X2 International Sdn Bhd v Sheng Tai Impression Sdn Bhd (WA-22IP-59-09/2023)

SHENG TAI IMPRESSION SDN BHD [Company No.: 1262505-W] … FIRST DEFENDANT

LEONG SIR LEY, DATO' [NRIC No.: 750926-08-5478] … SECOND DEFENDANT

TAN YOONG WEI [NRIC No.: 840510-10-5489] … THIRD DEFENDANT ! ! GROUNDS OF JUDGMENT (Enclosure 66 – Plaintiff's Application to Amend the Writ and Statement of Claim) ! ! ! ! ! 2! ! A. INTRODUCTION [1] Before this Court is the Plaintiff's application via Enclosure 66 for leave to amend its Writ of Summons dated 29.09.2023 and Statement of Claim dated 29.09.2023 (Amendment Application), pursuant to Order 20 Rule 5 and/or Order 92 Rule 4 of the Rules of Court 2012 ("ROC 2012"). [2] Having carefully considered the submissions of the parties, I dismissed the Amendment Application with costs. These are the grounds for my decision. B. SALIENT BACKGROUND FACTS [3] The Plaintiff commenced this action ("Suit 59") against the Defendants on 29.09.2023. The dispute arises essentially out of a Quotation dated 16.08.2023 ("the Supply Agreement") whereby the First Defendant appointed the Plaintiff to design, install, and manage the event and logistics for the "Sheng Tai International City of Hope Expo 2023" ("the EXPO") at the contract price of RM18,573,436.00. [4] The Plaintiff's case, as pleaded in the original Statement of Claim, may be summarised as follows:

The First Defendant breached the Supply Agreement, particularly Clause 6 (a non-solicitation clause), by directly engaging Hartamas Ceria Sdn Bhd ("Hartamas Ceria") to supply and install seven (7) dome tents for the EXPO; 3! !

The Plaintiff claims approximately RM8.28 million as unpaid contractual sums; and

An alternative claim is premised upon alleged infringement of intellectual property rights. [5] In a separate suit, namely Suit No. WA-22NCvC-570-10/2023 ("Suit 570"), the Plaintiff together with Xenon II Sdn Bhd commenced proceedings against Hartamas Ceria for breach of a Non-Disclosure and Confidentiality Agreement dated 16.08.2023. [6] The procedural chronology of Suit 59 is significant and is therefore set out:

September 2023 – Writ and Statement of Claim filed;

17–18.10.2024 – Common Bundle of Documents filed;

18.01.2025 – Messrs. Rajesh, Chew & Ho appointed as new solicitors for the Plaintiff;

30.05.2025 – Statement of Agreed Facts filed;

03.06.2025 – Pre-trial directions issued by YA Puan Adlin binti Abdul Majid that all pre-trial documents be finalised and filed by 01.08.2025, with no further documents permitted thereafter; 4! !

31.07.2025 – Bundle of Pleadings, Common Issues to be Tried, Plaintiff's Issues to be Tried, and Plaintiff's Chronology of Events filed;

01.10.2025 – During case management, the Plaintiff orally indicated an intention to amend its pleadings; this Court directed any such application to be filed by 22.10.2025;

23.10.2025 – The Amendment Application (Enclosure 66) was filed;

Trial dates have been fixed for 21.01.2026, 22.01.2026,

31.03.2026, 03.06.2026, 04.06.2026 and 05.06.2026; and

Witness statements are to be filed by 21.12.2025. [7] It is undisputed that this matter underwent more than ten (10) case management sessions over the span of approximately two (2) years prior to the filing of the Amendment Application. C. THE PROPOSED AMENDMENTS [8] The Plaintiff's proposed amendments may be distilled into the following:

Introduction of substantial factual averments concerning an alleged conspiracy to defraud between the First Defendant and Hartamas Ceria; 5! !

An enlargement of the monetary claim, with the sum of RM18,573,436.00 now being characterised as special damages recoverable from the Defendants; and

Introduction of new declaratory reliefs, with the original contractual claim being relegated to an alternative prayer under a new Relief (8). D. THE LAW ON AMENDMENT OF PLEADINGS [9] The general jurisdiction of the Court to allow amendments is provided under Order 20 Rule 5(1) of the ROC 2012. The Court's discretion is to be exercised judicially. [10] The classical principles governing amendments are set out by the Federal Court in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213, namely:

Whether the application is bona fide;

Whether the prejudice caused to the other side can be compensated by costs; and

Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. 6! ! [11] However, the law has since evolved. In Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2015] 8 CLJ 1, the Federal Court refined and supplemented the Yamaha Motor principles where amendments are sought at a late stage of the proceedings. In particular, the Federal Court held:

The Yamaha Motor principles apply primarily to applications made at an early stage of the proceedings;

Where an application is made late, there must be a cogent and reasonable explanation in the applicant's affidavit as to why the application was filed late;

The proposed amendment must not constitute a tactical manoeuvre;

The proposed amendment must disclose full particulars for the Court to ascertain whether there is a real prospect of success; and

Lateness cannot necessarily be compensated by costs. [12] In respect of delay, the Federal Court made the following pronouncement: “[26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend 7! ! would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure 'just, expeditious and economical disposal' of an action (see O. 34 r. 4(1) of the RHC 1980, now O. 34 r. 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. [27] In our instant case, there had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable.” (Underlined Emphasis added) [13] Further, the Federal Court also made it abundantly clear that the explanation for any delay must be set out in the affidavit in support of the application, and that a mere bare assertion carries no weight and does not warrant any response from the opposing party. In this respect, the Federal Court authoritatively held that: “[30] It is noted in the present case the defendant's affidavit in support failed to adduce an explanation for the delay in filing the said application. The Court of Appeal however held that the plaintiff should have filed an affidavit to oppose the application to amend which the 8! ! plaintiff failed to do. With respect in our view the Court of Appeal erred on this point again. This is because the defendant's affidavit in support of its application to amend contained nothing more than a bare assertion. A bare assertion carries no evidential value and hence, there is nothing to reply. (See the case of Teoh Yook Huwah v. Menteri Hal Ehwal Dalam Negeri & Anor [1993] 1 CLJ 261; [1993] 1 MLJ 12, SC). The defendant's affidavit also did not discharge the "heavy onus" imposed on the amending party as the defendant did not disclose any "material and cogent reasons" to explain the inordinate delay.” (Emphasis added) [14] Reference is also made to the case of Astana Modal (M) Sdn Bhd v. Bs Testing Laboratory Sdn Bhd & Ors [2021] 1 LNS 93. In relation to amendment applications filed at a late stage, the High Court in Astana Modal held that: “[38] The Plaintiff's assertions in para 13 of its Affidavit-in-Support (Enclosure 53) and in paragraph 10 of its Affidavit-in-Reply (Enclosure 59) that the amendment application would not prejudice the full trial dates or could be adequately compensated by costs are also without substance. On the question of prejudice, costs are not the only factor to be considered - see Hong Leong Finance v. Low Thiam Hoe wherein the Federal Court approved the dicta that the following factors are also relevant –

having a case hanging over the heads of the heads of the defendants;

the defendants' desire to have the case heard and disposed of expeditiously; and 9! !

the policy of the court-managed system of administration of justice to dispose of the cases smoothly, expeditiously and economically. [39] In assessing whether or not an amendment application would prejudice the trial dates fixed by the Court regard must be had also to the following factors and reality in addition to the date of filing the amendment application relative to the fixed trial dates –

the time needed for the parties to file and exchange affidavits in connection with the amendment application involving substantial or significant amendments and such minimal time as envisaged by the ROC 2012 is 14 days for the Defendant's affidavit-in-reply plus a further 14 days for the Plaintiff's affidavit-in-reply;

the time needed for the parties to do their research into law and to prepare, file and exchange their submissions - which usually takes about 3 weeks;

the subsequent time needed for filing and service of amended pleadings, if the amendments were allowed - this would usually take about 8 weeks for a case of similar nature as the present case; and

the subsequent time needed for the parties to re-organize their respective documents, witness statements, etc. in preparation for the full trial on basis of the amended pleadings. All in all, the average total time required or steps (a) to (d) above would usually be at least 6 months. In light of the above, it is incorrect for a litigant to argue that an amendment application involving introduction of new causes of action, new reliefs 10! ! and substantial extent of new factual allegations filed about 2 months before the full trial dates fixed by the Court would not prejudice the fixed trial dates. It would flout the principles of natural justice (which includes reasonable opportunity to answer the case) if the court were to accede to the applicant's request to rush into the full trial on the set trial dates merely to accommodate the applicant's late application for substantial amendments in its pleading to the prejudice of the other parties in the action. On the other hand, to vacate the set trial dates merely to accommodate the applicant's late amendment application would be contrary to the policy and underlying objectives of O. 34 court-managed system of administration of justice. In such circumstances, it is not unjust to expect the author of the delay (i.e. the applicant) to bear the consequences of its own delay.” (Emphasis added) [15] The High Court in Astana Modal also made the following observation in circumstances where an amendment application would have the effect of introducing a new cause of action alongside the originally pleaded cause of action: [48] Bearing in mind that our present case involves an amendment application for joinder of the proposed new causes of action with the originally pleaded causes of action, this Court has also consider the policy and/or rationale behind O. 15 r. 5(1) of ROC 2012 which provides as follows: Although O. 15 r. 5(1) provides for a situation of the Plaintiff's joinder of causes of action in its original pleadings, the policy and/or rationale behind it is of some relevance to an amendment application to add new causes of action which 11! ! has the effect of joinder between the original causes of action with the new causes of action. In terms of jurisprudence and common sense, it is pointless for the court to allow an amendment application to add new causes of action which may embarrass or delay the trial or is otherwise inconvenient and therefore ought to be for separate trials. In the circumstances of our present case, even if the proposed new causes of action (i.e. malicious falsehood, conspiracy to injure, interference with lawful business) were assumed to be of the same character or consistent character with the original causes of action (defamation and negligence), it would be expedient to order separate trials and therefore it would be futile for the amendment to be allowed where the proposed new causes of action should be tried separately.“ (Emphasis added) [16] The rationale underpinning this stricter approach is the court-managed system of administration of justice, which prioritises the just, expeditious and economical disposal of cases (Order 34 Rule 1(1) of the ROC 2012; Practice Direction No. 2 of 2014). [17] I also derive considerable guidance from PRG Hans Group Sdn Bhd v Hartanah Ap Rakyat Berhad & Ors [2023] 1 LNS 1485, where the High Court rejected the proposition that a mere mention during case management of an intention to amend dispenses with the requirement to provide a cogent explanation for delay. E. ISSUES FOR DETERMINATION 12! ! [18] Drawing from submissions of the parties, the issues that arise are: Issue 1: Whether the Plaintiff has adequately explained the delay in filing the Amendment Application; Issue 2: Whether the proposed amendments are bona fide or constitute a tactical manoeuvre; Issue 3: Whether the proposed amendments arise from the same factual matrix as the original pleadings, or whether they would transform the suit into one of a different and inconsistent character; and Issue 4: Whether prejudice would be occasioned to the Defendants and, if so, whether such prejudice may be compensated by costs. F. FINDINGS OF THE COURT Issue 1: The Question of Delay [19] The threshold inquiry, particularly at this advanced stage of proceedings, is whether the Plaintiff has furnished a cogent and material explanation for the delay in seeking leave to amend. [20] The Plaintiff submits that there has been no delay at all. The Plaintiff places reliance on the following points: 13! !

Its present solicitors, Messrs. Rajesh, Chew & Ho, were only appointed on 18.01.2025;

The Plaintiff communicated its intention to amend "as early as 30.04.2025";

On 01.10.2025, the Plaintiff informed the Court of its intention to file the Amendment Application and obtained leave to do so by 22.10.2025; and

The trial dates remain intact and would not be disrupted. [21] With respect, I am unable to accept these contentions. I respectfully agree with the First Defendant's submissions on this point, and my reasons are as follows. [22] Firstly, this action was commenced more than two (2) years ago. The Plaintiff had ample opportunity, over more than ten (10) case management sessions, to consider and apply for amendments to its pleadings if such were required. The mere fact of a change of solicitors in January 2025 cannot operate as a perpetual shield against the duty to comply with case management directions. A change of solicitors does not arrest time; nor does it reset the procedural clock. The Plaintiff's new solicitors, upon taking conduct, were duty-bound to take expeditious steps if amendments were considered necessary. Yet, nothing was done for nine (9) months after the change of representation. 14! ! [23] Secondly, the Plaintiff's reliance upon a mere oral indication during case management on 01.10.2025 cannot, with respect, displace the requirement laid down by the Federal Court in Hong Leong Finance. The leave granted by the Court on 01.10.2025 was procedural in nature, merely fixing a timeline within which the formal application could be filed. It did not constitute approval of the substance of the proposed amendments, nor did it absolve the Plaintiff of the obligation to provide a cogent explanation for the delay in its supporting affidavit. [24] This very point was addressed by the High Court in PRG Hans Group Sdn Bhd (supra), where the Court observed: "...The fact that Mr. Sewell had informed the Court during case management that the plaintiff intends to make an application to amend its pleadings does not give the plaintiff carte blanche to file its application whenever and for however long thereafter." [25] I respectfully adopt this reasoning. The Plaintiff's contention that there was "no delay" is, with respect, untenable in the face of the procedural chronology. [26] Thirdly, and most critically, the Plaintiff's Affidavit in Support (Enclosure 67) does not contain any material or cogent explanation as to why the application was not filed earlier. The Plaintiff's affidavit fails to address: 15! !

Why the matters now sought to be introduced, particularly the allegations of fraudulent conspiracy and the recharacterisation of the contract sum as special damages were not pleaded at the inception of this action, when these facts were plainly within the Plaintiff's knowledge;

Why the new solicitors, despite being appointed in January 2025, took until 01.10.2025 to indicate any intention to amend; and

Why pre-trial documents, including the Plaintiff's Issues to be Tried filed on 31.07.2025, were finalised without any indication of an impending amendment. [27] The Federal Court in Hong Leong Finance at paragraph [30] held that "a bare assertion carries no evidential value." The Plaintiff's affidavit here falls short even of a bare assertion – it is, on this critical issue, silent. [28] Accordingly, I find that the Plaintiff has failed to discharge the heavy onus of explaining the delay, which on its own is fatal to the Amendment Application. Issue 2: Bona Fides and Whether the Application Is a Tactical Manoeuvre 16! ! [29] The Plaintiff submitted that the Amendment Application is made bona fide and is merely intended to clarify existing matters. It also contends that the application would have been unnecessary had its earlier Transfer Application (seeking to consolidate Suit 570 with this action) been allowed. [30] I have some difficulty with this submission. The dismissal of the Transfer Application would not give rise to a need to recharacterise the entirety of the Plaintiff's case. If the matters sought to be introduced were always within the Plaintiff's contemplation as the Plaintiff itself effectively concedes by pointing to the alleged inclusion of "conspiracy to defraud" in paragraphs 67–69 of the original Statement of Claim, then they ought to have been properly pleaded from the outset. [31] The timing of the application also raises legitimate concern. Coming as it does on the threshold of trial preparation, with witness statements due on 21.12.2025, the application carries a real likelihood of disrupting the orderly progression of this matter. Whether or not the Plaintiff intends a tactical advantage, the objective effect of the proposed amendments is to compel the Defendants to recalibrate their entire defence strategy at the eleventh hour. Issue 3: Whether the Amendments Transform the Character of the Suit 17! ! [32] The Plaintiff submitted that the proposed amendments are mere clarifications. With respect, this characterisation does not survive scrutiny. [33] On the alleged conspiracy to defraud, a careful reading of paragraphs 67 to 69 of the original Statement of Claim discloses only an allegation of breach of the non-solicitation clause (Clause 6) of the Supply Agreement arising out of the First Defendant's engagement of Hartamas Ceria. There is no plea, properly pleaded with particulars, of fraudulent conspiracy. [34] The law is settled that allegations of fraud must be specifically pleaded and properly particularised. A claim founded upon fraud or conspiracy to defraud requires the discrete elements of the tort including agreement, unlawful means or predominant purpose to injure, and damage to be pleaded with precision. The constituent elements of breach of contract and conspiracy to defraud are fundamentally distinct. [35] To recast what was originally a contractual claim premised on breach of a non-solicitation clause into a fully-fledged fraud action against the Defendants is, in my considered view, not a clarification. It is the introduction of a new and substantively distinct cause of action. [36] On the sum of RM18,573,436.00, a plain reading of the original Statement of Claim (paragraph 50) reveals that this sum was pleaded as the contractual consideration under the Supply Agreement. It was never pleaded as a loss suffered by the Plaintiff, 18! ! nor was it advanced as a recoverable head of damages. The Plaintiff's pleaded case for monetary recovery was, from the outset, confined to approximately RM8.28 million. [37] The proposed amendments now seek to recharacterise this very same figure of RM18,573,436.00 as special damages recoverable from the Defendants. This represents a fundamental transformation of the Plaintiff's case. Special damages are, by their very nature, items of loss which must be specifically pleaded and strictly proved. The recharacterisation of what was originally pleaded as contractual consideration into a distinct head of special damages introduces an entirely new measure of recovery. More significantly, it advances an entirely new legal foundation for the claim itself. What was once the price of performance is now sought to be recovered as compensation for breach. This is a metamorphosis that goes to the very heart of the cause of action. [38] On the structural recasting of reliefs, the proposed amendments relegate the original contractual claim to an alternative prayer under a new Relief (8). When the principal relief is demoted to an alternative, and a new theory of liability and quantum is elevated to the primary case, the suit has been transformed in character. [39] I am therefore satisfied that the proposed amendments do not "merely clarify" the existing pleadings. They alter the very identity of the action. They engage the prohibition in Yamaha Motor against amendments that "turn the suit from one character into a suit of another and inconsistent character." 19! ! [40] While I accept that Order 20 Rule 5(5) of the ROC 2012 permits amendments adding or substituting a new cause of action where it arises out of the same or substantially the same facts, the proposed plea of fraudulent conspiracy here travels well beyond the factual matrix originally pleaded. It implicates a non-party (Hartamas Ceria), invokes a distinct tort with its own elements, and introduces a wholly new quantum of recovery. Issue 4: Prejudice to the Defendants [41] The Plaintiff submitted that any prejudice may be compensated by costs and that the trial dates remain undisturbed. [42] I respectfully disagree. As the Federal Court in Hong Leong Finance and the High Court in Astana Modal emphasised, costs are not the sole measure of prejudice. The relevant considerations also include:

Having a case hanging over the heads of the Defendants;

The Defendants' desire to have the case heard and disposed of expeditiously; and

The policy of the court-managed system of administration of justice to dispose of cases smoothly, expeditiously, and economically. 20! ! [43] The proposed amendments, if allowed, would inevitably necessitate:

The filing of an Amended Defence by each of the

The reopening and revision of the Bundle of Pleadings, Common Issues to be Tried, and Plaintiff's Issues to be Tried (all of which have been finalised pursuant to the pre-trial directions of 03.06.2025);

The reconsideration of witness statements which are due on 21.12.2025;

Potentially, fresh discovery and further documentary production relating to the alleged fraudulent conspiracy; and

The very real prospect of vacating trial dates already fixed for January, March, and June 2026. [44] The Defendants have, for over two (2) years, prepared and conducted their defence on the footing of the original pleadings. To require them now to defend against an enlarged claim of fraudulent conspiracy and a recharacterised quantum of RM18,573,436.00 would cause prejudice that is real, substantial, and not adequately remedied by an order for costs. [45] I am fortified in this view by the dicta in Astana Modal (supra), where the High Court observed that an amendment application 21! ! involving substantial changes typically requires at least six (6) months for the parties to absorb, on a fair assessment of the procedural steps required. This would inevitably impact the trial timetable. G. CONCLUSION [46] Drawing the threads together I find that:

The Plaintiff has failed to provide any, let alone a cogent and material, explanation for the delay in seeking leave to amend, as mandated by the Federal Court in Hong Leong Finance. This omission, in itself, is fatal;

The proposed amendments are not mere clarifications. They introduce a new cause of action premised upon fraudulent conspiracy and recharacterise the quantum of recovery, thereby transforming the suit into one of a different and inconsistent character contrary to the principles in Yamaha

The amendments are sought at an egregiously late stage, with trial dates already fixed and witness statements pending filing; and

The prejudice to the Defendants is substantial and cannot be adequately compensated by costs. 22! ! [47] For the foregoing reasons, the Amendment Application in Enclosure 66 is dismissed. [48] As to costs, having regard to the conduct of the parties, the complexity of the application, and the prejudice occasioned to the Defendants in having to oppose it, I order that costs of this application be costs in the cause. Dated this day of 13th May 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR 23! ! Counsel: For the Plaintiff : RK Sharma and Diana Sharma (Messrs. Rajesh, Chew & Ho) For the 1st Defendant : Jasdev Singh and Trimann Raj Kaur Jahl (PIC) (Messrs. Jasdev Chambers) For the 2nd Defendant : Lee Heng Siang (Messrs. S.L. Leong, Kartina & Partners) For the 3rd Defendant : Amritpal Singh (Messrs. Amritpal Singh)