Transpacc Property Management Sdn. Bhd v Badan Pengurusan Bersama Serdang Perdana 5, Block a, B & C (BB-A72NCvC-907-09/2022)

These Grounds of Judgment concern two applications, namely Encl. 101 and Encl. 107, filed by the Defendant and the Plaintiff respectively. Encl. 101 is an application pursuant to Order 33 Rules 2 and 5 of the Rules of Court 2012 ("ROC 2012"), whereas Encl. 107 is an application to amend the pleadings pursuant to Order 20 Rule 5 and Order 92 Rule 4 of the ROC 2012.

By Encl. 101, the Defendant prays for the following order:-

2.1 that the following questions and/or issues be determined without a full trial: a. whether proceedings commenced against the Defendant herein known as ‘Badan Pengurusan Bersama Serdang Perdana 5, Block A, B & C’, as a single Defendant, are competent in law in circumstances where, pursuant to the Strata Management Act 16/07/2026 17:39:37 BB-A72NCvC-907-09/2022 Kand. 160 2013, each Joint Management Body is a separate body corporate possessing its own distinct legal personality; b whether the Defendant named in the Amended Writ of Summons and Amended Statement of Claim (and all cause papers), namely ‘Badan Pengurusan Bersama Serdang Perdana 5, Block A, B & C’, constitute a legal entity recognised in law and capable of being sued; c. if the answer to questions (a) and (b) are in the negative, whether the Plaintiff’s action herein is defective, invalid, and/or incompetent in law and ought to be struck out by this Honourable Court.

2.2 that the Defendant be granted leave to amend and/or add to the questions and/or issues set out in paragraph 2.1 above, if necessary, to ensure the just and fair disposal of this application; and

2.3 the entire proceeding of this case be stayed pending the disposal of this application.

By Encl. 107, the Plaintiff prays for the following orders:-

3.1 that leave be granted to the Plaintiff to amend the Amended Writ of Summons dated 23.02.2023 (Encl. 34) in the manner set out in the Proposed Amended Writ of Summons annexed as Encl. A;

3.2 that leave be granted to the Plaintiff to amend the Statement of Claim dated 23.03.2023 (Encl. 35) in the manner set out in the Proposed Amended Statement of Claim annexed as Encl. B.

Both applications were heard before this Court on 19-05-2026. Having considered the cause papers, affidavits and written submissions filed by both parties, I dismissed Encl. 101 with costs in the cause and allowed Encl. with costs of RM1,500.00 to the Defendant, to be paid by the Plaintiff.

I now set out the grounds for my decision. For convenience, I shall first deal with Encl. 101 before turning to Encl. 107. B.

The Plaintiff is a company incorporated in Malaysia under Companies Act 1965 and having business address at 15-1 & 17-1, Jalan Damai Raya 4, Taman Alam Damai Raya Cheras, 56000 Kuala Lumpur, Wilayah Persekutuan.

The Plaintiff is also a property management and maintenance company registered with the Board of Valuers, Appraisers, Estate Agents and Property Managers (LPPEH) under membership registration number PM (1) 2572.

The Defendant is a Joint Management Body representing three (3) separate blocks namely, Perbadanan Pengurusan Bersama Serdang Perdana 5 Block A, Perbadanan Pengurusan Bersama Serdang Perdana 5 Block B and Perbadanan Pengurusan Bersama Serdang Perdana 5 Block C.

On 05-09-2022, the Plaintiff commenced this action against the Defendant claiming the outstanding sum of RM15,975.36 for property management and maintenance services rendered to the Defendant (the Main Suit). The Defendant entered appearance on 04-10-2022 and filed its Defence and Counterclaim (Encl. 7) on 20-10-2022, claiming a sum of RM100,268.11.

Following a series of case managements and applications heard and determined by the learned Magistrate who previously presided over this matter, the Main Suit was fixed for trial before this Court on 02-03-2026. Notwithstanding that the trial date had already been fixed, the Defendant filed Encl. 101 on 25-02-2026. Thereafter, the Plaintiff filed Encl. 107 seeking leave to amend Enclosures 34 and 35. C. THE APPLICATION UNDER ORDER 33 RULE (2) & (5) – ENCL.

The O. 33, R. 2 and 5 of the ROC 2012 provide as below:-

Time of trial of questions or issues (O. 33 r. 2) The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. …

Dismissal of action after decision of preliminary issue (O. 33 r. 5) If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.

In Newacres Sdn Bhd V. Sri Alam Sdn Bhd [1991] 1 CLJ (Rep) 321, Mohd Jemuri Serjan CJ (Borneo)(as he then was) expounded the legal principles governing O. 33, R. 2 of the ROC 2012 as follows:- “Rule 2 gives the Court discretionary power to order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which a question or issue shall be stated. If the learned Counsel for the appellant relied on O. 33 r. 2, in the first place, there should be an application for an order under r. 2 and if the Court allows the application, then the Court may give direction as to the manner in which the question or issue shall be stated”

As provided under O. 33, R. 2 of the ROC 2012, this Court is vested with a wide discretion to direct that any question or issue arising in a cause or matter be determined in such manner as the Court considers appropriate.

However, the Court’s discretion under O. 33, R. 2 is not unfettered and must be exercised judicially and judiciously. It is only in appropriate circumstances that such discretion ought to be invoked. In Krishnan Rajan N Krishnan v. Bank Negara Malaysia & Ors [2003] 1 CLJ 388, Abdul Malik Ishak explained the legal principles as follows:- The principles of law that can be distilled from the long line of established authorities may conveniently be marshalled in these terms:

that the rule confers upon the court a wide discretionary power to order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter;

(ii) that the application under O. 33 r. 2 of the RHC may not be appropriate where the facts are in dispute or where extrinsic evidence is required to be adduced;

(iii) that the overriding consideration, when taken in its correct perspective, is whether the application would result in a substantial saving of time and expenditure; and

(iv) that the court should be wary and warn itself against the abuse of this process.

The principles governing the exercise of the Court’s discretion under O. 33, R. 2 were further considered by the High Court in Devong Anak Nyeigok v Awai Anak Anyik & Ors [2021] 1 LNS 1003, where the Court held that, O. 33, R. should only be invoked where the preliminary issue is conclusive and would substantially dispose of the entire action. Conversely, where the determination of the preliminary issue involves the resolution of disputed questions of fact, it would be inappropriate to invoke O. 33, R. 2;- [14] Further, Order 33 r.5 provides that if it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein. [15] As a general rule, the court will not exercise its power under Order 33 r.2 to order a preliminary point of law to be tried whether or not that point involves the prior determination of factual disputes affecting that point, unless the trial of that issue will result in substantial saving of time and cost in respect of the trial of the action. See Federal Insurance Co. v Nakano Singapore (Pte) Ltd

1 SLR 390. [16] Therefore, when this rule is invoked, the preliminary questions or issues framed should be conclusive to bring an end to the entire suit. This rule should not be utilised if after having disposed the preliminary questions, there remains other issues of fact or law that still need to be determined in a trial.

As a general rule, the Court should exercise its discretion under O. 33, R. 2 of the ROC 2012 only where the determination of a preliminary question would result in a substantial saving of time and costs which would otherwise be incurred if the entire action were to proceed to trial.

The principles were recently reaffirmed by the learned JC Kenneth St James in Tanabal Naidu Murugayan v Thoo Chee Wah [2024] 10 CLJ 297:- “[10] To persuade the court to utilise the O. 33 procedure in his favour, D must satisfy either of two alternative requirements:

substantial disposal – answering the questions of law or fact posed must substantially dispose of the suit; or

(ii) a trial is unnecessary – answering the questions of law or fact posed renders the trial unnecessary. Here, in this proceeding, it means that when the court answers the questions posed, both the claim and counterclaim will no longer need to go to trial.” … “The Case Law On O. 14A And O. [11] Further, to the clear requirements prescribed by the express words of O. 14A and O. 33, case law authority elaborated on the utilisation of O. 14A and O. 33. From case law authority, I glean the following principles. [12] One – O. 14A should only be used, that is, an order under O. 14A should only be granted if the facts needed to answer the questions of law or construction of a document – are not in dispute. If there are disputed facts, then the O. 14A procedure is not suitable, and should not be used to determine a suit – Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49; [2012] 2 MLJ 299; [2012] 1 AMR 489; [2012] 4 MLRA 87; at paras. [47] and [48]. [13] Two – similar to O. 14A, the O. 33 procedure should only be invoked where there are no facts which are in dispute – Dominic J Puthucheary v. Jet Age Construction Sdn Bhd & Anor & Another Appeal [1997] 3 CLJ 807; [1997] 2 MLJ 252 at MLJ p. 262; [1997] 1 AMR 101; [1995] 2 MLRA

[14] Three – O. 33 should only be used, that is, an order under O. should only be granted – (i) if answering the questions of law or fact will result in “a substantial saving of time and expenditure”; (ii) if there are no other issues of law or fact that “ought to be decided at the trial of the suit”; and (iii) if the questions are “carefully and precisely framed”, such that there is no ambiguity as to what exactly is “the real question” that is to be answered – Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337; [2004] 1 MLJ 8; [2003] 5 AMR 696; [2003] 1 MLRA 582; at para. [16]. [15] Four – O. 33 should not be utilised when there are issues in the suit that require extrinsic evidence to prove. Put differently, where there are issues that arise out of the pleadings which are traversed (denied, refuted) and extrinsic evidence is needed for the parties to prove or traverse them at trial, then the O. 33 procedure is not suitable to use – Newacres Sdn Bhd v. Sri Alam Sdn Bhd [1991] 3 CLJ 2781; [1991] 1 CLJ (Rep) 321; [1991] 3 MLJ 474 at MLJ p. 480; [1991] 1 MLRA 163.”

This Court is further guided by the decision in Majlis Peguam Malaysia & Ors v Raja Segaran a/l Krishnan [2005] 1 MLJ 15, where the Court expounded the principles governing O. 33, R. 2 as follow:- “In invoking O.33 r.2, of the RHC, the issues in a case should be clear and not riddled with complexities and the facts should not be in dispute. Where the issues on point of law to be decided involve the consideration of facts, resort to O.33 r.2 of the RHC is inappropriate. It is undesirable to resolve such issues on a purely hypothetical state of facts”.

The principles that O. 33, R. 2 ought not to be invoked where the determination of the preliminary issue requires the resolution of disputed facts or the adductions of extrinsic evidence has been consistently reaffirmed by the superior courts (see among others, the Federal Court cases of Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49; [2012] 2 MLJ 299; Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation & Ors (Sued As Incorporated Partnership) [2015] 9 CLJ 273; the Court of Appeal cases of Seloga Jaya Sdn Bhd v. UEM Genisys Sdn Bhd [2008] 2 CLJ 686; Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741; [2008] 2 MLJ 812; Savant-Asia Sdn Bhd v. Sunway PMIPile Construction Sdn Bhd [2008] 1 CLJ 191; [2007] 7 MLJ 706; Ramba Bungkong & Ors v. Asco Green Sdn Bhd [2020] 8 CLJ 1; Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337).

Accordingly, it is clear that such an application should not be allowed where the issues, whether of fact or law, are not sufficiently clear or are more appropriately determined at a full trial (see also 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square [2026] 6 CLJ 572).

I now turn to the facts of the present case to determine whether it is appropriate for this Court to exercise its discretion under O. 33, R. 2.

As pleaded in the Defendant’s Defence and Counterclaim (Encl. 7), the Defendant raises numerous allegations that the Plaintiff failed to perform its obligation under the Letter of Proposal dated 26-08-2019. In essence, the Defendant contends that the Plaintiff’s breaches caused it to suffer losses amounting to RM100,268.11, which form the basis of its counterclaim.

Furthermore, throughout these proceedings, the Defendant has entered appearance, filed a Defence and Counterclaim, and actively participated in the proceedings under the name Badan Pengurusan Bersama Serdang Perdana 5, Blok A, B & C. The Counterclaim was likewise filed under the same name. This clearly demonstrates that neither the Defendant nor its solicitors was ever misled or confused as to the identity of the party against whom the Plaintiff sought relief. In fact, the Defendant was fully aware the claim of the Plaintiff.

In Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141, where the Federal Court held as follows:- “A person cannot approbate and reprobate, so that if a person becomes aware of an irregularity of service and then subsequently takes a further step in the action which could be only useful if the service had been good, the said irregularity is waived. See also Rein v. Stein [1892] 60 LT 469, 471; Boyle v. Sacker [1889] 39 Ch. D 249, CA. We are in entire agreement with the decision in Fry & Moore, supra. The 2nd defendant had asked for leave to file an appearance and to file a statement of defence, clearly indicating that he wanted to go into the fray in full swing and that the matter of irregular service was a matter of the past; no longer an issue.”

In view of the foregoing, the Defendant's conduct clearly demonstrates that it was fully aware of the identity of the party against whom the Plaintiff sought relief. If, as the Defendant now contends, the named Defendant was not a legal entity capable of being sued, it is difficult to reconcile that contention with its decision to enter appearance, file a Defence and Counterclaim, and actively participate in these proceedings under the very same name.

Having carefully considered the pleadings and affidavits filed by the parties, I find that there are substantial disputes of fact between them. Those disputes can only be properly resolved through the adductions of oral and documentary evidence at a full trial.

Accordingly, I decline to exercise this Court's discretion under O. 33, R. 2 of the ROC 2012, as it would be inappropriate to determine the present action without a full trial.

The former CJ of Supreme Court of Singapore, Chan Sek Keong J (as he then was) in Federal Insurance Co v. Nakano Singapore (Pte) Ltd [1992] 1 SLR 390, at p. 397, speaking for the Court of Appeal of Singapore aptly said: "... we may state as a general rule that the court will not exercise its power under Oder 33 rule 2 order a preliminary point of law to be tried, whether or not that point involves the prior determination of factual disputes affecting that point, unless the trial of that issue will result in a substantial saving of time and expenditure in respect of the trial of the action as a whole (including any counterclaim).

I had the opportunity to refer to the decision of Savant Asia Sdn Bhd v Sunway PMI-PILE Construction Sdn Bhd [2008] 1 CLJ 191, the Court of Appeal observed as follows:- [49] Malaysian High Court Practice 2001 Desk Edition states - "Ordinarily an order for the hearing before trial of a point of law raised by a pleading will be made only when the objection raises a serious question of law, which if decided in favour of the party applying for a preliminary trial, would dispense with the need for further trial of the remaining issues in the matter, or otherwise would substantially dispose of the cause or matter." Indeed in delivering the judgment of the Federal Court in Chan Kum Loong v. Hii Sui Eng [1979] CLJU 10; [1979] 1 LNS 10 Chang Min Tat FJ said that a preliminary point of law which does not decide the matter between the parties one way or the other is an unjustified waste of time on occasions an equally unjustified increase in costs.

Even assuming that this Court were to determine the questions raised in Encl. 101, a further issue arises as to whether an affirmative determination of those questions would substantially dispose of the action or render a full trial unnecessary within the meaning of O. 33, R. 5. The Defendant submits that, if the questions raised in Encl. 101 were answered in its favour, the entire action would be disposed of without the necessity of a full trial.

I am unable to agree with the Defendant's contention. First, there are substantial disputes of fact between the parties which require determination at trial. Secondly, the Defendant has filed a Counterclaim against the Plaintiff. Even if this Court were to invoke O. 33, R5 and strike out the Plaintiff's claim, the Counterclaim would nevertheless remain for determination. Accordingly, the present proceedings would not be substantially disposed of, as both liability and quantum would still require adjudication.

This Court is further guided by the decision of the Court of Appeal in Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] MLJU 2267, where the Court of Appeal held that the procedure under O. 33 ought not to be invoked where the issues in dispute depend upon competing factual assertions contained in affidavit evidence, as such matters cannot properly be determined as separate issues. The Court observed as follows:- [21] Our view of the law in this regard is supported by the provisions in Order 33 r. 2 ROC 2012 which reads: “The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised in the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.” [22] The scope of this provision has been noted in a number of cases. It may be sufficient to refer to the observations of this Court in Majlis Peguam Malaysia & Ors v. Raja Segaran a/l Krishnan [2005] 1 MLJ 15 where after citing in support the cases of Newacres Sdn Bhd v. Sri Alam Sdn Bhd [1991] 3 MLJ 474 and Arab Malaysian Finance Bhd v. Meridian International Credit Corporation Ltd London [1993] 3 MLJ 193, the Court held that for Order 33 r. 2 of the then Rules of the High Court 1980 (“RHC”) to apply, the issues in a case should be clear and not riddled with complexities and the facts should not be in dispute. Where the issues on point of law to be decided involve the consideration of facts, resort to O. 33 r. 2 of the RHC is inappropriate. It is undesirable to resolve such issues on a purely hypothetical state of facts. [23] On the question of resolving disputes through affidavit evidence, it is now trite law that if allegations are made in affidavits by one party and those allegations are credibly denied by the other party’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations and decide the matter by consideration of the undisputed facts (see Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 MLJ 433). [24] In a similar vein, this Court held in Sykt Telekom Malaysia v. Business Chinese Directory Sdn Bhd [1996] 3 MLJ 692 that “while it was undesirable to resolve disputes on affidavit evidence, judges were expected to be critical of the affidavit evidence which must on the face be at least plausible. If allegations were made in affidavits by one party and those allegations were credibly denied by the other party, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations and decide the fate of the case by consideration of the undisputed facts” (at the head-notes). [25] Reverting now to the instant appeal, it was evident that the learned JC was faced with disputed allegations especially with regard to the question of whether the consent to transfer was obtained by the plaintiff and duly delivered to and received by the defendant and also the issue of whether the termination of the SPA by the defendant was justified. Although the learned JC made a valiant attempt to sieve through the disputed allegations and arrive at a finding, it is our view that he was not entitled to do so. As we said earlier, the learned JC ought to have declined to answer the questions raised and set the matter down for trial. [26] In this respect, we are obliged to note that O. 33 r. 2 and also O. r. 5 ROC 2012 are intended to save time and unnecessary costs by avoiding the substantial expense of a trial. However, in order for Order 33 to have any efficacy, it is necessary for the judge to ensure, at the outset, that the relevant facts are not disputed. This can be done by ordering the parties either to agree to the facts stated in the pleadings or to file an agreed statement of facts. [27] Additionally, such agreed facts must deal completely with the issues or questions that are intended to be raised for disposal under Order 33. In other words, all the material facts necessary for the consideration of the matter must have been proved or admitted for the court to have the jurisdiction to hear the matter under Order 33 ROC 2012. [28] In the event that the parties are unable to agree to the facts that are necessary for the disposal of the issues or questions, the judge must decline to proceed further and set the matter down for trial. It is now common knowledge that, unlike some years ago, civil suits filed nowadays are disposed of in a trial within a matter of months. This has been achieved largely through the use of efficient case management and the proactive approach of judges to ascertain the issues between the litigants at an early stage. Litigants are also encouraged to conform to reasonable timelines thus ensuring early disposal of disputes. [29] In this way, the utility of “short cuts” by resort to Order 33 and Order 14A ROC 2012 is now diminished. In any case, such “short cuts” are only useful if they have the effect of disposing of the cause or matter as envisaged by O. 33 r. 5. It will be a waste of time if after hearing the preliminary issues the litigation is not resolved (see Chan Kum Loong v. Hii Sui Eng [1980] 1 MLJ 313). In the end, it may be more useful and advantageous for parties to frame the same issues for trial. The disputed facts can then be taken at the trial through the examination of the relevant witnesses and the matter resolved fairly quickly. So the argument that such “short cuts’ lead to substantial saving of time has become less persuasive.

Similarly, in Lai Sing Foo v Kenanga Investment Bank Berhad & Ors [2021] CLJU 1691, the High Court held that, before granting an order under O. 33 R2, the Court must be satisfied that the determination of the preliminary issue would dispose of, or substantially dispose of, the entire action. The Court held as follows:- “[15] While I do not disagree with this point, my view is that the saving of time and expenditure is only one requirement that needs to be fulfilled in the granting of an order under Order 33 Rule 2 of the ROC. Another requirement to be met is that the issue to be determined must be sufficiently significant so as to dispose or substantially dispose of the matter altogether (see Palaniappa Chettiar v. Sithambaram Chettiar [1981] CLJU 156; [1981] 1 LNS 156; [1982] 1 MLJ 186; Dominic J Puthucheary v. Jet Age Construction Sdn Bhd & Anor and Module Construction Sdn Bhd & Ors v. Jet Age Construction Sd Bhd & Anor [1997] 3 CLJ 807; [1997] 2 MLJ 252; Thanaraj a/l Manikam & Ors v. Lower Perak Tamil Co-operative Society [2003] CLJU 148; [2003] 1 LNS 148; [1997] 4 MLJ 82 and Tenaga Nasional Bhd v. JCY HDD Technology Sdn Bhd [2013] 7 CLJ 799; [2012] 3 MLJ 705). This requirement has not been met in the case before this court.”

If Encl. 101 was allowed, the Court would merely dispose of the Plaintiff's claim without determining the substantial disputes of fact between the parties. The Defendant's Counterclaim would also remain unresolved. Consequently, the determination of the questions raised in Encl. 101 would neither substantially dispose of the entire action nor render a full trial unnecessary. Accordingly, I decline to exercise this Court's discretion under O. 33, R. 2 and 5 of the ROC 2012, and Encl. 101 is therefore dismissed. D. THE APPLICATION UNDER ORDER 20 RULE (5) – ENCL.

O. 20, R. 5 of the ROC 2012 provides as follows:-

Amendment of writ or pleading with leave (O. 20 r. 5)

Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the 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.

An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An amendment to alter the capacity in which a party sues (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 sueis 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.

An amendment may be allowed under paragraph (2) 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.

This Court also derives guidance from O. 20, R. 8 of the ROC 2012, which empowers the Court to amend any defect or error in any document for the purpose of determining the real question in controversy between the parties:-

Amendment of certain other documents (O. 20 r. 8)

For the purpose of determining the real question in controversybetween the parties to any proceedings, or of correcting any defector error in any proceedings, the Court may at any stage of theproceedings and either of its own motion or on the application of anyparty to the proceedings order any document in the proceedings tobe amended on such terms as to costs or otherwise as may be justand in such manner, if any, as it may direct.

By Encl. 107, the Plaintiff seeks leave to amend the names of the Defendant in Encls. 34 and 35 by substituting the existing Defendant with three separate defendants, namely JMB Serdang Perdana 5 Block A, JMB Serdang Perdana 5 Block B and JMB Serdang Perdana 5 Block C.

The Plaintiff contends that the proposed amendments are intended to correct and clarify the identities of the three Joint Management Bodies as raised by the Defendant.

The legal test to allow or disallow amendments had been laid down in the locus classicus decision of Yamaha Motor Co. Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213. At the outset, the Federal Court affirmed the overriding consideration of justice:- “A Judge has a discretion to allow leave to amend pleadings. Like any other discretion, it just of course be exercised judicially… The general principle is that the court will allow such amendments as will cause no injustice to the other parties.”

To determine whether injustice would or would not result, the Federal Court in Yamaha Motor laid down a cumulative three-part test:- “(i) whether the application is bona fide;

(ii) whether the prejudice cause to the other side can be compensated by costs; and

(iii) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent in character.”

Applying the three-part test to the present case, I find that the Plaintiff's application is made bona fide and seeks only to correct the identities of the proper Defendants so that the dispute may be determined on its merits rather than defeated by a technical defect.

The above finding is supported by the decision in Taisho Co. Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 CLJ 703, the Court of Appeal held as follows:- The issue hinges on the interpretation of O. 20 r. 5. This rule is in pari materia with the English rule of court and similar to the Singapore rule of court and reads:

Amendment of writ or pleading with leave (O. 20 r. 5)

Subject to Order 15 rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

Where an application to the Court for leave to make the amendments mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the 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.

An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An amendment to alter the capacity in which a party sues (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.

An amendment may be allowed under paragraph (2) 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. (emphasis added,) The rationale behind O. 20 r. 5 is explained by the editors of the Supreme Court Practice 1997 at para 20/5-8/7 and read: The principle underlying the powers of the court under r. 5 is that if the proceedings had been, from the beginning, properly formulated or constituted in the circumstances specified in paras (3), (4) and (5) the defence of limitation would not have been available to the defendant; and accordingly, if in its discretion, the court thinks it just to grant leave to amend defects in the writ or pleading within the scope of the circumstances in these paras, so that such defects in the proceedings are treated as having been cured ab initio, the defendant is not being deprived of the benefit of a defence which he would have had if the proceedings had been so properly formulated or constituted in the first place. To contend in the cases specified in the paras, that the defendant has an existing right which will be prejudiced by the amendment is to argue in a circle, since he only has an existing right if one presupposes that the court will not use its powers to amend under O. 20 r. 8, and O. 15 rr. 6, 7 and 8 (see per Holroyd Pearce LJ in Pontin v. Wood [1962] 1 QB 594, 609; [1962] 1 All ER 294, 298). The above passage appeared in para 20/5 - 8/7 of the Supreme Court Practice 1991 and quoted by Yong Pung How, CJ, in the Singapore Court of Appeal case of Lim Yong Swan v. Lim Jee Tee & Anor [1993] 1 SLR 500 at p. 508. In the result, Yong Pung How, CJ, on the same page stated thus: A party seeking to amend under O. 20 r. 5(5) must therefore show:

that the cause of action arises out of the same or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action, and

if the court thinks it just to grant leave to make the amendment. … The learned CJ of Singapore in agreeing with the view of Webster J in The 'Casper Trader' stated: When The 'Casper Trader' was before the judge-in-chambers, Webster J expressed the view that consideration of whether it would be unjust to grant leave to amend under para (5) required a balancing of the applying party's need to amend and the prejudice to the opposing party's interest. 'Prejudice' in this context, in the opinion of the learned judge, meant at page 243: For the purpose of answering this question I do not think it relevant simply to consider whether the defendants will or may have difficulty in defending the claim, specifically at the trial. In my view for any relevant prejudice to be found it must constitute prejudice resulting from the amendment, either in the sense that the defendants, in reliance on the claim originally made, altered their position so as to make it more difficult to defend the new claim now made or in the sense that it will be more difficult for them to defend the claim than it would have been had the claim been brought within the period of limitation.

I am further enlightened by the decision in Khairy Jamaluddin Abu Bakar v Dato’ Seri Anwar Ibrahim [2012] 6 AMR 590; [2012] 6 MLJ 551, the Court of Appeal opined:- “We are of the view the High Court judge had applied the correct principles in exercising his discretion in the manner which he did. Consideration whether it would be unjust to grant the leave to amend required a balancing of the applying party’s need to amend, and the prejudice to the opposing party’s interest. An application for leave to amend should, in general, be allowed, provided that the application was bona fide and where the purpose of amendment would result in the true issues to be determined. There would be no injustice if it can be compensated by appropriate orders as to costs.”

I do not see how the proposed amendment would cause prejudice to the Defendant that cannot be adequately compensated by costs, in fact, this Court has granted the cost in RM1,500.00 to the Defendant. In this circumstances, the procedural and substantive rights of all parties remain fully preserved.

Further, the amendment neither alters the nature of the Main Suit nor introduces a new cause of action. It also remains open to the Defendants to pursue their Counterclaim against the Plaintiff following the amendment. Accordingly, I am satisfied that no injustice would be occasioned to the Defendants by allowing the proposed amendment.

Accordingly, I find that Encl. 107 satisfies the requirements of the three-part test laid down in Yamaha Motor. In the circumstances, it is just and appropriate to grant to the Plaintiff leave to amend the pleadings in the manner sought. Accordingly, Encl. 107 is allowed with cost of RM1,500.00 to the Defendant. E.

Having considered the entirety of the pleadings, affidavits, submissions and applicable authorities, this Court finds that it is inappropriate to invoke O. 33, R. 2 & 5 in the present case. Conversely, the proposed amendment application ought to be allowed so that the real issues in dispute between the parties may be determined on their merits at a full trial.

For the foregoing reasons, I have no hesitation in dismissing Encl. 101 and allowing Encl. 107 with costs of RM1,500.00 to the Defendant. DATED 16 JULY 2026 LEE KA FULL MAGISTRATE MAGISTRATE COURT OF PETALING JAYA SELANGOR Counsels: For the Plaintiff: Hemashantini Satiavanan Messrs Julian Stephanie Advocates & Solicitors S-8-12, Wisma YNH Kiara 163, No. 8, Jalan Kiara, 50480 Kuala Lumpur For the Defendant: Harmesh Singh & Mahajoth Singh Messrs Darshan Chong & Co. Advocates & Solicitors No. 1, Jalan Perkasa 8, Taman Maluri, Cheras, 55100 Kuala Lumpur