The court ruled that introducing a fresh expert witness after trial commencement violates procedural rules and risks unfairness, emphasizing adherence to pre-trial directions.

JUDGMENT

Anand Ponnudurai J:

Introduction

[1] This judgment deals with the often-recurring situation of parties attempting to adduce further documents, expert reports and witnesses after a trial has commenced and the issue that arose in this case was whether the Court should exercise its discretion to allow the same.

[2] The trial of this matter proceeded in January 2024 with the Plaintiff calling three witnesses including an expert witness who was cross- examined by learned Counsel for the Defendant. The matter was then adjourned to 21 March 2024 for the Defendant to produce its two witnesses as indicated earlier with witness statements having been filed accordingly. However, on 4 March 2024, the Defendant filed a witness statement of one Andrew Heng (encl 35) and an expert report as reflected at pp 9 to 887 of the Defendant's Additional Bundle of Document (Enclosures 36-43), indicating its intention to call him as an additional witness. This then led to two applications being filed in relation to this issue of whether or not the Defendant could call Andrew Heng as the Defendant's expert witness.

[3] The Plaintiff then filed an application through encl 45 seeking an Order that the Defendant be not allowed to call Andrew Heng as the Defendant's expert witness and an Order that the witness statement of Andrew Heng (encl 35) and an expert report reflected at pp 9 to 887 of the Defendant's Additional Bundle of Document (encls 36-43) be expunged from the records.

[4] On the other hand, the Defendant in its application through encl 47, conversely sought an Order that Andrew Heng be allowed to be called as the Defendant's expert witness and an Order that the witness statement of Andrew Heng (encl 35) and the expert report of Andrew Heng be admissible.

[5] Having heard parties submit aided by their written submissions, I was of the view that Andrew Heng should be disallowed to testify and his expert report to be inadmissible and expunged from the records. I thus allowed the Plaintiff's application in encl 45 and dismissed encl 47.

[6] I will hereinbelow set out the salient background facts leading to these applications, the parties' respective contentions and my analysis of the same in arriving at my decision to allow encl 45 and dismiss encl 47.

The Salient Background Facts/Proceedings

[7] This action was filed on 13 February 2023. The Plaintiff's pleaded case is basically that the Defendant is in breach of the Sale and Purchase Agreement entered between the Chan Sisters and the Plaintiff dated 13 May 2019 (hereinafter referred to as "SPA") read together with an Accession Agreement dated 21 January 2021 entered into between the Plaintiff, the Defendant and the Chan Sisters (hereinafter referred to as "Accession Agreement") as follows:

a. Firstly, the Defendant is in breach of contract because the terms of the Supplementary Agreement executed between MCL and PKB which was procured by the Defendant failed to fulfil the requirements of cl 3.1 (a) of Schedule C of the SPA. Consequently, the Defendant is liable to pay the Plaintiff the Agreed Liquidated Damages in the sum of RM2,000,000.00 pursuant to cl 3.1 (a) of Schedule C of the SPA.

b. Secondly, the Defendant is in breach of contract for failing to provide security property pursuant to the terms of cl 3.2 (a) (i) (aa), (bb) and (cc) of Schedule C of the SPA. Consequently, the Defendant is liable to pay the Plaintiff Agreed Interest pursuant to cl 3.2 (a) (ii) of Schedule C of the SPA totalling RM1,630,720.86 (calculated up until 9 January 2023). Since the Defendant failed to pay the aforesaid Agreed Interest, the Defendant is liable to transfer to the Plaintiff such number of its shares in MCL, the market value of which is equivalent to the amount of the agreed interest.

[8] The Plaintiff has adduced Mazars' expert report which shows that the market value of the Defendant's entire 45% shareholding in MCL is in the range of RM200,000.00 to RM300,000.00 as at 31 May 2023.

[9] The Plaintiff sought t