent misrepresentation against the existing Defendant and the proposed new party in connection with the Agreement. It does not change the character of the action to one that is completely different as contended by the Defendant. The inclusion of fraud and/or negligent misrepresentation arises from the same and or substantially the same facts as originally pleaded by the Plaintiff.

There is therefore no prejudice to the Defendant that cannot be compensated by costs. Indeed the Defendant has not demonstrated that it will suffer prejudice that could not be compensated by costs.

Enclosure 11 is allowed with costs fixed at RM 5,000 to be paid by the Plaintiff to the Defendant subject to allocatur. Dated the 8th day of March 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Ahmad Kamal together with Mr. Arik Zakri bin Abdul Kadir for

Mr. Syamsul Azhar bin Ab. Aziz for Defendant

Order 20 Rule 1 of the Rules of Court 2012