1. ) Mohd Hamzavi Bin MD Zain v Fwd Takaful Berhad (BA-22NCC-125-07/2024)

MOHD HAMZAVI BIN MD ZAIN

CALIPH CONSULTANCY GROUP SDN BHD (NO. SYARIKAT: 201201000795 [974319-H]) …PLAINTIF-PLAINTIF DAN FWD TAKAFUL BERHAD (NO. SYARIKAT: 200601011780 [731530-M]) …DEFENDAN (Dalam Tuntutan Utama) ANTARA FWD TAKAFUL BERHAD (NO. SYARIKAT: 200601011780 [731530-M]) …PLAINTIF

MOHD HAMZAVI BIN MD ZAIN

CALIPH CONSULTANCY GROUP SDN BHD (NO. SYARIKAT: 201201000795 [974319-H])

CALIPH TALENT ACADEMY SDN BHD (NO. SYARIKAT: 202101028049[14289349A])

CALIPH LIFE SDN BHD (NO. SYARIKAT: 202301019858 [1513780-T]) …DEFENDAN-DEFENDAN (Dalam Tuntutan Balas)

The Plaintiffs are seeking discovery of documents from One Two One Advisor Sdn Bhd (“One-Two-One”) under Order 24 Rule 7A and/or Rule 12 of the Rules of Court 2012 (“Requested Documents”). One-Two-One is not a party here, but it is a party in another related suit by the Plaintiffs i.e. Kuala Lumpur High Court (Intellectual Property Division) Suit No.: WA- 22IP-18-02/2024 (“KL IP Suit”).

The KL IP Suit is an on-going suit against the Defendant, One-Two-One and one Qaizer Consultancy Sdn. Bhd. for what the Plaintiffs allege to be misappropriation of confidential information on around 564 takaful agents who were transferred from the 2nd Plaintiff to Qaizer Consultancy Sdn. Bhd. The pleaded case

The Plaintiffs were respectively the agency leader (“AL”) and agency leader corporation (“ALC”) of the Defendant. Between 18-12-2019 and 2-1-2020, various agreements were signed between the Plaintiffs and Defendant (“Agency & Consultancy Agreements”).

According to the Plaintiff, the aforesaid Agency & Consultancy Agreements culminated in the transfer and subsequent recruitment of thousands of individuals as registered agents with the Defendant to sell the Defendant’s takaful products.

The Plaintiffs’ allegation in this action is that the 1st Plaintiff resigned as an agent and AL on 23-11-2023 under the undue influence of the Defendant’s outgoing CEO, and that all Agency & Consultancy Agreements between the parties were terminated by the Defendant on 17-4-2024 after a period of suspension.

There were unresolved allegations of breach of contract by the Defendant at the time, which are now the subject matter of the counterclaim in this action for repudiatory breach of the Agency & Consultancy Agreements. Specifically, the Defendants say that the Plaintiffs’ performance deteriorated as they were selling takaful products of another ALC.

The Plaintiffs are now claiming payment of outstanding commissions due to them as AL and ALC in the period until 17- 4-2024, for all takaful products sold by agents under the supervision of the 1st Plaintiff as calculated in the ALC Management Center (“ALC System”), a software operated by One-Two-One. Analysis and findings

The Requested Documents are described by the Plaintiffs as follows:

Perincian Penuh “Master Listing of Policies” dibawah Plaintif Kedua (Dalam Tuntutan Utama) daripada 23 November 2023 sehingga 17 April 2024;

Perincian penuh Commissions Statements Plaintif-Plaintif (Dalam Tuntutan Utama) daripada 23 November 2023 sehingga 17 April 2024;

Perincian dan butiran penuh “Commission Statement” kesemua ejen-ejen yang berada di bawah seliaan Plaintif Kedua (Dalam Tuntutan Utama) yang telah dipindahkan ke Qaizer Consultancy Sdn. Bhd. (No. Syarikat. 202301047905 [1541819-H]) daripada Disember 2023 sehingga 17 April 2024; and

Sesalinan Perjanjian di antara Defendan (Dalam Tuntutan Utama) dan One Two One Sdn Bhd. (No. Syarikat. 201001027965 [911884-T]) berkenaan perlantikan One Two One Sdn Bhd. (No. Syarikat. 201001027965 [911884-T]) oleh Defendan (Dalam Tuntutan Utama) berkenaan pengendalian dan/atau penyelenggaraan Sistem ALC tersebut oleh One Two One Sdn Bhd. (No. Syarikat. 201001027965 [911884-T]) bagi kesemua “Agency Leader Corporation” dibawah takaful Defendan (Dalam Tuntutan Utama).

As a point of clarification, counsel for the Plaintiffs conceded that this Court may ignore the words “perincian penuh” and “butiran penuh” in the description of the documents, as Order 24 Rule 7A of the Rules of Court 2012 can only be invoked for the discovery of documents. In essence, the Plaintiffs seek the following: a) “Master Listing of Policies”; b) “Commission Statements”; and c) the Defendant’s Agreement with One-Two-One on the operation and/or maintenance of the ALC System (“ALC System Maintenance Agreement”).

It is trite that for a discovery order, the Plaintiffs must satisfy this Court that the Requested Documents exist and are specifically identified, relevant to the matters in issue and that they are in the possession, custody or power of One-to-One (see Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581). Further, an order for the discovery shall not be made unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. These are all conjunctive considerations in that all must be satisfied.

It is common ground that the ALC System records, calculates and reports the monthly commissions payable by the Defendant to the ALC and the various components of commissions payable by the ALC to the agents. The 2nd Plaintiff had a subscription agreement with One-Two-One and direct access to the ALC System since 1-1-2022, but that access was suspended on 19-1-2024.

Apart from the 2nd Plaintiff’s subscription agreement as an ALC, it does not appear to be disputed that the Defendant as the principal, also has an overarching agreement with One-Two-One that presumably governs its set up, operation and maintenance as well as commercial terms. The Defendant does not deny the existence of what is described in the application and referred to as the ALC System Maintenance Agreement in this Judgment.

Identification of the “Master Listing of Policies” and “Commission Statements” is less straightforward because the Defendant contends that they do not exist as specified. This Court notes the fact that the ALC System is a computer system containing data, and typically, a database system can be programmed to generate various reports for its users.

If the Plaintiffs are suggesting that these are reports that can be generated from the ALC System, they have not expressly attested to that as a fact nor shown it to be the case based on their prior use of the ALC System. There were at least two (2) years of dealings between the parties before disputes arose in the six (6) months or so before 17-4-2024.

As users of the ALC System when the Plaintiffs had access to it, including for a period after the disputes in this action arose when the Plaintiffs say they discovered the transfer of around 564 agents from under the 2nd Plaintiff as ALC, it was open to the Plaintiffs to generate or produce screenshots to show that such database reports are available. They have not done so in this case.

It is not open for the Plaintiffs to assert that the reports exist without providing a basis for the assertion. It is also not open for the applicant in a discovery application to require the respondent to reprogram a database software to create a bespoke report if it cannot be generated in the ordinary course of its use.

It may well be that the ALC System contains a repository of all policies sold, by whom it is sold, and the commissions allocated, but the Plaintiffs must describe a pre-existing database report such that One-Two-One knows what it is and can readily produce it. In this case, the “Master Listing of Policies” and “Commission Statements” do not even identify the specific data fields of data the Plaintiffs are after.

For these reasons, the “Master Listing of Policies” and “Commission Statements” fail to satisfy the requirement that they exist as a document in the possession, custody and control of One-Two-One as specified.

The application in this case should not be confused and conflated with pre-action discovery under the same provision, where the objective of discovery is to assist a prospective litigant plaintiff to determine whether he has a viable claim. In such cases, if discovery confirms that the applicant's concerns are unfounded, litigation can largely be avoided (see Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 8 CLJ 554).

This is not a pre-action discovery. As far as this Court can ascertain from the pleadings, the Plaintiffs accept that the Agency & Consultancy Agreements terminated on 17-4-2024 and the Plaintiffs’ action has been framed as a breach of contract due to the Defendant’s failure to pay commissions between 23-11-2023 and 17-4-2024.

The Plaintiffs claim, as particularised, is that 564 of their agents had disappeared from the ALC System and overall commission payments had thereby drastically reduced from RM2,082,029.00 in December 2023 to RM319,649.00 in January and February 2024. Apart from this, the Plaintiffs have pleaded no particulars of the alleged shortfall in commissions as at 17-4-2024.

The Plaintiffs say the ALC System Maintenance Agreement is relevant to prove how the commissions are supposed to be calculated by One-Two-One. However, the Plaintiffs’ claim has not pleaded any issue relating to the operation and/or maintenance of the ALC System that affect the calculation of commissions payable, which may be either a programming or data entry issue.

Reprogramming errors and/or miscalculations in commissions payable are certainly conceivable bases for the alleged shortfall in commissions due to the Plaintiffs, but they are entirely different bases from the claim of shortfall due to the unauthorized transfer of 564 agents from under the 2nd Plaintiff as ALC. As the former is not pleaded, this Court is not persuaded that the ALC System Maintenance Agreement contains any information relevant to the issues in dispute as pleaded.

As for the “Master Listing of Policies” and “Commission Statements,” this Court also notes that detailed information extracted from the ALC System had been furnished to the Plaintiffs and is before this Court. This can also be seen in the 43 volumes of excel spreadsheets exhibited by the Plaintiffs (“Excel Spreadsheets”). The Plaintiffs have the same in excel format sent by e-mail.

There are fields of data that this Court, on a cursory review, finds instructive. They include descriptions like CompTypes (ORD, BAS) and ComptRpt (SO, OC, BC), all of which the Plaintiffs should be completely familiar with. Considering the Excel Spreadsheets in the Plaintiffs’ possession, the information that the Plaintiffs seek may already be in their possession.

Plaintiffs’ counsel explained in submissions that they do not have details of the different components of commissions payable for every policy sold in Excel Spreadsheets, and called for the production of the “Master Listing of Policies” and “Commission Statements” that they say contain this information. The problem with the description of these items of Requested Documents has been addressed earlier.

Even if this Court is wrong on that, this Court is also unable to see the relevance of the breakdown of the different components of commissions that are payable for every policy sold if, as noted, the only particularised breach of contract relates to the 564 transferred agents.

Apart from the valid point made that this Court should not reverse the burden of proving the alleged breach of the Agency & Consultancy Agreements by the Defendant, arguments by counsel for the Plaintiffs during submissions suggest that the Plaintiffs do not know if there is in fact any error or inconsistency in the commissions already paid out by the Defendant and/or what caused it other than the loss of the 564 agents.

In addition to the details of the Excel Spreadsheets, the Defendant has also furnished the following: a) Income Breakdown Report which show the policies sold by each agent (Exhibit “MHZ-10” of the Affidavit in Support); and b) Breakdown of Commission Payments including breakdown of basic and overriding commission payable to each agent (Page 47-94 of Encl. 141) which the Defendant says can be cross-checked against the excel spreadsheets. Even so, no particulars of any error or inconsistency have been identified from the information already available, including information available prior to the dispute.

In the circumstances as they currently stand, the discovery application appears to be a classic fishing expedition.

Needless to say, this Court was not satisfied that discovery of the Requested Documents is necessary either for the fair disposal of the cause or matter, or for the saving of costs.

For the reasons set out above, the Plaintiffs’ application for discovery was dismissed with costs of RM5,000.00. Bertarikh : 17 September 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif: Siti NoorHazerah binti Shahul Hamid (with Nur Syafiqah Ayhmad Fadhil) Messrs Hazerah & Partners Peguam bagi pihak Defendan: