Unique Steel & Hardware Sdn Bhd v Export-Import Bank of Malaysia Berhad (WA-22NCC-360-07/2022)

This is the Plaintiff’s application by way of a Notice of Application dated 10 October 2025 (Enclosure 57) seeking leave to re-amend its Statement of Claim pursuant to Order 20 Rule 5 of the Rules of Court 2012 (“ROC”).

The application is opposed by the Defendant. The central issue before this Court is whether the Plaintiff has satisfied the threshold for the grant of leave to amend its pleadings at this stage of the proceedings.

After hearing parties and having read the affidavits as well as the written submissions, I allowed the application in part.

The Plaintiff commenced this action by way of a Writ of Summons premised on losses allegedly arising from the Defendant’s breach of a credit insurance arrangement and/or misrepresentation in relation to Certificate No. DCT/00027/11/2017 (“DCT Insurance”).

The procedural history of the matter is largely undisputed. The Defendant filed its Statement of Defence on 26 August 2022. The Plaintiff filed its Reply on 9 September 2022. The Plaintiff subsequently filed an Amended Statement of Claim dated 23 September 2022 pursuant to Order 20 Rule 3 (d) of the ROC. The Defendant filed an Amended Statement of Defence dated 7 October

The Plaintiff filed an Amended Reply dated 21 October 2022.

It is also material that there was a change of solicitors for the Plaintiff on or about 13 August 2025. Following this change, the Plaintiff’s new solicitors undertook a review of the pleadings and contemporaneous documents. This culminated in the present application for leave to re-amend filed on 10 October 2025.

Prior to the filing of this application, the Court had fixed trial dates for May 2026.

The Plaintiff’s claim, as originally pleaded in the Amended Statement of Claim, is that the Defendant had represented, whether expressly or impliedly, that certain risks, including rental-related exposures arising from the Plaintiff’s transactions with its counterparty, would be covered under the said policy. The Plaintiff avers that it relied on those representations in entering into and continuing its commercial dealings, including extending credit and/or entering into transactions which were said to fall within the scope of the insurance coverage.

It is the Plaintiff’s case that, following the occurrence of events giving rise to loss, it made a claim under the DCT Insurance policy.

The Defendant, however, rejected the Plaintiff’s claim on the basis that the losses claimed did not fall within the scope of coverage under the policy.

The Plaintiff contends that the Defendant’s rejection was wrongful and in breach of the terms of the insurance arrangement and/or the representations made.

As a consequence, the Plaintiff claims that it has suffered loss and damage corresponding to the amount which would otherwise have been recoverable under the policy.

In the premises, the Plaintiff seeks, inter alia, damages for breach of contract and/or misrepresentation.

It is against this pleaded framework that the proposed amendments fall to be considered.

It is appropriate to set out, in summary form, the nature of the amendments sought by the Plaintiff in the proposed Re-Amended Statement of Claim.

Broadly, the Plaintiff seeks to introduce additional factual averments setting out the background and commercial context of its dealings, including its business operations and its relationship with the relevant counterparties. These amendments are said to provide a clearer narrative of the underlying transactions and the circumstances in which the DCT Insurance policy was procured and relied upon.

The Plaintiff proposes to expand and particularise the representations allegedly made by the Defendant in relation to the scope of coverage under the DCT Insurance policy. This includes identifying the substance of the representations, the context in which they were made, the identity of the Defendant’s representatives and the Plaintiff’s reliance on those representations. The amendments also seek to clarify the causal link between the alleged representations and the loss said to have been suffered by the Plaintiff.

The Plaintiff further seeks to refine the chronology of events, including the sequence of transactions; the Plaintiff’s dealings with third parties; and the subsequent events leading to the Defendant’s rejection of the Plaintiff’s claim. These amendments are framed as clarificatory and directed at ensuring that the factual matrix is fully and coherently pleaded.

The Plaintiff seeks to introduce, in the alternative, a claim in negligent misrepresentation. This proposed cause of action is premised on the same alleged representations already relied upon in support of the existing claims, with the amendment directed at pleading an alternative legal basis arising from the same facts.

The Plaintiff also seeks to introduce a claim for breach of statutory duty under a proposed new paragraph 26A. This amendment purports to assert that the Defendant has breached a statutory obligation in relation to the matters complained of in the action.

In essence, the Plaintiff characterises the proposed amendments as clarificatory and particularising in nature, arising from the same factual substratum already pleaded and directed at enabling the real issues in controversy between the parties to be fully ventilated at trial.

The Plaintiff’s case, as advanced in the supporting affidavit and submissions, may be summarised as follows.

The Plaintiff posits that the application is necessitated by a change of solicitors. Upon review, the Plaintiff’s new solicitors identified material facts and particulars that had not been sufficiently pleaded in the existing Statement of Claim.

The Plaintiff submits that the proposed amendments do not introduce a new or inconsistent cause of action. Rather, they arise from the same factual matrix, namely the same insurance policy, representations, and underlying transaction. Even insofar as the amendments may be said to introduce an alternative cause of action (such as negligent misrepresentation), such cause arises from substantially the same facts already pleaded.

The Plaintiff also argues that the amendments are said to be clarificatory in nature. They particularise the chronology of events, the Plaintiff’s reliance on the Defendant’s representations and the reliefs sought, including damages, rescission in the alternative, and interest. The Plaintiff contends that the amendments are necessary to “fully and fairly determine the real issues in controversy between the parties.”

The Plaintiff also asserts that no prejudice will be occasioned to the Defendant, as the proposed amendments are based on facts already within the Defendant’s knowledge and can be compensated by costs.

Finally, the application is said to have been made bona fide and in the interests of justice to ensure that all issues are ventilated before the Court.

The Defendant opposes the application on several grounds.

The Defendant contends that the Plaintiff has failed to justify the timing of the application and that a mere change of solicitors does not constitute a satisfactory explanation. It is further argued that the Plaintiff has had ample opportunity to amend its pleadings earlier but failed to do so.

The Defendant contends that the proposed amendments introduce new causes of action, alter the nature and character of the Plaintiff’s claim and are inconsistent with the original pleadings.

The Defendant further alleges that the amendments are not bona fide but are instead tactical, unnecessary, and contrary to the rules of pleading.

Finally, the Defendant asserts that it will suffer prejudice which cannot be compensated by costs if the amendments are allowed.

The sole issue for determination is whether the Plaintiff has satisfied the threshold for leave to amend its pleadings under Order 20 Rule 5 of the ROC. This gives rise to the following sub-issues:

Whether the proposed amendments introduce a new cause of action or change the character of the suit;

Whether the application is affected by delay;

Whether the proposed amendments would occasion prejudice to the Defendant; and

Whether any part of the proposed amendments ought to be disallowed for want of proper pleading. ANALYSIS AND FINDINGS

The applicable legal framework is not in dispute. The Court’s power to grant leave to amend is derived from Order 20 Rule 5(1) of the ROC, which confers a wide discretion to allow amendments “at any stage of the proceedings”.

That discretion, however, is to be exercised judicially in accordance with established principles. The controlling consideration is whether the proposed amendment is necessary to determine the real issues in controversy between the parties, and whether any prejudice occasioned to the opposing party can be compensated by costs.

This Court is guided by the well-established principle in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] 1 CLJ 191 that amendments ought generally to be allowed if they enable the Court to adjudicate upon the real questions in controversy, rather than to punish parties for errors or omissions in pleading (see also: Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 CLJ 126).

At the same time, the Court must guard against amendments which would fundamentally alter the nature of the litigation, introduce a wholly new case, or occasion prejudice that cannot be cured by costs or appropriate directions.

I turn first to the Defendant’s principal objection, namely that the proposed amendments introduce a new cause of action and thereby alter the character of the suit.

In my judgment, it is necessary at the outset to draw a clear and principled distinction between the introduction of a new cause of action and a change in the character of the suit.

A cause of action refers to the juridical basis upon which relief is sought. It is well-established that the introduction of an alternative legal basis, whether in contract, tort, or otherwise, does not, without more, alter the character of the suit provided that the alternative basis arises from the same or substantially the same factual substratum.

The question of “character”, on the other hand, is directed at a different inquiry altogether. It concerns whether the identity of the litigation has been fundamentally altered. The question then is whether the amendment introduces a different transaction, a new factual substratum, or requires the opposing party to meet an entirely different case.

It follows that the mere introduction of an alternative cause of action does not, without more, amount to a change in the character of the suit.

Applying these principles to the present case, I find that the proposed amendments, including the introduction of negligent misrepresentation, arise from the same core factual matrix. When one looks at the claim and the proposed amendments, it becomes clear that the dispute between the parties remains anchored to the DCT Insurance policy, the alleged representations made by the Defendant in relation to coverage, the Plaintiff’s reliance on those representations and the Defendant’s subsequent rejection of the Plaintiff’s claim.

The Defendant’s objection, therefore, is not answered by asking merely whether a new legal label has been added. The true question is whether the Defendant is now being required to meet a case arising from a different transaction or a different loss. In my view, it is not. The policy remains DCT/00027/11/2017. The alleged representations remain representations concerning the scope of coverage. The reliance alleged remains the Plaintiff’s reliance in continuing its commercial dealings. The rejection of the claim remains the same rejection by the Defendant. The Defendant has not identified any new document, transaction or loss which it would now be required to meet for the first time. Its complaint is principally that the amendments improve or expand the Plaintiff’s pleaded case. That, without more, is not the kind of prejudice which justifies refusing leave to amend.

In these circumstances, I am not persuaded that the proposed amendments transform the suit into one of a different or inconsistent character.

What the Plaintiff seeks to do is to clarify, particularise, and advance alternative legal consequences flowing from the same factual substratum. From a commercial perspective, the dispute has always concerned whether the policy responded to the Plaintiff’s claim. That remains unchanged. Hence, the present application falls squarely within the permissible ambit of amendment under Order 20 Rule 5 of the ROC.

A different conclusion, however, is warranted in respect of the proposed pleading of breach of statutory duty at paragraph 26A.

A claim in breach of statutory duty is not merely a variation of an existing cause of action. It is a distinct juridical claim which requires identification of the relevant statute, identification of the specific statutory provision relied upon and material facts establishing the breach of that statutory duty.

In my view, these are not matters of form, but of substance. They go to the very foundation of the cause of action.

In the present case, the proposed amendment does not identify any statute, any section, or the source of the alleged duty said to have been breached. The pleading is therefore vague, unparticularised, and insufficient to sustain a cause of action in law.

More fundamentally, the introduction of such a claim, absent proper articulation, risks introducing a distinct juridical basis which is neither properly pleaded nor anchored to the existing structure of the claim. As presently framed, this is not a mere defect of form. It is a failure to plead the essential ingredients of a recognisable cause of action.

In those circumstances, I am not prepared to permit the inclusion of the proposed paragraph 26A as it stands.

Accordingly, while the Court adopts a liberal approach to amendments, such indulgence cannot extend to the admission of a defective and insufficiently particularised cause of action.

I next consider the issue of delay, which forms a central plank of the Defendant’s opposition. In this regard, the Defendant has relied on the well-known case of Hong Leong Finance Bhd v Low Thiam How & Another Appeal [2015] 8 CLJ 1. Hong Leong Finance stands for the undisputed proposition that where the amendment application is made on the eve of a trial such that it derails the trial, such application will ordinarily be refused.

It is undisputed that the trial in the present case has been fixed for May 2026 and that pre-trial directions have been complied with.

However, this is not a case where the amendment is sought on the eve of trial, still less during the course of trial itself. More importantly, there is no evidence before this Court that the proposed amendments would derail the trial or necessitate its adjournment.

I accept that the change of solicitors does not, by itself, automatically justify a late amendment. However, on the facts of this case, the explanation is not fanciful. The application followed a review of the pleadings by the Plaintiff’s new solicitors and was filed some two months after the change of solicitors. In the absence of evidence that the trial dates would be lost, I am not persuaded that the delay is fatal.

In this regard, I adopt what may be described as a nuanced application of the Yamaha Motor principles and it is this. The Court must balance two competing considerations. On the one hand, the Plaintiff’s right to fully ventilate its case. On the other, the need to ensure that the Defendant is not prejudiced in a manner that cannot be remedied.

In the present case, I am satisfied that the balance falls in favour of allowing the amendments (save for paragraph 26A).

The Defendant has asserted that it will suffer prejudice if the amendments are allowed. However, it is trite that not all prejudice is legally relevant. The question is whether the prejudice is of such a nature that it cannot be compensated by costs or cured by appropriate case management directions.

In the present case, the amendments arise from facts already within the Defendant’s knowledge. The Defendant will also have the opportunity to amend its Defence. The trial dates, meanwhile, remain intact.

There is no suggestion that evidence will be irretrievably lost, or that the Defendant will be deprived of a fair opportunity to meet the case.

In those circumstances, any prejudice that may arise is, in my judgment, fully compensable by costs.

I find that the proposed amendments (save for paragraph 26A) arise from the same factual substratum and do not alter the character of the suit. The amendments are necessary to enable the Court to determine the real issues in controversy. There is also no inordinate delay of a nature that warrants refusal. It is also my finding that any prejudice to the Defendant is compensable by costs.

In the exercise of my discretion, I am satisfied that this is an appropriate case to grant leave to amend, subject to the disallowance of the proposed pleading of breach of statutory duty at paragraph 26A.

Wherefore, the Plaintiff’s application was allowed in part. Leave was granted to re-amend the Statement of Claim save and except for the proposed paragraph 26A relating to breach of statutory duty. Costs of the application were ordered to be borne by the Plaintiff in any event. Dated the 4th day of April 2026 -sgd- ……………………………………………………………………… MUHAMMAD ADAM @ EDWARD BIN ABDULLAH Judicial Commissioner (Commercial Division NCC 4) High Court of Malaya In the Federal Territory of Kuala Lumpur, Malaysia Counsel for the Plaintiff : Alex Chang Huey Wah together with Lim Wen Mi, and Chang Jun Chen Sean Messrs. Alex Chang & Co. Counsel for the Defendant : Cliff Siow Juan Wen together with Syuhada binti Mohd Soberi Messrs. The Chambers of Kamarul Hisham & Hasnal Rezua

Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 CLJ 126 2. Hong Leong Finance Bhd v Low Thiam How & Another Appeal [2015] 8 CLJ 1 3. Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] 1 CLJ 191

Order 20 Rule 5 and Order 20 Rule 3 (d) of the Rules of Court 2012