Ten Thiam Choy v Yip Kum Fook (BA-22NCvC-199-05/2025)

This application concerns the Plaintiff’s Notice of Application (Enclosure 19) filed pursuant to Order 20 rule 5 and/or Order 92 rule 4 of the Rules of Court 2012, seeking leave to amend the Writ and Statement of Claim. The application was accompanied by a Certificate of Urgency (Enclosure 18), and the Plaintiff contended that the proposed amendments were bona fide, non-prejudicial, and necessary for the determination of the real issues in dispute.

The Plaintiff commenced this action by filing the Statement of Claim dated 15 May 2025 (Enclosure 2). In that pleading, the Plaintiff set out extensive allegations of fraud, forgery, conspiracy, and knowledge on the part of all Defendants, together with a detailed factual narrative, documentary references, and comprehensive reliefs. The Statement of Claim was neither skeletal nor ambiguous, and it pleaded the Plaintiff’s case in considerable detail.

The Defendants responded by filing their Defence (Enclosure 5). At the outset, the Defendants expressly pleaded res judicata and/or issue estoppel, contending that the subject matter and issues raised by the Plaintiff had already been litigated and conclusively determined in earlier proceedings. The Defence also traversed the Plaintiff’s allegations of fraud in detail and put the Plaintiff to strict proof on all material allegations.

The Plaintiff thereafter filed a Reply to the Defence (Enclosure 6). In that Reply, the Plaintiff directly engaged the pleas of res judicata and issue estoppel, reasserted the allegations of fraud, and maintained that the Defendants’ reliance on prior proceedings was misconceived. With the filing of the Reply, the pleadings were effectively closed and the issues between the parties were clearly joined.

Only after the Defence and Reply had been filed, and in the context of pending interlocutory challenges raised by the Defendants, did the Plaintiff file the present application to amend the Statement of Claim. The timing of the application forms an important part of the Court’s consideration of whether the discretion to allow amendment should be exercised.

The Plaintiff, Ten Thiam Choy, is an individual who occupied and conducted activities on two parcels of land situated in Kuala Lumpur. The Third Defendant, Low Mei Lan, is the registered proprietor of the said land and the landlord under the tenancy relied upon by the Plaintiff. The First and Second Defendants are related parties involved in the management, enforcement, and assertion of rights arising from the tenancy and ownership of the land. There is no dispute that the legal relationship between the Plaintiff and the Defendants is rooted entirely in the tenancy over the same land. All rights, obligations, and disputes between the parties flow from that tenancy relationship and the Plaintiff’s continued occupation of the land.

The subject matter of the present High Court action concerns disputes arising from the same tenancy over the same two parcels of land. The Plaintiff’s claims relate to alleged entitlement to remain in occupation, disputes over rental payments and arrears, termination of tenancy, recovery of possession, and consequential reliefs arising from occupation without consent.

The tenancy dispute was previously litigated in the Sessions Court Kuala Lumpur Civil Suit No. WA-A52NCvC-337-05/2022 (“Suit 337”). In that action, the present third Defendant, Low Mei Lan, was the Plaintiff, while the present Plaintiff, Ten Thiam Choy, together with another party, were defendants.

The claims in Suit 337 concerned rental arrears, mesne profits, utilities and related charges, and recovery of possession of the same land. The issues ventilated before the Sessions Court arose directly from the same tenancy relied upon by the Plaintiff in the present action. The Sessions Court proceedings were substantive in nature and involved a determination of the parties’ rights and liabilities arising from the tenancy. Judgment was entered in stages and culminated in a final judgment dated 19.12.2023, granting reliefs in favour of the landlord and determining conclusively the status of the tenancy and the Plaintiff’s right to occupation.

The Plaintiff appealed against the Sessions Court decision. The appeal was heard and dismissed by the High Court, thereby affirming the Sessions Court judgment. The outcome of Suit 337 has therefore, attained finality.

The dismissal of the appeal by the High Court Kuala Lumpur brought the litigation arising from the dispute to finality within the appellate hierarchy. The Plaintiff did not obtain any reversal or variation of the Sessions Court decision.

Notwithstanding the Sessions Court decision and the subsequent dismissal of the appeal by the High Court Kuala Lumpur, the Plaintiff thereafter commenced the present action in the High Court at Shah Alam. The present suit is founded on substantially the same factual allegations, subject matter and grievances which had already been adjudicated in the earlier proceedings.

The central issue for determination is whether the Court should exercise its discretion under Order 20 rule 5 to permit the Plaintiff to amend its pleadings at this stage of the proceedings. This issue must be assessed against the procedural posture of the case and the state of the pleadings at the time the application was made.

In determining this issue, the Court must consider several interrelated questions. These include whether the proposed amendments are necessary to cure any defect, ambiguity, or omission in the existing pleadings, whether the Plaintiff has provided a satisfactory explanation for the timing of the application, whether the amendments would occasion prejudice to the Defendants that cannot be adequately remedied by costs, and whether allowing the amendments would be consistent with the proper management of the proceedings having regard to the stage the case has reached and the interlocutory issues already raised.

The general principles governing amendment of pleadings under Order 20 rule 5 are not in dispute. As acknowledged by both parties in their submissions, the Court has a discretion to allow amendments where this is necessary to ensure that the real issues in controversy between the parties may be determined, subject always to considerations of fairness and justice.

The Plaintiff relied on authorities cited in its submissions, inter alia Yamaha Motor Co. Ltd v Yamaha (M) Sdn Bhd & Ors (1983) CLJ 428 to emphasise that amendments should ordinarily be allowed where they are bona fide, do not cause injustice to the other party, and do not change the character of the action into one of a fundamentally different nature. These principles reflect the liberal approach traditionally adopted by the courts in dealing with amendments.

The Defendants, while not disputing the general approach to amendments, submitted that the discretion is not unfettered. They relied on the same body of principles to argue that amendments may properly be refused where they are sought late without satisfactory explanation, where they are tactical in nature, or where they would cause procedural prejudice that cannot be cured by costs.

The Court accepts these principles as correctly stated. It is well established that while amendments are approached liberally, the Court must guard against amendments that undermine procedural fairness, disrupt the orderly conduct of litigation, or are used to re-engineer a party’s case in response to pleaded defences or pending interlocutory applications.

(A) Whether there is a pleading defect requiring amendment

Having examined the original Statement of Claim (Enclosure 2), the Court is satisfied that it already contains detailed and specific pleadings of fraud, conspiracy, forgery, and knowledge against all Defendants. The pleading identifies the material facts relied upon, the documents said to be impugned, and the reliefs sought, thereby enabling the Defendants to understand and respond to the case against them.

The Plaintiff did not identify any paragraph of the existing Statement of Claim that is vague, embarrassing, incomplete, or defective in a manner that would justify amendment. Instead, the proposed amendments seek to reinforce and emphasise aspects of the Plaintiff’s case, particularly in response to the Defendants’ plea of res judicata and issue estoppel, rather than to correct any genuine pleading deficiency.

In these circumstances, the Court is unable to accept the Plaintiff’s characterisation of the amendments as merely explanatory or technical. An amendment whose purpose is to strengthen an existing case or to counter a pleaded defence is, by its nature, substantive rather than corrective.

(B) Timing of the application and explanation for delay

The Plaintiff’s own pleadings indicate that the alleged fraud was discovered well before the filing of the Statement of Claim in May

Despite this, no satisfactory explanation has been provided as to why the matters now sought to be emphasised through amendment could not have been pleaded from the outset or at an earlier stage of the proceedings.

The timing of the amendment application, coming only after the Defence and Reply had been filed and in the face of pending interlocutory challenges, strongly suggests that the application is reactive rather than inadvertent. This factor weighs against the exercise of the Court’s discretion to allow amendment.

(C) Prejudice to the Defendants

The Plaintiff submitted that no prejudice would be caused to the Defendants, or alternatively that any prejudice could be compensated by an award of costs. The Court is unable to accept this submission, having regard to the nature and stage of the proceedings.

Allowing the amendments would reopen closed pleadings, require the Defendants to reassess and potentially reformulate their defences, and disrupt the orderly progression of pending interlocutory issues. Such prejudice is procedural and structural in nature and cannot be adequately remedied by a mere award of costs.

(D) Urgency and case management considerations

The urgency relied upon by the Plaintiff arises primarily from the existence of pending interlocutory applications raised by the Defendants. In the Court’s view, this does not constitute genuine urgency, as urgency created by a party’s own litigation strategy cannot justify late amendment.

Proper case management requires that threshold issues such as res judicata and abuse of process be determined on the pleadings as they stand, rather than being pre-empted by amendments sought at a late stage of the proceedings. V. RESPONSE TO THE PLAINTIFF’S SUBMISSIONS AND

The Court has carefully considered the Plaintiff’s written submissions and the authorities relied upon in support of a liberal approach to amendment. While those authorities correctly state the general principles, they do not mandate that amendments must be allowed in every case regardless of timing, context, and prejudice.

In particular, the mere allegation of fraud does not, of itself, justify amendment where the issue of fraud has already been pleaded and joined. Whether allegations of fraud are capable of displacing res judicata is a substantive issue to be determined on argument and evidence, and it does not provide a basis for amending pleadings to avoid a pleaded defence.

Taking the matter as a whole, the Court finds that the existing Statement of Claim is already comprehensive and does not suffer from any pleading defect requiring amendment. The Court further finds that the Plaintiff has failed to provide a satisfactory explanation for the lateness of the application and that the proposed amendments are substantive and tactical in nature.

The Court is also satisfied that allowing the amendments would cause procedural prejudice to the Defendants that cannot be cured by costs and would undermine the orderly management of the proceedings. In these circumstances, the discretion to allow amendment should not be exercised.

For the reasons set out above, the Plaintiff’s Notice of Application (Enclosure 19) is dismissed. Costs of the application at RM3000 is awarded to the Defendants. Dated 30 January 2026 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Edwin Johnson a/l Johnson Navis (Messrs Edwin Navis & Associates) For the 1st – 3rd Defendants : Balvinder Singh Kenth & Ika Purnama Sari (Pupil-in Chambers) (Messrs Kenth Partnership)