When Is It Too Late to Amend Pleadings? Nautical Supreme Sdn Bhd v. Azimuth Ship Management Sdn Bhd [2025] MLJU 3315

Introduction

When is it too late to apply for leave to amend pleadings? This is a recurring dilemma faced by litigants who seek to refine or expand their case as trial approaches. The High Court recently revisited this question in Nautical Supreme Sdn Bhd v. Azimuth Ship Management Sdn Bhd [2025] MLJU 3315, where the defendant sought to amend its defence to introduce a counterclaim four and a half months before trial.

Facts

The defendant applied to amend its defence to add a counterclaim based on matters arising from separate derivative proceedings before another court (“OS 677”). 

OS 677 had been initiated by Dato’ Seri Timor Shah Rafiq (“Timor”), in his capacity as a director of Nautilus Tug & Towage Sdn Bhd (“NTT”), seeking leave to sue in NTT’s name against, among others, the defendant. For context, Timor is also a director of the plaintiff.

The defendant contended that the filing of OS 677 by Timor reflected an inconsistent position adopted by the plaintiff, undermining the plaintiff’s claim and forming the basis of the proposed counterclaim.

The application to amend was made late in the proceedings, specifically:

1. Four and a half months before trial (scheduled on 13 October 2025); 
2. Nearly one year after the defendant became aware of OS 677 (on 5 June 2024); and
3. Eight months and 20 days after the deadline for interlocutory applications (which expired on 9 September 2024).

Decision

The High Court dismissed the application with costs in any event, holding that the defendant’s delay was inordinate and unjustified.

Key reasons include:

1. Inordinate delay — the application came almost a year after the defendant knew of OS 677.
2. Inadequate explanation — the claim that the defendant’s solicitors only became aware of OS 677 in April 2025 was a bare assertion unsupported by evidence, and it was improper to conflate counsel’s knowledge with that of the client. The court noted that the defendant had actively sought to intervene in OS 677 as early as July 2024, undermining its explanation.
3.  Improper motive inferred — the timing suggested that the application was a tactical manoeuvre to revive arguments already rejected in OS 677.
4. Lack of merit — Timor, acting as NTT’s director in OS 677, was not a privy of the plaintiff, and the plaintiff was not a party to OS 677.
5. Prejudice to the plaintiff — allowing the amendment would nullify two and a half years of pre-trial preparation across 18 case management sessions, causing prejudice that could not be adequately remedied by costs.

The Court reaffirmed the Federal Court’s principles in Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1, holding that even though that case concerned an amendment sought four days before trial, the same principles applied equally to an application made four and a half months before trial.

Commentary

This decision serves as a timely reminder that litigants must be vigilant in formulating and amending their pleadings. Courts will not hesitate to reject late applications — particularly where delay is unexplained, tactical, or prejudicial to the opposing party.

In essence, the closer a case is to trial, the stronger the justification required to persuade the court that an amendment should be allowed.

If you have any questions on this article, please contact:

Pang Kong Leng
Partner
Email: litigation@ctslawyers.com.my
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Jonathan Lim See Kheng
Senior Associate
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Michelle Chin Zi Shan
Associate
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