Surrealist Communities (M) Sdn Bhd v Potensi Mestika Construction Sdn Bhd (WA-22NCvC-157-04/2023)

Potensi Mestika Construction Sdn Bhd (No. Syarikat: 373577-K)

Lai Chor Kheong (No. K/P: 700422-08-5049)

Lai Tuck Ken (No. K/P: 971105-14-6797) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] Trial dates for this civil suit – which is to be heard together with Civil Suit No WA-22NCvC-442-08/2023 were fixed months earlier, for trial to be held from 17th to 21st November 2025. [2] On 21st October 2025, the Plaintiff filed a Notice of Application (Enclosure 78) seeking leave to amend its Statement of Claim. In other words, the Plaintiff filed the application to amend its Statement of Claim less than one month before the trial dates. 20/01/2026 00:02:17 WA-22NCvC-157-04/2023 Kand. 114 S/N a5WLpQMP5kup2fZgxScr4w [3] Unsurprisingly, the Defendants objected vehemently to the Plaintiff’s ‘last minute’ application. After hearing submissions, I decided that this Court ought to follow the judgment of the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301, and to dismiss the Plaintiff’s application – which would have necessitated an adjournment of the trial of this Year 2023 case if the amendments were to be allowed. [4] My reasons are as explained below. Background Facts [5] The 1st Defendant is the registered proprietor of land held under “PT 15630 (LOT A), KG, Baru Salak Selatan, Mukim Petaling, Daerah Kuala Lumpur, Wilayah Persekutuan” (“the said Land”). [6] The Plaintiff and the 1st Defendant have entered into a Joint Venture Agreement dated 4th July 2016 (‘the JVA”) for the purpose of development of the said Land. [7]

Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ However, there is no explanation whatsoever about his delay for making that application. Analysis of the Facts and Law [14] As mentioned at the outset, this is not a new case. It was filed in April 2023. Trial dates had been adjourned once before and S/N a5WLpQMP5kup2fZgxScr4w rescheduled for trial in November 2025, and parties are expected to be ready to proceed without further delay. [15] The fact that the Plaintiff’s application (for leave to amend its Statement of Claim) is numbered as the 78th enclosure in the CMS e-filing system tells us that there has been much water under the bridge since the filing the of the Writ in April 2023. I reiterate that this application to amend was filed two and a half (2½) years after the writ was filed, and less than a month before the trial was scheduled to commence. [16] By applying the principles set out by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301, I find that the Plaintiff’s affidavit has failed to give any reason for the delay. Not even a feeble excuse to explain the delay. With less than a month to the trial dates, the parties ought to be ready with their respective witness statements to proceed with the trial in November 2025 instead of affirming further affidavits and drafting submissions on interlocutory applications. [17] Yamaha Motor Co Ltd (supra) is a well-known authority on the principles governing applications for leave to amend pleadings. It was a decision based on the Rules of the High Court 1980. For 33 long years it was quoted in all civil courts as the leading authority on amendment of pleadings. However, the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 decided that the courts ought to take a different approach to prevent delay in the progress of a case to S/N a5WLpQMP5kup2fZgxScr4w trial and for its completion. The following words of the Federal Court are illuminating: “It is pertinent to note that Yamaha Motor was decided under the old RHC 1980. The civil procedure has since then changed with the introduction of the pre-trial case management in the year 2000 under O 34 of the RHC 1980 (22 September 2000) and now under O 34 of the RC 2012 (1 August [2016] 1 MLJ 301 at 3092012). Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80).” (emphasis added) [18] Now, there is not even a single sentence in the Plaintiff’s supporting affidavit to explain its delay. Its learned counsel submitted that a judicial manager took over the conduct in March 2025. With respect, if the appointment of a judicial manager is itself a sufficient ground for applying to amend pleadings, thereby ignoring the trial dates that have been fixed, there would be inordinate delay of cases caused S/N a5WLpQMP5kup2fZgxScr4w by adjournment of trials to enable parties amend pleadings at the last minute. The following passage of the judgment of the Federal Court in Hong Leong Finance Bhd (supra) emphasised the requirement that a cogent explanation for such a delay must be furnished: “It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable.” (emphasis added) [19] I am aware that the Plaintiff is seeking leave to amend to add only two lengthy new prayers. However, it is pertinent to note that if the Plaintiff’s application were to be allowed, it would follow, by virtue of Order 20 rule 3(2) Rules of Court 2012, the Defendants would automatically be entitled to amend their Defence within 14 days, which in turn would be followed by the Plaintiff gaining the right to amend its Reply to the Defendants’ Amended Defence within 14 days. The inevitable consequence would be that the trial dates for S/N a5WLpQMP5kup2fZgxScr4w this case and Suit No. 442, i.e. two Year 2023 civil suits, would have to vacated. [20] Even though this Court has the power to abridge time, surely it should not be used to the detriment of the Defendants in favour of the Plaintiff which is guilty of inordinate delay. [21] The importance of an affidavit explaining a delay in seeking leave to amend was emphasised by the Federal Court in Hong Leong Finance Bhd (supra) in the part that ruled that if an applicant’s affidavit-in-support failed to adduce an explanation for the delay, there is nothing to reply, i.e. there is not even a need for any affidavit-in-reply to be filed by the opposing party. I respectfully quote the following passage from the judgment of the Federal Court: “It is noted in the present case the defendant’s affidavit in support failed to adduce an explanation for the delay in filing the said application. The Court of Appeal however held that the plaintiff should have filed an affidavit to oppose the application to amend which the plaintiff failed to do. With respect in our view the Court of Appeal erred on this point again. This is because the defendant’s affidavit in support of its application to amend contained nothing more than a bare assertion. A bare assertion carries no evidential value and hence, there is nothing to reply...” [22] The trial dates in November 2025, i.e. this year, were fixed during a case management session on 2nd October 2024, i.e. about a year ago. The judicial manager was appointed in March 2025. Thus, there is no plausible reason for the Plaintiff to delay for 7 months. S/N a5WLpQMP5kup2fZgxScr4w S/N a5WLpQMP5kup2fZgxScr4w Counsel for the Plaintiff: Claudia Cheah (Karen Tan & Nur Shafiqa Balqish binti Jaffri with her) SOLICITORS FOR THE PLAINTIFF: MESSRS SELVA MOOKIAH & ASSOCIATES Advocates & Solicitors No. 23A-02, Setia Avenue, No. 2, Jalan Setia Prima S U13/S, Section U13, Setia Alam, 40170 SHAH ALAM, SELANGOR. Counsel for the Defendants: Robin Vu (Lim Sze Han with him) SOLICITORS FOR THE DEFENDANTS: MESSRS ROBIN & PARTNERS Advocates & Solicitors No. 13-2, Block 3, Jalil Link, Jalan Jalil Jaya 3, Bukit Jalil, 57000 KUALA LUMPUR. S/N a5WLpQMP5kup2fZgxScr4w

Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301.

Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213.

Order 20 rule 3(2) Rules of Court 2012 S/N a5WLpQMP5kup2fZgxScr4w