Amendments altering the nature and character of a case are impermissible if made at a late stage without valid justification, and applications must be bona fide to warrant judicial discretion.

Atan Mustaffa Yussof Ahmad J:

GROUNDS OF JUDGMENT

(Enclosure 119 - Application to Amend Defence and Counterclaim)

INTRODUCTION

[1]Before the court is the Defendants’ Notice of Application dated 17.3.2025 (Enclosure 119) filed pursuant to Order 20 Rule 5 of the Rules of Court 2012 (“ ROC ”), seeking leave to amend the Defence and Counterclaim dated 9.5.2023 (Enclosure 7). The Plaintiff in the Original Action and First Defendant in the Counterclaim is Kenanga Investors Berhad (“Kenanga”). The First Defendant in the Original Action and First Plaintiff in the Counterclaim is Zulrafq Capital Sdn Bhd (“Zulrafq”). The Second Defendant in the Original Action and Second Plaintiff in the Counterclaim is Tan Sri Zulhasnan bin Rafique (“TSZ”). The Second Defendant in the Counterclaim is Muhammad Taqiuddin Halim (“Taqiuddin”) and the Third Defendant in the Counterclaim is Datuk Wira Ismitz Matthew (“Ismitz”).

[2]The proposed amendments are set out in Lampiran A to the Affidavit in Support dated 17.3.2025 (Enclosure 120). The application was strenuously opposed by Kenanga, Taqiuddin, and Ismitz, who filed comprehensive written submissions, affidavits in opposition, and presented oral submissions. This application was heard together with similar amendment applications in two related suits, namely WA-22NCC-141- 03/2023 (“Suit 141”) and WA-22NCC-489-07/2023 (“Suit 489”), as the issues raised are common to all three suits.

[3]Having carefully considered the affidavit evidence, the written and oral submissions of all parties, the authorities cited, and the overall circumstances of this case, I dismiss the Defendants’ application with costs. These are my reasons.

BACKGROUND FACTS

[4]Kenanga is a company registered under the Companies Act 1965. Zulrafq is a company registered under the same while TSZ is a Malaysian citizen and is a major shareholder of Zulrafq. Taqiuddin and Ismitz are both Malaysian citizens.

[5]On 19.1.2022, a Put and Call Option Agreement was executed between Kenanga and Zulrafq. The same day, a Personal Guarantee dated 19.1.2022 was executed by TSZ in favour of Kenanga.

[6]Under the Put and Call Option Agreement dated 19.1.2022 (“the Option Agreement”), Zulrafq granted Kenanga an irrevocable Put Option for Kenanga to sell to Zulrafq RM35,000,000.00 worth of ordinary shares in KNM Group Berhad amounting to 179,132,800 shares (“Option Shares”) during the Put Option Period. The Transaction Date was 23.2.2022 and the Maturity Date was 22.11.2022.

[7]By notice dated 2.11.2022, Kenanga exercised the Put Option pursuant to Clause 2.2 of the Option Agreement whereupon Zulrafq was obligated to purchase all the Option Shares at RM34,214,364.80 on or before the Maturity Date.

[8]Zulrafq failed to purchase the Option Shares by the Maturity Date. On 19.1.2023, Kenanga issued a letter of demand to both Zulrafq and TSZ via its solicitors, demanding payment of RM34,214,364.80.

[9]On 20.3.2023, Kenanga filed the present action against Zulrafq and TSZ seeking specific performance or damages for breach of the Option Agreement.

[10]On 9.5.2023, Zulrafq and TSZ filed their Defence and Counterclaim (Enclosure 7), joining Taqiuddin and Ismitz as defendants to the counterclaim. The counterclaim alleged, inter alia, that the transaction was a structured scheme or conspiracy between Kenanga, Taqiuddin and Ismitz to injure and defraud Zulrafq and TSZ.

[11]On 13.6.2023, Kenanga filed a Summary Judgment application against Zulrafq and TSZ. On 22.11.2023, summary judgment was entered by Kenanga against Zulrafq and TSZ in respect of the main action.

[12]On 9.12.2023, Zulrafq and TSZ filed an application to stay the execution of the said summary judgment. On 13.3.2024, this application for a stay of execution was dismissed by this court.

[13]On 14.5.2024, Zulrafq and TSZ filed a Discovery Application (Enclosure 134) and an Interrogatory Application (Enclosure 39) in Suit 489. On 23.9.2024, both applications were dismissed by this court.

[14]On 25.1.2025, Zulrafq and TSZ fil