Ali Said Hamdan Al Rawahi v Ahmad Bin Hassan (BA-22NCvC-61-02/2025)

This judgment concerns the Plaintiff’s application for discovery in Enclosure 78 seeking, namely, bank statements, transaction slips, transfer forms, supporting documents for board resolutions authorising the withdrawals from the company account of Bidara Flour Sdn Bhd. DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: BA-22NCVC-61-02/2025 ANTARA ALI SAID HAMDAN AL RAWAHI [No. Pasport : RN9010636] …PLAINTIF

AHMAD BIN HASSAN [No. Kad Pengenalan: 590929045615]

MALAYAN BANKING BERHAD [No. Syarikat: 3813-K] …DEFENDAN-DEFENDAN 06/02/2026 15:14:27

The application is opposed by the Respondent, a financial banking institution, in other words, Malayan Banking Berhad. It’s important to note that the Plaintiff’s claim was earlier dismissed by this court against the Respondents, (in the capacity as the Second Defendant), on the grounds that the Respondents did not owe a duty of care towards the Plaintiff, as he was not the lawful account holder. The central question is whether the Plaintiff is entitled to the relief sought under the Order 24 Rules 7A Rules of Court 2012 for discovery of documents from a third party.

The Plaintiff is a foreigner and the director and shareholder of Bidara Flour Sdn Bhd and alleges that RM1,000,000.00 was withdrawn from the company’s account and that a board circular resolution dated 22.8.2017 bearing the Plaintiff’s name contains a forged signature that was the instrument by which the withdrawal was effected.

The Plaintiff discovered some forged documents in company files obtained through the Companies Commission (SSM) and subsequently made a police report on 16.12.2024. The crux of the Plaintiff’s application is for the disclosure of financial documents belonging to the Plaintiff’s company, Bidara Flour Sdn. Bhd, which are in the possession of the Respondent. The Plaintiff states that he lacked access to company banking records even though he still remained as a director.

The Respondent maintains that the bulk of the documents sought are company related records and they are bound by duties of confidentiality as a banker. Furthermore, the Respondent does not owe any duty of care to the Plaintiff in his personal capacity since the account is in the company’s name. This application is an abuse of the court process and a fishing expedition.

Additionally, a similar application in Enclosure 20 was initially filed against the Respondents, but no hearing proceeded, as this court dismissed the Plaintiff’s claim against the Respondent on the basis that the Respondents owed no duty of care towards the Plaintiffs claim.

This Court must now determine the following issues:

whether the documents sought are relevant and necessary for the fair disposal of the claim?

whether the Plaintiff has exhausted or made proper attempts to obtain the documents from the company and its officers;

whether the application constitutes an abuse of court process or a fishing expedition; and

whether bank-customer confidentiality or other public interest considerations influence against the order sought. THE LAW AND RELEVANT FACTUAL BACKGROUND.

The Plaintiff, was appointed as a director of the Company since 25.7.2016 and until now, the Plaintiff claims that he has never been given access to any of the Company’s financial documents, including bank statements, management accounts, financial reports, or any information related to the Company’s bank account. Furthermore, the Plaintiff claims that he has never received any notice of meetings, minutes of meetings, or any updates concerning the affairs of the Company or has been invited to any general meetings or board of directors’ meetings.

In early 2023, the company secretary approached the Plaintiff for his approval to submit documents to SSM in relation to the Company’s financial statements. Subsequently, in March and October 2023, the Plaintiff was served with several compound notices from SSM for failure to submit the Company’s Annual Statement and Financial Statements.

On 25.11.2024, Plaintiff claims to have reviewed the Company’s files at the SSM office and discovered several documents bearing signatures that were not his.

The Respondent maintains that the bulk of the documents sought are company documents easily accessible to the Plaintiff in his capacity as a director. The Respondents are bound by duties of strict confidentiality as a banker, that it does not owe any duty of care to the Plaintiff in his personal capacity. On a more logical note, the account details being sort after in the company’s name is a fishing expedition by the Plaintiff.

Furthermore, the issue in this case is whether a plaintiff can request discovery from the Respondent, whom have already been dismissed in the current suit as the Second Defendants. The burden of proof is on the Plaintiff to prove to the court, based on the principles illustrated above, that there is new compelling justification or reason for a discovery of documents from the Respondents.

The Plaintiff’s, through their solicitors made a written request on the 15.4.2025, for the following documents on items (a) to (e) from the Respondent: - a. Penyata bank bagi akaun Syarikat Bidara Flour Sdn Bhd (No. Syarikat 603679-W) dari tarikh pembukaan akaun sehingga kini; b. Slip transaksi, borang pemindahan, dan/atau arahan bagi setiap kemasukan dan pengeluaran dana Bidara Flour Sdn Bhd (No. Syarikat: 603679-W), termasuk jumlah RM1 juta yang telah dikeluarkan daripada Bidara Flour Sdn Bhd (No. Syarikat: 603679-W) oleh Defendan Pertama pada 25.3.2019; c. Dokumen atau bukti yang menyokong setiap transaksi yang dilakukan dari atau ke dalam mana-mana akaun yang dikendalikan atas nama Bidara Flour Sdn Bhd (No. Syarikat: 603679-W) dengan Responden; d. Salinan-Salinan Resolusi-Resolusi yang berkenaan pengesahan Plaintif untuk meluluskan transaksi akaun Bidara Flour Sdn Bhd (No. Syarikat: 603679-W), termasuk tetapi tidak terhad kepada Resolusi Lembaga Pengarah bertarikh 22.8.2017 yang kononnya melantik Defendan Pertama dan seorang pihak ketiga yang tidak dikenali sebagai penandatangan yang diberi kuasa bagi akaun bank syarikat di Responden; e. Sebarang pengesahan bertulis, arahan, atau kelulusan diberikan bagi menunjukkan persetujuan Plaintif untuk mengetepikan kehadiran fizikalnya bagi tujuan pengesahan Resolusi Lembaga Pengarah bertarikh

22.8.2017 atau mana-mana dokumen transaksi lain yang berkaitan;

The Respondents argued that the Applicant has failed to demonstrate how the documents sought above, are connected to the pleaded issues in this case. The application merely lists categories of documents without showing how they will assist the Court in determining relevant issue to the claim.

Furthermore, they argued that discovery cannot be allowed merely to “see what might turn up” and without specific explanation of relevance, the threshold under Order 24 Rules 7A Rules of Court 2012 cannot be met.

Order 24 of the Rules of Court 2012 (ROC 2012) serves as the statutory framework governing the discovery and inspection of documents in legal proceedings, primarily aimed at facilitating fair and efficient resolution of disputes by enabling parties to access relevant evidence in possession of their opponents or, in certain cases, non-parties.

In this case, the discovery application was made pursuant to O. 24, r. 7A of the RHC which reads as follows: -

An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

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.

A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.

An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

This court refers to the case of Bandar Utama Development Sdn Bhd v Bandar Utama 1 JMB [2018] MLJU 697 as reference on point. The Court of Appeal held that: - [13] “The common law position for pre-action discovery was explained in great detail by House of Lords in Norwich Pharmacal Company v Customs and Excise Commissioners [1973] 3 WLR 164. A part of the judgment is reproduced here to appreciate the intricate jurisprudence. The said part reads as follows: “My noble and learned friends, Lord Cross of Chelsea and Lord Kilbrandon, have dealt with the authorities. They are not very satisfactory, not always easy to reconcile and in the end inconclusive. On the whole I think they favour the appellants, and I am particularly impressed by the views expressed by Lord Romilly M.R. and Lord Hatherley L.C. in Upmann v Elkan

L.R. 12 Eq. 140; 7 Ch. App. 130. They seem ………I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that. Apart from public policy the respondents say that they are prevented by law from making this disclosure. I agree with your Lordships that is not so. If it were they could not even disclose such information in a serious criminal case, but their counsel were, quite rightly, not prepared to press their argument so far as that. So we have to weigh the requirements of justice to the appellants against the consideration put forward by the respondents as justifying nondisclosure. They are twofold. First it is said that to make such disclosures would or might impair or hamper the efficient conduct of their important statutory duties. And secondly it is said that such disclosure would or might be prejudicial to those whose identity would be disclosed... ……. If the respondents have any doubts in any future case about the propriety of making disclosures, they are well entitled to require the matter to be submitted to the court at the expense of the person seeking the disclosure. The court will then only order discovery if satisfied that there is no substantial chance of injustice being done.” [15] The principles enunciated in Norwich case was adopted and approved in First Malaysia Finance Bhd v Dato’ Mohd Fathi bin HA [1993] 2 MLJ 497. ……… To this general rule, there is an exception that if, through no fault of his own, a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, whilst he may incur no personal liability, he is under a legal duty to assist the person who had been wronged by giving him full information and in making disclosure of the identity of the wrongdoers. Further, the court stated that a Norwich Pharmacal order being an equitable remedy will not be granted as of right even when the requirements for it were satisfied and the court has discretion as to whether to grant or refuse it. [See Janab’s Key To Civil Procedure, 5th ed. pgs. 209 and 210]. [16] An application under Order 24 rule 7A has many riders in addition to what needs to be satisfied under the Norwich principle. In addition, the right of discovery under the rules cannot be equated to a procedural right. It still will fall under the Norwich Pharmacal order which is stated as an equitable remedy. Being an equitable remedy, it will not be granted as of right. It is trite that those who seek equitable remedy is required to come with clean hands. If there is an alternative remedy available that must be resorted or if an action can be filed without pre-action discovery, it ought to be filed and subsequently discovery orders should be obtained through normal process. Courts, through their judgment should not open the door to pre-action discovery when identifiable cause of action has arisen…...”

In my opinion, this court must be satisfied that discovery is necessary for the fair disposal of the matter or for saving costs. Where discovery is sought from a banking Institution, additional caution applies as banking records attract a strong presumption of confidentiality because of the banker-customer relationship.

A bank will only be ordered to disclose customer information where the requirements for court-ordered disclosure are met and where public interest, fairness or the needs of justice outweigh confidentiality concerns. The applicant in this case, has failed to show a clear connection between the requested documents and the issues in dispute. In my view the documents requested in this application is vague and speculative in nature.

In the case of Natasha Beverly Dental Sdn Bhd v Arlena Philip Lee [2025] MLJU 1060, the High Court decided the following: - [13] ………... Where an applicant seeks discovery of documents from a non-party, the applicable provision is Order 24 Rule 7A of the Rules of Court 2012. Order 24 rule 7A provides a distinct mechanism for obtaining documents from non-parties and prescribes specific requirements and procedures that must be adhered to before such discovery may be granted. [14] The legal position governing discovery against non-parties was reiterated in Tan Bak Lee v Chen Siew Lee &

In that case, the High Court held as follows: “[62] 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.”. [15] The court in Tan Bak Lee (supra.) underscored that where documents are in the possession or custody of a non-party, the appropriate procedure is governed exclusively by Order 24 Rule 7A of the Rules of Court 2012. ….. [16] The High Court in Tan Bak Lee (supra.) referred to the established principles as decided in Billion Prima Sdn Bhd & Anor v Nutech Company Ltd & Anor [2017] 1 CLJ 179; ; [2017] 10 MLJ; ; [2016] AMEJ 1889; ; [2016] MLRHU 949. In Billion Prima (supra.), the court identified six essential conditions that must be satisfied before a court may properly exercise its discretion to grant discovery against a non-party under Order 24 rule 7A. The conditions include:

the documents sought must be in the possession, custody or power of the non-party;

the documents must be relevant to the issues in dispute;

there must be a clear necessity for the production of the documents;

the application must not be frivolous or amount to a fishing expedition;

the application must be specific and not overly broad or oppressive; and

the court must be satisfied that it is just, reasonable, and appropriate to grant the order. [17] The above conditions serve to ensure that applications for discovery against non-parties are not granted indiscriminately or without proper justification. The principles enunciated in Billion Prima (supra.) have been consistently applied by the courts in determining the propriety of such applications.

In the case of Hayel Saeed Anam & Company Limited, (satu syarikat yang diperbadankan di bawah undang-undang Yemen) & Ors v Marwan Ahmed Hael Saeed [2022] MLJU 892, the court decided the law regarding discovery in enunciated Under Order 24 of the Rules of High Court as the following: - “Discovery to be ordered only if necessary (O. 24, r. 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.” [21] The essential elements for an order for discovery were set out in the leading authority of Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, where Edgar Joseph Jr. SCJ (as he then was) has laid out at p. 585: “The essential elements for an order for discovery are threefold; namely, first, there must be a “document”, secondly, the document must be “relevant” and thirdly, the document must be or have been in the “possession, custody or power” of the party against whom the order for discovery is sought.”

While discovery should be targeted, courts may allow broader discovery where the applicant demonstrates a clear, specific, and relevant need for documents, especially if the documents are in the possession of the respondent and are crucial for the case. However, mere suspicion or broad requests without specific relevance are insufficient as in this application by the Plaintiff. Abuse of process and fishing expedition

The Respondent’s contention that this application constitutes a fishing expedition is supported by the extensiveness of the documents requested, the lack of particularity as to which precise documents in the bank’s custody are necessary and the absence of evidence that the bank adopted or acted upon the disputed circular resolution.

The Plaintiff has not identified the exact documentary basis on which it alleges the bank released the funds, beyond general reference to a board resolution that the Plaintiff alleges is forged. The Court cannot exercise its equitable discretion to require a third party to undertake wide-ranging searches and disclose voluminous material to enable a claimant to search for evidence of wrongdoing when the claimant has not met the necessary threshold of specificity or demonstrated unavailability of the same documentation from the company or other sources. Bank-customer confidentiality and public interest

The Respondent, as banker, has duties of confidentiality to its customer, in this case, the concerned company, Bidara Flour Sdn. Bhd. This duty is a significant factor in considering third-party discovery. Unless the applicant shows a compelling need and satisfies the conditions for disclosure, the bank’s duty must be respected.

The Plaintiff has not shown such a compelling need and some of the documents sought may be or may have been subject to active criminal investigation and an unqualified order for disclosure could prejudice criminal processes and the integrity of evidence.

In addition, to put discovery and banking rules into prospective,I would like to refer to two cases as an illustration on banking and customer confidentiality.

Firstly, in the case of OCBC Bank (M) Bhd v Prolink Marketing Sdn Bhd [2023] 2 MLJ 851 (COA), the courts held that protection of customer confidentiality is very crucial. OCBC Bank was prohibited from disclosing information about the respondent’s financial facilities without proper authorisation, adhering to Section 133(4) of the Financial Serviced Act 2013. This case emphasizes the importance of maintaining confidentiality even when third-party inquiries arise, especially when these inquiries do not fall within any of the categories set out under Schedule 11 of the FSA and/or Part C of the MCIPD. “[75] For emphasis, financial institutions such as the appellant bank are subject to a statutory duty of secrecy under s 133(1) of the Financial Services Act 2013 which plainly prohibits such institutions or their officers from disclosing any document or information relating to the affairs or account of any customer to another person. [76] Neither did the respondent deny that it had never instructed or authorized the appellant to disclose to AmBank Islamic information on the outstanding amount due from the respondent to the appellant under all its facilities secured by the charge. And fundamentally, any such notification to AmBank Islamic would have exposed the appellant to the risk of prosecution for the commission of an offence under s 133(4) of the FSA. The relevant provisions state as follows:

No person who has access to any document or information relating to the affairs or account of any customer of a financial institution, including —

the financial institution; or

any person who is or has been a director, officer or agent of the financial institution, shall disclose to another person any document or information relating to the affairs or account of any customer of the financial institution. …”

Any person who contravenes subsection (1) or (3) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million ringgit or to both…

Secondly, in the case of National Feedlot Corporation Sdn Bhd & Ors v. Public Bank Bhd [2024] 6 MLJ serves as a critical illustration of the consequences arising from unauthorized access to customer information. The plaintiffs alleged that their confidential banking information was improperly disclosed by a bank employee, leading to a legal battle over the breach of confidentiality.

It was determined that the unauthorized use of the officer’s computer, facilitated the breach, resulting in the Court of Appeal overturning the High Court’s judgment and ruling in favor of the plaintiffs. The bank was found liable for breaching its duty of confidentiality, and the plaintiffs were awarded nominal damages along with RM500,000 in costs. “[24] It is trite that there is a duty of confidentiality that is owed by the bank towards the plaintiffs and this is a basic and fundamental aspect of a banker and customer relationship. The duty is commonly known as the bank’s implied contractual duty. This brings us to the case of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 (CA) (‘Tournier’). In Tournier, the English Court of Appeal was unanimous in the view that the obligation of confidentiality was an implied term arising from the banker’s contract with the customer. [29] The English Court of Appeal in Tournier opined that the trial judge erred in failing to direct ‘the jury of the nature and limits its qualifications of the duty of the bank as a matter of law, leaving to them only questions for the purpose of ascertaining their view whether the communication complained of was or was not made, and whether it did or did not come within any or the protected occasions to which I have called attention’. Scrutton LJ agreed with Bankes LJ and said (p 479): The other cause of action is of far more public interest. The plaintiff alleged an absolute contract to be implied that the bank should not disclose the plaintiff’s account or matters arising therefrom, or any transactions relating thereto, to anybody. The judge directed the jury there was no such absolute contract, and I think he was right. [30] At p 480, Scrutton LJ said: The court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker’s contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customer except in circumstances. This duty equally applies in certain other confidential relations, such as counsel or solicitor and client, or doctor and patient. [31] Thus, both Bankes LJ and Atkin LJ were of the view that this duty is not confined to information derived from the customer’s accounts itself but also to information derived from sources other than the customer’s actual account, as long as the information arose out of the banker and customer relationship. Scrutton LJ however, did not think that this duty would apply to knowledge derived from sources other than from the customer or his/her account. [32] Further, His Lordship also thought that this duty is inapplicable to knowledge which the bank acquired before the banker and customer relationship was contemplated or after it has ceased. Atkin LJ also did not extend this duty to information obtained after the customer ceased to be a customer. As to the duration of this duty, it continues even after the customer ceases to be a customer of the bank. Clearly, Tournier was a landmark case which laid down and defined the scope of a banker’s duty of secrecy and confidentiality to its customer. Delay and conduct of the Plaintiff

The Plaintiff’s long period of apparent non-enforcement or lack of active monitoring of company affairs between 2016 and late 2024, and the timing of the present application, are relevant to the exercise of the Court’s discretion. The Plaintiff does not offer valid explanations for his lack of access within the company, the delay in requesting for such access and the absence of timely steps to compel company for disclosure. All these factors weigh against granting expansive third-party discovery, especial to a banking institution.

The Plaintiff has not proved that the Respondent is the exclusive custodian of the relevant board resolutions and internal company approvals. The evidence before the Court indicates that company secretarial records have been, at various times, held by company secretaries and have been lodged with SSM and the Plaintiff has retrieved some such material from SSM.

The threshold for third party discovery is not met based on the unsatisfactory evidence that the Respondent has exclusive possession of the specific resolution or internal company document relied upon to authorise the withdrawal.

In my opinion, it’s unconceivable that the Plaintiff as a Director of the said company, for the last 10 years, has not taken the initiative to be informed of any developments concerning the Company.

Based on all the above Therefore, this court dismisses Enclosure 78 with cost of RM5,000.00 to the Respondents. Dated : 6 February 2026 sgd SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Peguam bagi pihak Plaintif: Tok Hong Chen [RABINDER BUDIMAN & ASSOCIATES] Peguam bagi pihak Defendan/pihak ketiga: Mohd Ozier Farhan Bin Mohd Khanafeh [CHAMBERS OF SOLEHUDDIN & OZIER] SHANTINI KOSHY A/P CHERIAN KOSHY for 3rd party [TETUAN YONG & RAKAN RAKAN]