Amirely Bin Daud v Zulkifli Bin Osman (MA-22NCC-25-11/2025)

SYNTAX VALLEY PARKING (M) SDN BHD (No. Syarikat : 1383745-W) (memulakan tindakan ini menurut seksyen 347 Dan 348 Akta Syarikat 2016 dan Perintah Mahkamah bertarikh 28.10.2025) ... PLAINTIF-PLAINTIF

MOHD FAIRUZ IZWAN BIN JAMIL (NO. K/P:791105-10-5807) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 7) A. INTRODUCTION [1] This is the decision of the court on the plaintiffs' application in Enclosure 7 for the discovery and production of documents against the defendants under Order 24 rules 3 and 7 of the Rules of Court 2012. [2] The action in which the application is made is a statutory derivative action. The 1st plaintiff is a shareholder of the 2nd plaintiff, Syntax Valley Parking (M) Sdn Bhd. By leave granted on 28 October 2025 under sections 347 and 348 of the Companies Act 2016, he prosecutes the action in the name and on behalf of the 2nd plaintiff, which is joined as a plaintiff and for whose benefit the action is brought. [3] The defendants are former officers of the 2nd plaintiff. On the pleaded case, the 1st to 3rd defendants were, at the material time, directors of the 2nd plaintiff, while the 4th defendant was its company secretary. [4] The action concerns the conduct of the affairs of the 2nd plaintiff. It is alleged that cash collections generated from the company's parking concessions were not properly accounted for, that company funds were misapplied or otherwise utilised for purposes not authorised by the company, and that certain corporate resolutions and related acts were not validly undertaken. Among the reliefs claimed are an account of the company's receipts and dealings with its funds, disclosure of its accounting records and bank statements, production of documents relating to the alleged advance of RM3.1 million and other impugned transactions, and repayment of sums alleged to have been misappropriated. [5] The present application seeks, in substance, orders requiring the 1st to 3rd defendants to produce specified accounting and financial records of the 2nd plaintiff, including its accounting records, bank statements, documents relating to cash collections, direct costs and the alleged RM3.1 million advance, and requiring the 4th defendant to produce specified corporate records, including notices, minutes, attendance records and resolutions relating to the company's affairs. It also seeks affidavits verifying whether those specified documents are, or have been, in the defendants' possession, custody or power. [6] The application is opposed. The question for determination is whether, on the affidavit evidence before the court, an order for discovery and production should be made. B. MATERIAL FACTS AND PROCEDURAL HISTORY [7] The 2nd plaintiff was incorporated in 2020. It carried on the business of parking management under two concessions, one with the Majlis Perbandaran Hang Tuah Jaya and the other with the Majlis Bandaraya Melaka Bersejarah. Those concessions were later terminated. The circumstances of the termination are the subject of separate proceedings to which the Statement of Claim refers. [8] The Statement of Claim pleads, among other things, that during the period from 1 May 2021 to 28 February 2023 the 2nd plaintiff received cash collections amounting to RM7,614,208.43, of which only RM178,674.85 was deposited into its bank account, leaving RM7,435,533.58 allegedly unaccounted for; that a special audit was undertaken on behalf of the 1st plaintiff; that various directors' resolutions and other corporate documents bore the 1st plaintiff's signature, which he alleges was forged; and that company funds were paid to, or transferred through, companies alleged to be connected with the defendants. The truth of those allegations is squarely in issue in the action and falls to be determined at trial, not on the present application. [9] The application is made by Notice of Application (Enclosure 7) under Order 24 rules 3 and 7 of the Rules of Court 2012, supported by the affidavit of the 1st plaintiff, Amirely bin Daud, affirmed on 15 April 2026 (Enclosure 8). In substance, it seeks orders requiring the 1st to 3rd defendants to produce specified accounting and financial records of the 2nd plaintiff, including its accounting records, general ledgers, bank statements, payment vouchers, invoices, records relating to cash collections, direct costs and the alleged RM3.1 million advance, and requiring the 4th defendant to produce specified corporate records. It also seeks affidavits verifying whether those specified documents are, or have been, in the defendants' possession, custody or power. [10] The application is resisted by the affidavit in reply of the 2nd defendant, Syahrul Hafiz bin Md Hashim, affirmed on 7 May 2026 (Enclosure 11). Two matters in that affidavit are material. First, the 2nd defendant exhibits, as Ekshibit Hafiz-2, material said to show that documents corresponding to a substantial part of those now sought have already been supplied to, or are already in the possession of, the plaintiffs' solicitors. Secondly, he deposes that the impugned corporate resolutions were passed by way of written resolutions, with the consequence that notices of meeting of the kind sought by the application do not exist. [11] The 1st plaintiff replied by his affidavit affirmed on 10 June 2026 (Enclosure 13). He disputes the defendants' objections to discovery and maintains that the documents sought remain relevant and necessary for the fair disposal of the action. He also contends that the defendants cannot rely upon those documents while resisting their production. [12] It is convenient to note at the outset that the documents sought are, by their nature, the records of the 2nd plaintiff company itself. They are not documents belonging personally to any of the defendants, but comprise the company's accounting records, bank statements, vouchers, invoices and corporate records. The 2nd plaintiff is itself a plaintiff in these proceedings. C. ISSUES FOR DETERMINATION [13] The application falls to be determined by reference to the requirements that Order 24 imposes for an order for the discovery of particular documents. They are: (a) whether the documents sought are relevant, in the sense that they relate to a matter in question in the action as disclosed by the pleadings; (b) whether the documents are shown to be in the possession, custody or power of the defendants against whom the order is sought; and (c) whether the discovery and production sought are necessary, either for disposing fairly of the action or for saving costs. A related question is whether the application, in its scope and in its timing, is a proper use of the discovery process. D. STATUTORY AND LEGAL FRAMEWORK [14] Discovery between parties to an action is governed by Order 24 of the Rules of Court 2012. Rule 3 empowers the court to order a party to make discovery of the documents which are or have been in his possession, custody or power relating to a matter in question in the cause or matter. Rule 7 provides for the discovery of particular documents and requires the party seeking the order to depose, by affidavit, that the documents relate to a matter in question and are or have been in the possession, custody or power of the party against whom the order is sought. [15] Two controlling limitations appear from the Order itself. Rule 8 provides that the court shall refuse to make an order for discovery if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. Rule 13 imposes the like requirement of necessity at the stage of production. [16] It follows from the text of Order 24 that three conditions must be satisfied before an order will be made: relevance to a matter in question; possession, custody or power on the part of the party against whom the order is sought; and necessity. The conditions are cumulative, and the failure of any one of them is fatal to the order. The authorities bearing on these requirements, which I consider in their place below, do not displace them as they appear from the Rules, which are in this respect well settled. [17] One further matter of legal context is material. The action is a derivative action brought, by leave under sections 347 and 348 of the Companies Act 2016, in the name and on behalf of the 2nd plaintiff and for its benefit. The company is the party in whose right the action is prosecuted. That bears directly upon the question whose documents the records of the company are, to which I will come. E. ANALYSIS AND DETERMINATION Whether The Documents Sought Are Relevant [18] The matters in question in the action, as disclosed by the Statement of Claim, include the alleged failure to account for the company's cash collections, the alleged misapplication of its funds, the alleged breaches of duty by its officers, and the validity of the impugned corporate resolutions. Documents recording the company's accounting transactions, cash collections, banking activities and corporate resolutions plainly relate to those matters. To that extent, the requirement of relevance is satisfied.The action is not confined to allegations of misappropriation of funds. It extends to the management of the company's affairs, the receipt and utilisation of its monies, the handling of its cash collections and the validity of corporate decisions taken in the course of those affairs. The company's accounting records, general ledgers, bank statements, payment vouchers, invoices and other contemporaneous financial records constitute primary documentary evidence of those matters. Their relevance to the matters in question is therefore established. [19] The application nevertheless extends beyond documents directly answering the pleaded allegations. Some categories of documents are framed in broad terms, including requests for all accounting records, bank statements and related financial documents over extended periods. Although many of those documents are capable of being relevant to the matters in question, Order 24 requires the Court to examine whether each category of documents sought is sufficiently connected with the pleaded issues and whether its production is necessary for the fair disposal of the action. Discovery is directed to matters in question arising on the pleadings; it is not a licence for a general examination of a party's affairs. To the extent that any category of documents is framed more broadly than the pleaded issues require, the Court must consider whether it satisfies the requirements of relevance and necessity under Order 24. [20] A separate consideration arises in relation to documents sought concerning the transfer of the 1st plaintiff's shares. The Statement of Claim records that the 1st plaintiff has commenced separate proceedings concerning those transfers. The merits of that personal claim are not before this Court. To the extent that documents are sought solely for the purpose of advancing that separate action, they do not relate to a matter in question in the present proceedings. That said, documents concerning the impugned resolutions and related corporate acts remain relevant insofar as they bear upon issues pleaded in this action concerning the validity of those resolutions and the management of the 2nd plaintiff's affairs. [21] The plaintiffs' reliance on Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said Ahmad & Ors [2025] 8 CLJ 567 (HC) does not advance the question of relevance beyond the established principles governing discovery. That decision answers particular objections to discovery, including the contention that audited accounts dispense with the need for production of the underlying documents and that an otherwise proper application becomes a fishing expedition merely because disclosure may incidentally implicate others. It does not dispense with the requirement that the documents sought relate to matters in question on the pleadings. That requirement remains as stated by the Supreme Court in Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, where Edgar Joseph Jr SCJ held that relevance is determined principally by reference to the pleadings and that the discovery obligation extends only to documents relating to matters in question in the action. For the reasons already given, the documents recording the company's accounting transactions, cash collections, banking activities and the impugned corporate resolutions satisfy that requirement. To the extent that documents are sought solely for the purposes of the 1st plaintiff's separate claim concerning the transfer of his shares, they do not. Nor are the documents relating to notices of meetings, attendance records and minutes irrelevant. The validity of the impugned corporate resolutions is itself a matter in question, and documents bearing upon that issue satisfy the test of relevance. Whether such documents exist, and whether they are or have been in the defendants' possession, custody or power, are separate questions, to which I now turn. Whether The Documents Are In The Possession, Custody Or Power Of The Defendants [22] This is the determinative question. An order under Order 24 rule 7 may be made only in respect of documents which are or have been in the possession, custody or power of the party against whom the order is sought. The applicant must establish that condition; it is not to be assumed. [23] The documents sought are, by their nature, the records of the 2nd plaintiff company. The 2nd plaintiff is itself a plaintiff in the action. Its records are therefore the records of a party on the same side of the record as the applicant, the action being prosecuted in the company's name and for its benefit by the 1st plaintiff with leave. The application, in substance, asks the court to compel the defendants to produce to the plaintiffs documents which belong to a co-plaintiff. It might be said that this difficulty is met by an admission in the affidavit evidence. Paragraph 7 of the 2nd defendant's affidavit in reply (Enclosure 11) acknowledges that the 1st plaintiff, as a shareholder, is entitled to inspect or obtain the company's documents, including those now sought. That entitlement, however, is distinct from the jurisdiction under Order 24 to compel discovery from a party to the action. It does not establish that the particular documents are in the possession, custody or power of these defendants, who are former officers of the company, rather than of the company itself. As the Supreme Court explained in Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, the three essential requirements for an order for discovery are the existence of a document, its relevance, and that it is or has been in the possession, custody or power of the party against whom discovery is sought. Moreover, the defendants' affidavit proceeds on the footing that the 1st plaintiff already possesses or has knowledge of many of the documents relied upon, having signed the audited accounts and the circular resolution and attended meetings with the auditors. Read as a whole, the affidavit does not materially advance the plaintiffs' case on the question of possession; if anything, it tends to support the defendants' contention that many of the documents are already available to the plaintiffs. Nor is the position altered because the defendants rely upon the audited accounts and circular resolution in answering the allegations. Reliance upon a document confirms its existence and its relevance; it does not, without more, establish that the document is in the possession, custody or power of these defendants, as distinct from the company itself. An entitlement to inspect company records, and a willingness to produce documents that are clearly identified, are directed respectively to inspection and identification. Neither answers the distinct requirement under Order 24 that the applicant establish that the documents are or have been in the possession, custody or power of the party from whom discovery is sought. [25] That difficulty is not merely theoretical on the present evidence. The 2nd defendant's affidavit (Enclosure 11), through Ekshibit Hafiz-2, exhibits documents said to correspond to a substantial part of those now sought and asserts that they have already been supplied to, or are otherwise available to, the plaintiffs' solicitors. The 1st plaintiff's affidavit in reply (Enclosure 13) does not directly answer that evidence. To the extent that the documents sought are already available to the plaintiffs, there is no basis for compelling their further discovery from these defendants. Discovery is a process directed to obtaining documents in the possession, custody or power of the opposing party. It is not a mechanism for requiring production of documents already available to the party seeking the order.That conclusion is consistent with the requirement stated in Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 that the documents sought must be shown to be in the possession, custody or power of the party against whom discovery is sought. [26] To the extent that company records relevant to the action are not presently held by the plaintiffs, the application still does not establish that the particular documents are in the possession, custody or power of the 1st to 4th defendants, as distinct from the company. The defendants are former officers; the records of a company are the records of the company. In a derivative action prosecuted in the company's name, the natural recourse for the production of the company's own records is to the company and to the rights of inspection that attach to that position, and not an order under Order 24 compelling former officers to produce records that the company itself holds or controls. The application does not bridge that gap by evidence. Discovery under Order 24 rule 7 is in any event confined to documents in the possession, custody or power of the party against whom the order is sought, and will not be ordered of documents not shown to be in that party's possession: Semantan Estate (1952) Sdn Bhd v The Government of Malaysia & Ors [2025] 8 CLJ 229 (CA). Whether that requirement is satisfied is a condition of the jurisdiction to order discovery; it falls to be determined on this application, and is not a matter to be deferred to the trial of the action. The requirement of possession, custody or power is therefore not satisfied, and on this ground alone the application cannot succeed. Whether Discovery And Production Are Necessary [27] The conclusion already reached is sufficient to dispose of the application. Because the point bears on any future application, I deal also with necessity. [28] Rules 8 and 13 of Order 24 require that discovery and production be necessary, either for disposing fairly of the action or for saving costs. Necessity is not made out here. The plaintiffs already hold the originals of a substantial part of the documents sought, as Ekshibit Hafiz-2 shows. Beyond that, the Statement of Claim itself demonstrates that the 1st plaintiff has already obtained and analysed the company's financial records: it pleads the findings of a special audit, sets out the company's takings in detail, and reproduces a transaction-by-transaction schedule of the company's bank account. An order compelling the defendants to produce material of which the plaintiffs are already possessed, and which they have already analysed, is not necessary either for the fair disposal of the action or for the saving of costs. The need to test and verify the transactions against the source documents does not alter that conclusion. The means of verification are, on the evidence, already in the plaintiffs' hands: they hold the originals of a substantial part of the documents, and they have already subjected the company's records to a special audit and reduced its banking to a transaction-by-transaction schedule. Necessity is not established by asserting a need to examine material of which the party is already possessed. [29] The authorities reinforce that conclusion. In Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2019] 10 CLJ 516 (CA), the Court of Appeal held that a mere assertion of relevance and necessity is insufficient, and that the applicant must provide a thorough and clear explanation demonstrating why the documents sought are relevant and necessary for the fair disposal of the action. That burden has not been discharged in respect of categories of documents that are already available to the plaintiffs or are sought in terms extending beyond the matters in issue. Likewise, the Court of Appeal in Tey Por Yee & Anor v Protasco Bhd and other appeals [2021] 1 MLJ 76 emphasised that the process of discovery must remain within its proper legal framework and should not be employed for purposes beyond those contemplated by the law governing discovery. Those principles reinforce the conclusion that discovery under Order 24 must be confined to documents shown to be relevant, necessary and within the possession, custody or power of the party against whom the order is sought. [30] There is a further and more fundamental difficulty in the timing of the application. The reliefs claimed in the action include orders that the defendants disclose on affidavit the source of the company's receipts and render an account of its takings. The present application seeks orders in substantially the same terms. To grant them now would be to award, at the interlocutory stage and before any issue has been tried, the very relief that the action exists to obtain. Discovery is a procedure for the production of existing documents relevant to the issues to be tried; it is not a means of securing in advance the account and inquiry that constitute the substantive relief claimed. So understood, the application is premature. [31] A separate consideration arises in relation to the documents sought concerning notices of meetings. The application seeks production of notices relating to the impugned corporate resolutions. The 2nd defendant's evidence, however, is that those resolutions were passed by written resolution. Section 297 of the Companies Act 2016 permits a private company to pass written resolutions without convening a meeting. If that evidence is correct, no notices convening meetings would have been issued and there would therefore be no such documents to produce. The Court cannot compel production of documents that do not exist. That conclusion does not affect the relevance of documents concerning the impugned corporate acts. The validity of those resolutions remains a matter in question, and any written resolutions or other corporate records that do exist are capable of satisfying the requirement of relevance. Their production, however, remains subject to the separate requirements that they are or have been in the defendants' possession, custody or power and that discovery is necessary. For the reasons already given, those requirements have not been established. [32] For completeness, the breadth and generality of the categories would in any event have prevented an order in the terms sought. An order for discovery must specify the documents to be produced with sufficient precision to be capable of compliance and enforcement. An order to disclose the source of all payments and income, and all sums received by or through any other party, over a period of years, does not meet that standard. Whether The Application Is A Fishing Expedition [33] A separate question is whether the application constitutes a fishing expedition, in the sense of an attempt to discover whether a cause of action exists rather than to obtain documents relevant to one already pleaded: see Tey Por Yee & Anor v Protasco Bhd and other appeals [2021] 1 MLJ 76. In my judgment, it does not. The plaintiffs' causes of action have already been pleaded, and the documents are sought in support of issues already joined. Nor does the mere breadth of an otherwise proper application necessarily render it a fishing expedition, as recognised in Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said Ahmad & Ors [2025] 8 CLJ 567 (HC). The documents sought are identified with a fair degree of precision by reference to specified accounting records, accounting periods, bank statements, figures appearing in the audited accounts and corporate resolutions said to have been passed on identified dates. An application so framed, directed to documents relevant to pleaded issues, is not the indiscriminate search that the expression "fishing expedition" connotes. The application nevertheless fails for different reasons. A substantial part of the documents sought has already been shown to be available to the plaintiffs; the plaintiffs have not established that the documents are or have been in the possession, custody or power of these defendants; and, for the reasons already given, the requirement of necessity has likewise not been satisfied. F. CONCLUSION [34] The requirement of relevance is satisfied only in part. It is met in respect of the documents recording the company's accounting transactions, cash collections, banking activities and the impugned corporate resolutions. It is not satisfied in respect of categories of documents extending beyond the matters in issue on the pleadings or, to the extent that documents are sought solely for the purposes of the 1st plaintiff's separate claim concerning the transfer of his shares. [35] The application also fails to satisfy the requirement that the documents sought are or have been in the possession, custody or power of the defendants. The documents sought are, by their nature, the records of the 2nd plaintiff, itself a co-plaintiff in the action. The evidence further shows that documents corresponding to a substantial part of those now sought have already been supplied to, or are otherwise available to, the plaintiffs. The application does not establish that the particular documents are in the possession, custody or power of these defendants, as distinct from the company itself. [36] Discovery is, in any event, not shown to be necessary for the fair disposal of the action. The plaintiffs have not demonstrated why further discovery should be ordered in respect of categories of documents already shown to be substantially available to them, nor have they established necessity in relation to documents not shown to be within the defendants' possession, custody or power. So far as the application seeks notices of meetings, the evidence is that the impugned resolutions were passed by written resolution pursuant to s.297 of the Companies Act 2016, with the result that no such notices were issued. G. ORDERS OF THE COURT [38] I therefore make the following orders:

Enclosure 7 is dismissed.

The dismissal is without prejudice to the plaintiffs' right to make any further application under Order 24 of the Rules of Court 2012 for discovery of specified documents, properly constituted and supported by evidence establishing their relevance, necessity, and that they are or have been in the possession, custody or power of the party against whom discovery is sought.

The costs of this application shall be paid to the Defendants in the sum of Rm 1,500. (MELAKA) Lawyer For Plaintiffs : Puan Florencia a/p A. Sandanasamy Tetuan Florencia & Partners Peguambela dan Peguamcara No. 73-3, Plaza Damansara' Jalan Medan Setia 1, Bukit Damansara, 50490 Kuala Lumpur. Lawyer For Defendants : Encik Mohd Nazri bin Abd Hamid Tetuan Ms. Abu Dzarr & Nazri Peguambela dan Peguamcara No. 29-1, Jalan KF4, Kota Fesyen, MITC, 75450 Ayer Keroh, Melaka.