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2025 MarsdenLR 5480
HIGH COURT MALAYA KUALA LUMPUR
MY JET XPRESS AIRLINES SDN BHD – Appellant
Versus
MUHAMMAD ALLIF QAYYUM MOHD DIN & ORS (ENCLS 20 45 64 84 364 .... – Respondent
[Civil Suit No: WA-22NCC-93-02/2023]
The court dismissed the Plaintiff's application to amend its claim due to inordinate delay, lack of bona fides, and substantial prejudice to the Defendants, emphasizing the need for timely and properly supported amendments.
Headnote:(A) Rules of Court 2012 - Order 20 Rule 5 - Application to re-amend Amended Writ and Amended Statement of Claim - Proposed amendments sought to introduce new claims regarding fuel surcharges under Block Space Agreements, increasing total claim by RM27 million - Defendants opposed on grounds of undue delay, lack of bona fides, and prejudice - Court found inordinate delay in application, lack of proper particulars, and substantial prejudice to Defendants if amendments allowed - Application dismissed with costs. (Paras 1, 27, 34, 67)
(B) Amendment of pleadings - Principles governing late amendments - Applicant must provide reasonable explanation for delay - Proposed amendments must be properly particularised and supported by adequate evidence - Amendments introducing new causes of action may change character of suit, affecting Defendants' ability to prepare their case. (Paras 30, 51, 68)
Facts of the case:
The Plaintiff sought to amend its claim to include additional claims for fuel surcharges under Block Space Agreements, which would increase the total claim amount to RM43,759,280.10. The application was made after extensive discovery proceedings and on the eve of trial, 17 months after relevant documents were obtained. (Paras 1, 8, 67)
Findings of Court:
The court found that the Plaintiff failed to provide a reasonable explanation for the delay in bringing the amendment application, and the proposed amendments lacked bona fides and proper particulars. Allowing the amendments would cause substantial prejudice to the Defendants. (Paras 34, 67)
Issues: The main issues included whether the Plaintiff's delay in seeking amendments was justified, whether the proposed amendments were bona fide, and whether allowing the amendments would prejudice the Defendants. (Paras 27, 34, 68)
Ratio Decidendi: The court ruled that the Plaintiff's application to amend was dismissed due to inordinate delay, lack of bona fides, and the introduction of new causes of action that would change the character of the suit, which would significantly prejudice the Defendants. (Paras 67, 68)
Result: Application dismissed with costs of RM5,000.00 to be paid by the Plaintiff to certain Defendants.
JUDGMENT
[1] Before the court is an application to re-amend an Amended Writ and Amended Statement of Claim to introduce substantial new claims, primarily relating to fuel surcharges under Block Space Agreements, which would increase the total claim amount by approximately RM27 million. The application comes after extensive discovery proceedings under an Anton Piller Order and is made on the eve of trial, some 17 months after the relevant documents came into the Plaintiff's possession. The proposed amendments are opposed by the 3rd to 6th Defendants on multiple grounds including undue delay, lack of bona fides, prejudice, change in the character of the suit, and the existence of binding arbitration clauses governing the new claims sought to be introduced.
Background Facts
[2] The Plaintiff, MY Jet Xpress Airlines Sdn Bhd, is a private limited company incorporated in Malaysia on 5 September 2007, providing cargo transportation services. The company was previously known as Neptune Air Sdn Bhd Its registered address is at Lot 407C, Kompleks Diamond, Bangi Business Park, 43650 Bandar Baru Bangi, Selangor.
[3] The 1st Defendant, Muhammad Allif Qayyum Bin Mohd Din ("D1"), joined the Plaintiff on 1 February 2018 as Vice President (Admin & Finance) and was later appointed as Chief Financial Officer in October 2020. Azrul Hisham Bin Dato' Abdul Wahab served as Chief Executive Officer of the Plaintiff from 1 November 2019 to 30 November 2022 and was also a director from 7 December 2017 to 29 March 2022.
[4] The Plaintiff provided cargo services to the 3rd Defendant, Zen Aviation Sdn Bhd ("D3"), from 27 July 2020 until their business relationship terminated on 12 December 2022. D3 is directed by the 4th Defendant, Khaw Chin Huat ("D4") who owns 50% of its shares. The Plaintiff also provided cargo services to the 5th Defendant, Infinity Freight Services & Solutions Pte Ltd ("D5') from 9 August 2022. D5 is directed by the 6th Defendant, Quah Ling Ming ("D6"), who is married to the 7th Defendant, Patrick Cheah Poh Jin ("D7").
[5] After Shafie bin Shamsuddin joined the Plaintiff as Deputy Chairman and Chief Executive Officer on 1 November 2022, internal audits and investigations were conducted which revealed certain financial irregularities. the Plaintiff issued a show cause letter to D1 on 10 December 2022 and terminated his employment on 25 January 2023 following meetings on 14 December 2022, 19 December 2022 and 21 December 2022.
[6] On 27 January 2023, D3 issued a letter of demand to the Plaintiff claiming RM6,279,361.32 comprising deposit payments and credit notes. The Plaintiff denied this claim on 8 February 2023. Subsequently, D3 filed a writ and statement of claim dated 14 February 2023 in Suit No WA-22NCC-261-05/2023 ("Suit 261") seeking this amount from the Plaintiff.
[7] The Plaintiff commenced the present action against the defendants in this action, alleging various financial improprieties including acceptance of cash payments by D1 and issuance of undervalued invoices. The matter is now before the court on the Plaintiff's application dated 20 August 2024 to re-amend its Amended Writ and Amended Statement of Claim herein to include additional claims, particularly regarding fuel surcharges under Block Space Agreements.
[8] The proposed amendments would increase the total claim amount by approximately RM27 million to RM43,759,280.10. This includes alleged uninvoiced fuel surcharges of RM23,862,140.35 from D3 and RM2,911,517.41 from D5 under Block Space Agreements for various routes including Shenzhen-Kuala Lumpur, Shenzhen-Kota Kinabalu and Macau-Manila between July 2022 and December 2022.
[9] The amendments arise following investigations and discovery proceedings, including those conducted under an Anton Piller Order granted on 27 February 2023 and extended by Ad Interim Orders on 10 March 2023 and 15 March 2023. The execution of these orders took place between 2 March 2023 and 14 March 2023.
[10] Separately, th
