Jc Advance Marketing Sdn. Bhd. v Sathya A/L Selvam (KA-22NCvC-32-07/2025)

By this application in Enclosure 13 the Plaintiff sought the following:

That the Defendant shall within fourteen (14) days from the date of this Order serve on the Plaintiff one (1) Affidavit of Discovery (“Affidavit of Discovery”) stating the following: - 14/03/2026 22:31:57 KA-22NCvC-32-07/2025 Kand. 39

Whether any document specified or described in the application or any class of document so specified or described as follows is, or has at any time been, in the Defendant’s possession, custody or power: - i. All financial statements, orders, invoices, bills, receipts, payment vouchers, credit notes, payment orders, bills of exchange, cheques, promissory notes, account books recording receipts and payments or income and expenditures, balance sheets, debtor ledgers, sales ledgers, audit records, and management accounts of Dark Aries Enterprise (Registration No: 202303083401) from 26.03.2023 until 31.03.2024 or from the month of March 2023 until the month of March 2024 (whichever is applicable); ii. Cash Bills from Cash Bill No. 00001 up to Cash Bill No. 00080 or Cash Bills up to the date of 31.03.2024; iii. Bank Statements for Maybank Account no.: 157326085234 under the Defendant from the month of March 2023 until the month of March 2024; iv. Bank Statements for Hong Leong Bank Berhad Account no.: 16401029550 under the Defendant from the month of March 2023 until the month of March 2024; v. Income Tax Assessment Forms of the Defendant and/or Business Income for the year 2023; and vi. Income Tax Assessment Forms of the Defendant and/or Business Income for the year 2024.

If any of the requested documents be in the possession, custody, or power of the Defendant, the Defendant shall exhibit the said documents as exhibits together with the

If any of the documents specified or described in the application is not in the Defendant’s possession, custody or power, the Defendant shall state as follows: - i. When the Defendant parted with the possession, custody or power over the document sought; and ii. The individual and/or party that currently has possession, custody or power over the document sought.

This application was opposed by the Defendant.

Having heard the parties and carefully considered all the evidence before me, I dismissed the Plaintiff’s application with cost.

Dissatisfied with my decision, Plaintiff has filed a notice of appeal dated 19 January 2026.

The following are my grounds in arriving at my decision.

The Plaintiff is a limited liability company. The Defendant was a former employee of the Plaintiff. He was appointed as a Sales Manager vide letter of appointment dated 01.12.2021. The Defendant resigned from the Plaintiff company on 31.03.2024.

The Plaintiff contends that it subsequently discovered the Defendant had established a business known as “Dark Aries Enterprise” while still employed with the Plaintiff company.

The Plaintiff brought this instant action claiming damages from the Defendant, as, among others, the Plaintiff contends that the Defendant, trading under the name and style of Dark Aries Enterprise has conducted a business in direct competition with the Plaintiff’s business whilst in the employ of the Plaintiff.

It is germane at this juncture to state for clarity that what all to be determined is whether taking into account the facts pattern of this case this application for discovery should be allowed. I will thus refrain from making any determination on the merits of either the claim or the defence. Nothing herein shall be construed to convey that I have expressed any view on the merits of the case which will only occur upon full hearing. At present, consistent with established authorities, the task at hand is simply to determine the merits of the application for discovery. In so doing I will only refer to the pleadings as is necessary to provide context and set the contours of the case.

Simply put, the Plaintiff’s causes of action are as follows:

breach of contractual duties;

(ii) breach of duty of confidence and trust; and

(iii) breach of duty of fidelity, good faith and/or fiduciary.

In essence, the Plaintiff’s causes of action against the Defendant rest substantially on the allegation that, during the course of his employment, the Defendant established Dark Aries Enterprise and engaged in business dealings with the Plaintiff’s business partners, thereby placing himself in direct conflict of interest and effectively entering into competition with the Plaintiff company.

Plaintiff submitted that it is entitled to file the present application for discovery premised on the followings:

the subject matter sought are indeed classified as “document” or a specified class of documents for the purpose of this

the documents sought are relevant to the issues in this suit;

The Document sought have been in the “possession, custody or power” of the Defendant; and

The discovery of the Documents sought are necessary for the fair disposal of the proceedings or for the purpose of saving costs.

The Defendant strenuously opposed the Plaintiff’s discovery application, contending that it is without merit, amounts to a fishing expedition, and constitutes an abuse of process and canvassed the following submissions: -

Enclosure 13 is nothing more than a fishing expedition by the Plaintiff who has failed to specify the exact relevant document(s) that it is looking for – as can be seen from the words “mana-mana sesuai akan terpakai” or whichever is applicable as highlighted above;

the documents that the Plaintiff are seeking are not relevant to the Plaintiff’s pleaded case;

the Defendant had voluntarily submitted all the relevant documents to the Plaintiff as part of the Common Bundle of Documents and do not possess any other documents that the Plaintiff is seeking apart from the bank statements and the Defendant’s income tax submissions; and

The Plaintiff is guilty of laches by failing to file this application at an early stage and has acted in bad faith. THE LAW

The governing provision for discovery of documents have been codified in Order 24 Rules of Court 2012. In Yekambaran s/o Marimuthu v. Melayawata Steel Berhad [1994] 2 CLJ 581 at 585 the Court held that for the application for discovery, the applicant must satisfy the following three (3) pre-requisites: “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.”

In Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise & Ors [2009] 5 MLJ 40 it was stated as follows: “Finally the court would dismiss a plaintiff's application for discovery if it is of the view that the plaintiff was " merely fishing for evidence to prop up his case" and to allow him discovery would be unduly oppressive to the party giving discovery. Lihat juga Leslie S Holmes v. Engineering Service Inc [1993] 1 AMR 27 m.s 36”

From Enclosure 13 the application is made under Order 24 r 3; Order 24 r 7; Order 24 r 8; Order 24 r 9; Order 92 r 4 and the inherent jurisdiction of the Court. It is instructive at this juncture to refer to the decision of the English Court of Appeal in Dolling-Baker v Merrett & Another [1990] 1 WLR 1025 where Parker LJ has examined in some detail the interplay between the rules in Order 14 of the English equipollent where the following passages are relevant: - “Rule 3 is the first of the rules which provide for an order being made. …. It is to be noted that that is subject to rule 8. There is then provision for the determination of issues before discovery, and the form of the list of documents. One then comes to rule 7, under which the first part of the summons was launched …. Rule 8, to which both rules 3 and 7 are subject … It is to be noted that rule 8 imposes a bar only if the court is of the opinion that the discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. So far the rules are dealing with discovery in the sense of listing by affidavit, or by lists unverified or verified by affidavit. They are not dealing with production or inspection. The rules which deal with production and inspection begin at rule 9.”

The analysis stated above is important as it relates to the burden of satisfying the Court. Parker LJ stated: - “It is submitted on behalf of the first defendant that the effect of rule 13(1) is that the burden of satisfying the court that production and inspection is necessary is squarely upon the party applying, whereas under rule 8 it is for the party who is objecting to any such order to satisfy the court that discovery by list or affidavit is not necessary. It appears to me that that approach and submission are correct, and there is a perfectly sensible reason for it. If one is merely at the stage of discovery, it does no harm in most cases for the party against whom discovery is sought merely to list his documents. That discloses that he has them or has power over them. But he can object to produce them on the ground of privilege or, indeed, on any other ground. At that stage not very much has occurred except that the applying party will be enabled to know what documents the objecting party has, and it is right that the burden should be upon the objector in such a case. When, however, one gets to the stage of production and the document is to be produced to the court or the other side, the position is different, and it should be, and the rules appear to me to state with complete clarity that it is for the party seeking production to satisfy the court that such production is necessary for the purposes specified in rule 13(1), namely, for disposing fairly of the cause or matter or for saving costs.”

With those principles in mind we now turn to merits of the application. To recapitulate the central issue before this Court is whether the discovery sought genuinely pertains to documents indispensable for resolving material facts, determining the issues in dispute, establishing liability, and assessing any quantum of damages allegedly arising from the Defendant’s misconduct or whether, instead, it represents a fishing expedition intended to burden the Defendant and misuse the discovery process.

In its Statement of Claim, the Plaintiff pleaded, inter alia, the following material facts:

that the Defendant breached his fiduciary duty and abused confidential information relating to the Plaintiff’s customers while in the Plaintiff’s employ;

that the Defendant, since June 2023, ordered goods from the Plaintiff’s “rakan-rakan perniagaan” under the name Dark Aries Enterprise without authority, approval, or disclosure to the Plaintiff;

that by establishing Dark Aries Enterprise, the Defendant effectively entered into competition with the Plaintiff;

that payments were made under a Hong Leong Bank account (No. 16401029550) in the name of Dark Aries Enterprise; and

That the Plaintiff allegedly suffered losses as a result of the Defendant’s conduct.

The Defendant’s defence may be summarised as follows:

The Plaintiff’s business involves selling handphones to dealers, whereas Dark Aries Enterprise purchases handphones from dealers and sells them to end customers;

There is no competition between the two businesses;

The Plaintiff failed to plead the identity of the alleged “rakan-rakan perniagaan”; and

The Defendant did not purchase goods from any of the Plaintiff’s alleged business partners.

In paragraph (1)(a)(i) of the application, the Plaintiff sought for a whole list of business documents and records of Dark Aries Enterprise covering the period from 26.03.2023 to 31.03.2024, or alternatively from March 2023 to March 2024, relying on the phrase “mana-mana sesuai akan terpakai” (whichever is applicable). Such reliance on a vague and general expression underscores the point that the Plaintiff is uncertain on the type and nature of the documents sought.

Hence the documents sought apart from not capable of identification is overly broad. This then lend credence to the submission by the Defendant that the application lacks bona fide. On the contrary it is more of a roving and a fishing expedition designed to compel production of an extensive range of documents with the ulterior purpose of rummaging through them in search of something useful.

This approach is fundamentally flawed and amounts to an abuse of the discovery process. Discovery cannot be used as a cloak for speculation. The Plaintiff bears the burden of identifying specific documents relevant to its pleaded case and demonstrating a clear nexus thereto.

In my judgment the law does not permit discovery to be used as a tool for indiscriminate document-hunting. To proceed otherwise, as the Plaintiff has attempted here, is procedurally improper and constitutes a misuse and an abuse of the Court’s process.

The essence of the Plaintiff’s pleaded case is that the Defendant breached his fiduciary duty by ordering goods from the Plaintiff’s “rakan-rakan perniagaan.”

However, in its Reply to the Defence, the Plaintiff clarified that the reference is in fact to a single entity namely MP Advance Enterprise (Registration No. 003430128-K) - despite the plural terminology employed in the Statement of Claim.

It is therefore evident that only one “rakan perniagaan” is alleged, namely MP Advance Enterprise.

Yet, at this juncture and based on the affidavit evidence the Plaintiff has adduced no evidence to demonstrate that MP Advance Enterprise is indeed its business partner. The Affidavit in Support (Encl. 14) contains no proof whatsoever of such a relationship.

In light of the absence of evidence, the discovery application is not grounded in any genuine evidentiary need but is instead speculative and abusive.

Since the Plaintiff itself admits MP Advance Enterprise is its business partner, the application is unnecessary. The Plaintiff could have obtained the relevant documents directly from MP Advance Enterprise without burdening the Defendant or the Court.

This is particularly significant given that one of the Plaintiff’s directors and shareholders, Tew Chin Chee, was the former proprietor of MP Advance Enterprise between 06.09.2022 and 30.01.2023

If MP Advance Enterprise is truly the Plaintiff’s business partner, the Plaintiff would have had straightforward access to the very documents it now seeks.

The fact that the Plaintiff chose instead to burden the Defendant and the Court underscores the opportunistic and improper nature of its conduct.

The Defendant had already, on his own initiative, furnished to the Plaintiff’s solicitors the invoices between Dark Aries Enterprise and MP Advance Enterprise for inclusion in the Common Bundle of Documents.

Any further documents sought fall outside the Defendant’s “possession, custody or power” as defined under Order 24 of the Rules of Court 2012.

This Court cannot compel production of documents not within the Defendant’s possession, custody, or power. To do so would sanction a misuse of the discovery process.

For completeness I find that the elements of relevancy and necessity have not been established and thus rendering this application to be without merit.

In the upshot and accordingly, I hereby dismissed Enclosure 13 with cost of RM5,000.00 subject to payment of allocator. Dated: 13 March 2026 (Mohd Aimi Zaini Bin Mohd Azhar) Judicial Commissioner High Court Malaya Alor Setar Kedah Darul Aman Solicitors for Plaintiff: Lim Jing Jie Messrs. Lim Sen Teng & Partners Solicitors for the Defendant: H.Y. Loo Messrs. Y.K. Loo & Co