Tropical Profile (M) Sdn Bhd v Cantilever Bumi Sdn Bhd (BA-22C-11-03/2023)

Enclosure 33 is an application by the Plaintiff pursuant to O 20 R5, Rules of Court 2012 for leave to amend the Plaintiff’s Statement of Claim.

The relevant cause papers in this application are :-

the Plaintiff’s supporting affidavit affirmed by Tay Kuan Tea @ Tay Swee Seng on 15.5.2025 (“the Plaintiff’s Affidavit”); S/N jNOjU8cxiEy4jpLyvnZoiA

the Defendant’s affidavit in reply affirmed by Gogini Srinivasulu Reddy on 9.6.2025 (“the Defendant’s Affidavit”);

the Plaintiff’s affidavit affirmed by Tay Kuan Tea @ Tay Swee Seng on 20.6.2025 (“the Plaintiff’s Affidavit 2”). Parties and Background

The material facts in this case, which are not in dispute, are as follows :-

The Plaintiff was the initial sub-contractor to Panzana Enterprise Sdn Bhd (“the Initial Main-Contractor”) who was appointed by Turnpike Synergy Sdn Bhd (“the Employer”) for a project known as “Projek Penswastaan Lebuhraya Bertingkat Damansara-Shah Alam Package DASH-CA4, Construction and Completion of Mainline And Other Associated Works from CH4983 to CH9307” (“the Project”);

(ii) Upon the termination of the Initial Main-Contractor by the Employer, the Plaintiff’s sub contract works was in turn terminated;

(iii) The Employer appointed the Defendant to finish and/or rescue the remaining works of the Project; S/N jNOjU8cxiEy4jpLyvnZoiA

(iv) The Defendant took over the Project site with the Plaintiff’s construction materials and equipment on site. These construction materials and equipment were :-

pre-cast, pre-stressed, post-tensioned concrete

concrete parapets;

temporary works, including but not limited to scaffolding, ladders, staging, trestles, safety net, barriers, access platforms;

steel reinforcement bars (rebars);

PC strands, tendons, ducts;

formwork, including but not limited to soffits; and

concrete works, including but not limited to beams, parapets, portals, piers, slabs, that have been or are in the process of being cast, assembled and/or constructed. [“Construction Materials & Equipment”]

The Plaintiff claims that despite reaching an accord with, inter alia, the Defendant on 22.10.2021 in that the Defendant was to S/N jNOjU8cxiEy4jpLyvnZoiA dismantle and return the Construction Materials & Equipment to the Plaintiff, the Defendant has failed to do so.

This suit is mounted by the Plaintiff to claim against the Defendant for loss and damage the Plaintiff has suffered by reason of the Defendant’s aforesaid failure, in breach of the agreement reached on 22.10.2021.

It must be noted that the Plaintiff has also pleaded at paragraph 16 of the Statement of Claim that the Defendant has wrongfully used and/or continued to use or utilised the Construction Materials & Equipment and the Defendant has derived benefit from the Construction Materials & Equipment.

Upon the application made by the Defendant, the Plaintiff’s claim was struck out by Court under O18 R19 (a), (b) and (d) on 26.9.2023 upon which the Plaintiff lodged an appeal at the Court of Appeal vide No. B-02(IM)(C)-1648-10/2023.

The Court of Appeal allowed the Plaintiff’s appeal vide Order dated 28.2.2025.

When the matter was remitted back to the High Court, Enclosure 33 was filed by the Plaintiff on 15.5.2025 to expend S/N jNOjU8cxiEy4jpLyvnZoiA on the facts and to add an alternative cause of action, ie. the statutory restitutionary claim under S. 71 Contracts Act 1950 and/or the common law claim of unjust enrichment.

This additional alternative cause of action is premised on the same facts as the cause of action in respect of which relief has already been claimed in the action.

The Plaintiff has also sought to amend the prayers/ reliefs the Plaintiff is seeking from the Defendant at prayer (2) to add general damages, exemplary damages and/or aggravated damages for breach of contract or alternatively general damages, exemplary damages and/or aggravated damages based on quantum meriut or S. 71 Contracts Act 1950.

O20 R 5(1) Rules of Court 2012 provides that 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.

O20 R5(5) Rules of Court 2012 further allows an amendment 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 S/N jNOjU8cxiEy4jpLyvnZoiA claimed in the action by the party applying for leave to make the amendment.

In Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors

1 MLJ 213, the Federal Court has accepted that a Judge has a discretion to allow leave to amend pleadings where such discretion must be exercised judiciously. The threshold to be considered are as follows :-

whether the application is bona fide;

(ii) whether the prejudice caused to the other party 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 character.

I will hasten to add that Yamaha Motor was decided under the old Rules of High Court 1980. The landscape of civil procedure has changed with the introduction of pre-trial case management which is now encapsulated under O34 Rules of Court 2012. The court now takes an active role under the case management regime to prevent delay in the progress of the case to trial and for its completion-per Zulkefli CJ (Malaya) in Hong Leong Finanace Bhd v Low Thiam Hoe and another (2016) 1 MLJ 301, at page 309 S/N jNOjU8cxiEy4jpLyvnZoiA

The Federal Court in Hong Leong Finance (supra.) has laid down that the current threshold for amendment application, under the new Rules of Court 2012 where cases undergo extensive case managements prior to trials, to be :-

when dealing with an application to amend the pleadings, which introduce a new cause of action in the claim or defence, on the eve of trial, the principles of Yamaha Motor are not the sole considerations;

(ii) the principles in Yamaha Motor applies to cases where the application to amend the pleadings is made at an early stage of proceedings;

(iii) that there has to be a cogent and reasonable explanation in the applicant’s affidavit as to why the application was filed late;

that the application to amend the pleadings is not a tactical manoeuvre;

(vi) that the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same; and

(vii) that lateness in the application to amend the pleadings cannot necessarily be compensated by payment of costs. S/N jNOjU8cxiEy4jpLyvnZoiA

At this juncture, it is necessary to determine if Enclosure 33 is made “at an early stage of proceedings”. If in the affirmative, then the principles in Yamaha Motors would apply.

The chronology of this suit is as below :-

(i)

28.3.2023 : Writ & SoC filed by the Plaintiff;

(ii)

8.5.2023 : Defence filed by the Defendant;

(iii)

2.6.2023 : Reply to Defence filed by the Plaintiff;

(iv)

10.7.2023 : Application to strike out under O18R19(1)(a), (b) & (d) filed by the

(v)

26.9.2023 : Order Striking Out of Writ & SoC;

(vi)

9.10.2023 : Notice of Appeal lodged by the Plaintiff;

(viii) 8.10.2024 : Plaintiff’s Solicitors passed away;

(ix)

28.2.2025 : Plaintiff’s appeal allowed by Court of

(x)

9.4.2025 : case management upon being remitted;

(xi)

15.5.2025 : Enclosure 33 filed by the Plaintiff; S/N jNOjU8cxiEy4jpLyvnZoiA

(xii) 29.5.2025 : case management before the Deputy Registrar for Enclosure 33;

(xiii) 12.8.2025 : case management before Judge in Chambers where parties confirmed reliance on respective written submissions filed;

(xiv) 17.9.2025 : decision for Enclosure 33

It is evident that the Plaintiff filed Enclosure 33 shortly after the suit was remitted back to the High Court upon the Plaintiff’s appeal, against the striking out Order, being allowed by the Court of Appeal.

The chronology above clearly shows the following :-

(i)

26.9.2023 : the Plaintiff’s suit was struck off under O18 R19(1)(a), (b) & (d) Rules of Court;

(ii)

26.9.2023 - : the Plaintiff’s suit stood as struck off;

28.2.2025

(iii)

9.4.2025 : the Plaintiff’s suit was slotted back into the High Court cause list and was called for 1st case management (after being remitted); S/N jNOjU8cxiEy4jpLyvnZoiA

(iv) the Plaintiff’s suit has not gone through the Pre-Trial Case Management, let alone fixed for trial.

As such, the Court is of the view that the Plaintiff’s application vide Enclosure 33 was filed at a very early gestation period of the suit, at an early stage of proceedings and the principles enunciated in Yamaha Motors will apply in this amendment application. Was the application bona fide

It is noted that the Plaintiff has applied for the amendments, specifically to the alternative cause of action and reliefs sought, based on the same facts (events) as in the original Statement of Claim.

The Plaintiff may have taken to heart the passing remarks of the Court of Appeal when allowing the Plaintiff’s appeal on 28.2.2025 in that “they would still have the opportunity to amend and to clearly plead their action in tort for trespass to their goods as well as a claim under Section 71 of the Contracts Act 1950” and upon counsel’s advise they are entitled to so apply.

The Defendant has submitted that the amendments sought by the Plaintiff was “to fix a weak case after facing potential setback” and was therefore made in bad faith. S/N jNOjU8cxiEy4jpLyvnZoiA

At this juncture, I can do no better than to refer to the remarks of Abdul Malik Ishak J (as he then was) in Bumiputra-Commerce Bank Bhd & Ors v Bumi Warna Indah Sdn Bhd

4 CLJ 825: “It is a truism to say that every amendment of pleadings is to improve a litigant’s chance of winning. There is nothing wrong in that. It is the right of every litigant to manoeuvre his way, upon legal advice, according to the RHC. The defendant here was doing just that. In my judgment, the defendant should not be denied leave to amend its defence in order to make good the defects in the pleadings so that the real issues between the parties would be tried and determined”

Further it is my view that merely contending that this application is a tactical manoeuvre without more does not elevate the argument into something substantial that can be relied upon. In this case there is no evidence that filing this application would result in some unlawful or illegal tactical advantage to the Plaintiff. For an illustration of a tactical manoeuvre please see Hong Leong Finance Bhd (supra.) where an application to amend resulted in the trial being scuttled.

I do not find any evidence of bad faith here. Can the prejudice caused to the other party be compensated by costs S/N jNOjU8cxiEy4jpLyvnZoiA

The Defendant contends that they will face substantial prejudice in that if the amendments are allowed, considerable time, effort and resources previously expended would be wasted and the Defendant would be required to start afresh, including potentially reassessing evidence, seeking further discovery and filing affidavits. This they say cannot be compensated by costs.

The Court finds the Defendant’s contention misconceived and premature as the Plaintiff’s suit has yet to be fixed for trial, no directions to set the matter down for trial has been given, no pre trial case management has been undertaken. Parties will still be subjected to the burden and standard of proving their case at the eventual trial. Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character

The Defendant has submitted that the proposed amendments would amount to a reconstruction of the entire legal basis of the claim and the Defendant would be compelled to respond to an entirely new case, reassess its entire defence strategy.

O20 R5(5) Rules of Court 2012 confers the discretion to allow amendments notwithstanding the amendment will be to add a new cause of action PROVIDED that the new cause of action arises out of the same facts or substantially the same facts as previously pleaded. S/N jNOjU8cxiEy4jpLyvnZoiA

The amendments sought do not introduce new facts to the Plaintiff’s suit, merely expanded on the facts, to include an alternative cause of action and reliefs which is clearly allowed by the Rules of Court 2012.

In any event, as the matter is in the infancy stage, the Defendant is at liberty to asses or reassess its entire defence strategy without being time-constrained.

The Court allows the Plaintiff’s application under Enclosure 33 with costs of RM5,000.00 to be paid by the Plaintiff to the Defendant (subject to allocator). Dated : 17 September 2025 t.t SHAHRIZA ZALINA BINTI ABDUL SHUKOR JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM S/N jNOjU8cxiEy4jpLyvnZoiA For the Plaintiff : Tan Zhen Cheng Messrs. Tan & Tan Law Chambers For the Defendant : Oon Kee Huei Messrs. Dorairaj, Low & Teh S/N jNOjU8cxiEy4jpLyvnZoiA