Tenaga Nasional Berhad v Choo Lee Chen (BL-B52NCvC-8-02/2022)

Enclosure 24 concerns the application by the Defendant to amend her Statement of Defence dated 1.6.2022, pursuant to Order 20 Rule 5 of the Rules of Court 2012 ("the ROC 2012"). The Plaintiff objected to the application.

Having considered the application in its entirety, I allowed it with costs. My reasons for the decision, along with the consequential orders, are set out in the later segment of this judgment.

Enclosure 24 is supported and opposed by the following affidavits:

Affidavit in Support affirmed by Choo Lee Chen on 13.5.2025 - Enclosure 25.

(ii) Affidavit in Reply affirmed by Nur Shuriza Binti Mohamad Shuhaimi on 28.5.2025 - Enclosure 27; and

(iii) Affidavit in Opposition affirmed by Choo Lee Chen on 11.6.2025 in response to the Plaintiff’s Affidavit in Reply - Enclosure 28. PARTIES RELEVANT TO THE AMENDMENT APPLICATION

The relevant parties to this action are as follows:

The Plaintiff is a company duly incorporated under the Companies Act 1965 and a licensee under the Electricity Supply Act 1990, responsible for the management, administration, and supply of electricity in Malaysia.

(ii) The Defendant is an individual Malaysian citizen who applied for an electricity supply pursuant to a Supply Contract, and the Plaintiff agreed to provide the said supply. THE PROPOSED AMENDMENT IN ESSENCE

Through the proposed amendment, the Defendant seeks to incorporate the Tenancy Agreement into the Defence, detailing the tenancy and occupation history of the premises by Ain Logistik Sdn. Bhd., including the dates of possession, the rent-free renovation period, the use of the premises for office and training purposes, and the eventual return of vacant possession (the Tenancy Agreement).

The Defendant’s Affidavit in Support of the proposed amendment makes clear the following factual averments:

the premises were leased to Ain Logistik Sdn. Bhd. under the Tenancy Agreement dated 21.6.2016 for a two-year term, with the tenancy subsequently extended until approximately April 2019, and vacant possession returned in May 2019;

(ii) the Tenancy Agreement had previously been misplaced, which had resulted in incomplete information being communicated to her counsel;

(iii) the Tenancy Agreement has since been recovered and was disclosed to the Plaintiff during settlement negotiations; and

(iv) the Defendant sought the Court’s permission to amend her Defence to incorporate matters relating to the Tenancy Agreement, as reflected in Exhibit CLC-3 annexed to the Affidavit in Support. STATUTORY PROVISION GOVERNING AMENDMENT

Order 20 Rule 5 of the ROC 2012 reads: "20 Amendments … writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued. notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.’’ THE FEDERAL COURT’S FOURFOLD COMPASS FOR

Before proceeding to the reasons bolstering my decision, I find it apt to first elucidate the fundamental principles that govern amendment.

In the constellation of principles governing amendment, two decisions of the Federal Court shine as guiding stars. The first is Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] CLJ Rep 428, where the Apex Court set the foundational compass, expressed in terms both clear and enduring: "The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. (See Mallal's Supreme Court Practice page 342). If the answers are in the affirmative, an application for amendment should be allowed at any stage of the proceedings particularly before trial, even if the effect of the amendment would be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of claim..."

To this foundation, the Federal Court in Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1 added a further dimension, holding that delay, absent reasonable explanation, may in itself defeat an application for amendment: "[25] The courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay. They seem to have considered this as an additional factor to the Yamaha Motor 's rules."

Together, these authorities trace a fourfold test to be satisfied for amendment: (i) bona fides; (ii) compensable prejudice; (iii) preservation of the claim’s essential character; and (iv) the obligation to justify delay.

I now turn to consider the opposing contentions concerning the amendment application in Enclosure 24.

Learned counsel for the Plaintiff opposed the proposed amendment on the grounds of unexplained delay in its introduction, its prejudicial effect on the Plaintiff, and the procedural unfairness of raising new matters at this stage. The Tenancy Agreement, long within the Defendant’s possession, was nonetheless omitted from the original Defence without reasonable explanation.

Rebutting the preceding argument, learned counsel for the Defendant argued that the proposed amendment was made in good faith, arising from a genuine omission identified only upon the recovery of the misplaced Tenancy Agreement during settlement negotiations, and that any delay was reasonably explained. Any potential prejudice to the Plaintiff, learned counsel submitted, could be adequately compensated through an appropriate order for costs.

I now turn to the proposed amendment in Enclosure 24.

My reasons for allowing the Defendant's amendment application in Enclosure 24 will be addressed in the following headings:

The Amendment Preserves the Character of the Defence While Enhancing Its Factual Coherence rejection. As I assess it, the proposed amendment does none of these things. It is confined to a factual expansion that supports the existing defence position without disturbing its legal or structural core. The core thrust of the Defence remains unchanged. The Defendant continues to deny liability on the same grounds, and the Tenancy Agreement is merely adduced to provide factual support for what is already implicit in her position that she did not benefit from occupation of the premises during the relevant period in the manner alleged by the Plaintiff. Such supplementation of existing pleading, rather than a substantive reconfiguration of the Defence, has been recognised in the authoritative precedents as permissible. Appeal in YB Datuk Dr Soon Choon Teck v YB Datuk Robert Lau Hoi Chew & Ors [2009] 3 MLJ 785, where the Court observed: “Even if the proposed amendment gives rise to a new cause of action, but it does not turn the suit from one character into another… In our view, even though the proposed amendment appears to be massive but in reality it merely seeks to supplement what has been earlier pleaded in the said paragraphs to show that the words complained of referred to the appellant.” Read in context, this authority underscores the proposition that factual amplification, however extensive in appearance, does not necessarily alter the essential character of the case. Plaintiff to recalibrate its case. Rather, it serves to complete the factual picture in a dispute that, by its very nature, turns heavily on the question of who was in possession of the premises and what loss, if any, flowed from such possession.

(ii) The Amendment Is Not Peripheral But Central to the Issues in Controversy Agreement between the Defendant and Ain Logistik Sdn. Bhd., covering the period from mid-2016 to early 2019, is not a tangential matter. It forms part of the subject matter in dispute and bears directly upon the question of whether the Defendant derived any benefit from the use or occupation of the premises during the material time. These inquiries concern who was in actual occupation, whether the Defendant retained effective control, and the precise nature of the arrangements governing possession. The Plaintiff’s assertions engage precisely these issues. From where I sit, the proposed amendment enables a fuller and fairer adjudication of the very matters the Plaintiff has elected to place in issue. (See: Suhaili Bin Ismail v Syarikat Sribima Sdn Bhd [2015] 6 MLJ 556) Court a clearer vantage point from which to resolve the central issues in controversy.

(iii) Absence of Demonstrable Prejudice Harun [2001] 5 MLJ 655, the Federal Court made clear that: “[26] The rule permits amendments at any stage and it does not matter whether the original omission arose from negligence or carelessness but such amendments are allowed only when they occasion no injury and cause no injustice to the opposite party or where they can be sufficiently compensated by costs or other terms imposed by the court.” Kathiravan could point to none, and upon reviewing the affidavits and submissions, I find the objections to be largely speculative and without foundational anchor. On the contrary, it facilitates a fuller and more accurate resolution of the real dispute. I therefore see no legal basis to deny the proposed amendment on the ground of prejudice.

(iv) The Amendment Causes No Procedural Disruption, and Any Inconvenience Can Be Cured by Costs or Case Management Directions

In my assessment, the scheduled trial dates remain untouched and the Plaintiff still enjoys ample procedural room to meet the amendment, including the filing of an amended pleading in response. From a practical standpoint, I see no real disadvantage that cannot, in the ordinary course of case management, be rectified by suitable case management directions or the award of costs.

Flowing from the above, a date shall be fixed for the filing of the amended pleading, with compliance by both parties to be observed at the next case management. Each side will have liberty to file any consequential pleadings within a defined period, and adherence to these timelines will be monitored in the ordinary course of case management.

In this way, I am satisfied that the Plaintiff will have a fair and unimpeded opportunity to answer the amendment, the timetable will remain intact, and the procedural balance will be maintained. The amendment is thus woven into the fabric of these proceedings without disturbing their natural course. Reasonably Explained Amendment in Essence”).

Having considered both the affidavit evidence and the surrounding context, I am satisfied that the omission was neither intentional nor strategic. Had the omission been calculated or motivated by mala fides, such as concealing a document until it became tactically convenient to disclose, deliberately omitting it to gain an unwarranted procedural advantage, or suppressing it in anticipation of an unfavourable finding, it would have painted a very different picture and weighed heavily against the grant of leave. Defendant is a layperson, not legally trained, and it is accepted that she may not have appreciated the evidentiary significance of the Tenancy Agreement in the context of a civil claim for loss and damage. From her affidavit, it emerges that the agreement had previously been misplaced, resulting in incomplete information being communicated to her legal adviser. It is equally apparent that once the document was recovered, it was promptly disclosed to the Plaintiff in the course of settlement negotiations.

Set against these facts, there is nothing to suggest bad faith, concealment, or tactical delay. This is not a case of withholding a document to gain an unfair advantage, nor of any attempt to mislead either the Court or the opposing party. Rather, what is evident is a candid acknowledgment of the Tenancy Agreement’s existence, coupled with a reasonable explanation for its earlier omission. To my mind, that omission is attributable not to evasion, but to misplacement. That, in my judgment, is a credible explanation, deserving to be approached with fairness rather than suspicion. This is not a case where a party seeks to reconfigure its entire defence narrative at the eleventh hour to frustrate the opposing party’s case, nor one involving calculated suppression of material facts or a deliberate distortion of the record. Such conduct would bear the clear hallmarks of mala fides and would have justified a refusal of any amendment application. Tenancy Agreement surfaced. It emerged during settlement negotiations. It is not uncommon that in the process of exploring compromise, parties revisit documents and facts previously considered peripheral. In my view, the Defendant’s decision to volunteer this agreement in such a context speaks of openness rather than opportunism. If this were a case where the Defendant had attempted to suppress material information or to ambush the Plaintiff with a last-minute shift in defence posture, I would have had cause for concern. That, however, is not the case before me. The proposed amendment does not shift the axis of the Defence, nor does it reflect any re-engineering of the Defendant’s position Defendant’s conduct has been transparent, and I am satisfied that the application is made with the genuine intention of assisting the Court in arriving at a just and accurate decision.

(vi) Delay Is Evident, But It Does Not Defeat the Proposed Amendment

I am mindful that this application arises at a relatively advanced stage of the proceedings, and I do not diminish the importance of timeliness in litigation. Be that as it may, I do not regard the delay as disqualifying. Delay, in itself, does not constitute a ground to refuse an amendment unless it results in prejudice that cannot be remedied. Any inconvenience or additional costs occasioned by the amendment, in my view, can be adequately addressed through an appropriate order for costs. The Rules of Court 2012 expressly provide for such remedies, thereby safeguarding procedural fairness without compromising substantive justice. On the materials before me, I find no prejudice that cannot be cured. The trial dates remain intact, the evidence adduced thus far remains unaffected, and the overall structure of the proceedings is preserved.

Further, I do not accept the notion that the mere lateness of an amendment should serve as a bar to its consideration, particularly where the trial process remains intact, and the opposing party retains a fair opportunity to respond. The law does not expect perfection in pleading from the outset, but it does require that parties act reasonably and transparently when a previously omitted fact comes to light. That is precisely what has occurred here and reinforces my view that delay, in itself, is not fatal. for the delay. And equally, I do not find the delay so grave or prejudicial as to justify withholding an amendment that is otherwise proper, relevant, and fairly sought. To do so would be to elevate form over substance and risk denying the Court the full picture necessary to reach a just conclusion.

(vii) The Proposed Amendment Is Not a Litigation Ambush Tenancy Agreement has been disclosed openly, its relevance was not pleaded in the original Defence but has now been properly disclosed, and the Defendant has acted transparently throughout. From where I sit, the proposed amendment represents a completion of the factual picture rather than a sudden recalibration of the Defence.

Viewed in its entirety, the proposed amendment is clearly not a litigation ambush.

(viii) The Proposed Amendment and Its Bearing on the Continuity of the Trial

I put on record the Plaintiff’s stance that the proposed amendment bears no connection to the witnesses who have already given evidence in this case. In my view, this ensures that the testimony adduced thus far remains untouched and undisturbed. On that score, I consider the amendment confined to matters distinct from the evidence already presented, thereby safeguarding the integrity and coherence of the trial record and shielding the proceedings from any unintended disruption. In my assessment, the trial may proceed on the scheduled dates without impediment. Even if it were to require the recall of witnesses, I regard such a step not as prejudicial but as a prudent safeguard, allowing me to remain fully equipped to discern the more probable and just outcome.

Turning to the timing of the amendment, I find that it does not undermine its legitimacy. No judgment has yet been delivered, and I do not see the amendment as opportunistic or dilatory. So too, I acknowledge the Defendant’s undertaking, as advanced by her learned counsel, Mr. S. R. Raman, not to pursue any claims against the respective tenant under the Tenancy Agreement, and not to initiate any third-party proceedings. To my mind, this assurance provides clarity and finality, confining the dispute strictly to the parties before me, protecting the careful progress of the proceedings from any collateral or extraneous claims, and preventing any unnecessary prolongation of the trial.

(ix) The Court’s Role Is to Facilitate the Determination of Real Issues, Not to Elevate Procedural Rigidity

In approaching the proposed amendment, I am mindful of my fundamental duty in civil proceedings, namely to resolve the real disputes between the parties on the balance of probabilities. Procedural rules exist to secure fairness, consistency, and order in litigation, yet their application must always be guided by the overarching aim of doing justice. The law does not place form above substance, nor should procedural formalities be allowed to displace the fair and reasoned determination of the issues before the Court. is therefore material to the evidentiary canvass. To exclude the Tenancy Agreement on grounds of procedural formality would, in my view, contravene the very spirit of adjudication.

On that premise, the threshold is whether it causes irremediable harm to the opposing party. In this case, I see no such harm, either on the face of the affidavits or from verbal or written argument. I therefore discern no compelling reason to refuse the proposed amendment. To deny it would be to sacrifice substance at the altar of form. It would be analogous to delivering judgment while knowingly excluding a material document simply because it was disclosed late. It follows, therefore, that to disregard the Tenancy Agreement would be to curtail the factual matrix upon which a just decision ought properly to rest. That being so, I am bound to decide cases on the strength of all relevant and available facts, and to disregard a potentially decisive document in the name of procedural rigidity would, in my judgment, frustrate the effective resolution of the dispute.

On a cumulative whole, I find the precedents cited by learned counsel for the Plaintiff to support his argument to be plainly distinguishable, both factually and contextually. The authorities relied upon are grounded in factual matrices and procedural settings that, in my view, depart significantly from the circumstances at hand. They traverse a distinct legal terrain that bears little substantive relevance to the present dispute, and thus, in my assessment, miss the mark. Accordingly, I do not consider those cases to present any meaningful impediment to the amendment sought herein.

What emerges is a comparative analysis of the precedents cited for the Plaintiff in relation to the present case.

Amanggul bin Pirgul v Ruslan bin Alias & Ors [2021] MLJU 2277; [2021] CLJU 1892 In Amanggul, the High Court dismissed the applicant’s amendment application because a leave application for judicial review is not a pleading and cannot be amended under Order 20 Rule 5 of the ROC 2012, while Order 53 allows amendment only of the statement. The applicant also failed to show good reasons for an extension of time under Order 53 Rule 3(7) of the ROC 2012, as the decision triggering the limitation period was communicated on 12.5.2017 and later letters did not constitute a new decision. The application was filed only after the Attorney General’s Chambers raised objections, making it an afterthought and a tactical manoeuvre. In view of these factors, the amendment would have served no practical purpose, and leave to amend was refused. Contrariwise, the present case stands on a wholly different footing. Here, the proposed amendment relates to the Defendant’s Statement of Defence and is clearly encompassed within the specific ambit of Order 20 Rule 5 of the ROC 2012. Also, there is no indication of tactical manoeuvre, and the delay is fully justified. Amanggul, therefore, rests on a factual matrix wholly unlike the present case.

TAC Construction & Trading v Bennes Engineering Bhd (151934-D) ["NO:2"] [1999] MLJU 3; [1999] 2 CLJ 117 TAC Construction does not concern amendment application. In this case, the applicant filed Enclosure 36, seeking a stay of execution or, alternatively, a stay upon payment, which was dismissed as legally misconceived since bankruptcy or winding-up proceedings do not constitute execution, and the defendant effectively sought injunctive relief against proceedings not yet commenced. I, however, recognize learned counsel for the Plaintiff’s reliance on the High Court’s analysis in TAC Construction regarding the position of new documents led in court in the present case. In that case, the Court rejected the documents for being belated, unverified, uncertified, and arbitrarily derived, offering no credible support to the defendant’s case, with costs awarded to the plaintiff to be assessed.

Astana Modal (M) Sdn Bhd v BS Testing Laboratory Sdn Bhd & Ors [2021] MLJU 132; [2021] CLJU 93 Astana Modal concerns the applicant’s amendment application, which was filed 14 months after the original Writ and sought to introduce new causes of action and additional reliefs. The application was dismissed by the High Court for undue delay without substantiated reasons, failure to demonstrate that newly discovered facts justified the late filing, and an unexplained gap between discovery and the application. The proposed amendments would have materially altered the character of the suit and risked causing embarrassment, delay, and inconvenience at trial. Conversely, the present case differs. Here, the delay is explained reasonably, the Tenancy Agreement is demonstrably relevant and supported by admissible evidence, and the amendments neither alter the essence of the claim nor introduce any new cause of action. They serve only to clarify and particularise existing pleadings, without causing prejudice, confusion, or disruption to the orderly progress of the trial. On that score, Astana Modal turns on facts which bear no true parallel to those at hand. CONLUSION

In the end, I am compelled to ask myself this crucial question: Should this Court turn away from the legal weight of the Defendant’s move for the proposed amendment, particularly when viewed against the broader factual matrix of the case, and the fact that the proposed amendment satisfies the fourfold test laid down by the Federal Court in Yamaha Motor Co Ltd and Hong Leong Finance Bhd?

In my judgment, the gavel should fall firmly on ‘No’.

And overall, I am satisfied that the Defendant’s application at Enclosure 24 ought to be allowed with costs. Costs are accordingly fixed at RM1,000.00 to be paid within seven (7) days from the date of this decision, by the Defendant to the Plaintiff.

55.

The Defendant shall file her Amended Defence on 4.7.2025.

(ii) The Plaintiff shall, if so advised, file its Amended Reply to Defence on 8.7.2025

(iii) The previously fixed trial dates shall stand. No adjournment will be granted under any circumstances, save for exceptional and justified reasons Dated 15.8.2025 Signed Noorhisham Mohd Jaafar Judge Sessions Court Klang, Selangor Counsel for the Plaintiff : Kathiravan a/l Raweenthran Siti Nurailiesa Izura binti Mohd Jefri Solicitors for the Plaintiff : Messrs. Che Mokhtar & Ling Advocates & Solicitors Level 21, Main Block, Menara Takaful Malaysia, 4, Jalan Sultan Sulaiman, Kampung Attap, 50000 Kuala Lumpur Counsel for the Defendant : S R Raman Solicitors for the Defendant : Messrs. Raman & Co. Advocates & Solicitors No. 13A, Jalan Meru, 41050 Klang, Selangor Darul Ehsan