Atan Mustaffa Yussof Ahmad J:

GROUNDS OF JUDGMENT

(Enclosure 112 - Application to Amend Defence and Counterclaim)

INTRODUCTION

[1]Before the court is the Defendants’ Notice of Application dated 17.3.2025 (Enclosure 112) 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 8). 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 Notice of Application. 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-140-03/2023 (“Suit 140”) 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]A Put and Call Option Agreement dated 22.10.2021 was executed between Kenanga and Zulrafq. The same day, a Personal Guarantee dated 22.10.2021 was executed by TSZ in favour of Kenanga. Pursuant to the Put and Call Option Agreement, Kenanga agreed to grant Zulrafq, during the Call Option Period, a Call Option for Zulrafq to buy back from Kenanga RM40,000,000.00 worth of ordinary shares in KNM Group Berhad amounting to 190,476,190 shares. In the same agreement, Zulrafq agreed to grant to Kenanga during the Put Option Period an irrevocable Put Option for Kenanga to sell to Zulrafq or its nominee the Option Shares or any part thereof on the Maturity Date.

[6]By letters dated 27.7.2022, Zulrafq applied to Kenanga for an extension and rollover of the Call Option Period and Put Option Period under the Option Agreement dated 22.10.2021. A Supplemental Option Agreement dated 3.8.2022 was executed by Kenanga and Zulrafq.

[7]On 20.3.2023, Kenanga commenced this action by way of Writ and Statement of Claim against the Defendants for breach of the Put and Call Option Agreement dated 22.10.2021 and the Supplemental Option Agreement dated 3.8.2022. In its Statement of Claim, Kenanga sought, amongst others, an order for specific performance requiring Zulrafq and/or TSZ to purchase the Option Shares at the Put Option Share Price, or alternatively, damages in lieu of specific performance.

[8]On 9.5.2023, Zulrafq and TSZ filed their Defence and Counterclaim dated 9.5.2023, joining Taqiuddin as the Second Defendant in the Counterclaim and Ismitz as the Third Defendant in the Counterclaim.

[9]On 30.5.2023, Kenanga filed an application for summary judgement against Zulrafq and TSZ.

[10]On 22.6.2023, Taqiuddin filed his Defence to Counterclaim. On the same date, Ismitz filed his Defence to Counterclaim.

[11]On 22.11.2023, summary judgement 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 judgement.

[13]On 5.2.2024, Taqiuddin filed an application to strike out the Counterclaim filed by Zu