Lampiran
Lampiran 12 kepada Plaintif bagi pemeriksaan; dan (b) kos permohonan ditanggung oleh Plaintif.”. [9] The Defendant appeal. This judgment contains the reasons for my decision in dismissing the application in striking out the claims. The Law [10] The provision for discovery of documents under the Order 24 rule 3, 7 and 11 of the RoC as rely upon by the Defendant in its application are as follows: Order 24. Discovery and inspection of documents Order for discovery (O. 24, r. 3) 3. (1) Subject to the provisions of this rule and of rules 4 and 8, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. (2) (There is no paragraph (2)) (3) (There is no paragraph (3)) (4) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows: (a) the documents on which the party relies or will rely; and (b) the documents which could— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. Order for determination of issues before discovery (O. 24, r. 4) 4. Where on an application for an order under rule 3, it appears to the Court that any issue or question in the cause or matter should be determined before any discovery of documents is made by the parties, the Court may order for that issue or question to be determined first and give such other directions as may be necessary. Order for discovery of particular documents (O. 24, r. 7) 7. (1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it. (2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3. (3) An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions: (a) a document on which the party relies or will rely; (b) a document which could— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. (4) An order under this rule shall not be made in any cause or matter in respect of any party before an order under rule 3 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable. Discovery to be ordered only if necessary (O. 24, r. 8) 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. Order for production for inspection (O. 24, r. 11) 11. (1) If a party who is required by rule 9 to serve such a notice as is therein mentioned or who is served with a notice under rule 10(1)— (a) fails to serve a notice under rule 9 or, as the case may be, rule 10(2); (b) objects to produce any document for inspection; or (c) offers to inspect at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or, as the case may be, there, then, subject to rule 13(1), the Court may, on the application of the party entitled to inspect, make an order in Form 43 for production of the documents in question for inspection at such time and place, and in such manner, as it thinks fit. (2) Without prejudice to paragraph (1) but subject to rule 13(1), the Court may, on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party relating to any matter in question in the cause or matter. (3) An application for an order under paragraph (2) shall be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession, custody or power of the other party and they relate to a matter in question in the cause or matter. Evaluations and Findings of this Court [11] The Legislature has given the Court discretion in allowing or disallowing an application for discovery and inspection of the documents. The words “may” and “in the opinion of the Court” give this Court power to decide whether the documents sought by the Plaintiff are related to the matter in question in the cause or matter. [12] In the Affidavit in Support filed by the Plaintiff, there is a list and the Plaintiff has named what are the particular documents needed by them for the trial. [13] Based on the Defendant’s contentions, it is crystal clear that the Defendant strongly stated that the Plaintiffs had misconceived in its claims by stating that– (a) the Defendant has breached the fundamental terms of the SPAs and the Housing Developer (Control and Licensing) Act 1966 (“HDA”) by failing to deliver the vacant possessions to the Plaintiff; (b) the Defendant has misrepresented the Plaintiff regarding the true terms of the agreement when the parties entered into the SPAs; (c) the Plaintiff has revealed new issues and facts which were never pleaded by the Plaintiff in any of the Plaintiff’s cause papers or in the Plaintiff’s Affidavit in Reply, namely− (i) the Plaintiff has suddenly alleged that the Defendant has breached the terms of the HDA by failing to deliver the CCC as accordance to section 3 of the HDA; and (ii) the Defendant had breached the terms of the SPAs by failing to obtained the Plaintiff’s permission before amending the Building Plan. [14] The affidavit by the Plaintiff that specifying or describing the documents of which discovery is sought and stating the belief of the Defendant that they are in the possession, custody or power of the other party and they relate to a matter in question in the cause or matter. [15] This Court is of the view that the documents sought by the Plaintiff can help this Court to decide on the following: (a) whether the SPAs entered between parties are not a contract of a housing development under the HAD. (b) whether the Plaintiff went out of the tangent of the true and intended terms of the SPAs. (c) whether the concept of construction in the present case is of a totally different nature than that of Schedule H of the HDA. (d) whether the Plaintiff’s claims are an afterthought. The Plaintiff was all fully aware of the nature of the agreements them so willingly signed (which are clearly not a housing development under the HDA) therefore this present claim is merely an afterthought founded in greed. (e) whether there is an infringement of the by the Defendant (f) whether there were any elements of false representation by the Defendant, which ultimately induced the Plaintiff into entering the SPAs. (g) whether the Plaintiff has clearly misinterpreted the clauses. the term “the Building” referred to in the SPAs. [16] As decided in my decision, the Defendant had 14 days to produce the documents as stated in the Plaintiff’s application for inspection. In order to have a smooth trial and without further delay that will incur expenses on the disposal of this action, the Plaintiff’s claims must be disposed off fairly. [17] This Court should not just ignore the Plaintiff’s issues as follows: (a) whether the Defendant had breached the fundamental terms of both the SPAs when the Defendant failed to deliver CCC to the Plaintiff? (b) whether the Defendant had breached the fundamental terms of both the SPAs when the Defendant did not provide the Building Plans that is supposed to be annexed in the First Schedule of the SPAs? (c) whether the Defendants had breached the terms of the SPAs by unilaterally amending the Building Plans? (d) whether the Defendant had misrepresented to the Plaintiff as to the development of the project when the Plaintiff and the Defendant executed the SPAs? [18] The Particular Documents ought to be produced by Defendant and the Plaintiff is allowed to discover and inspect those documents on the reasons that the Particular Documents are relevant documents and need to be used in this Court. [19] In the case of Allianz General Insurance Company (Malaysia) Berhad v. Chubb Insurance Malaysia Berhad (Formerly Known As Ace Jerneh Insurance Berhad) [2018] 1 LNS 825, Yang Arif Mohamed Zaini Mazlan, High Court Judge, Kuala Lumpur has quoted clearly the law on discovery as follows: “The law on discovery [12] The leading authority is the case of Yekambaran s/o Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581 (HC). Edgar Joseph J. (as his lordship then was), held that an applicant must satisfy the following three elements before being entitled to an order for discovery: (i) There must be a document, (ii) The document must be relevant, and (iii) The documents must have been in the possession, custody or power of the party that the discovery is sought from. [13] It is pertinent for an applicant to prove that the documents sought are most relevant to its case. The applicant’s case must be based on its pleading; Tan Chin Seng v. Raffles Town Club [2002] 2 SLR(R) 465. [14] In order for the documents to be relevant, the applicant must be able to demonstrate that the documents sought would advance its case or damage its adversary’s case. The following passage in the Singapore High Court’s case of Manilal & Sons (Pte) Ltd v. Bhupendra KJ Shan (t/a JB International) [1990] 2 MLJ 282, is pertinent− “Under a general order of court for discovery, a party is obliged to make discovery of all documents relevant to the matters in question in the action. What are the matters in question would depend on the pleadings. A document relates to the matter in question in the action if it contains information which may – not which must – either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary or which may fairly lead to a train of inquiry which may have either of those two consequences: see Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co [1882] 11 QBD 55 at p 62.”. Conclusion [20] In view of the foregoing, it is my judgment that having evaluated the evidence adduced at the trial, I find that the application made by the Plaintiff is justified and discovery of the Particular Documents are for the purposes of the trial of the suit. [21] This Court allowed the Plaintiff’s application and the Plaintiff must bear the costs. Dated: 16 May 2022. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner High Court NCvC12 Shah Alam The Counsels: For the Defendant/Appellant : Noor Amalina Binti Mursiedy Tetuan Hashim Amran Tabian Ahmad Shah Alam, Selangor For the Plaintiff/Respondent : Lee Hwai Mien Tetuan Jacqueline Lee & Co Petaling Jaya, Selangor