1. ) Chan Kah Lon v 1. ) Chin Jia Yee (WA-22NCC-609-09/2024)

CHAN KAH LON

CHAN SEE MAI (NRIC NO.: 710619-01-5078) ...PLAINTIFFS

CHIN JIA YEE

CHIN THIEN CHOY

GIRONA VETERINARY SDN. BHD. [COMPANY NO.: 201101040162 (968284-

U)] SOLE BIZ SDN. BHD. [COMPANY NO.: 201701006784 (1220949-K)] ...DEFENDANTS GROUNDS OF JUDGMENT [1] This judgment concerns a discovery application in a conspiracy claim involving corporate misappropriation and abuse of legal process, where the central company has been wound up by court order. [2] The application raises questions about the scope of documentary discovery in commercial litigation, burden of proof requirements, and proper party selection, with disputes over the company's winding up circumstances and alleged document destruction or concealment. [3] The matter involves competing principles regarding corporate legal personality, former shareholders' and directors' rights, and document preservation in wound-up entities, requiring the court to balance legitimate discovery needs against overly broad applications. [4] The application will be assessed against established criteria including document existence, respondents' possession or control, relevance to disputed issues, and necessity for fair disposal of proceedings. BACKGROUND FACTS [5] In 2008, the 1st Plaintiff Chan Kah Lon (“P1”) became acquainted with the 1st Defendant Chin Jia Yee (“D1”) whilst both were employed at Hipra Malaysia Sdn Bhd, where P1 served as D1’s superior. [6] In 2011, P1 established the 3rd Defendant Girona Veterinary Sdn Bhd (formerly known as Hyoid Sdn Bhd) (“D3”), a company engaged in the veterinary pharmaceutical industry. At its inception on 15.11.2011, the company's shareholders comprised Wu Chee You (D1’s brother-in-law) and Pang Jian Shuh (related to D1). P1 invited D1 to assist in the management of D3. [7] In 2012, P1 founded another veterinary pharmaceutical company, Scalenus Sdn Bhd (“Scalenus”), which was incorporated on 2.2.2012. At its inception, the shareholders of Scalenus were the 2nd Plaintiff Chan See Mai (“P2”) (P1's elder sister) and the 2nd Defendant Chin Thien Choy (D1's father) (“D2”). [8] From 2012 to 2021, P1's veterinary licence was used for the registration and marketing of veterinary pharmaceutical products for both D3 and Scalenus. The operations of both companies were closely intertwined, sharing office premises, business resources, and human capital. [9] On 17.2.2016, a letter purportedly signed by P2 was created, authorising the transfer of importation of veterinary pharmaceutical products manufactured by Formosa Biomedical Inc from Scalenus to D3. On 19.3.2023, P2 lodged a police report alleging that she had never signed this letter and that the signature appearing thereon was forged. On 20.3.2023, P2 submitted a complaint to the Companies Commission of Malaysia regarding the alleged forgery. [10] In January 2023, the Plaintiffs requested a comprehensive review of the financial accounts and operational procedures of Scalenus and D3. The Plaintiffs proposed a joint visit to examine the financial records at the company premises, but D1 insisted that any audit review be conducted at the auditors' office instead. The Plaintiffs contend that P2, despite being a director and shareholder of Scalenus, was repeatedly denied access to the company records. [11] On 11.3.2023, D2 lodged a police report alleging that Scalenus' documents had been damaged due to termite infestation on 10.1.2023 and rain damage on 1.3.2023 and 3.3.2023, resulting in the purported loss of critical financial data. [12] In March 2023, D3 instituted legal proceedings against Scalenus at Kuala Lumpur Sessions Court in Suit No. WA-A52NCVC-252-03/2023 (“Suit 252”), seeking RM103,000 for unpaid warehouse storage fees. D2, who was a director of Scalenus at the material time, was served with the legal documents but failed to notify the Plaintiffs or appoint solicitors on behalf of Scalenus. Consequently, a Judgment in Default was entered against Scalenus on 13.4.2023. [13] D3 subsequently relied on the Judgment in Default to file a winding-up petition against Scalenus at Kuala Lumpur High Court in Company Winding Up No. WA-28NCC-414- 05/2023 (“Petition 414”). This resulted in a winding-up order being made against Scalenus on 29.11.2023. [14] In May 2024, P2 received a letter from the Malaysian Department of Insolvency informing the Plaintiffs that Scalenus had been wound up pursuant to the court order dated 29.11.2023. The Plaintiffs were unaware of the Suit 252 and Petition 414 until they conducted an e-filing search. [15] On 10.9.2024, the Plaintiffs filed their Writ and Statement of Claim in this action. On 18.9.2024, the Plaintiffs filed an Amended Writ. The Defendants subsequently filed their respective Defences and Counterclaims, with the D1, D3 and D4 filing on 30.10.2024 and D2 filing on 2.12.2024. [16] On 18.12.2024, the Plaintiffs filed a Discovery Application against the Defendants pursuant to Order 24 Rules 3, 7 and 11 of the Rules of Court 2012. THE PLAINTIFFS' APPLICATION IN ENCLOSURE 35 [17] The Plaintiffs seek discovery of documents from the Defendants in three distinct categories. [18] The first category comprises documents related to Scalenus against D1 and D2, covering the period from 2015 until 29.11.2023. These include comprehensive financial records such as account statements, ledgers, bank account statements, payment receipts, letters of credit, credit notes, and debit notes. The Plaintiffs also seek trading documentation including inventory records, purchase orders, packing lists, quotations, invoices issued by and received by Scalenus, and orders issued by and received by Scalenus. Additionally, they require regulatory records comprising import permits and records in the Product Registration & Licensing System QUEST3+ under the National Pharmaceutical Regulatory Division of the Ministry of Health Malaysia, as well as all emails and correspondences related to Scalenus' operations during the material period. [19] The second category mirrors the first but pertains to documents related to D3 against D1 and D3. The Plaintiffs seek identical categories of documents as specified for Scalenus, covering D3's operations from 2015 to the present date. [20] The third category encompasses all documents that have been specifically mentioned, referenced, or relied upon by D1, D3 and D4 in their Defence and Counterclaim. This follows from the Plaintiffs' Notice to Produce Documents served on 20.11.2024, which received no response from the relevant Defendants. [21] The application is founded upon Order 24 Rules 3, 7 and 11 of the Rules of Court 2012. The Plaintiffs assert they have satisfied the established three-fold test for discovery, namely the existence of documents, their relevance to matters in issue, and that the documents are within the possession, custody or power of the Defendants. [22] The Plaintiffs contend the documents are directly relevant to establishing their core allegations of conspiracy and P1's beneficial interest in the companies. They argue the documents are necessary to prove P1's alleged 70% interest in Scalenus, demonstrate the systematic exclusion of the Plaintiffs from corporate operations, and establish coordinated actions between the Defendants to deprive them of their interests. The financial records are said to be essential for assessing the true profitability of both companies and calculating profits that should have accrued to P1 under the alleged arrangements. [23] The Plaintiffs maintain that discovery is necessary for the fair disposal of the matter given their systematic exclusion from access to corporate information despite their claimed interests in the companies. They emphasise that the Defendants' control over the relevant entities places the necessary documentation within their power, and that no alternative means exist for the Plaintiffs to obtain this evidence to support their pleaded case. SUMMARY OF PARTIES' SUBMISSIONS Plaintiffs’ submissions [24] The Plaintiffs argue they have satisfied the three-fold test for discovery, demonstrating the existence of documents, their relevance to matters in issue, and that such documents are within the Defendants' possession, custody or power. They contend the documents sought are specific classes directly relevant to their pleaded case, not a “fishing expedition.” [25] Central to their argument is that they have been systematically excluded from access to corporate information despite their claimed beneficial interests. They maintain that P1's alleged 70% interest in Scalenus and the conspiracy to deprive them of their rights necessitates access to corporate records. The documents are said to be essential to establish the true financial position of both companies, assess profits that should have accrued to them, and demonstrate alleged diversion of business opportunities. [26] In oral submissions, they characterise the timing of D2's police report about document destruction as “very suspicious” and argue it is illogical for a company of such scale to have no soft copies. They address the apparent contradiction between claiming control and seeking discovery by explaining this paradox lies at the heart of their conspiracy claim - that P1 previously controlled the companies but lost control due to the alleged conspiracy. [27] The Plaintiffs also raise a preliminary objection that D2's second Affidavit in Reply was filed without obtaining prior leave of court and should be disregarded. D1, D3 and D4’s Submissions [28] D1, D3 and D4 maintain they have already disclosed all relevant documents and have acted transparently throughout the proceedings. They characterise the Plaintiffs' application as a “fishing expedition” that is overly broad, speculative, and amounts to a speculative search for evidence rather than a genuine application for known documents. [29] The Defendants argue that P1, despite his claims of control, should have access to Scalenus documents if he indeed controlled the company. They contend the Plaintiffs have failed to demonstrate with sufficient clarity how the requested documents are relevant or necessary for resolving the issues in dispute. Many of the requested documents either do not exist, are not within their possession, or will be addressed through oral evidence at trial. [30] In oral submissions, the Defendants stated that the Plaintiffs had already requested documents from the liquidator of Scalenus, highlighting what they characterise as a contradiction in the Plaintiffs' positions. They emphasise the practical impossibility of producing documents from a wound-up company and argue the Plaintiffs should pursue remedies against the liquidator rather than the Defendants. D2’s Submissions [31] D2 claims that all relevant documents have been destroyed by termites and rain, as documented in a police report. He argues P1 has no right to examine Scalenus documents as he is merely an “outsider” to the company. If P1 requires corporate documents, he should request them from P2 who is also a director, or examine them through the company's auditors. [32] D2 emphasises he was not involved in Scalenus' management and was genuinely ill during the material period, instructing D1 to respond to emails on his behalf. He argues the discovery application against him is inappropriate given that any documents he possessed have been destroyed and P2, as a fellow director, would have access to the same corporate information. ANALYSIS AND FINDINGS OF THE COURT Preliminary Objection [33] The Plaintiffs raise a preliminary objection that D2's second affidavit in reply (“D2AIR2”) filed as Enclosure 93 on 21.2.2025 contravenes Order 32 Rule 13(2) of the Rules of Court 2012. The facts are undisputed: this court gave clear directions on 19.12.2024 for the Defendants to file affidavits in reply by 9.1.2025, which deadline D2 met by filing D2AIR on 7.1.2025. After all parties had completed the directed exchange of affidavits by 12.2.2025, D2 unilaterally filed a second affidavit without seeking or obtaining leave of court. [34] The law is settled that affidavits filed out of time or outside court directions require leave of court. In Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd [2024] MLJU 2608, the High Court held that an additional affidavit filed without leave of court was “undeniably” not in compliance with Order 32 Rule 13(2). Similarly, in Zuliaha bt Selamat & Anor v Majlis Amanah Rakyat & Anor [2023] MLJU 2012, the High Court ruled that an additional affidavit filed against court directions and without leave “will not be considered”. D2 has offered no explanation for this procedural breach, and to condone such conduct would undermine the orderly administration of justice and create unfairness to other parties who complied with court directions. [35] Accordingly, the preliminary objection is upheld. Enclosure 93 (D2AIR2) is disregarded in its entirety and will not be considered in determining this application. The court shall proceed based solely on the properly filed affidavits, including D2's first affidavit in reply filed on 7.1.2025. First Category: Scalenus Documents) [36] The Plaintiffs sought discovery of operation records, transactions, and inventory records relating to Scalenus against D1 and D2, contending that such documents are necessary to prove their alleged conspiracy to defraud by systematically stripping Scalenus' business. [37] The Plaintiffs argued that the documents are required to trace the flow of goods and funds from Scalenus to D4, determine Scalenus' financial condition before winding up, and establish that the winding up was based on a fabricated judgment involving a memorandum of understanding. [38] As to possession, the Plaintiffs maintained that D2 must have these documents as the director of Scalenus who was “the main person involved in operations,” and that D1 has control because D2 was “acting under instructions and control of D1.” They further contended that as director, D2 “ought to have possession of all those documents.” [39] The Plaintiffs dismissed the Defendants' argument that documents should be sought from the liquidator, characterising this as fundamentally flawed given the nature of their conspiracy claim where defendants allegedly concealed and manipulated key documents. [40] The Defendants contended that the discovery application fails on multiple grounds established in Yekambaran s/o Marimutu v Malayawata Steel Bhd [1994] 2 CLJ 581 (High Court), namely that there must be a document that is relevant and in the possession, custody or power of the party against whom discovery is sought. [41] The Defendants argued that as Scalenus is a wound-up company, its documents properly belong with the liquidator, not with the defendants. They submitted that D1, having never been a director or shareholder of Scalenus, has no connection with the company and cannot be compelled to produce documents not in her possession. [42] As for D2, the Defendants evidenced that he had lodged a police report on 11.3.2023 stating that Scalenus' documents were damaged by termites and water, with the surviving documents being thrown away by Indonesian workers. [43] The Defendants further submitted that the proper procedure would be an application against the liquidator pursuant to Order 24 Rule 7A of the Rules of Court 2012, citing Tan Bak Lee v Chen Siew Lee & Ors [2023] MLJU 1671 (High Court) which held that documents in possession of third parties should be sought through the specific provision in Rule 7A. [44] They highlighted that the Plaintiffs had already written to the liquidator on 12.12.2024 seeking the same documents, yet proceeded with this application despite no evidence that the liquidator declined to provide them. [45] Having considered the submissions and evidence before me, I find that the Plaintiffs' application for discovery of the first category of documents must be dismissed on several compelling grounds. [46] It is well-established law that a company is a separate legal entity distinct from its members and shareholders. Upon the winding up of Scalenus pursuant to the court order dated 29.11.2023, the proper custody of the company's documents passed to the liquidator appointed by the court. The Defendants correctly submitted that the documents belonging to Scalenus are not within their possession, custody or power, but rather in the possession of a third party, namely the liquidator. This principle was clearly articulated in Tan Bak Lee, where it was held that “for documents that are in the possession of a third party such as an agreement document to which the Plaintiff is not a party, the application cannot be made to the Defendants. This is because there is a special provision in Rule 7A of the ROC 2012 to enable it to be obtained.” [47] The essential requirement in Yekambaran s/o Marimutu v Malayawata Steel Bhd is that documents must be “in the possession, custody or power” of the party against whom discovery is sought. The evidence before me establishes that D1 has never been a director or shareholder of Scalenus and has no connection with the wound-up company. Mere allegations in pleadings, without supporting evidence, are insufficient to establish possession, custody, or power over Scalenus documents. There is no credible evidence adduced by the Plaintiffs to establish that D1 is a proxy of D2 or that D2 was acting under D1's instructions regarding Scalenus documents. The Plaintiffs' assertion of such control is merely pleaded without evidentiary support in this discovery application. [48] As to D2, the evidence from D2's earlier affidavit in Enclosure 50 shows that he lodged a police report on 11.3.2023, which provides contemporaneous evidence of document destruction due to natural causes (termites and water damage). Significantly, this police report was made months before this litigation commenced, lending credibility to his explanation for the absence of documents. The report documented that Scalenus documents stored in the warehouse were damaged by termites and those brought home were destroyed due to water damage from a leaking roof when “Indonesian workers threw away the documents.” While the Plaintiffs characterise the timing as suspicious, coming after their January 2023 request for documents, the contemporaneous nature of the police report, made well before any litigation was contemplated, supports the genuineness of D2's explanation. D2's advanced age and health condition, where it was stated in D2’s Defence that he was “old, sick, and unable to lift boxes,” provide a plausible explanation for the poor storage and subsequent destruction of documents. [49] The Plaintiffs have failed to establish necessity, particularly when alternative means exist for obtaining relevant information and when proper procedural channels are available for documents from wound-up companies. The evidence clearly demonstrates that the Plaintiffs have alternative and more appropriate means of obtaining the documents sought. The Defendants highlighted a letter dated 12.12.2024 from the Plaintiffs’ solicitors showing that the Plaintiffs had already requested the same documents from the liquidator, seeking 16 items including inventory record, imported permits, purchase order and packing. Significantly, there is no evidence before this court that the liquidator has refused to provide these documents or indicated they are not in the liquidator's possession. The Plaintiffs proceeded with this application despite no evidence that the liquidator declined to provide the requested documents, highlighting the lack of necessity for seeking discovery from the Defendants. Additionally, D2 specifically informed the Plaintiffs that documents could be obtained from Scalenus' appointed auditor, B.L. Tan & Co., who was appointed by P2 herself. As P2 is a director of Scalenus who appointed the auditor, she retains the right to request company documents from the auditor. [50] The proper procedure for obtaining documents from third parties is clearly set out in Order 24 Rule 7A of the Rules of Court 2012. The current application under Rules 3 and 7 against the Defendants is procedurally improper when the documents are properly in the custody of the liquidator. The case of Tan Bak Lee specifically addresses this situation and mandates the use of Rule 7A provisions. [51] While the Plaintiffs argue that their conspiracy claim justifies departure from normal discovery principles, this argument cannot succeed. The nature of the Plaintiffs' claim, whether for conspiracy or otherwise, does not alter the fundamental requirement that discovery can only be ordered against parties who have possession, custody or power over the documents sought. The established legal principle that companies are separate legal entities and that wound-up companies' documents belong with liquidators cannot be circumvented merely by alleging conspiracy. To allow otherwise would effectively collapse the corporate veil without proper legal basis. [52] The Defendants correctly highlighted a fundamental inconsistency in the Plaintiffs' case. In their pleadings at paragraph 7.5 of the Statement of Claim, P1 claims to be “the individual who actually manages and controls Scalenus and D3 at all times or through D1.” Yet P1 simultaneously seeks discovery from third parties for documents of companies he claims to control. This contradiction undermines the credibility of the discovery application and suggests that the true purpose may be exploratory rather than based on genuine inability to access documents within the Plaintiffs' own control. [53] For the foregoing reasons, I find that the Plaintiffs have failed to satisfy the essential requirements for discovery established in Yekambaran s/o Marimutu v Malayawata Steel Bhd and subsequent authorities. The documents sought are not within the possession, custody or power of D1 and D2, but properly belong with the liquidator of the wound-up company. The Plaintiffs have available alternative and more appropriate remedies through the liquidator and the company's auditor. The application is also procedurally improper under the Rules of Court 2012. [54] Accordingly, the application for discovery of the first category of documents (Scalenus documents) is dismissed. Second Category: D3 Documents [55] The Plaintiffs seek discovery of documents relating to D3's operations and transactions against D1 and D3. The Plaintiffs argued that such documents are critical to assess the profits made by D3 through allegedly diverting business from Scalenus. They contended that the documents are necessary to determine whether Scalenus' suppliers and clients were shifted to D3, and to evaluate authorisation letters which they claim were fabricated to transfer goods from Scalenus to D3. In terms of possession, the Plaintiffs submitted that D3 as the company itself must have all operational documents, whilst D1, being the director of D3, ought to have access to these documents. The Plaintiffs specifically sought comprehensive categories of documents including inventory records, import permits, purchase orders, packing lists, payment receipts, letters of credit, bank account statements, credit notes, debit notes, quotations, NPRA QUEST3+ records, account statements and ledgers, invoices issued by and received by D3, all emails and correspondence relating to D3's operations, and all orders issued by and received by D3 from the year 2015 until the filing of the action. [56] The Defendants strenuously opposed the application on multiple grounds. Firstly, they argued that P1 has no legal standing to seek discovery of D3's documents as he is a stranger to D3, having sold his shares through his proxy Wu Chee You to D1 in 2015 for RM300,000.00. The Defendants submitted that P1 has repeatedly admitted in multiple affidavits that he has no interest whatsoever in D3. They relied on P1's own sworn statements in his affidavit dated 10.11.2021 where he stated “Responden Kedua (referring to D1) sendiri yang meneruskan Syarikat Cadangan Pempetisyen”, thereby admitting that D1 is the sole owner who runs D3 on her own. The Defendants further cited P1's affidavit of 10.11.2021 stating “saya tidak mungkin memegang saham-saham dan/atau jawatan di Girona”, and his affidavit of 25.1.2022 declaring “Saya tidak mempunyai apa-apa kepentingan di Girona”. The Defendants emphasised that P1's Affidavit of Means affirmed on 31.1.2023 also confirmed that P1 does not have any asset or interest in D3 and Scalenus. [57] The Defendants submitted that the requested documents encompass the entirety of D3's documents and constitute a fishing expedition contrary to established principles. They argued that P1 has no legal basis to seek discovery of D3's documents when he repeatedly asserted having no connection with D3. The Defendants contended that the requested documents are neither relevant nor specifically identified, being overly broad and ambiguous without specification of exact documents required. They relied on the authority of M Wealth Corridor Sdn Bhd v BJ Properties Sdn Bhd & Ors [2021] MLJU 2157, where the High Court dismissed a discovery application for being too wide-ranging and constituting a fishing expedition. The Defendants also cited Natasha Beverly Dental Sdn Bhd v Arlena Philip Lee, decided by Ahmad Shahrir Mohd Salleh J in the Kuala Lumpur High Court Suit No. WA-12NCVC-189- 12/2023, which held that a discovery application amounts to a speculative search for evidence in the hope of uncovering information that might support claims, rather than a genuine application grounded on documents known to be in possession. [58] The Defendants further argued that P1 owns a competing business (Fisterra Sdn Bhd), raising legitimate concerns regarding potential misuse of confidential business information relating to D3's clients and distributors. They submitted that the documents requested are too wide, covering a duration of about 10 years from 2015, when companies under law are only required to keep documents for 7 years. The Defendants maintained that this constitutes an improper shifting of the burden of proof, relying on Section 103 of the Evidence Act 1950 and the case of Lionex (M) Sdn Bhd v Allen Lim Lai Wah & Ors [2016] MLJU 967 (High Court). [59] Having carefully considered the submissions of both parties and examined the evidence presented, this court finds that the Defendants' objections are well-founded and must be sustained. [60] The fundamental impediment to the Plaintiffs' application lies in P1's complete lack of legal standing to seek discovery of D3's documents. The evidence overwhelmingly establishes that P1 divested himself entirely of any interest in D3 when he sold his shares through his proxy Wu Chee You to D1 in 2015 for the sum of RM300,000.00. This transaction was not disputed, and P1's subsequent conduct and sworn statements unequivocally confirm his severance from D3. In his affidavit dated 10.12.2021, P1 explicitly admitted that D1 is the sole owner who runs D3, stating “Responden Kedua sendiri yang meneruskan Syarikat Cadangan Pempetisyen”. This admission is particularly damaging to his current position, as it directly contradicts any claim of continuing interest or entitlement to D3's proprietary information. [61] P1's pattern of consistent denial of interest in D3 is evidenced by multiple sworn statements. His affidavit of 10.12.2021 declared “saya tidak mungkin memegang saham-saham dan/atau jawatan di Girona”, whilst his affidavit of 25.1.2022 stated “Saya tidak mempunyai apa-apa kepentingan di Girona”. Most significantly, his Affidavit of Means of 31.1.2023 confirmed that he possesses no asset or interest in either D3 or Scalenus. These contemporaneous admissions, made under oath, demonstrate beyond doubt that P1 has deliberately and consistently positioned himself as having no legal or equitable connection to D3. Having taken this stance repeatedly, he cannot now seek to resile from these admissions for the expedient purpose of obtaining access to confidential corporate documents. [62] The principle established in company law that a company and its shareholders constitute separate legal entities further reinforces the conclusion that P1, having divested his shareholding, possesses no residual rights to D3's internal documents. The transaction in 2015 severed any fiduciary relationship or legitimate expectation of access to D3's records that P1 may have previously enjoyed. The corporate veil principle ensures that former shareholders cannot, merely by virtue of past association, claim entitlement to inspect current corporate records. [63] This court is particularly persuaded by the Defendants' submission that the present application constitutes a fishing expedition prohibited by established discovery principles. The decision in M Wealth Corridor Sdn Bhd is directly analogous, where the High Court dismissed an overly broad discovery application, holding that “the Court will not allow such a wide-ranging discovery as its sole purpose is to fish for possible claims and defence. Discovery in these circumstances will be tantamount to being oppressive.” The sweeping nature of the Plaintiffs' request, encompassing virtually all documents in D3's possession over a ten-year period, bears the hallmarks of speculative evidence-gathering rather than targeted discovery of known relevant materials. [64] The principle enunciated in Natasha Beverly Dental Sdn Bhd v Arlena Philip Lee is particularly apt. The court observed that a discovery application which constitutes “a speculative search for evidence in the hope of uncovering information that might support claims” rather than a genuine application grounded on documents known to be in the Defendants' possession, custody, or power must fail. The present application exhibits precisely these defects. The Plaintiffs have not demonstrated knowledge of specific documents or their relevance to particular issues in dispute, but rather seek wholesale access to D3's entire documentary universe in the hope of discovering supportive evidence. [65] The lack of specificity in the Plaintiffs' request further undermines its legitimacy. The categories sought are so broad and generic as to be practically meaningless - “kesemua email-email dan surat-suratan” and “invois-invois yang dikeluarkan oleh D3 sejak 2015” provide no meaningful limitation or focus. This falls far short of the standard established in Folin & Brothers Sdn Bhd v Wong Foh Ling & Ors (No. 2) [2001] 5 CLJ 476 (High Court), where Abdul Malik Ishak J (as he then was) emphasised that discovery demands must be comprehensive, itemised and specific, as “frankness would be the touchstone for the affidavit of discovery.” [66] The court also notes with concern the potential for misuse of confidential commercial information. The evidence establishes that P1 operates a competing business through Fisterra Sdn Bhd. Granting him access to D3's client lists, supplier information, pricing structures, and operational details would create an obvious risk of unfair commercial advantage. The law of discovery is not intended to facilitate industrial espionage or provide competitive intelligence to business rivals masquerading as litigants. [67] The temporal scope of the request further exposes its excessive nature. Seeking documents spanning a decade from 2015 to the present exceeds reasonable discovery bounds, particularly when companies are typically required to retain records for only seven years under applicable regulations. This duration suggests an attempt to conduct a comprehensive audit rather than obtain specific materials relevant to identified legal issues. [68] The application also fails on grounds of necessity. The Plaintiffs have failed to establish that discovery from the Defendants is necessary when alternative means exist for obtaining relevant information through proper legal channels. P1's ownership of a competing business through Fisterra Sdn Bhd while seeking comprehensive access to D3's commercial information raises serious concerns about the genuine purpose of this discovery application and whether it constitutes an attempt to obtain competitive intelligence rather than evidence genuinely necessary for the fair disposal of these proceedings. [69] The burden of proof principles established in Lionex (M) Sdn Bhd v Allen Lim Lai Wah & Ors confirm that it is incumbent upon the Plaintiffs to prove their case rather than requiring Defendants to disprove it. Section 101(1) of the Evidence Act 1950 places the evidential burden on those who assert facts, whilst Section 102 requires that the burden lies on the party who would fail if no evidence were given. The Court of Appeal's decision in Selvaduray v Chinniah [1939] 8 MLJ 253 established that plaintiffs must establish their case independently, and cannot succeed merely by claiming defendants have failed to establish theirs. The present application represents an improper attempt to shift this fundamental burden by compelling defendants to produce evidence to support the plaintiffs' allegations. [70] For the foregoing reasons, this court finds that the Plaintiffs' application for discovery of D3 documents fails on multiple grounds. P1 lacks the requisite legal standing having divested all interest in D3 and repeatedly sworn to having no connection with the company. The request constitutes an impermissible fishing expedition characterised by excessive breadth, lack of specificity, and speculative purpose. The application seeks to improperly shift the burden of proof whilst creating unacceptable risks of confidential information misuse. The discovery sought exceeds reasonable temporal bounds and fails to satisfy established legal requirements for focused, relevant, and necessary document production. The application in respect of the Second Category of documents is accordingly dismissed. Third Category: Documents Pleaded in Defence and Counterclaim [71] The Plaintiffs submitted that documents referred to in D1, D3 and D4's Defence and Counterclaim fall within the third category of documents sought for discovery. Their position was straightforward: these documents are clearly within the Defendants' possession since they have specifically referred to them in their pleadings. The Plaintiffs argued that such documents mentioned or referred to by D1, D3 and D4 in their Defence and Counterclaim must be in their possession, custody and/or power. They contended that on 20.11.2024, they had filed a Notice to Produce Documents Referred to in Pleadings pursuant to Order 24 Rule 10 of the Rules of Court 2012, which was served on the previous solicitors of D1, D3 and D4. However, they claimed that as of the date of filing the Discovery Application, they had received no Notice where Documents May be Inspected pursuant to Order 24 Rule 10, nor had D1, D3 and D4 provided any response regarding the Notice to Produce Documents. [72] D1, D3 and D4 contended that not every paragraph of their Defence and Counterclaim contained pleaded documents, but those documents which they possessed had already been produced in Enclosure 48, D1, D3 and D4’s Affidavit in Reply. They further argued that the other documents requested were non-existent and ought to be rejected. The Defendants also stated that they “have already disclosed all documents that are relevant and specifically pleaded in their respective Defences, in line with the objective of ensuring the fairness and integrity of these proceedings.” They submitted that the remaining documents sought by the Plaintiffs were either not within their possession, custody, or power; failed to satisfy the legal threshold for discovery; or were matters that would be addressed and substantiated through oral evidence at trial. [73] Having carefully considered the submissions of both parties and the materials before this court, I find that the Defendants' position is to be preferred for the following reasons. [74] The fundamental principle governing discovery applications is established in Yekambaran s/o Marimutu, which sets out the three-fold test requiring that there be a document, that the document is relevant, and that the document is in the possession, custody or power of the party against whom the order for discovery is sought. The burden lies squarely upon the applicant to satisfy all three limbs of this test. [75] In the present case, the Defendants have provided specific evidence that they have already complied with their obligations regarding documents referred to in their pleadings. The Defence has categorically stated that all documents that are relevant and specifically pleaded in their respective Defences have been disclosed, and those documents which they possess have already been produced in Enclosure 48. This constitutes a clear and unambiguous statement of compliance with their discovery obligations. [76] The legal position is further clarified by examining the Defendants' approach to this category. Unlike the first two categories where the Plaintiffs sought broad classes of documents, the third category specifically relates to documents that have been mentioned or referred to in the Defendants' own pleadings. The Defendants have acknowledged this distinction and have responded accordingly by producing in Enclosure 48 those documents which exist and are in their possession. [77] The case of Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335 (High Court) emphasises that a party seeking discovery must identify specific documents or classes of documents that are relevant to the issues to be determined at trial. Where defendants have already produced the relevant documents they possess relating to their pleadings, the court will not compel production of documents that do not exist or are not in their possession. [78] The principle in Lionex (M) Sdn Bhd v Allen Lim Lai Wah & Ors is instructive here. Section 101(1) of the Evidence Act 1950 provides that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. It is incumbent upon the Plaintiffs to establish their case through their own evidence, rather than compelling the Defendants to produce documents that either do not exist or have already been disclosed. [79] The Defendants' submission that they have disclosed what exists and that other requested documents are non-existent is consistent with their overarching obligation to provide candid discovery. As stated in Folin & Brothers Sdn Bhd, frankness is the touchstone for the affidavit of discovery. When defendants state categorically that they have produced what exists and that other documents do not exist, this must be accepted unless there is credible evidence to the contrary. [80] The timing and procedural aspects also support the Defendants' position. The Plaintiffs filed their Notice to Produce Documents on 20.11.2024, yet the Defendants have demonstrated through Enclosure 48 that they have already addressed this requirement by producing the relevant documents in their possession. The fact that the Plaintiffs have not received a formal Notice where Documents May be Inspected does not automatically entitle them to a discovery order when the substance of what they seek has already been provided. [81] Furthermore, this court notes that the Defendants' position is consistent with the established principle that discovery should not be used as a mechanism to compel parties to assist in building a case against themselves. As held in Kenanga Investors Bhd v Zulrafiq Capital Sdn Bhd & Anor [2025] 8 MLJ 288 (High Court), the court cannot allow discovery to be used as a mechanism to build the plaintiff's case through the defendant's documents. This would effectively require defendants to assist in proving allegations made against themselves, which would be an improper reversal of the burden of proof. [82] The evidence before this court establishes that the Defendants have acted in good faith by producing in Enclosure 48 specific documents within their possession that are relevant to their pleadings. From the materials exhibited in Enclosure 48, the court notes that certain key documents referred to in the Defence and Counterclaim have been produced, including: an email dated 6.9.2017 from P1 to Avivac representatives containing the statement "Let's put GIRONA the company aside in this discussion, because there is no product registered for GIRONA to sell now" as referred to in paragraph 11.22 of the Defence and Counterclaim; the Memorandum of Understanding dated

1.2.2012 between Scalenus and D3 as referred to in paragraph 15.10 of the Defence and Counterclaim; and the letter dated 17.2.2016 from Formosa Animal Health Sdn Bhd to D3 transferring importation rights as referred to in paragraph 18 of the Defence and Counterclaim. The Defendants' clear statement that other requested documents do not exist must be accepted as part of their duty of candour in discovery proceedings. [83] In conclusion, I find that the Defendants have satisfied their obligations regarding the third category of documents. They have produced what exists within their possession relating to their pleadings and have provided clear evidence that other documents requested by the Plaintiffs do not exist. The application for discovery in respect of the third category therefore fails and must be dismissed. CONCLUSION [84] Having carefully considered all submissions, evidence, and applicable legal authorities, this court finds that the Plaintiffs' discovery application must be dismissed in its entirety. The application fails to satisfy the fundamental requirements established in Yekambaran s/o Marimutu v Malayawata Steel Bhd across all three categories of documents sought. In respect of the first category, the Scalenus documents are properly within the custody of the court-appointed liquidator rather than the Defendants, and the Plaintiffs have available alternative remedies through Order 24 Rule 7A proceedings against the liquidator and through the company's auditor. The second category fails due to P1's complete lack of legal standing to seek D3's documents, having divested all interest in the company and repeatedly sworn under oath to having no connection with it, whilst the breadth and speculative nature of the request constitutes an impermissible fishing expedition. The third category fails as the Defendants have demonstrated compliance with their discovery obligations by producing relevant documents in their possession and providing clear evidence that other requested documents do not exist. [85] This judgment reinforces the principle that discovery is not a tool for building one's case through the opponent's documents, but rather a mechanism for obtaining specific, relevant materials necessary for the fair disposal of proceedings. The court will not permit discovery applications that seek to circumvent established corporate law principles, shift the burden of proof, or facilitate speculative evidence-gathering, particularly when alternative means exist for obtaining the information sought and when parties lack the requisite legal standing or connection to the documents requested. The Plaintiffs retain their substantive rights to pursue their conspiracy claims through proper evidence within their control or through appropriate procedural mechanisms against third parties in possession of relevant documents, including the liquidator who has proper custody of the wound-up company's documents. The Plaintiffs have failed to establish necessity when proper procedural channels are available for documents from wound-up companies, and when mere allegations in pleadings, without supporting evidence, are insufficient to establish the required possession, custody, or power over the documents sought. [86] Accordingly, the discovery application is dismissed with costs RM2,000 to be awarded to the Defendants. 8 September 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiffs: Yap Bing Yew (Messrs Bing Wen & Associates) For the 1, 3rd and 4th Defendants: So Chien Hao (Messrs. C.H. So & Assoc.)