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2025 MarsdenLR 4010
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]
A party seeking to amend pleadings late in proceedings must demonstrate cogent reasons for delays; otherwise, such amendments may be dismissed due to undue prejudice to the opposing party and the binding nature of arbitration clauses.
Headnote:(A) Procedural fairness and amendments to pleadings - Application to re-amend an Amended Writ and Statement of Claim dismissed - Delay of 17 months in application after discovery - Detrimental impact on defendants from late introduction of new claims under Block Space Agreements amounting RM27 million - No credible justification for delay presented - Arbitration clauses in agreements require disputes to be resolved through arbitration. (Paras 1, 67)
Facts of the case:
The plaintiff sought to amend its claims against multiple defendants to introduce significant new claims relating to fuel surcharges approximately RM27 million derived from Block Space Agreements, after extensive discovery proceedings and on the eve of trial, causing objection due to delay and potential prejudice.
Findings of Court:
The Court found the plaintiff's delay in seeking amendments to be unreasonable and detrimental; proposed amendments lacked particulars and bona fides and introduced new causes of action, changing the character of the suit, also subject to arbitration agreements that were binding on the parties.
Issues: The main issues included the significance of undue delay in amending pleadings, potential prejudice to defendants, lack of bona fides in proposed amendments, and whether the introduction of new claims altered the suit's character.
Ratio Decidendi: The court held that late amendments burden the defendants and cannot be compensated by costs; failure to provide reasonable explanations for such delays, and the presence of binding arbitration clauses necessitate dismissing the application to amend.
Result: Application dismissed with costs of RM5,000.00 payable by the Plaintiff to some parties.
| Table of Content |
|---|
| 1. factual background of the case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. application for amendment details (Para 11 , 12) |
| 3. court's management of application (Para 18 , 19 , 20) |
| 4. parties' positions on amendments (Para 23 , 24 , 25) |
| 5. analysis of undue delay in application (Para 27 , 28 , 29 , 30 , 34) |
| 6. evaluation of bona fides in amendments (Para 35 , 36 , 38 , 39 , 40) |
| 7. assessment of prejudice to defendants (Para 42 , 44 , 45 , 46 , 48) |
| 8. character change of the suit (Para 51 , 52 , 54) |
| 9. binding nature of arbitration agreements (Para 59 , 60 , 62 , 63) |
| 10. final conclusion and dismissal of application (Para 67 , 68) |
[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 a
