Joynal Jaya Kl & Kb Construction Sdn. Bhd. v Kusinero Impian Sdn. Bhd. (DA-24NCvC-4-01/2026)

JOYNAL JAYA CONSTRUCTION SDN. BHD. (NO. PENDAFTARAN: 1176577-W) ... PEMOHON-PEMOHON

KERAJAAN MALAYSIA ... RESPONDEN-RESPONDEN

This is the Plaintiffs application for pre-action discovery of documents against the Defendants.

The Plaintiffs seek an order compelling the Defendants to disclose numerous categories of documents relating to two government construction projects, wherein the 1 $ ^{st} $ Defendant was appointed as the contractor to carry out the same ("the Projects"). The documents sought include letters of award, contracts, bills of quantities, progress claims, payment records, variation orders, correspondence, project status reports and other related project documents.

Having considered the affidavits filed, the submissions of parties and the applicable law, I am unable to accede to the application and dismissed the same.

The $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ Defendants are the project owner and contracting authorities for the Projects, whilst the $ 1^{\mathrm{st}} $ Defendant was appointed as the contractor. The Plaintiffs contend that they were appointed by the $ 1^{\mathrm{st}} $ Defendant as sub-contractors pursuant to two Letters of Award dated 5.11.2024. The present dispute arises from the alleged termination of these sub-contracts and the Plaintiff intend to claim for unpaid work and related losses. There is no direct contractual relationship pleaded between the Plaintiffs and the $ 2^{n d}, $ $ 3^{r d} $ and $ 4^{t h} $ Defendants.

According to the Plaintiffs, they undertook works under the projects until their appointments were terminated by the 1st Defendant on 30.3.2025.

The Plaintiffs contend that substantial portions of the works had already been completed and that payments remain outstanding from the $ ^{1st} $ Defendant. They further contend that the termination of their appointments was wrongful and that they have suffered loss and damage.

The present application was subsequently filed to obtain disclosure of various project documents from the Defendants.

The issues which arise for determination are as follows:

Whether the documents sought are necessary to enable the Plaintiffs to determine whether they possess a viable cause of action; and

Whether the application constitutes a legitimate invocation of pre-action discovery or amounts to a fishing expedition. The Law Order 24 rule 7A & rule 8 ROC 2012

The relevant portions of Order 24 rule 7A (3) provides as follows: "(3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall—

in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power."

Order 24 rule 8 provides that discovery is to be ordered only if necessary. It provides as follows: "Discovery to be ordered only if necessary (O.24,r.8) 8. On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs."

The Court of Appeal in Infoline Sdn Bhd v Benjamin Lim Keong Hoe [2017] 8 CLJ 554 held: [36] ...we are of the view that the whole intent behind O. 24 r. 7A is the saving of costs, resources and time if early discovery is ordered, in fact ordered even before proceedings are commenced. If discovery reveals that the applicant's concerns are unfounded, that in this case the respondent's termination or cessation as a beneficiary is proper and in accord with the terms of the trust deed, litigation can largely be avoided. This obviously means saving of both time and costs...We also agree with the Court of Appeal that in determining whether an application ought to be allowed, three counterconstraints must be considered: the problem of 'fishing'; non-parties' reasonable explanation in maintaining confidentiality and privacy; and the danger that judicially administered orders for pre-action discovery can have the untoward effect of increasing the costs of dispute resolution as courts should not be seen as encouraging satellite litigation on claims that have not and/or may not be commenced... [37] With those considerations, what O.24 r.7A then requires from the applicant is an explanation as to why pre-action discovery and not discovery in the course of action or proceedings is necessary. The requisites in O.24 r.7A(3) indicate that pre-action discovery is really to assist a prospective litigant plaintiff to determine whether he has a viable claim against the intended defendant... [38] Insofar as the documents sought to be discovered are concerned, the documents must be specified or sufficiently described... [39] Finally, the applicant has to identify the person having possession, custody or power over the documents sought... [40] In the exercise of discretion, the court has to bear in mind not only the mandatory requirements of r. 7A, but also to have regard to the provisions of O.24 r.8. Order 24 r.8 states:

On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. [42] Therefore, in exercising discretion whether to grant discovery...the respondent must satisfy the court that discovery of the same before filing of action against the appellant is indeed necessary, necessary at the particular stage of the application, and that is necessary because the order of discovery will allow for the fair disposal of the cause or matter or that it will lead to a saving of costs. The respondent must show that the discovery is necessarily required even before an action is initiated as it is precisely to enable the respondent to decide whether he can even commence action against the appellant in particular, to start with. And, if the information revealed from that discovery can determine or assist in reaching an answer to that predicament, then the order ought to be made. Such an approach is not only fair but sensible and practical as it can obviously avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is what pre-action discovery seeks to achieve. Where the court is of the opinion that the applicant is unable to satisfy these conditions, certainly the court must dismiss the application as is apparent from the terms of r.8." (Emphasis added)

The Court of Appeal in Bandar Utama Development Sdn Bhd v Bandar Utama 1 JMB [2019] 10 CLJ 516 stated: [12] ...The threshold test to satisfy an order for pre-action discovery at common law was high in contrast to application for discovery in an action. The threshold test to satisfy an order for pre-action discovery under O.24 r.7A is extremely high in contrast to common law right, as the Rules sets out specific requirements and the court must exercise its power with caution and circumspect. It is a power which must be exercised in a genuine case and not for the purpose of annoying a third party or in

In the Singaporean case of Ching Mun Fong v. Standard Chartered Bank [2012] 2 SLR 22 which was cited in the Court of Appeal in Infoline (supra) (Tab 3, D2BA), it was held that a pre-action application is only particularly appropriate where the applicant needs information or evidence to mount a claim, and not to fish for additional evidence to ground further causes of action:- [8] What then is the purpose of pre-action discovery? In Kuah Kok Kim v Ernst & Young [1996] 3 SLR(R) 485 ("Kuah Kok Kim") at [31], the Court of Appeal explained that preaction discovery is to assist a plaintiff who "does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer". The word "viable" must not be understood to mean that the plaintiff is entitled to preaction discovery for the purposes of augmenting his case or to "complete his entire picture of the case". If that was the case, the ordinary processes of general and specific discovery under O 24 rr 1 and 5 respectively would be subverted (see Singapore Court Practice at para 24/6/2). Instead, pre-action discovery serves a somewhat more modest purpose: it is merely to allow the plaintiff who suspects he has a case to obtain the necessary information to allow him to commence proceedings." (Emphasis added)

Having considered the affidavits and submissions filed, I am unable to conclude that the documents sought are necessary to determine whether they possess a viable cause of action. I find that the Plaintiffs already possess all material facts necessary to commence proceedings.

The Plaintiffs were appointed by the 1st Defendant pursuant to Letters of Award dated 5.11.2024. They know the scope of works undertaken. They know that their appointments were terminated on 30.3.2025. They know the basis upon which they contend the termination was wrongful. They also know the basis upon which they allege that payments remain outstanding. These are precisely the material facts required to commence an action.

The Plaintiffs are therefore not in doubt as to whether they possess a cause of action. On the contrary, the affidavits filed reveal that the Plaintiffs have already identified the factual basis of their intended claims against the $ 1^{\mathrm{st}} $ Defendant.

The intended claims are readily apparent. The Plaintiffs contend that they were wrongfully terminated and that they have not been paid for work allegedly completed. Having identified those causes of action, the next step is to commence substantive proceedings.

What the Plaintiffs seek through the present application is not assistance in determining whether a viable cause of action exists. It is apparent that the documents are sought to support, strengthen and quantify claims which have already been identified.

This is evident from the nature of the documents sought. The Plaintiffs seek documents relating to progress claims, payments received by the 1 $ ^{st} $ Defendant, project valuations, project status reports and other records which may assist in proving the extent of work completed and the amount allegedly owing. These matters concern proof and quantification of the intended claim.

In this regard, it must be emphasised that pre-action discovery process is not aimed at assisting the Plaintiff to quantify its damages, but as repeatedly stated above, it is aimed at assisting the Plaintiff to determine if it has a viable claim. It is not the function of the court to assist the Plaintiff with gathering of evidence via a pre-action discovery application. This was explained by Lee Swee Seng J (as his Lordship then was) in Ahmad Zahri Mirza v. PricewaterhouseCoopers Capital Sdn Bhd & Ors [2015] 7 CLJ 930 as follows: [45] It is also not the business of the court to assist the plaintiff with the gathering of evidence via a pre-action discovery application. What is needed to be pleaded to commence an action is to plead material facts and not evidence. If it is to weigh and consider evidence, then the application should come later in a pre-trial discovery application and not a pre-action discovery application." (Emphasis added)

The Plaintiffs may well require some of the documents sought to prove their case. However, proving a claim is fundamentally different from determining whether a claim exists.

Apart from the above, the dispute identified by the Plaintiffs is essentially a dispute arising from the alleged sub-contractual arrangements between the Plaintiffs and the $ 1^{\mathrm{st}} $ Defendant. The Plaintiffs complain that the $ 1^{\mathrm{st}} $ Defendant wrongfully terminated the sub-contracts and failed to pay for work allegedly completed.

The $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ Defendants are not parties to those arrangements. There is no pleaded contractual relationship between the Plaintiffs and the $ 2^{\mathrm{nd}} $ to $ 4^{\mathrm{th}} $ Defendants. Neither have the Plaintiffs identified any intended cause of action against the Government Defendants arising from the matters complained of.

Despite the above, the application seeks extensive disclosure from the $ 2^{\mathrm{nd}} $ $ 3^{\mathrm{rd}} $ and $ 4^{\mathrm{th}} $ Defendants covering virtually every aspect of the projects, including contracts, payment records, progress claims, variation orders, correspondence and project status reports.

The breadth of the documents sought further demonstrates that the application bears all the hallmarks of a fishing expedition. The Plaintiffs seek virtually every category of project documentation maintained by the Defendants. The Plaintiffs are effectively seeking access to the entirety of the project records maintained by the Defendants.

There is no necessity for me to explain what amounts to a fishing expedition. Suffice for me to say that an application for discovery without specificity aimed at obtaining unknown information with the hope of finding something useful amounts to a fishing expedition. This has been explained in different words and phrases in numerous previously decided cases, and for completeness, I reproduce some of them below: Wong Kian Kheong JC (now JCA) in Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 described fishing expedition as follows: "I would hold that a 'fishing expedition' in the context of discovery refers to the aimless trawling of an unlimited sea. Where, on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), I would not regard that as a 'fishing expedition" Raus J (as his Lordship then was) in Datuk Amar James Wong Kim Min & Anor v. Pendaftar Pertubuhan [2004] 6 MLJ 23 said as follows: "To me, the applicants must be specific to the documents they are requesting for disclosure. Otherwise, their application will turn out to be a mere fishing expedition. This court, is not going to issue the applicants the fishing licence."

The present application seeks disclosure of extensive project documentation without identifying with sufficient precision the particular documents said to be necessary to determine whether a viable cause of action exists, which falls squarely within the category of cases against which the courts have repeatedly cautioned.

For the reasons stated above, I find that the Plaintiffs already possess sufficient material facts to commence their intended action against the $ 1^{\mathrm{st}} $ Defendant.

The application therefore falls outside the proper scope of Order 24 rule 7A and amounts to a fishing expedition.

Although the $ 1^{\mathrm{st}} $ Defendant did not file any Affidavit and did not participate in the proceedings, the same principles with regard to pre-action discovery applies to the application against the $ 1^{\mathrm{st}} $ Defendant.

Accordingly, the application is dismissed with of RM10,000.00 to the $ 2^{n d},3^{r d} $ and $ 4^{t h} $ Defendants, to be paid by the Plaintiffs. This Grounds of Judgment is dated 24.6.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Pemohon-Pemohon: Tetuan Syukran Noordin Lot 3063 A), Wisma Cikgu Hamid, Jalan Sultan Yahya Petra, Kubang Kerian, 16150 Kota Bharu, Kelantan. Peguam bagi pihak Penasihat Undang-Undang Negeri Responden-Responden: Kelantan Pejabat Penasihat Undang-Undang Negeri Kelantan, Aras Bawah, Blok 5, Kompleks Kota Darulnaim, 15050 Kota Bharu, Kelantan.