Surrealist Communities (M) Sdn Bhd v 1. ) Potensi Mestika Construction Sdn Bhd 2. ) Lai Chor Kheong 3. ) Lai Tuck Ken

Case Significance

Applies the Federal Court's approach in Hong Leong Finance Bhd v Low Thiam Hoe under the Rules of Court 2012, holding that an unexplained delay in seeking a pre-trial amendment justifies dismissing the application in limine to protect fixed trial dates, and distinguishing the older Yamaha Motor line decided under the 1980 Rules.

This High Court decision at Kuala Lumpur concerns the plaintiff's application for leave to amend its statement of claim, filed less than a month before a trial that had been fixed about a year earlier. The plaintiff, a developer, and the first defendant, Potensi Mestika Construction Sdn Bhd, had entered into a joint venture agreement in 2016 for the development of land, under which the plaintiff was to construct affordable homes and a condominium building. Trial dates for the suit, to be heard together with a related action, had been fixed at a case management session on 2 October 2024 for hearing from 17 to 21 November 2025. The plaintiff filed its notice of application to amend on 21 October 2025, and the defendants objected strenuously to the last-minute application. The Court examined the competing lines of authority on late amendments, distinguishing Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd, which was decided under the former Rules of the High Court 1980, from the approach adopted by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe, decided under the Rules of Court 2012. Under that later approach, an applicant must explain the delay in seeking the amendment, and where the affidavit in support offers no such explanation but only a bare assertion, there is nothing for the opposing party to reply to and the court may dismiss the application in limine to avoid postponing the trial. The Court found that the plaintiff's affidavit contained no plausible explanation for a delay of some seven months, particularly as the trial dates had long been known, and held that dismissing the application would occasion no prejudice to the plaintiff's substantive rights. The related action fixed for the same trial window reinforced the need to preserve the hearing dates, and the Court declined to allow one party's unexplained, last-minute amendment to derail a long-settled trial. The application to amend was accordingly dismissed.