Atan Mustaffa Yussof Ahmad J:

GROUNDS OF JUDGMENT

(Enclosure 182 - Application to Amend Defence and Counterclaim

INTRODUCTION

[1]Before the court is the Defendants’ Notice of Application dated 25.1.2025 (Enclosure 182) filed pursuant to Order 20 Rule 5 of the Rules of Court 2012 (“ROC”), seeking leave to amend the Defence and Counterclaim dated 10.8.2023 (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 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-141-03/2023 (“Suit 141”), 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 Letter of Offer dated 13.10.2021 was issued by Zulrafq to Kenanga. On 22.10.2021, a Put and Call Option Agreement was executed between Kenanga and Zulrafq. The same day, a Personal Guarantee dated 22.10.2021 was executed by TSZ in favour of Kenanga.

[6]On 19.1.2022, a second Put and Call Option Agreement was entered into between Kenanga and Zulrafq.

[7]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.

[8]On 13.7.2023, 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 of RM44,952,380.84, or alternatively, damages in the sum of RM44,952,380.84 in lieu of specific performance.

[9]On 4.8.2023, Kenanga filed an application for summary judgement against Zulrafq and TSZ.

[10]On 14.8.2023, Zulrafq and TSZ filed their Defence and Counterclaim dated 10.8.2023, joining Taqiuddin as the Second Defendant in the Counterclaim and Ismitz as the Third Defendant in the Counterclaim.

[11]On 19.9.2023, Taqiuddin filed his Defence to Counterclaim. On 3.10.2023, Zulrafq and TSZ filed their Reply to Taqiuddin’s Defence to Counterclaim.

[12]On 16.10.2023, Zulrafq and TSZ filed an application for interrogatories for both the Main Action and the Counterclaim.

[13]On 22.11.2023, summary judgement was entered by Kenanga against Zulrafq and TSZ in respect of the Main Action.

[14]On 9.12.2023, Zulrafq and TSZ filed an application to stay the execution of the said summary judgement.

[15]On 5.2.2024, Taqiuddin filed an application to strike out the Counterclaim filed by Zulrafq and TSZ.

[16]On 27.3.2024, the application for a stay of execution filed by Zulrafq and TSZ was dism