Deeside Flexy Flowline Sdn. Bhd. v 1. ) Kevin Forbes Blues (WA-22NCC-148-04/2022)

KEVIN FORBES BLUES (United Kingdom Passport No. 533685150)

BLUE SEAS ENERGY SDN. BHD. (Company No. 201801023577 (1285597-M))

PIPELIFE NEDERLAND B.V. ...DEFENDANTS GROUNDS OF JUDGMENT (NO. 2) (Discovery Application – Enclosure 21) Background Facts [1]

All documents, agreements and correspondences which show that Petronas had awarded the “Sepat Oilfield” works to EAT Bhd on 12.6.2019 as pleaded at paragraph 45(d) of the

All documents, agreements and correspondences which show that EAT Bhd had awarded Engineering Works to Blue Seas on 7.7.2019 as pleaded at paragraph 47 and 50(c) of the Defendants’ Defence;

Any other documents, agreements and correspondences between Kevin either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and EAT Bhd;

Any other documents, agreements and correspondences between Blue Seas and EAT Bhd;

All documents, agreements and correspondences between Kevin either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and the 3rd Defendant, Pipelife Nederland B.V. (“Pipelife”) between the periods of 17.12.2015 to 31.9.2019; and

All documents, agreements and correspondences between Blue Seas and Pipelife between the periods of 17.12.2015 to 31.9.2019. (collectively referred to as the ‘Requested Documents’) [2] The Plaintiff’s Discovery Application is moved under the following three (3) limbs for discovery: a) General Discovery (O. 24 r. 3 of RC 2012); b) Specific Discovery (O. 24 r. 7 of RC 2012); and c) Inspection of Documents referred to in Pleadings (O. 24 r. of RC 2012). Summary of Law on Discovery [3] The governing principles upon which a Court would exercise its powers under O. 24 of RC 2012 had been expounded in the case of Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 where Edgar Joseph Jr SCJ stated 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 party against whom the order for discovery is sought.’ [4] This position has been reaffirmed in the recent Court of Appeal case of Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn. Bhd. & Ors [2020] 1 LNS 1252. It was also further emphasized in this case that the documents sought in a discovery application must not only be relevant, but also proven to be necessary: ‘[172] It would be convenient to first deal with the question of relevancy of the DSA. The starting point in the discussion is the case of Yekambaram, where Edgar Joseph Jr said (page 585 of the CLJ report) that: … [199] In our view, the question as to whether the document for which disclosure is sought is necessary is an important and we might, add pivotal component for the order of discovery under Order 24 Rule 7 ROC. Indeed, Order 24 Rule 8 ROC also makes it imperative that the Court to refuse discovery if it is satisfied that discovery was not necessary. … [202] In our view, the proper approach to the question of whether discovery is “necessary” may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 (“Bayerische”) where the High Court of Singapore at paragraph [37] stated as follows: ‘The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough.’ Further, in paragraph [38] of the judgment, the Singapore High Court had considered Order 24 Rule 7 which is pari. materia with our Order 24 Rule 8 and stated that: ‘The court is, by O. 24 r. 7, concerned with the discretion to refuse disclosure of a document unless the necessity for disclosure is clearly demonstrated. [203] As stated earlier, the burden was on the respondents to establish to the satisfaction of the Court that the DSA is not just relevant but also that it is necessary for disposing the matter fairly and for savings of cost as well.’ [5] The above elements have also been summarized in the recent High Court 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: ‘[35] In other words, in order to succeed in the discovery application, the Defendant must establish the following requirements: a) the Defendant must establish that the documents sought exists; b) the Defendant must identify the documents sought with sufficient precision; c) the Defendant must establish that the documents sought are material and relevant to the present case; d) the Defendant must establish that the documents sought must be or have been in the possession, custody or power of the Plaintiffs; and e) the Defendant must establish that the documents sought are necessary for a fair disposal of the matter or saving costs.’ Court’s Deliberations [6] The Defendants opposed the Plaintiff’s Discovery Application on the following grounds: a) The Requested Documents are not referred to in pleadings and as such discovery cannot be granted pursuant to O. 24 r 10, RC 2012; b) The Requested Documents at prayer (a) are documents between Petronas and EATB, and would not be in the possession of the Defendants; c) The Plaintiff’s Discovery Application for the documents as prayed amounts to a “fishing expedition” wherein the Plaintiff has failed to satisfy any of the requirements for discovery; d) The Plaintiff has failed to demonstrate the necessity of the Requested Documents; and e) The Plaintiff’s Discovery Application seeks to wrongly shift the burden of proof onto the Defendants. [7] At the outset, learned counsel for the Plaintiff conceded that the documents referred to in prayer (a) of the Enclosure 21 are not in the possession of the Defendants and she abandoned the application for the same. [8] As regards the other Requested Documents, I agree that the Defendants are obliged to produce the following category of documents for which I so ordered: a) All documents, agreements and correspondences which show that EAT Bhd had awarded Engineering Works to the 2nd Defendant on 7.7.2019 as pleaded at paragraph 47 and 50(c) of the Defendants’ Defence; b) Any other documents, agreements and correspondences between the 1st Defendant either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and EAT Bhd; c) All documents, agreements and correspondences between 1st Defendant either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and the 3rd Defendant, Pipelife Nederland B.V. (“Pipelife”) between the periods of 17.12.2015 to 31.9.2019; and d) All documents, agreements and correspondences between the 2nd Defendant and Pipelife between the periods of 17.12.2015 to 31.9.2019. (collectively ‘the Discovered Documents’) [9] It is my judgment that the Discovered Documents are necessary and relevant to this action. In particular, to determine the issue of whether the 1st and 2nd Defendants had contracted with EAT Bhd for the supply of SoluForce Pipes or for services ancillary to the supply of SoluForce pipes. [10] The Plaintiff has pleaded by its Reply that Engineering Works are anxillary to the supply of the SoluForce pipes. This means that in order for the Defendants to undertake Engineering Works, EAT Bhd would have to first secure the supply of the SoluForce pipes. Thus, the documents relating to the award of the Engineering Works by EAT Bhd to the 2nd Defendant are relevant and necessary for the Plaintiff’s action herein. [11] Furthermore, the Plaintiff has pleaded that it had come to an in-principle agreement to supply 660 meters of SoluForce pipes to EAT Bhd and had entrusted the 1st Defendant as its director to finalize the terms. The claim against the 1st Defendant is for breach of his fiduciary duties in misrepresenting the status of the Plaintiff and for misappropriating the business opportunity of the Plaintiff with EAT Bhd. Hence, the documents between the 1st Defendant either in his personal capacity or as a director/shareholder of the other Deeside Companies or any other 3rd party company and EAT Bhd would be necessary and relevant for the Plaintiff’s cause of action. [12] As regards the 3rd Defendant, the Plaintiff is claiming that the 3rd Defendant had induced the 1st Defendant to breach his fiduciary duties to the Plaintiff and that both the 1st and 2nd Defendants had colluded with the 3rd Defendant to perpetrate the breach of their duties. Accordingly, the documents, agreements and correspondences between 1st Defendant either in his personal capacity or as a director or shareholder of the other Deeside Companies or any other 3rd party company and the 3rd Defendant and between the 2nd Defendant and the 3rd Defendant are necessary and relevant to the Plaintiff’s action. [13] I have also confined the Discovered Documents to only the period between 17.12.2015 to 31.9.2019 so that the obligation to provide for discovery would not be too wide and onerous on the Defendants. [14] Additionally, there is no issue from the Defendants that any of the Discovered Documents are not in their possession, custody and control. More specifically, by their Defence, they have stated thus: ‘47. In furtherance to paragraphs 44, 45, and 46 above, the Defendants would further state as follows: a) On or around 8.5.2019, D1 was approached by EATB for a meeting, whereby EATB had disclosed proposed works which apart from the supply of oil and gas pipes, required substantial engineering design and works, Lloyds Certification, providing ancillaries and components at the Sepat Oilfield ("Engineering Works"); b) The Plaintiff did not have the financing or knowhow to perform the Engineering Works sought by EATB, and given that D2 was able to perform the said Engineering Works, D2 had upon EATB's request put in a tender for the said Engineering Works; c) Upon being awarded the Sepat Oilfield works from Petronas on 12.6.2019, EATB had on 7.7.2019 awarded the Engineering Works to D2; and d) D2 did not at any time undertake any works in relation to the supply of pipes sought by EATB for the Sepat Oilfield works.” [15] I respectfully disagree with learned counsel for the Defendants that the Discovered Documents are vague and ambiguous and that the application for discovery is nothing more than a ‘fishing expedition’. I need only relied on the following passage in Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 (HC) para. 10(a); ‘…the applicant’s affidavit in support of the discovery application against third party (‘supporting affidavit’) shall ‘specify or describe the documents in respect of which the order is sought’ (‘documents’) as required by O 24 r 7A(3)(b) of the RC . In this regard, I refer to the Singapore Court of Appeal’s judgment in Kuah Kok Kim, at para 37, as follows: 37 As long as the appellants described the type or class of documents with reasonable precision, and that class of documents were relevant to the cause or intended cause of action, that would be enough. They need not go on to describe and name each and every such document specifically. Indeed, it would be unreasonable and impossible for the appellants to do so. (Emphasis added.) Based on Kuah Kok Kim, the supporting affidavit need only describe the documents with reasonable precision. If the documents have been described with reasonable precision, the discovery application against third party cannot be said to constitute a fishing expedition’ Conclusion [16] In the circumstances, this Court grants an order in terms of Enclosure 21 as revised. Dated on the 8th day of December 2022 ONG CHEE KWAN J Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 COUNSEL:

Ms Pavitra Pillai for Plaintiff

Mr. Conrad Lopez (together with Ms. Yow Angie) for the 1st and 2nd Defendants Messrs. Vinu & Lopez (Kuala Lumpur)

Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ

Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn. Bhd. & Ors [2020] 1 LNS 1252 3. Hayel Saeed Anam & Company Limited (satu syarikat yang diperbadankan di bawah undang-undang Yemen) & Ors v Marwan Ahmed Hael Saeed [2022] MLJU 892 4. Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10