BANK KERJASAMA RAKYAT MALAYSIA BERHAD v 1. ) NURO DAGANGAN SDN. BHD. 2. ) MUHAMAD AZMI BIN OTHMAN 3. ) MOKHTAR BIN OTHMAN 4. ) MUHAMAD IZZAT EMIR BIN MUHAMAD AZMI 5. ) MUHAMAD IZZHAM EMIR BIN MUHAMAD AZMI

Case Significance

Illustrates the liberal but principled approach to late amendments under Order 20 rule 5 of the Rules of Court 2012: a genuine oversight found on a fresh review, raised well before trial, may be allowed to ensure the real issues are tried, with any prejudice met by costs and liberty to file rebuttal evidence.

This High Court decision at Kuala Lumpur concerns a plaintiff bank's applications, well before trial, to amend its pleadings for a third time, to discontinue against two defendants, and to add documents to the trial bundle, and it applies the principles governing late amendments under Order 20 rule 5 of the Rules of Court 2012. The plaintiff, Bank Kerjasama Rakyat Malaysia Berhad, a cooperative bank, had granted two Islamic financing facilities to the first defendant company between 2010 and 2021, with the individual defendants providing personal guarantees at various times; two of them had ceased to be directors and been discharged as guarantors, with fresh guarantees executed by the others. After default, the bank sued in November 2022, but a series of changes of solicitors and a successful recusal application meant its current solicitors only took over conduct in December 2024. On a fresh review, the new solicitors discovered that two defendants had been wrongly maintained as parties, and the bank applied to amend the writ and statement of claim for the third time and to discontinue against those two, and separately to adduce sixty-six additional documents into the trial bundle. The applications were filed some ten months before the trial dates. The court held that the discretion to allow amendments is directed at ensuring the real questions in controversy are determined, that a genuine oversight discovered on a fresh review after multiple changes of representation was a reasonable explanation, and that any prejudice to the defendants was compensable by costs and manageable given the distance to trial. Exercising its discretion under Order 20 rule 5, it allowed both applications so the suit could proceed on an accurate and complete factual footing, discontinued the action against the third and fourth defendants, and permitted the additional documents. As terms of the leave, it ordered the plaintiff to pay costs of RM5,000 for each application and granted the defendants liberty to file rebuttal evidence. The defendants appealed.