Ambank (M) Berhad v Excel Marine S.A (WA-22NCC-283-07/2017)

This is an application by the Defendant for the production of certain documents referred to in the Statement of Claim. The notice of application does not state the provision in Rules of Court 2012 (“ROC”) that the application is made under but counsel for the Defendant submitted at the hearing that the application is pursuant to Order 24 r 10 ROC. I dismissed the application and these are the full reasons for my decision.

The Plaintiff bank has granted facilities to the Defendant.

Apart from the Defendant, the Plaintiff has also granted banking facilities to two (2) other borrowers. All the facilities were inter alia guaranteed by guarantees executed by Falcon Energy Group Limited and PT Bayu Maritim Berkah (collectively “the Guarantors”).

When the borrowers defaulted in the repayment of the amounts due, the Plaintiff filed 3 actions against each of the 3 borrowers and 3 separate actions against the Guarantors (one action in respect of each borrower). This is an action against one of the borrowers.

The Plaintiff applied for summary judgment of its claim against the Defendant.

By letter dated 25/10/2017 to the Plaintiff’s solicitors Shook Lin & Bok (“SLB”) the Defendant through its solicitors Vijay & Co requested for the documents set out in various paragraphs of the Statement of Claim. Vijay & Co act for all the defendants in the six (6) actions.

By letter dated 25/10/2017 to the Plaintiff’s solicitors Shook Lin & Bok (“SLB”) the Defendant through its solicitors Vijay & Co requested for the documents set out in various paragraphs of the Statement of Claim. Vijay & Co act for all the defendants in the six (6) actions.

By letter dated 21/11/2017 to the Defendant’s solicitors, SLB informed them that the Plaintiff was agreeable to furnish the Defendant with the documents requested subject to reasonable photocopying charges being paid. In the interim, the Defendant was informed that certain documents can be seen at the various pages of the Plaintiff’s Affidavit in support of the summary judgment application as pointed out in the letter.

By letter dated 28/11/2017, the Defendant’s solicitors requested SLB to furnish the documents requested within the next 7 days failing which they will have to make an application to Court.

By letter dated 24/12/2017, the Defendant’s solicitors reminded SLB to furnish the documents failing which they will be making an application therefore.

By letter dated 28/12/2017, SLB reverted to the Defendant’s solicitors and referred to all the six (6) actions filed by the Plaintiff and furnished copies of various documents to the Defendant’s solicitors. The documents furnished by SLB were all the documents requested by the Defendant other than those which are already exhibited to the Plaintiff’s Affidavits filed in one or more of the six (6) actions, as informed by SLB to the Defendant’s solicitors by letter dated 21/11/2017.

The Defendant’s solicitors have not raised any objection regarding the action of SLB. Instead, the Defendant’s solicitors duly paid the photocopying charges imposed by SLB for the photocopying of the documents forwarded to them.

The Plaintiff’s summary judgment application was initially fixed for hearing on 12/3/2018 at 2.30 pm. However, on 9/3/2018, the Defendant’s solicitors had written to the Court to request for an adjournment of the hearing as the counsel for the Defendant Mr P Suppiah was not medically fit to attend to the said hearing due to “backache and sciatic pain”.

On 11/3/2018, the Defendant’s solicitors had written to SLB that the Defendant’s co-counsel Mr Vijay is also not medically fit to attend the hearing of the summary judgment application on 12/3/2018 and had sought for an adjournment of the said hearing.

On 12/3/2018, the Court had allowed the adjournment of the hearing upon the request of the Defendant’s solicitors and the new hearing date was fixed on 12/4/2018.

On 12/3/2018 when both counsel were supposedly not medically fit to attend court for the hearing of the Plaintiff’s summary judgment application, the application herein was filed.

The Defendant requested for inspection of the various documents referred to in the Statement of Claim, alternatively, asked the Plaintiff to produce photocopies thereof on the Defendant’s undertaking to pay. The Defendant also included a prayer that the Plaintiff’s claim be struck out should the Plaintiff default in complying with the orders sought but at the hearing Defendant counsel said that he was not asking for the Plaintiff’s claim to be struck out.

Order 24 r 10 ROC states as follows: “(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 41 on any other party in whose pleading or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies of that document.

The party on whom a notice is served under paragraph (1) must within four days after service of the notice, serve on the party giving the notice, a notice in Form 42 stating a time within seven days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice and stating which of the documents he objects to produce and on what ground.”

This application was heard together with the Plaintiff’s summary judgment applications against the Defendants in all the six (6) actions. I had granted the Plaintiff summary judgment against the Defendants in all the six (6) actions and accordingly, this application has to be dismissed.

In any event, I find that the application should be dismissed on the merits also. I find that the Plaintiff has already substantially complied with the orders sought by the Defendant herein (which is alternatively for photocopies of the documents to be provided to it). SLB had pointed out where some of the documents can be found in the Plaintiff’s Affidavit filed and served on the Defendant’s solicitors. SLB had forwarded to the Defendant’s solicitors photocopies of the other documents not exhibited to the Plaintiff’s Affidavits filed in one or more of the six (6) actions. And the Defendant’s solicitors have paid the photocopying charges therefor without raising any objection.

The Plaintiff pointed out that the Defendant’s solicitors had never served any Form 41 on SLB. This is not disputed by the Defendant’s solicitors. I find that since the Defendant never served Form 41 on SLB, there was no breach of the ROC on the part of the Plaintiff.

Based on the undisputed facts (the statements in the Plaintiff’s Affidavit to the effect that the application was an abuse of the process of the Court in view of the timing and the sequence of the Defendant’s solicitors’ requests for adjournment of the hearing on 12/3/2018 and the filing of the application are not disputed by the Defendant by affidavit), the application is a tactical manoeuvre to delay the hearing and disposal of the Plaintiff’s summary judgment application. The Defendant has filed an affidavit in reply to the Plaintiff’s summary judgment application and written submission and never alleged that it was in any way hampered in the process by the lack of any relevant documents.

I also find that the Defendant’s solicitors had merely requested for documents to be forwarded to them by letter and that SLB has substantially complied with the Defendant’s solicitors’ request.

As the Defendant has already been forwarded copies of all the documents requested by it ( whether by reference in the Plaintiff’s Affidavits or by being forwarded copies thereof by SLB), I find that the Defendant’s application is without merit and I accordingly dismissed it with costs of RM 1,000.00 subject to allocator. Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Commercial Division Dated: 13th April 2018 Solicitors for the Plaintiff Lim Pei Hsien Messrs Shook Lin & Bok Advocates & Solicitors 20th Floor, Ambank Group Building 55 Jalan Raja Chulan 50200 Kuala Lumpur Tel : 03-2031 1788 Fax: 03-2031 1775/8/9 Solicitors for the Defendants Vijayam A/L Kunjappa Messrs Vijay & Co Advocates & Solicitors No. 401B, 4th Floor