Badan Pengurusan Bersama Saville @ Cheras v Dato Yasmeen Binti Haji Muhamad Shariff (WA-22NCvC-391-06/2024)

This is an application brought by the plaintiff against the defendant for an order for discovery of documents, pursuant to Order 24 rule 7 and rule 10 of the Rules of Court 2012. The application, as contained in enclosure 60, seeks production of three categories of documents: first, the joint venture agreement between Syarikat Vista Haruman Development Sdn Bhd ("the Developer") and Mohd Akbal Bin Mohd Shariff; secondly, particulars and proof of certain payments allegedly made by the 26/03/2026 15:36:51 WA-22NCvC-391-06/2024 Kand. 90 defendant on behalf of a third party; and thirdly, particulars and evidence demonstrating that such payments were made to enable the defendant to represent a third party during annual meetings.

The substantive dispute between the parties, which is yet to be tried, concerns whether the defendant is the registered proprietor of 105 condominium units in the Saville @ Cheras development and is consequently liable for outstanding maintenance charges and sinking funds amounting to RM1,945,019.95. The plaintiff’s case is that the defendant is indeed the owner of these units. The defendant, for her part, denies this assertion categorically, maintaining that she is not the owner and that any payments she may have made were in a managerial or representative capacity on behalf of a third party.

The fundamental question which falls for determination at this interlocutory stage is not, I should emphasise, the ultimate question of who owns the units in question. Rather, the question is whether this court should, at this juncture, compel the defendant to produce the documents specified in the plaintiff’s application. For the reasons that follow, I am satisfied that this is an inappropriate case for a discovery order and accordingly, the plaintiff's application must be dismissed.

The plaintiff is the joint management body ("JMB") of Saville @ Cheras condominium, a body corporate established pursuant to the Strata Management Act 2013. Its statutory function, is to manage and maintain the common property of the development. The defendant is Dato Yasmeen Binti Haji Muhamad Shariff.

The plaintiff's case, as pleaded in the statement of claim dated 21 June 2024, is quite straightforward. It alleges that the defendant is the registered proprietor of 105 condominium units within the development and that, notwithstanding formal demands, she has failed and neglected to pay maintenance charges and sinking funds due in respect of those units, which now total the sum of RM1,945,019.95.

The defendant's case, as set forth in her amended defence dated 23 May 2025, is equally simple. She denies being the registered owner. She avers that the true ownership of the units is the subject of a joint venture agreement between the Developer and a third party, one Mohd Akbal bin Mohd Shariff. She further deposes that any payments she may have made were not made in her capacity as an owner, but rather were made to facilitate her role as a representative for a third party at meetings of the JMB. Her position, she maintains, was merely assisting in management of the units in a representative capacity.

In its reply to the defence, the plaintiff pleads its ignorance of the alleged joint venture and asserts that the defendant has, at no material time, disclosed the existence of any such third-party arrangement. It is against this backdrop of pleadings that the present application was launched. The plaintiff seeks, by this means, to compel the defendant to produce the very documents that was the foundation of her defence.

The application is supported by the affidavit of one Pang Loong Fui @ Richard Pang. For her part, the defendant has responded with an affidavit sworn by herself, Dato Yasmeen, in which she deposes that she is not in possession of the joint venture agreement and that she has been unable to procure a copy from the relevant parties. Both parties have filed extensive written submissions, the plaintiff contending for the necessity of discovery for the fair disposal of the action, and the defendant arguing, in turn, that the application constitutes an impermissible fishing expedition and, as such, an abuse of the process of the court.

The law which governs applications for discovery in Malaysia is well-settled and, I would observe, is designed to prevent the very kind of application which now comes before me. The court's discretion to order discovery is not unfettered. It is a discretion circumscribed by clear and established principles, the primary purpose of which is to ensure fairness between the parties and to prevent the process of discovery from being used as a means of oppression.

The cornerstone provision in this regard is Order 24 rule 8 of the Rules of Court 2012, which provides as follows: 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. [Emphasis is mine]

The word "necessary", as employed in Order 24 rule 8, is to be given a strict construction. It is not synonymous with useful or desirable. The test, as the rule makes plain, is one of necessity, not one of mere fairness or desirability. This salient principle was articulated by the Court of Appeal in the case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40, where their Lordships held: “[25] As stated earlier the real issue is compliance with rule 13(1) which stipulates that discovery may only be ordered if the court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfy the court [26] Dolling-Baker's case (supra) and Ventouris v. Mountain (supra). Because of that erroneous premise the learned Judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The Respondents also failed to provide any materials to satisfy the court of such necessity. If necessity is not the prime concern of the court, allowing discovery would tantamount to allowing the Respondents to fish for evidence which defeats the propose of the rule by causing the Appellants to suffer unfair disadvantage if they fail to comply with an order which is oppressive and incapable of compliance – see Taylor v. Anderton (supra) and Leslie S Holmes (supra).” [Emphasis is mine]

That passage, in my judgment, is critical. It establishes that an applicant for discovery must do more than merely assert that the documents might be helpful to his case. He must demonstrate, to the satisfaction of the court, that those documents are “necessary” for a fair disposal of the action or for the saving of costs. A failure to discharge that burden will inevitably result in the application being characterised as a fishing expedition, which is an impermissible exercise and an abuse of the court’s process.

The classic tripartite test which governs the making of an order for discovery was authoritatively laid down by the court in the case of Yekambaran s/o Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581. The essential elements held therein, are as follows: "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 person against whom the order for discovery is sought." [Emphasis is mine]

It is to be observed, however, that while these three elements constitute the foundational for any such application, they are themselves subject to the overriding and paramount requirement of necessity. It is therefore quite possible for a document to be both relevant to the pleadings and within the possession, custody or power of the opposing party, and yet for an order for its discovery to be refused if the court is not satisfied that its production is truly necessary for the fair disposal of the action or for saving costs.

The modern position on this point was succinctly and, in my view, correctly summarised in the recent decision of Brand Ace Sdn Bhd v Rapid Sdn Bhd & Anor [2020] MLJU 979, a passage which I am inclined to follow: "[23] Necessity may not be the 'mother of invention' in this case, but necessity is certainly the proper (and only) basis for an order for discovery... [25] In my opinion, the Discovery Documents are not necessary or relevant either for disposing fairly of the instant suit or for saving costs. Whether the Discovery Documents are necessary or relevant is primarily determined by reference to the pleadings." [Emphasis is mine]

This final point is, I consider, of crucial importance. It is the pleadings which define the battlefield for the litigation. The relevance, and therefore the necessity, of any document sought in discovery must be determined by a close and careful examination of the live issues as they are defined in the statement of claim, the defence, and any reply. It is not sufficient for a party to seek documents merely because they might shed some light on the background to the dispute. They must be shown to be necessary for the fair trial of the issues actually joined by the parties.

The case as pleaded by the plaintiff is, in its essential, straightforward. The plaintiff asserts: "The defendant is the registered owner of the units in question and is consequently indebted to us for the sums claimed.” The case as pleaded by the defendant is, with equal simplicity, a direct traverse: "I am not the registered owner." It follows, therefore, that the singular and central issue which falls to be determine at trial is a narrow one, that is, is the defendant the registered proprietor of the 105 condominium units?

The burden of proving this affirmative assertion rests, as a matter of law, squarely and exclusively upon the plaintiff. This is a fundamental principle of evidence by virtue of Section 101 of the Evidence Act 1950. The defendant, for her part, bears no legal burden to prove that she is not the owner; her task is merely to raise a reasonable doubt as to the plaintiff’s case. Her defence, as pleaded, is in the nature of a denial, not an affirmative case which would require her to prove the identity of the true owner.

It appears that the plaintiff has not fully appreciated the fundamental nature of this dispute. The documents which it now seeks by way of discovery are not, in my judgment, necessary for the plaintiff to prove its own case. If the plaintiff’s case is that the defendant is the registered proprietor, then the best evidence to prove or disprove that assertion would be the title documents themselves, the strata registers, or the relevant sale and purchase agreements from the Developer. The plaintiff, in its capacity as the JMB which assumed management from the Developer, ought reasonably to have access to such records or, at the very least, if it does not, its proper recourse is to seek them from the source, that is to say, from the Developer or the relevant land registry.

Instead of pursuing this logical course, the plaintiff is, in fact, attempting to shift the investigative burden onto the defendant. It is asking the court to compel the defendant to produce documents which will, in effect, assist the plaintiff in proving the very case which it is the plaintiff’s sole burden to establish. This constitute a reversal of the established order of proof and is, in my view, precisely the kind of impermissible fishing expedition the rules are designed to prevent.

Applying the salient principles distilled from the authorities of Brand Ace (supra) and Nguang Chan (supra), I must direct my mind to the central question mandated by Order 24 rule 8, and ask: are the documents specified in the application necessary for disposing fairly of the cause or matter? For the reasons that follow, I am satisfied that they are not.

In respect of the first category of documents, namely the joint venture agreement, the plaintiff submits that this document is relevant to the ownership structure of the units. This may be so is not, in itself, sufficient. As has been repeatedly stressed, relevance does not equate to necessity. The agreement in question is a document to which the defendant is not a party. She has sworn in her affidavit, and the Court has not reason to doubt her, that she does not possess it and has been unable to obtain it from the parties who do. This fact is tacitly acknowledged by the plaintiff in its own reply, wherein it pleads its ignorance of the very existence of such an agreement. To make an order requiring the defendant to produce a document which she does not have, and to which she is not a party, would be to make an order that is manifestly incapable of compliance. Such a course would inevitably result in the very unfair disadvantage and potential oppression warned against in Nguang Chan (supra). If the plaintiff is of the view that this agreement is vital to the determination of the action, its proper recourse is to seek discovery from the actual parties to it, namely the Developer and Mohd Akbal bin Mohd Shariff.

With regard to the second category of documents, namely the particulars and proof of payment allegedly made for a third party, the plaintiff seeks these documents to challenge the veracity of the defendant's defence. Once again, this misconceives the proper basis for an order for discovery. The defendant's defence is, at its heart, a simple denial of ownership. Whether she made payments, and the purpose for which those payments were made, is not directly probative of the question of legal title. The plaintiff's own pleaded case is that it was wholly unaware of any third-party arrangement. The defendant's assertion of such an arrangement is, therefore, part and parcel of her denial. The plaintiff cannot, at this interlocutory stage, deploy the tool of discovery to compel the defendant to substantiate every aspect of her denial. This is a matter for the trial itself, where the defendant's evidence on this point can be fully tested by cross-examination. As the Court of Appeal made unequivocally clear in Nguang Chan (supra), the purpose of discovery is not to assist a party to prop up his case.

As to the third category, being the particulars of the defendant’s representation at meetings, this request suffers from the same fundamental infirmity. The plaintiff's cause of action is founded squarely on the issues of ownership and consequent debt. The defendant's attendance at meetings, whether in the capacity of an owner, a proxy, a representative, or indeed as mere observer, has no direct bearing on the question of legal title. Such evidence is, at best, peripheral. The documents sought are, therefore, not necessary to dispose fairly of the central, indeed the only, live issue in the action. Is this a Fishing Expedition

The defendant characterises this application, and in my judgment correctly so, as a fishing expedition. The classic hallmarks of such an impermissible exercise are, I find, plainly present. The plaintiff has failed to adduce any prima facie evidence to satisfy the Court that the documents sought are truly necessary for the fair disposal of the action. Rather, the application appears to be a tactical ploy, designed to uncover information which might assist its case, or perhaps more cynically, to exert pressure upon the defendant with a view to coercing a settlement.

In support of its position, the plaintiff relies on the principle from Day v William Hill (Park Lane) Ltd [1949] 1 KB 632, to the effect that a document referred to in a pleading becomes, in a sense, part of that pleading and is liable to be produced. However, this principle is not absolute and cannot be applied in a vacuum. It cannot be used to compel a party to produce a document they do not have, especially when they are not a party to it. More importantly, this principle is, in any event, is subordinate to the overarching test of necessity in Order 24 rule

A document may well be referred to in a pleading, but if its production is not necessary for the fair disposal of the action, then an order for discovery can, and should, be refused.

The plaintiff's attempt to distinguish the decision of Brand Ace Sdn Bhd v Rapid Sdn Bhd (supra) is, in my opinion, entirely unconvincing. In that case, the court found that the documents in question were not necessary because they did not advance the plaintiff's pleaded case. The situation here is directly analogous. The documents which the plaintiff now seeks do not advance its core pleaded case, which is, and remains, the simple assertion that the defendant is the registered owner. At best, these documents are merely peripheral to the defendant’s denial of that assertion. They are therefore not necessary.

The plaintiff's further submissions, which were filed in response to the defendant's notice of intention to rely on certain affidavits, serve only reinforce my view. The plaintiff points to receipts and statements of account which were issued in the defendant's name, contending that this constitutes evidence that she was acting in her own capacity. But this is exactly the sort of factual dispute that should be decided at trial, after all the evidence is heard and tested in cross-examination, not through a pre-trial discovery skirmish. In fact, the plaintiff’s possession of these receipts undermines its argument that it needs discovery from the defendant. The plaintiff already holds the very documents it says support its case. It should present them at trial and allow their evidential weight to be assessed there.

For the reasons which I have given, and upon careful consideration of the submissions and authorities advanced by both parties, I am driven to the conclusion that this application represent an impermissible fishing expedition and an abuse of the court's process. The plaintiff has failed to demonstrate that the documents sought are necessary for disposing fairly of the cause or matter, as required by Order 24 rule 8.

The central issue in this case is the ownership of the 105 units. The burden of proving this lies with the plaintiff. The documents sought do not assist the plaintiff in discharging this burden. Instead, the plaintiff is effectively asking the court to assist it in building its case by compelling the defendant to produce evidence. This is not the purpose of discovery.

The defendant's arguments are well-founded. The application is an attempt to fish for evidence in the hope of fortifying a case which the plaintiff has, to date, failed to establish. It seeks documents that are not necessary for the fair disposal of the action, and it places an unfair burden on the defendant to substantiate the very case which the plaintiff's is obliged to prove.

Accordingly, for all the foregoing reasons, I dismiss the plaintiff's application for discovery, as contained in enclosure 60 with costs of RM5,000 subject to allocatur. Dated the 9th day of January 2025 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Plaintiff : Stephanie Ang and Jusstina Xavier Messrs Julian Stephanie Counsel for the Defendants :