Kenanga Investors Berhad v Zulrafq Capital Sdn Bhd (WA-22NCC-489-07/2023)

ZULRAFQ CAPITAL SDN BHD [Registration No. 202101012497 (1412796-A)]

TAN SRI ZULHASNAN BIN RAFIQUE (NRIC No.: 460315-01-5301) … DEFENDANTS (by original action)

ZULRAFQ CAPITAL SDN BHD [Registration No. 202101012497 (1412796-A)]

TAN SRI ZULHASNAN BIN RAFIQUE (NRIC No.: 460315-01-5301) … PLAINTIFFS

KENANGA INVESTORS BERHAD [Registration No. 199501024358 (353563-P)]

MUHAMMAD TAQIUDDIN HALIM (NRIC No.: 841208-14-5441)

DATUK WIRA ISMITZ MATTHEW (NRIC No.: 741029-01-5387) … DEFENDANTS (by Counterclaim) JUDGMENT [1] Before the court is an application for leave to serve interrogatories pursuant to Order 26 Rules of Court 2012, filed by the defendants in the main action who are also plaintiffs in a counterclaim. The application arises in the context of a dispute over a Put and Call Option Agreement for shares in a public listed company, where the defendants had failed to meet their payment obligations. The defendants now seek to interrogate the plaintiff and two other parties whom they have joined as defendants in their counterclaim, primarily concerning alleged meetings and understandings that they claim varied the payment obligations under the written agreements. The application raises questions about the necessity and relevance of interrogatories at this stage of proceedings and whether the interrogatories serve a legitimate purpose in fairly disposing of the remaining issues or saving costs. At its core, this application requires the court to balance the defendants' right to obtain relevant information against the principles that govern when interrogatories should be allowed, including whether they amount to a fishing expedition or seek to contradict clear terms of written agreements. Backgrounds facts [2] On 22.10.2021, Kenanga Investors Berhad (“KIB”) who is the Plaintiff and the 1st Defendant in the Counterclaim, and Zulrafq Capital Sdn Bhd (“ZCSB”) who is the 1st Defendant and 1st Plaintiff in the Counterclaim, entered into a Put and Call Option Agreement (“Option Agreement”) relating to shares in KNM Group Berhad. Under this agreement, KIB granted ZCSB a Call Option to buy back from KIB RM40,000,000 worth of ordinary shares in KNM Group Berhad amounting to 190,476,190 shares (“Option Shares”). ZCSB also granted KIB an irrevocable Put Option to sell the Option Shares to ZCSB on the Maturity Date. [3] On the same date, the 2nd Defendant and the 2nd Plaintiff in the Counterclaim, Tan Sri Zulhasnan Bin Rafique (“TSZ”) executed a Personal Guarantee in favour of KIB to guarantee ZCSB's performance of its obligations under the Option Agreement. [4] By letter dated 27.7.2022, ZCSB applied to KIB for an extension and rollover of the Call Option Period and Put Option Period for a further 9 months from the Maturity Date of 4.8.2022. This was followed by another letter on the same date setting out further terms to be varied via a supplemental agreement. KIB accepted these terms. [5] A Supplemental Option Agreement was executed on 3.8.2022 between the parties (“Supplemental Option Agreement”). Under this agreement, ZCSB was required to pay a premium of RM4,800,000 by 15.9.2022 and a rollover fee of RM400,000 by 30.8.2022. [6] On 2.5.2023, KIB issued a letter requiring ZCSB to purchase 190,476,190 Option Shares before or on 4.5.2023 for a total value of RM44,952,380.84. When ZCSB failed to do so, KIB's solicitors issued a letter of demand dated 19.6.2023 to both ZCSB and TSZ. [7] A meeting was held on 28.12.2022 at KIB's premises between TSZ, Datuk Wira Ismitz Matthew (“Ismitz”) (KIB's Executive Director/CEO) who is the the 3rd Defendant in the Counterclaim, Steve Ho (TSZ's adviser), and Duncan Ho (KIB's Head of Products and Business Development). [8] On 29.8.2022, another meeting took place at the office of ZCSB's legal advisor, Messrs. Zul Rafique & Partners, attended by Taqiuddin, TSZ, Steve Ho and a lawyer named Mr. David. [9] Earlier, in September 2021, TSZ was appointed as Independent Non-Executive Chairman of KNM Group Berhad, alongside Steve Ho as Independent Non-Executive Director. TSZ was later re-designated as Executive Chairman on 23.11.2021. [10] The Company (KNM Group Berhad) was classified as a PN17 company on or about 31.10.2022. [11] KIB commenced legal proceedings against ZCSB and TSZ through three separate suits: a) Suit No. WA-22NCC-141-03/2023 (“Suit 141”) regarding the extension and rollover fees b) The present Suit No. WA-22NCC-489-07/2023 regarding the breach of the Option Agreement c) Suit No.: WA-22NCC-140-03/2023 involving a separate Put and Call Option Agreement dated 19.1.2022. [12] In this suit KIB is suing ZCSB and TSZ for breach of the Option Agreement. KIB is seeking specific performance of the agreement, which would compel ZCSB to purchase the shares at the Put Option Share Price of RM44,952,380.84, or alternatively, damages for the alleged breach. [13] In all three suits ZCSB and TSZ filed a Counterclaim against KIB, Muhammad Taqiuddin Halim (“Taqiuddin”) who is the 2nd Defendant in the Counterclaim, and Ismitz. In this suit, the Counterclaim filed by ZCSB and TSZ asserts that they are not responsible for payments under the Option Agreement and Supplemental Option Agreement. Instead, Taqiuddin should be liable instead, based on a “mutual understanding” between the parties. The Counterclaim further alleges a conspiracy between KIB and Taqiuddin to defraud them and seeks damages for this alleged injury. [14] On 7.11.2023, ZCSB and TSZ filed an application (Enclosure 39) seeking leave to serve interrogatories on KIB, Taqiuddin and Ismitz. The interrogatories contained questions about meetings between the parties, their relationships, and various payments made under the agreements. [15] On 23.11.2023, this court granted Summary Judgment in favour of KIB against ZCSB and TSZ in the main claim which was appealed against. The appeal was allowed by the Court of Appeal on 28.6.2024 and the Summary Judgment was set aside. The application in Enclosure 39 [16] On 7.11.2023, ZCSB and TSZ filed an application (Enclosure 39) pursuant to Order 26 Rules of Court 2012 seeking leave to serve written interrogatories on KIB, Taqiuddin and Ismitz. The application sought for the parties to answer the interrogatories within 14 days through affidavit. Specifically, they requested that Taqiuddin answer questions numbered 2(a)-(c) and Ismitz answer questions numbered 1(a)-(h) in Schedule A of the application. The questions related to meetings between the parties, the relationships between them, the Put and Call Option Agreement, and various payments made under the agreements. [17] The interrogatory questions in Appendix A of Enclosure 39 appear as follows: “Questions to the Plaintiff in the Original Action/First

Referring to paragraph 4 of the Statement of Claim dated 13.7.2023, it was pleaded that the Plaintiff and the Defendants had entered into a Put and Call Option Agreement dated 22.10.2021, please state:

When did the Plaintiff's representative first become acquainted with Muhammad Taqiuddin

Whether Muhammad Taqiuddin Halim communicated with the Plaintiff's representative, especially Datuk Wira Ismitz Matthew at the material time before the Plaintiff filed the Writ of Summons herein?

Whether Datuk Wira Ismitz Matthew as the Plaintiff's representative in the original action met with the Second Defendant (in the original action) and also Muhammad Taqiuddin Halim on 15.11.2021 at Minori Japanese Restaurant to discuss matters related to the terms of the Put and Call Agreement dated 22.10.2021?

Did the Defendants at any time pay the Plaintiff an advance payment towards the Put and Call Option Agreement dated 22.10.2021? If YES, please provide details of such written payment.

Further to question (d), if not, (i) when did the Plaintiff obtain the said advance payment and (ii) who was the third party that paid the advance payment to the Plaintiff for the said Put and Call Option Agreement?

Who is ACGL Consulting Sdn Bhd that provided cheques as advance payment to the Plaintiff?

Who is Chiau Beng Teck who provided cheques to the Plaintiff?

Can the Plaintiff accept third party cheques on behalf of individuals who enter into agreements with the Plaintiff?

Referring to paragraph 14 of the Defence to the Counterclaim, it is pleaded that Muhammad Taqiuddin Halim attended a meeting on 29.8.2022, please state:

Did the Third Defendant in the Counterclaim attend meetings regarding the Put and Call Option Agreement before the said Put and Call Option Agreement together with him? If YES, please state the date of the meeting and the information discussed.

How many meetings were held between the Second Plaintiff (in the counterclaim) and the Second Defendant in the Counterclaim regarding the said Agreement?

Apart from offering to buy the said KNM Group Berhad shares, did the parties discuss buying shares of other counters listed on Bursa Malaysia?” [18] The grounds for the application, as stated in the supporting affidavit of TSZ, were that the interrogatories related to the understanding between the parties regarding the Option Agreement, Supplemental Option Agreement and all related transactions. TSZ deposed that answers to the interrogatories were necessary for the fair disposal of the case and would reduce the disputed issues to be determined by the court, thereby shortening the trial duration and saving costs. The application was filed after ZCSB and TSZ had previously served interrogatories under Order 26 Rule 2 Rules of Court 2012 before pleadings were closed, to which the parties had failed to file affidavits in response and only replied through letters. Respective submissions of parties ZCSB and TSZ’s submissions [19] ZCSB and TSZ submitted that the interrogatories had a clear and common purpose - to identify the mutual understanding reached between TSZ, Taqiuddin and KIB (via Ismitz) regarding the variation of payment obligations under the Option Agreement. They argued that the interrogatories were both relevant and necessary as they were specifically targeted at determining whether there was a mutual understanding between parties that led to the variation of the Option Agreement through the conduct of Taqiuddin and Ismitz. They contended that obtaining answers at this stage would mean these areas would not be subject to lengthy examination in the trial. They emphasised that this was not a fishing expedition as the questions were specifically targeted to shed light on the roles and duties of the parties in the Option Agreement and what transpired during the meetings, which they believed the defendants in the Counterclaim had knowledge of. They further argued, when the written submissions were filed before the decision of the Court of Appeal allowing the appeal against the Summary Judgment, was that since Summary Judgment had been granted in the main claim, they would not be able to get clarification on these matters through witness evidence at trial. KIB’s submissions [20] KIB opposed the application on grounds that the interrogatories were neither necessary for disposing fairly of the case nor for saving costs. They submitted that the interrogatories amounted to a fishing expedition, were broad and extensive in nature, unreasonable, vexatious, not bona fide, and oppressive. KIB argued that since both Ismitz and Taqiuddin are parties to the Counterclaim and would be called as witnesses at trial, ordering interrogatories would not save costs but add to them. They contended that the interrogatories regarding purported payments were matters raised by ZCSB and TSZ, and thus it was for them to prove these allegations. KIB further argued that questions about cheques were not pleaded and related to exhibits adduced by ZCSB and TSZ, not KIB's documents. They emphasised that the interrogatories were seeking opinions rather than facts and amounted to ZCSB and TSZ attempting to get KIB to prove their case. They also pointed out that some questions were irrelevant to the Plaintiff's cause of action and/or the pleaded Counterclaim. Taqiuddin’s submissions [21] Taqiuddin opposed the application arguing that the interrogatories were vague, amounted to a fishing expedition, and were wrong in law and/or fact. He submitted that the alleged “understanding between parties” contradicted the express terms of the Option Agreement, Supplemental Option Agreement and Personal Guarantee, where ZCSB was the principal debtor and TSZ the guarantor. He contended that the interrogatories were confused and flawed, particularly regarding Question 2(a) about meetings, as the meeting of 29.8.2022 occurred after the Option Agreement was signed, and he had already pleaded details about attendees and matters discussed at that meeting. He argued that Question 2(b) about the number of meetings between TSZ and himself was too general and a fishing expedition, while Question 2(c) about discussions to buy shares in other counters was vague and irrelevant. He emphasised that he had already pleaded in his Defence to Counterclaim that he was never involved in any meetings between TSZ, KIB and Ismitz before the Option Agreement and Supplemental Option Agreement were signed. Ismitz’s submissions [22] Ismitz opposed the application arguing that the interrogatories were unnecessary and amounted to a fishing expedition. He emphasised that the claim in the Original Action was premised upon a breach of the Option Agreement and Guarantee, the execution of which was an undisputed fact. He submitted that all allegations in the pleaded case had already been dealt with in the pleadings and affidavits filed, and that the parties' understanding of the agreements could be found within the agreements themselves. He contended that the interrogatories posed to him were vague, open-ended, related to matters already sufficiently addressed in pleadings and affidavits, and not essential for fair disposal of the matter or saving costs. Specifically, regarding Questions 1(a) and (b), he argued they were general, vague and not within the confines of the claim; Question (c) had been dealt with in pleadings and affidavits; Question (d) was unclear and ambiguous; and Questions (f) and (g) related to matters not pleaded and hence irrelevant to the current claim. Analysis and findings of the court Question 1(a) [23] After careful consideration, I am inclined to dismiss the application for interrogatory 1(a) which asks: “When did KIB’s representative first become acquainted with Taqiuddin?” [24] The guiding principle for allowing interrogatories, as established in Order 26 rule 1(3) of the Rules of Court 2012, is that they must be necessary either for disposing fairly of the cause or matter or for saving costs. It provides: “On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leave, the Court shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.” [25] I find that this interrogatory fails to meet this stringent test of necessity for the following reasons. [26] Both Ismitz and Taqiuddin are parties in the Counterclaim and would be called to give evidence at the trial. As held in Overseas-Chinese Banking Corporation Ltd v Norman Wright & Ors [1989] 3 MLJ 73 (High Court), if the admission of a fact can be proved by a witness who will be called at the trial, interrogatories should not be allowed as they would add to costs rather than save them. The High Court held: “In any event, interrogatories will only be allowed as shall be considered necessary either for disposing fairly of the cause or matter, or for saving costs. If the admission of a fact can be proved by a witness who will be called at the trial, interrogatories will not, as a rule, be allowed because it will not save but add to costs.” [27] This principle is particularly pertinent in light of recent developments in this case. After the submissions for this application were filed, the appeal against the Summary Judgment has been allowed. Consequently, the main action will now proceed to a full trial. This development significantly strengthens the argument against allowing these interrogatories. [28] With a full trial now scheduled, both Ismitz and Taqiuddin will have the opportunity to testify and be cross-examined on all relevant matters, including their acquaintance and any interactions pertinent to the case. The trial process will allow for a more comprehensive exploration of these issues, with the added benefit of immediate follow-up questions and clarifications that are not possible with written interrogatories. [29] Furthermore, the trial setting provides a context where the relevance and materiality of such information can be more accurately assessed in real-time, in relation to other evidence presented. This is preferable to pre-trial interrogatories which might seek information that ultimately proves tangential or irrelevant to the core issues of the case. [30] In this context, allowing interrogatories on matters that can be fully explored during trial testimony would not only fail to save costs but would likely increase them by duplicating efforts. It would require parties to expend time and resources on a pre-trial procedure that would largely be replicated during the trial itself. [31] Therefore, the principle established in Overseas-Chinese Banking Corporation Ltd v Norman Wright & Ors is even more applicable now that a full trial is assured. The most efficient and cost-effective approach is to allow these matters to be addressed through oral testimony and cross-examination at trial, rather than through the mechanism of pre-trial interrogatories. [32] The information sought by this interrogatory - when Ismitz became acquainted with Taqiuddin - appears irrelevant to ZCSB and TSZ’s cause of action and the pleaded Counterclaim. The central issues of this case revolve around the contractual obligations under the Option Agreement and the Supplemental Option Agreement. The mere fact of when the parties first met does not directly bear on the interpretation or enforcement of these agreements. [33] The scope of the question is too wide and too general in nature to be relevant to either the Original Action or the Counterclaim. As held in Bank of China v Ngan Chin Wen [2004] 6 CLJ 290 (High Court), the court will not order interrogatories that are irrelevant. The High Court held: “After hearing oral submissions I find that the proposed interrogatories has no relevance in this claim and does not serve any useful purpose other than to achieve the defendant’s objectives of diverting the issue from the debt due under the overdraft facilities to the alleged agreement between the defendant, Wee Boon Ping and the plaintiff. This does not serve the real purpose of interrogatories in that it is: (a) for disposing fairly the cause or matter; or (b) for saving costs.” [34] ZCSB and TSZ have not sufficiently demonstrated how this broad information would lead to the admission of a fact that would significantly advance their case or rebut KIB, Ismitz and Taqiuddin’s defences. [35] The broad nature of the question suggests an attempt to uncover new information rather than to obtain admissions on specifically pleaded issues, potentially constituting a fishing expedition as cautioned against in Industrial Property Management Sdn Bhd v Forebase Property Sdn Bhd & Anor [2022] 9 MLJ 57 (High Court). The High Court held: “I cannot therefore but agree with the first defendant that on the contrary, the Interrogatories, with 72 questions in total (directed at the first defendant) which are broad and extensive in nature, instead are not so much designed to obtain admission of facts to relieve the plaintiff from the necessity of adducing evidence, but rather to procure the first defendant to furnish the plaintiff with the information that the plaintiff was unsure even as to its existence.” [36] While I acknowledge ZCSB and TSZ’s assertion that this information could potentially clarify the relationships between the parties, I find that the interrogatory does not meet the necessary threshold of relevance and necessity as required by Order 26 of the Rules of Court 2012 and the established case law. The potential prejudice and additional costs associated with allowing such a broad and potentially irrelevant interrogatory outweigh any speculative benefits. [37] Therefore, the application for leave to administer this interrogatory is dismissed. Question 1(b) [38] After careful consideration, I am inclined to dismiss the application for interrogatory 1(b) which asks: “Whether Taqiuddin communicated with the KIB’s representative, especially Ismitz at the material time before KIB filed the Writ of Summons herein?” [39] I find that this interrogatory fails to meet the stringent test of necessity, as required by the guiding principle in Order 26 rule 1(3) of the Rules of Court 2012, which allows interrogatories only when necessary for the fair disposal of the cause or matter or for saving costs. [40] Both Ismitz and Taqiuddin are parties in the Counterclaim and would be called to give evidence at the trial. As held in Overseas-Chinese Banking Corporation Ltd v Norman Wright & Ors, if the admission of a fact can be proved by a witness who will be called at the trial, interrogatories should not be allowed as they would add to costs rather than save them. Moreover, since the appeal against the Summary Judgment has been granted, the main action will now go to trial. This confirms that the information sought can be acquired through witness testimony at trial, if it turns out to be relevant. [41] This question has already been answered under oath by Ismitz in his affidavit dated 21.7.2023 in Enclosure 19 in respect of Suit 141. In paragraphs 12 and 30 of that affidavits, Ismitz states that he has no recollection of meeting with TSZ and Taqiuddin on 15.11.2021 as alleged. [42] In paragraph 12 of Enclosure 19 in Suit 141 (KIB’s Affidavit in Reply affirmed by Ismitz in KIB’s Summary Judgment application) he stated: “With regards to paragraph 10(b) of the Defendants’ AIR, I have no recollection of meeting with the D2 and Taquiddin on 15.11.2021, as alleged therein. In any event, as the deponent had stated, this purported meeting occurred after the execution of the Option Agreement. Therefore, it has no bearing on the rights and obligations of the parties herein.” [43] In paragraph 30 of Enclosure 19 in Suit 141 Ismitz stated: “With regards to paragraph 4(d) of the Defendants' Additional AIR, I have no recollection of meeting with the D2 and Taquiddin on 15.11.2021 as alleged therein. In any event, as the deponent had stated, this purported meeting occurred after the execution of the Option Agreement. So, it has no bearing on the rights and obligations of parties herein.” [44] He further states that even if such a meeting occurred, it was after the execution of the Option Agreement and thus has no bearing on the rights and obligations of the parties. This existing sworn testimony makes the proposed interrogatory unnecessary and duplicative. [45] The information sought appears tangential to the central issues of the case, which revolve around the contractual obligations under the Option Agreement and the Supplemental Option Agreement. Whether Taqiuddin communicated with KIB’s representative before the filing of the Writ of Summons does not directly bear on the interpretation or enforcement of these agreements. [46] Therefore, the application for leave to administer this interrogatory is dismissed. Question 1(c) [47] After careful consideration, I am inclined to dismiss the application for interrogatory 1(c) which asks: “Whether Ismitz as KIB’s representative in the original action met with TSZ and also Taqiuddin on 15.11.2021 at Minori Japanese Restaurant to discuss matters related to the terms of the Put and Call Agreement dated 22.10.2021?” [48] According to Order 26 rule 1(3) of the Rules of Court 2012, interrogatories must be necessary either for the fair disposal of the matter or for saving costs, and I determine that this interrogatory does not meet that high threshold of necessity for the following reasons. [49] Both Ismitz and Taqiuddin are parties in the Counterclaim and would be called to give evidence at the trial. As decided in Overseas-Chinese Banking Corporation Ltd v Norman Wright & Ors, interrogatories should be excluded if the fact can be established by a witness called at trial, as they would increase, rather than reduce, costs. In addition, with the appeal against the Summary Judgment being allowed, the main action will now move forward to trial which strengthens the view that the information in question can be gathered through witness testimony during the trial, should it prove to be pertinent. [50] This question has already been answered in multiple documents. [51] In KIB’s Reply and Defence to Counterclaim (Enclosure 11) KIB states it lacks knowledge of discussions or dealings between Taqiuddin and the Defendants (paragraph 11) and emphasises that Taqiuddin is not a party to any agreements between KIB and the Defendants (paragraph 4). [52] In paragraph 5.3 of Ismitz’s Defence to Counterclaim, he pleads: “the 3rd Defendant denies that there was any meeting attended by him whereby there was any agreement reached to alter and/or amend the terms of the Option Agreement. In fact, the 3rd Defendant has never attended any meetings with TSZ to discuss the indebtedness of Zulrafq Capital under the Option Agreement in the presence of the 2nd Defendant in the Counterclaim, Muhammad Taqiuddin Halim (“Taqiuddin”).” [53] In Enclosure 19 of Suit 141 (KIB’s Affidavit in Reply affirmed by Ismitz in KIB’s Summary Judgment application), Ismitz consistently stated in paragraphs 12 and 30 that he had no recollection of meeting Ismitz and Taquiddin on 15.11.2021, and that any such meeting, occurring after the execution of the Option Agreement, had no relevance to the rights and obligations of the parties involved. [54] To allow this interrogatory would be a futile exercise, as the question has already been responded to in the aforementioned documents. The interrogatory is therefore unnecessary and duplicative. [55] Therefore, the application for leave to administer this interrogatory is dismissed. Questions 1(d) and 1(e) [56] After careful consideration, I am inclined to dismiss the application for interrogatories 1(d) and 1(e) which ask: “Did ZCSB and TSZ at any time pay KIB an advance payment towards the Put and Call Option Agreement dated 22.10.2021? If YES, please provide details of such written payment.” and “Further to question (d), if not, (i) when did KIB obtain the said advance payment and (ii) who was the third party that paid the advance payment to KIB for the said Put and Call Option Agreement” [57] I find that these interrogatories fail to meet the stringent test of necessity required under Order 26 rule 1(3) of the Rules of Court 2012, which allows interrogatories only when necessary for the fair disposal of the cause or matter or for saving costs. [58] Firstly, Questions 1(d) and (e) relate to allegations raised by ZCSB and TSZ themselves. As held in Eade & Another v Jacobs [1877] 3 Ex D 335 (English Court of Appeal), the defendants are only entitled to knowledge of facts the plaintiff relies on, not evidence the defendants propose to prove their own assertions. It is for the defendants to prove their own allegations, not for the plaintiff to do so through interrogatories. [59] Secondly, these questions appear to seek the opinion of KIB rather than factual information. This is particularly evident in Questions 1(d) and 1(e), which ask about “Pembayaran Pendahuluan” (advance payment). These questions do not merely ask for factual information about whether a payment was made, but implicitly request KIB’s interpretation or characterisation of certain payments as “advance payments.” Specifically: a) Question 1(d) asks if Taqiuddin ever made an “advance payment” to KIB. This requires KIB to interpret and categorise payments, rather than simply stating whether payments were received. b) Question 1(e) goes further by asking about the timing and source of the “advance payment” if it was not made by ZCSB and TSZ. This requires KIB to speculate about the nature and purpose of payments received from third parties. [60] These questions are akin to asking about the “object and purpose” of payments, which the High Court in Sarawak Building Supplies SB v The Director Of Forests & Ors [1999] MLJU 197 (High Court) deemed oppressive. The court held that to ask what was the 'object and purpose' of the payment is to seek the opinion of the plaintiff. It is oppressive to allow such an interrogatory. The High Court held: “10. The defendants had put in issue the validity of the Order in Petition No. 1 of 1991 in these proceedings. This issue had to be decided. To ask what was the “object and purpose” of the payment is to seek the opinion of the plaintiff. It is oppressive to allow such an interrogatory. See Attorney-General v Wang New Zealand Ltd (1989) 2 PRNZ 238 (CA).” [61] By asking KIB to categorise payments as “advance payments” and speculate about their sources and timing, these interrogatories are effectively seeking KIB’s opinion on the nature and purpose of financial transactions. This goes beyond requesting factual information and enters the realm of seeking interpretations and characterisations, which courts have previously found to be oppressive in the context of interrogatories. [62] Allowing such interrogatories would force KIB to engage in potentially speculative analysis of financial transactions, rather than simply providing factual information about payments received. This could lead to unnecessary complications and disputes over interpretations, rather than focusing on ascertainable facts. [63] Thirdly, the interrogatories are vague and unclear, particularly in their use of the term “Pembayaran Pendahuluan” (advance payment), which is not defined in relation to any specific terms of the agreement between the parties. This ambiguity creates multiple issues: it lacks clear meaning in the context of the agreement, provides no temporal or quantitative context, appears disconnected from the pleaded issues, and risks misinterpretation. Such vagueness makes it challenging for the responding party to provide meaningful answers and raises doubts about the relevance and necessity of the information sought. As established in M Wealth Corridor Sdn Bhd v BJ Properties Sdn Bhd & Ors [2022] 9 MLJ 721 (High Court), interrogatories must be related to the cause or matter and satisfy the two-fold test of being necessary and for fair disposal of the case. The High Court held: “In considering whether to allow the interrogatories, this court must assess whether the questions will obtain an admission that reduces issues and hence reduces the length of trial, thus ultimately save costs. For that reason, the interrogatories must be related to the cause or matter. However, be it an exception, it must still satisfy the two-fold test of being necessary and fair disposal of the matter or cause.” [64] The lack of clarity in these interrogatories fails to meet these criteria and could potentially lead to further disputes about the adequacy of responses, thereby prolonging litigation and increasing costs contrary to the principle of judicial economy. [65] Furthermore, Ismitz already responded to these matters in Enclosure 19 of Suit 141. The affidavit directly addresses the matters in question by denying any payments made by Taqiuddin to KIB under the Option Agreement, asserting that Taqiuddin is not a party to any agreements, and denying knowledge of any meeting with Taqiuddin on 15.11.2021. The affidavit maintains that allegations regarding Taqiuddin's involvement only surfaced after ZCSB and TSZ failed to meet their obligations, characterising these claims as unsubstantiated and an attempt to avoid liability. Ismitz also states that KIB has no knowledge of or involvement in how ZCSB and TSZ source their funds for transaction fees. Overall, the affidavit consistently refutes any substantial involvement of Taqiuddin in the agreements or transactions with KIB, addressing the core issues that the proposed interrogatories seek to explore. [66] Lastly, these interrogatories appear to constitute a fishing expedition. ZCSB and TSZ are attempting to redirect their own allegations to KIB, effectively shifting the burden of proof. It would be unjust and oppressive to allow interrogatories that require a party to prove assertive statements made by the opposing party. [67] In conclusion, the interrogatories do not meet the necessary threshold of relevance and necessity as required by Order 26 of the Rules of Court 2012 and established case law. They are vague, potentially oppressive, and seek to improperly shift the burden of proof. Therefore, the application for leave to administer these interrogatories is dismissed. Questions 1(f) and 1(g) [68] After careful consideration, I am inclined to dismiss the application for interrogatories 1(f) and 1(g) which ask: “Who is ACGL Consulting Sdn Bhd that provided cheques as advance payment to KIB?” and “Who is Chiau Beng Teck who provided cheques to KIB?” respectively. [69] I find that these interrogatories fail to meet the stringent test of necessity, as required by Order 26 rule 1(3) of the Rules of Court 2012, which mandates that interrogatories must be necessary either for the fair disposal of the cause or matter or for saving costs. [70] These questions involve facts not pleaded in the Defence to Counterclaim. As held in Sheikh Abdullah bin Sheikh Mohammed v Kang Kok Seng [1975] 1 MLJ 89 (Federal Court), “Only such interrogatories as are designed to prove a cause of action or defence not as yet pleaded, or to establish a cause of action against a third person, can be rightly called ‘fishing interrogatories’.” These interrogatories clearly fall into this category as they introduce new entities and individuals not previously mentioned in the pleadings. [71] The purported cheques are contentious exhibits adduced by ZCSB and TSZ. It is not KIB to prove ZCSB and TSZ’s. As such, these interrogatories improperly shift the burden of proof onto KIB. [72] These questions seek the opinion of KIB rather than factual information. As held in Sarawak Building Supplies SB v The Director of Forests & Ors, “To ask what was the ‘object and purpose’ of the payment is to seek the opinion of the plaintiff. It is oppressive to allow such an interrogatory.” The same principle applies here. [73] These interrogatories constitute a clear fishing expedition. They do not relate to any matter in question in the cause or matter, as required by Sheikh Abdullah. Instead, they appear to be an attempt to uncover new information about third parties not mentioned in the pleadings. [74] Allowing these interrogatories would be unjust and oppressive, as they require KIB to make assertions about matters not in evidence. As stated in Sarawak Building Supplies, a party cannot make an assertive assertion unless it has evidence. [75] Further, as the appeal against the Summary Judgment has been allowed, the main action will now proceed to trial and any relevant information can be obtained through proper evidentiary channels during the trial process. [76] Therefore, the application for leave to administer these interrogatories is dismissed. Question 1(h) [77] After careful consideration, I am inclined to dismiss the application for interrogatory 1(h) which asks: “Can KIB accept third party cheques on behalf of individuals who enter into agreements with KIB?” [78] Order 26 rule 1(3) of the Rules of Court 2012 requires that interrogatories be necessary for either the fair disposal of the cause or matter or for saving costs, and I find that this interrogatory fails to meet this stringent test of necessity. [79] The facts relating to this question was not pleaded in the Defence to Counterclaim. As stated in Sheikh Abdullah bin Sheikh Mohammed v Kang Kok Seng, interrogatories that are intended to prove a cause of action or defence that has not yet been pleaded, or to establish a cause of action against a third party, are correctly referred to as “fishing interrogatories.” This interrogatory clearly falls into this category as it introduces a new issue not previously mentioned in the pleadings. [80] The question of whether KIB can accept third-party cheques is an issue to be determined by the court, if relevant, during the trial. It is not appropriate for KIB to answer this question at this stage of the proceedings. Given that the appeal against the Summary Judgment has been allowed, the original action will now proceed to trial, with relevant information to be acquired through the appropriate trial evidentiary channels. [81] This interrogatory does not result in cost savings. The information sought, if relevant, can be dealt with during the trial or during the discovery process, which has not yet begun. Allowing this interrogatory at this stage would be premature and potentially duplicative. [82] The interrogatory appears to be an attempt by ZCSB and TSZ to 'pad up' their case, which constitutes a fishing expedition. As stated in Sheikh Abdullah, interrogatories should relate to matters in question in the cause or matter. This broad question about KIB’s general practices does not meet this criterion. [83] The court cannot be used as a tool for a party to embark on a fishing expedition or to construct their case through interrogatories. This would be an improper use of the court's processes. [84] Furthermore, I note that the appeal against the Summary Judgment has been allowed, allowing the main action to proceed to trial, which reinforces the position that any relevant information can be obtained through proper evidentiary channels. [85] Therefore, the application for leave to administer this interrogatory is dismissed. Question 2(a) [86] After careful consideration, I am inclined to dismiss the application for interrogatory 2(a) which asks: “Did Ismitz attend meetings regarding the Put and Call Option Agreement before the said Put and Call Option Agreement together with him? If YES, please state the date of the meeting and the information discussed.” [87] I find that this interrogatory fails to meet the stringent test of necessity required by Order 26 rule 1(3) of the Rules of Court 2012, which mandates that interrogatories must be necessary either for the fair disposal of the cause or matter or for saving costs. [88] The question is confusing and inconsistent. It refers to meetings before the Put and Call Option Agreement was signed, yet ZCSB and TSZ have previously referred to a meeting on 29.8.2022, which occurred after the agreement was signed on 22.10.2021. [89] The information sought has already been provided in Taqiuddin’s pleadings: a) If the question refers to the 29.8.2022 meeting, Taqiuddin has already pleaded in paragraph 14(d) of the Defence to Counterclaim who attended this meeting and what was discussed. b) If the question is asking generally about meetings before the Option Agreement was signed, Taqiuddin has already pleaded in paragraph 13(e) of the Defence to Counterclaim that he was never involved in any meeting between TSZ, KIB and Ismitz before the Agreement was signed. [90] As held in Liputan Canggih Sdn Bhd & 6 Ors v K&A Management Sdn Bhd & 7 Ors [2019] 1 LNS 2096 (High Court), “It cannot be necessary to interrogate to obtain information or admission which are or are likely to be contained in pleadings, medical reports, discoverable documents or witness statement unless exceptionally a clear litigation purpose will be served.” No such exceptional circumstance or clear litigation purpose has been demonstrated here. [91] This interrogatory appears to be a fishing expedition in the hope of uncovering more information, rather than seeking clarification on a specific, pleaded issue. [92] The interrogatory seeks information about alleged pre-contractual oral discussions, which may contradict the written terms of the Option Agreement. This runs afoul of the parol evidence rule and should not be admitted. [93] With the appeal against the Summary Judgment having been allowed, the main case will now move forward to trial, and any pertinent information can be gathered through proper evidentiary procedures during the trial. [94] Therefore, the application for leave to administer this interrogatory is dismissed. Question 2(b) [95] After careful consideration, I am inclined to dismiss the application for interrogatory 2(b) which asks: “How many meetings were held between TSZ and Taqiuddin regarding the said Agreement?” [96] I find that this interrogatory does not satisfy the strict necessity requirement under Order 26 rule 1(3) of the Rules of Court 2012, which stipulates that interrogatories must be essential either for the fair resolution of the case or for saving costs. [97] This interrogatory is worded widely and generally, asking about the number of meetings between TSZ and Taqiuddin. Following the rationale in M Wealth Corridor Sdn Bhd v BJ Properties Sdn Bhd & Ors, this constitutes a fishing expedition because: a) The answer to the question about the “number of meetings” will not provide evidence to ZCSB and TSZ of the purported issue of “understanding between the parties”. b) There is simply no relevancy between the number of meetings between TSZ and Taqiuddin (if any) with the alleged “understanding”. [98] As such, the answer to this question is not necessary for a fair trial nor to save time/costs. [99] The information sought will not shed any light on the central issue of whether there was a purported understanding between the parties. The mere number of meetings does not provide evidence of the content or outcome of those meetings. [100] This information should be within the knowledge of TSZ. It is unnecessary and potentially oppressive to require Taqiuddin to answer a question about information that should be known to the party asking the question. [101] The interrogatory appears to be an attempt to uncover new information rather than to obtain admissions on specifically pleaded issues, which is not the proper purpose of interrogatories. [102] Since the appeal against the Summary Judgment has been granted, the principal action will now proceed to trial, allowing relevant information to be obtained through the appropriate evidentiary process. [103] Therefore, the application for leave to administer this interrogatory is dismissed. Question 2(c) [104] After careful consideration, I am inclined to dismiss the application for interrogatory 2(c) which asks: “Apart from offering to buy the said KNM Group Berhad shares, did the parties discuss buying shares of other counters listed on Bursa Malaysia?” [105] I find that this interrogatory is not essential either for the fair disposal of the matter or for saving costs. [106] This interrogatory is vague and irrelevant to ZCSB and TSZ’s Counterclaim. The core issue in this case revolves around the Option Agreement specifically concerning KNM Group Berhad shares. Discussions about other counters listed on Bursa Malaysia do not appear to be material to the dispute at hand. [107] As held in Bank of China v Ngan Chin Wen, the court will not order interrogatories that are irrelevant. ZCSB and TSZ have not sufficiently demonstrated how this information would lead to the admission of a fact that would significantly advance their case or rebut KIB, Taqiuddin and Ismitz’s defences. [108] This interrogatory constitutes a fishing expedition, as cautioned against in Industrial Property Management Sdn Bhd v Forebase Property Sdn Bhd & Anor. The broad nature of the question suggests an attempt to uncover new information rather than to obtain admissions on specifically pleaded issues. [109] ZCSB and TSZ have not shown how the answer to this interrogatory would serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action, as required by the principle established in Hall v Sevalco Limited; Crompton v Sevalco Limited [1996] Lexis Citation 2288 (English Court of Appeal). The court held: “The interrogator must be able to show that his interrogatories, if answered when served, will serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action.” [110] As the Summary Judgment appeal was allowed, the main action will go to trial, where any necessary information can be obtained through standard evidentiary means. [111] Therefore, the application for leave to administer this interrogatory is dismissed. Conclusion [112] In conclusion, after careful consideration of each proposed interrogatory against the requirements of Order 26 rule 1(3) of the Rules of Court 2012 and relevant case law, I find that none of the interrogatories meet the stringent test of necessity for either disposing fairly of the cause or saving costs. The questions posed either seek information that can be obtained through witness testimony at the upcoming trial, relate to matters already addressed in existing pleadings and affidavits, constitute impermissible fishing expeditions, or attempt to contradict the express terms of written agreements. Many of the interrogatories are vague, overly broad, or seek opinions rather than factual admissions. With the appeal against Summary Judgment having been allowed and the matter proceeding to full trial, these issues can be more appropriately explored through standard trial procedures including examination of witnesses. Accordingly, Enclosure 39 is dismissed in its entirety with costs to be paid by the Plaintiffs in the Counterclaim of RM2,000.00 to each of the Defendants in the Counterclaim. 13 December 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiffs in the Counterclaim: R. Kumarappan and Nur Parvin Kausar (Messrs Jeeva Partnership) For the 1st Defendant in the Counterclaim: Teoh Jo Vi (Messrs Shaikh David & Co) For the 2nd Defendant in the Counterclaim: Victor Pang (Messrs Justin Voon Chooi & Wing) For the 3rd Defendant in the Counterclaim: John Skelchy (Messrs James Monteiro)