Cimb Bank Berhad v 1. Roebuck Development Sdn. Bhd (dalam Likuidasi) (JA-22NCvC-43-02/2020)

ROEBUCK DEVELOPMENT SDN. BHD (DALAM LIKUIDASI) [No. Syarikat: 198501005587 (138028-W)]

TIARA DESARU RESIDENCES SDN. BHD. [No. Syarikat: 200701006802 (764803-P)] (dahulunya dikenali sebagai MB RESORTS SDN. BHD.)

3.

LEE LAI MAY DEFENDANTS GROUNDS OF JUDGMENT 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 2 Introduction [1] This is the Plaintiff’s application in Enclosure 9 (“this Application”) against the Second Defendant, Tiara Desaru Residences Sdn. Bhd. for an order to provide further and better particulars, and leave to amend the Writ and Statement of Claim, by joining an additional party to this action instituted by the Plaintiff. The background facts [2] In October 1995, the Third and Fourth Defendants, who are individuals, had purchased from the First Defendant Company, a condominium unit (“the Property”) which was part of a development project known as La’ Cemara Desaru Resort Condominium (“the Project”). The Plaintiff had allegedly, on 1 July 1996, granted a loan in the amount of MYR155,000 (“the Loan”) to the Third and Fourth Defendants, who, as a security thereof, had assigned the Property to it. [3] The First Defendant was subsequently wound up, and the Project was abandoned. A Liquidator was, however, appointed in 2006, and via a Vesting Order dated 15 August 2006, the First Defendant’s assets were vested in the Liquidator (who had since demised). The Second Defendant, relying on such Vesting Order, purchased the land on which the Project was being developed. After reviving and completing the Project, the Second Defendant sold units therein, including the Property, to third party purchasers. 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 3 [4] In August 2008, the Third and Fourth Defendants were declared bankrupt, as a result of a judgment sum obtained against them by the Plaintiff. [5] On 19 February 2020, the Plaintiff instituted this action against the Defendants. This Application by the Plaintiff was for particulars of a third party who had purchased the Property from the Second Defendant, and details of such purchase. The purpose of this Application was also to join the said third party purchaser as a co-defendant. [6] This Application was dismissed for the following reasons. Contentions, evaluations, and findings Whether this Application was properly made [7] At the outset, it must be noted that Enclosure 9 also contained an application for leave to amend the Writ and Statement of Claim. In my view, this Application was not proper as an application for leave to amend ought not to have been made as part of an application for further and better particulars. [8] Secondly, no description whatsoever was made in the Plaintiff’s Affidavit-In-Support dated 26 August 2020, as to how it proposed to amend the Writ and Statement of Claim. As such, there was no material upon which this Court could rely on, in exercising its discretion to grant leave. 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 4 Whether this Application was necessary [9] The main issue for the consideration of this Court was whether it was just to allow this Application, bearing in mind the requirement contained in Order 18 rule 12 (4), which reads: Order 18 - Pleadings Rule 12 – Particulars of pleading

Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party-

where he alleges knowledge, particulars of the facts on which he relies; and

where he alleges notice, particulars of the notice [Emphasis added]. [10] An order for further and better particulars is wholly within the discretion of the Court, as stated in Dato’ V Kanagalingam v Tommy Thomas [1997] 5 MLJ 229, and that such further and better particulars should relate only to matters arising from the pleadings and not to the evidence. [11] According to the facts, the Second Defendant filed its Defence on 25 March 2020, and thereafter, the Plaintiff’s reply was filed on 27 April 2020, indicating that the Plaintiff was fully aware and appraised of the issues raised by the Second Defendant. 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 5 [12] However, this Application was filed only on 26 August 2020, which in my view was a delay that had given rise to an inference that this was merely an afterthought on the part of the Plaintiff. [13] Furthermore, it has been stated by the Court of Appeal in Lembaga Pelabuhan Kelang v Mega-Wan Corporate Services Sdn Bhd [2013] 1 CLJ 605 that: The basic rule of thumb is to allow further and better particulars so that a party cannot complain it has not been given adequate opportunity to check, verify and answer the facts alleged against it. A denial of further and better particulars desired by a party to enable it to check, verify and answer the facts alleged against it is as much an abuse as a demand for further and better particulars that is frivolous, vexations or an abuse of the process of the court. In Tan Hoe Kock & Anor v. Ali Akarbara Mangudin & Ors [1997] 1 CLJ 348, it was held: … instances when a defendant requests for particulars purely as a matter of harassment of the plaintiff or as a fishing expedition. Particulars ought not to be given in every case as of right. It is a discretionary right vested with the Court to be exercised upon a study of the pleadings and the averments in the affidavit in support of the application for particulars. [Emphasis added]. [14] A perusal of the pleadings indicated that at no point were averments or allegations made by the Second Defendant against the Plaintiff, to warrant a request or application for further and better particulars. The gist of the dispute between the Second Defendant and Plaintiff revolved around the issues of unjust enrichment, validity of the Vesting Order and whether the Plaintiff/ Third and Fourth Defendants were the beneficial owners of the Property, and even if they were, whether the Plaintiff’s claim was time-barred. 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 6 [15] It is pertinent to note that the Plaintiff was only entitled to be informed of the nature of the Second Defendant’s Defence, and not the mode of proving it. The Second Defendant had indicated in its Defence that it had sold the Property to a third party, and this was a fact pleaded pursuant to Order 18 rule 7 of the Rules of Court, which states that only facts should be pleaded, and not the evidence. The provision reads: Order 18 - Pleadings Rule 7 – Facts, not evidence, to be pleaded (O. 18 r. 7)

Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. [Emphasis added]. [16] This was restated in Skrine & Co. v. MBF Capital Bhd [1998] 3 CLJ 432, where the Court of Appeal opined as follows: This request was vigorously pursued before us as it was before the learned judge and resisted with equal vigour. At the heart of the dispute between the parties lies the well-established principle that governs the law of particulars in the field of practice and procedure. It is this. A litigant is entitled to have from his opponent, particulars of facts relevant to the issues at stake in order to prevent surprise, but he is not entitled to have his opponent’s evidence. [Emphasis added.] [17] The objective of pleadings is, therefore, to prevent parties from being caught by surprise. I am guided by the Federal Court in KEP 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 7 Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169, in the following passage by Raja Azlan CJ (Malaya) (as he then was), which was adopted subsequently by a plethora of cases including Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277, [1985] CLJ Rep 24: As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. [Emphasis added.] [18] In this case, the Plaintiff’s reply to the Second Defendant’s Defence indicated that it was clear about the issues raised by the Second Defendant, and there would have been no element of surprise, regardless of whether the details of the third party purchaser were provided. [19] The Plaintiff had also failed to explain how it could be taken by surprise by the non-disclosure of the identity of the third party purchaser or particulars of the sale, bearing in mind that, in any event, such matters are evidential in nature, which the Plaintiff is not entitled to at this stage of the proceedings: Skrine & Co. v. MBF Capital Bhd [1998] 3 CLJ 432. [20] In such circumstances, the irresistible inference is that this Application was no more than a “fishing expedition”, which cannot be condoned or allowed by this Court. 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 8 [21] It was also pertinent to note that since the assignment to the Plaintiff by the Third and Fourth Defendants was by way of security for the Loan, the Plaintiff had no basis to concern itself with the third party purchaser of the Property, bearing in mind the supervening events that had taken place since. Whether this Application was legally impeded by the Personal Data Protection Act 2010 [22] The Second Defendant had also brought to the attention of this Court, the legal impediment that arose pursuant to the Personal Data Protection Act 2010 (“Personal Data Protection Act”), if the details of the third party purchaser were disclosed. [23] The Personal Data Protection Act prohibits the disclosure of personal data collected for commercial purposes unless consent is duly given by the person whose personal data is in issue. The relevant provision that is applicable to the Second Defendant is section 8 of the Personal Data Protection Act, which reads: Section 8 – Disclosure principle Subject to section 39, no personal data shall, without the consent of the data subject, be disclosed – (b) to any party other than a third party of the class of third parties as specified in paragraph 7(1)(e). [24] The business of the Second Defendant, which warranted collecting and processing personal data of third party purchasers from time to time, rendered it a data user within section 4 of the Personal Data Protection Act; and the personal data of the third party purchaser in 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 9 question, as described also by section 4 of the Personal Data Protection Act, was the ‘information recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system.’ [25] As such, the Second Defendant, had the duty to maintain confidentiality of the personal data which it had collected and processed in the course of its commercial activities. Since there was no evidence to show that the third party purchaser had consented to the disclosure of their personal data that were requested by the Plaintiff, the Personal Data Protection Act amounted to a legal impediment to the disclosure of the details of the third party purchaser. [26] In the final analysis, it is my view that the proposed joining of the third party purchaser would unduly complicate and delay this trial, in light of the facts that the First Defendant had been wound up, its Liquidator demised, and the Third and Fourth Defendants declared bankrupt. Conclusion [27] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, this Application was dismissed with costs in the amount of MYR3,000 (subject to allocatur fees). 23 January 2021 …………………………………………………………………………………………………………………………………………………… -------------------------------------------------------------------------------------------------------------------------------------- 10 Dated: 23 January 2021 ……..…SIGNED…………. (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Plaintiff – Mohamad ‘Ammar Redzuan bin Mohamat Nor; Messrs KY Sim & Co For the Second Defendant – WJ Chen; Messrs WJ Chen & Company Cases referred to:  Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277, [1985] CLJ Rep 24  Dato’ V Kanagalingam v Tommy Thomas [1997] 5 MLJ 229  KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169  Lembaga Pelabuhan Kelang v Mega-Wan Corporate Services Sdn Bhd [2013] 1 CLJ 605  Skrine & Co. v. MBF Capital Bhd [1998] 3 CLJ 432 Legislation referred to:  Rules of Court 2012 Order 18 rules 7, 12  Personal Data Protection Act 2010, sections 4, 8