KENANGA INVESTORS BERHAD v 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

wa-22ncc-140-03-2023 High Court (Mahkamah Tinggi) 10 February 2026 • WA-22NCC-140-03/2023 • 6 min read
1 cases cited (0 SG, 1 foreign)

Catchwords

CIVIL PROCEDURE: Amendment of pleadings – Application to amend Defence and Counterclaim – Leave of court required under Order 20 Rule 5 Rules of Court 2012 – Yamaha Motor three-limb test – Whether amendments change character of suit from one character into suit of another and inconsistent character – Whether application made bona fide – Whether prejudice can be compensated by costs – Hong Leong Finance principles for late amendments – Whether amendments introduce new parties and fundamentally alter factual narrative – Whether amendments made at advanced stage when trial dates fixed and pre-trial preparations underway – Whether cogent and material reasons provided to explain delay of 22 months – Whether application constitutes tactical manoeuvre to circumvent dismissed discovery applications – Whether amendments introduce evidence rather than material facts – Whether efficient administration of justice affected – Whether legitimate expectations of parties to proceed to trial on existing pleadings – Whether courts should assist vigilant and not indolent CIVIL PROCEDURE: Pleadings – Preliminary objection – Non-compliance with Order 41 Rule 11 Rules of Court 2012 – Failure to attach certifying exhibit to proposed amendments – Whether technical non-compliance results in substantial miscarriage of justice – Whether deficiency can be cured – Whether substantive justice should prevail over procedural technicality – Whether opposing parties prejudiced by non-compliance

Practice Areas

Civil Procedure

Judges (1)

Elaine Yap Chin Gaik Delivered

Counsel (9)

James Monteiro Firm Jeeva Partnership Firm Justin Voon Chooi & Wing Firm Shaikh David & Co Firm Henry Poh Jun Yang Counsel Defendant Jasmin Irisa binti Ahmad Mirza Counsel Plaintiff John Aloysius Skelchy Counsel Defendant Shaikh Abdul Saleem bin Shaikh Abdul Karim Counsel Plaintiff Victor Pang Chee Siong Counsel Defendant

Parties (5)

KENANGA INVESTORS BERHAD Plaintiff ZULRAFQ CAPITAL Sdn Bhd Defendant Datuk Wira Ismitz Matthew Aggrieved Party Muhammad Taqiuddin Halim Aggrieved Party Tan Sri Zulhasnan bin Rafique Defendant

Case Significance

Marks the limits of specific discovery under Order 24: an applicant must identify particular documents shown to exist, cannot use discovery as a fishing expedition to support a conspiracy allegation, and gains nothing by demanding documents already in its own possession; the application was dismissed with costs.

This High Court decision concerns an interlocutory application in a commercial suit brought by Kenanga Investors Berhad against Zulrafq Capital Sdn Bhd and an individual guarantor (a natural person referred to here by role). The main action is grounded in breach of Option Agreements and a Personal Guarantee, following the defendants' failure to comply with a demand to buy some 179 million shares in KNM Group Berhad at an option price exceeding RM34 million. The defendants' pleaded defence and counterclaim allege that the Option Agreements were part of a conspiracy by two individuals — Kenanga's alleged true counterparty and its representative, both natural persons referred to here by role — to injure and defraud them, so as to vitiate the agreements for illegality, undue influence or misrepresentation.

The application before the court was one by the "Zulrafq Parties" for specific discovery under Order 24 of the Rules of Court 2012, seeking information about payments Kenanga was said to have received in connection with the Option Agreements, including a number of cheques. The court refused it. Applying Yekambaran s/o Marimuthu v Malayawata Steel Bhd, it held that the requested documents "were not specifically identified and shown to exist", the first requirement of any discovery application, and that "information in the abstract are not documents". When pressed, counsel had been equivocal about what a requested "Statement of Account" even referred to.

The court further held that the application was "an impermissible fishing expedition", extending beyond the specific cheques the applicants had themselves already exhibited to encompass all transaction details. There was also no necessity for discovery: if the applicants already possessed and had exhibited the cheques, they already had access to the evidence needed to support their allegations. On these grounds the court dismissed the application with costs of RM3,000 to Kenanga.

The judgment is a useful statement of the limits of specific discovery: an applicant must identify particular documents shown to exist, must not use discovery as a fishing expedition for material to build a conspiracy allegation, and gains nothing by seeking documents already in its own possession.

Summary

Kenanga Investors sought specific discovery of documents from Zulrafq Capital and Tan Sri Zulhasnan Rafique in a breach of Option Agreements claim relating to KNM Group Berhad shares worth RM34.2 million. The High Court dismissed the discovery application as a fishing expedition, finding the requested documents were not specifically identified, would improperly shift the burden of proof, and were not necessary as the applicants already possessed the key evidence.

Why was the specific discovery application refused?

Because the requested documents were not specifically identified or shown to exist — the first requirement for discovery under Yekambaran — with counsel equivocal about what was even sought; the request was an impermissible fishing expedition and unnecessary where the applicants already possessed and had exhibited the relevant cheques.

What is the underlying dispute?

Kenanga's claim for breach of Option Agreements and a Personal Guarantee over the defendants' failure to purchase some 179 million KNM Group Berhad shares, met by a defence and counterclaim alleging the agreements were part of a conspiracy to defraud, advanced to vitiate them for illegality, undue influence or misrepresentation.

Statutes Cited

Evidence Act 1950 (Cap 56)
Rules of Court 2012

Cases Cited (1)

MY (1)
[1994] 2 CLJ 581

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (wa-22ncc-140-03-2023)