Navaneeth A/L Perpakaran v Retha A/P Nadarajah (AI-A72NCvC-4-07/2024)

With regards to the appeal, this Court will give its analysis and findings based on all evidence and exhibits tendered before this Court. B. BRIEF FACTS OF THE CASE [3] The cause of action by the Plaintiff against the Defendant in this case is for the debt owed by the Defendant towards the Plaintiff during the course of their previous relationship.

As stated in the Statement of Claim, the Plaintiff claims that he had lend the Defendant a total sum of RM 16,809.54 between 15.10.2020 until 5.7.2022. However in the Defence, the Defendant rebuts the claim by stating that she had never borrowed any money from the Plaintiff and that the monies were given as “hadiah” and “bantuan” during the course of their relationship whereby now they are no longer in it.

On 4.10.2024, upon concluding that the Defence filed by the Defendant was in time per Order 18 Rule 2 Rules of Court 2012, the Court then ordered both parties to file all relevant 10/03/2025 10:32:25 AI-A72NCvC-4-07/2024 Kand. 32 S/N glUpvfskrU6RaVltHHiv3Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 bundle of documents including Ikatan Pliding, Ikatan Dokumen yang Dipersetujui, and Ikatan Dokumen yang Tidak Dipersetujui. However, on 25.10.2024 during the e-review Case Management, both parties were in dispute as to the labelling of document in the draft index sent by the Plaintiff solictitors for the Ikatan Dokumen Bersama and the Court then ordered each party to file their own bundle of documents.

Further to that, the Plaintiff’s solicitors then filed a Notice of Application supported by Affidavit (Enclosure 11) on 13.11.2024 whereby they seek for an order under Order 24 Rules 3, 7, 12 and 16 Rules of Court for the discovery of Defendant’s Maybank Statement of Account between 6.1.2021 until 5.7.2022.

The Plaintiff’s brief summary for this application is as follows: a) The Plaintiff’s solicitiors had sent to the Defendant solicitors the list of documents with its categories for their approval. However, the defendant solicitors were not agreeable to the markings and the labelling of the word “pinjaman” for item No. 1 until 14 and asked for it to be replaced as “Resit Maybank”; b) The Plaintiff solictors disagree on the grounds that they can mark their documents based on their claims. Due to this disagreement the Defendant solicitors then asked for the documents in item No. 1 until 14 to be placed under Ikatan Dokumen C; c) The Plaintiff solicitors are not agreeable as the autheticity of said documents is not a dispute in the claim and that the Defendant had admitted to receiving said monies in paragraph 4 and 5 of the Defence; d) The document seeked in the discovery application is done in good faith and it is relevant as the claim in this case is based on the Plantiff lending money to the Defendant; e) Labelling of a document does not amount to admission and it is for the Defendant to prove otherwise if she is not agreeable with the labelling of said documents; f) The Defendant admitted on receiving the monies although on the basis of “bantuan/hadiah” which then makes it rightful for the Plaintiff to seek the Defendant’s Maybank Statement of Account; g) The Defendant’s argument that Defendant’s Maybank Statement of Account is a confidential document does not hold waters as the Court has the discretion to make an order to produce said document as it is relevant to the proceedings; and h) It is not a fishing expedition as the documents seeked as based on the defendant’s objection eventhough she had admitted to receiving the monies. S/N glUpvfskrU6RaVltHHiv3Q **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The Defendant’s brief summary in disagreeing with this application is as follows: a) The Defendant’s solicitiors submitted that the order for discovery of document is not necessary as firstly the Court have ordered both parties to file their bundle of documents separately as they are unable to agree on the markings and labelling for the documents, and secondly the Plaintiff can produce his Statement of Account in proving his case towards the Defendant; b) The Defendant’s solicitors also submitted that the said application is a manner in shifting the burden of proof towards the Defendant. In this case it is the Plaintiff who has to prove his claim against the Defendant and he can do so by producing his own Statement of Account without the need to call a bank officer as a witness; and c) The Defendant’s solicitors further submitted that the application is a fishing expedition to obtain the Defendant’s personal information without reasonable grounds and is an abuse to the Court process. C. ANALYSIS AND FINDINGS OF THIS COURT [9] Upon perusing the Notice of Application, Affidavit and Written Submissions filed by both parties and the oral submission by both parties, this Court then disallowed the Plaintiff’s application to seek for discovery of documents without an order for cost.

In disallowing the Application, the Court firstly refers to the statutory provision for the discovery and inspection of documents under Order 24 Rules 3 Rules of Court 2012 as follows: “Order for discovery (O. 24, r. 3)

3.

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.

(There is no paragraph (2))

(There is no paragraph (3))

The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows:

the documents on which the party relies or will rely; and S/N glUpvfskrU6RaVltHHiv3Q

the documents which could—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case.” [11] Further, Order 24 Rule 7 of the Rules of Court 2012 reads as follows: “Order for discovery of particular documents (O. 24, r. 7)

7.

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.

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.

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 document on which the party relies or will rely:

a document which could—

adversely affact his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may—

adversely affect his own case;

(ii) adversely affect another party’s case; on (Hi) support another party’s case. S/N glUpvfskrU6RaVltHHiv3Q

An order under this rule shall not be made in any cause on 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 on desirable.” [12] The provision of Order 24 Rule 3 and 7 sets the rules for discovery and inspection of documents in a civil claim. Based on the provisions under Order 24 Rules of Court 2012, it is clear that the Court has the discretionary powers to grant an application for discovery of documents upon being satisfied that all three limbs inter alia document sought were in the possession or custody of the other party, the documents are relevant and such order is necessary for the fair disposal of the said legal proceeding, were proven. [13] In the case of N2N Connect Bhd & Ors v Chua Tiong Hoong & Ors [2024] MLJU 3556, the Court of Appeal laid down the principles on an order for discovery as follows: “...[16] In so far as the application of the law on discovery is concerned, the legal principles for an order of discovery of document is well settled. The elucidation in the case of Yekambaran s/o Marimuthu v Melayawata Steel Berhad [1994] 2 CU 581 details the requisite elements for an order for discovery. This was affirmed by the Court of Appeal in the case of Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1JMB [2019] 10 CLJ 516 at paragraph 11, page 526 summarised as follow:- “[117] ... The threshold test to satisfy the court to obtain an order for* discovery is low in contrast to pre-action discovery. The threshold test for discovery by itself is high and was explained in a number of cases. To name a few are as follows:

In Yekambanan Marimuthu v. Malayawata Steel Berhad [1994] 2 CU 581, the Supreme Court set out the threshold test the applicant had to satisfy to succeed in an application for discovery. The court held: “(i) 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; (ii) the documents sought must be relevant and/or related to the factual issues in dispute;

What amounts to relevance was discussed in Surface Stone Re Ltd v. Tay Seng Leon and Another [2011] SGHC 223, in reliance on the case of Compagnie Financiere du Pacifigue v. Peruvian Guano Co [1882] 11 QBD 55, where the court said: “It seems to me that every document relates to the matters in question in the action, which not only would be evidence S/N glUpvfskrU6RaVltHHiv3Q upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly on indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary...”

As a general rule, discovery orders will not be granted if it is not relevant to the core issues. In Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other Appeals [2014] 7 CLJ 597, the Federal Court held: “...The learned judge’s decision in dismissing discovery at that stage of proceedings was in line with the underlying principle under O. 24 r. 4 which underscored that the discovery process was predicated on the issues involved in a particular case.” [17] The High Court in Amsteel Mills Sdn Bhd v Ann Joo Steel Berhad [2019] 1 LNS 1585 summarised the requirements for the Court’s consideration in relation to the threefold essential elements for an order for discovery at page 9, paragraph 27 as follows: “it is pertinent to note that authorities and the rules seem to say that a discovery can be allowed only on three (3) grounds as per Yekambanan s/o Marimuthu (supra) whereby relevancy, the necessity and fair disposal of the case being the main requirements...” [14] Based on the above landmark cases, it is trite law the elements or limbs that must be proven for an order for discovery of document to be granted are namely a) there must be a “document”; b) the document must be “relevant” and “necessary”; and c) the document must be or have been in the “possession, custody or power” of the party against whom the order for discovery is sought. First limb: there must be a document [15] The first element here is to prove that there must be a document sought after. In this case, the Plaintiff sought for the Defendant’s Maybank Statement of Account between 6.1.2021 until 5.7.2022. This then goes without any argument that the Defendant’s Maybank Statement of Account is indeed a document thus this element is satisfied. Third limb : the document must be or have been in the possession, custody or power of the party against whom the order for discovery is sought. [16] The third element is discussed first as again there are no issue arising from this element. None of the parties have raised any corcern or submission as to this element. The fact that the S/N glUpvfskrU6RaVltHHiv3Q documents sought is the Defendant’s financial account makes it directly and clearly in her possession and custody. This then again goes without any argument that the Defendant’s Maybank Statement of Account is indeed a document in her possession and custody thus this element is satisfied. Second limb : the document must be relevant and necessary [17] The main argument in this case lies in the secodn limb. Here the party seeking for the order for discovery must show that the document sought is relevant to the current legal proceeding. In deciding what amounts to relevant and neccesary, the Court is guided by the decision of the High Court in Golden Affmity Development Sdn Bhd (In Liquidation) v Urn Yok Wan & Ors [2020] 1 LNS 1420 which made reference to the Court of Appeal decsion in Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Berhad & Ors [2009] 5 MLJ 40 which states as follows : “[25] The key test to be applied in a discovery application is the test of necessity as expounded in Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Berhad & Ors [2009] 5 MLJ 40 in which Tengku Baharuddin Shah JCA held as follows: “As stated earlier the real issue is compliance with r 13(1) which stipulates that discovery may only be ordered if the court is of opinion that such order is necessary either fori disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfiy the court, see Dolling-Baker’s case and Ventouris v. Mountain... If necessity is not the prime concern of the court, allowing discovery would tantamount to allowing the respondents to fish for, evidence which defeats the propose of the rule by causing the appellants to suffer unfair disadvantage if they fail to comply with an order which is oppressive and incapable of compliance.” [18] In deciding on what amounts to necessity, the High Court also referred to the case of Goo Saw Jin v, Hwang Sze Yunn & Anor [2018] MLJU 367 which stated as follows: “[42] On the issue of necessity, I have taken the liberty of referring to the case of Bqyerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155 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 wilt not be good enough. S/N glUpvfskrU6RaVltHHiv3Q Equally, an assertion that the documents are necessary because they are relevant will not be enough.” [19] Based on the said High Court decision, in determining if a document is necessary or relevant, it’s discovery must be able to lead to a fair disposal of a matter or where it is cost saving. This is similarly provided in Order 24 Rule 13 Rules of Court as follows: Production to be ordered only if necessary (O. 24, r. 13)

13.

An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. [20] By looking at the decided authorities and statutory provisions, the documents sought in this discovery application by the Plaintiff does not satisfy the threshold of being necessary neither relevant and also does not satisfy the provision of Order 24 Rule 13(1) Rules of Court

This is because the Defendant’s Statement of Account is not the main essence of the case. The case here is one where the Plaintiff alleges that the Defendant had borrowed monies and has not return it. Hence, it is for the Plaintiff to prove to the Court that he had lend the money to the Defendant and this is possible without the Defendant’s Statement of Account as the Plaintiff had in their Ikatan Dokumen Plaintif filed transaction receipts for the monies alleged. Given that the receipts are available as evidence, it does not then necessitate for the Defendant’s Statement of Account to be proven as the details are in the said receipts. [21] At this juncture, the court is guided by the decision in Yekambaran s/o Marimuthu v Melayawata Steel Berhad [1994] 2 CLJ 581 whereby at para 4 the High Court stated that “…it was incumbent for the Plaintiff to set out the wrong he believes he has suffered, the reason why he believes this to be so and why it is necessary that the defendant be ordered to give discovery. It was clear that only by obtaining the documents sought could the plaintiff obtain the required information to wage his intended action for wrongful dismissal against the defendant. The documents concerned the plaintiff himself and no one else, were of direct relevance to his grievance, and were in disputably in the possession, custody or power of the defendant…” S/N glUpvfskrU6RaVltHHiv3Q [22] The facts in the case of Yekambaran (supra) must be distinguished from the current case as in the former the Plaintiff could only get information regarding his wage from the document sought, but in our current case the Plaintiff has other means of proving his case besides that the Defendant’ Statement of Account. There is no specific information needed by the Plaintiff from the Defendant’s Statement of Account to enable his claim as pleaded in the statement of claim. Also, in the former case the document sought was only concerning the Plaintiff and no one else but in the current case the documents sought concerns personal information of the Defendant which is governed under specific data protection laws. The Plaintiff solicitors in their written submission submitted that the argument that the Defendant’ Statement of Account contains personal information does not hold waters and that the Court has the discretion to order for its discovery if it is relevant. At this point it must be noted that although the Court has the discretion in allowing an order for discovery, it must be exercised cautiously bearing in mind that it does not infringe on any personal rights of a party which are governed by other laws. [23] Further to that, based on the written submission filed along with the oral submissions, Plaintiff solicitors have also not shown how is the said document relevant and necessary to the case. The submission by the solicitor on the disagreement of markings and labelling of document does not render this document necessary and also the issue has been resolved by court orders for parties to file their documents separately. By merely stating it is necessary without proving how does not warrant for the Court to allow this application. This is in line with the decision in Goo Saw Jin v Hwang Sze Yunn & Anor (supra) whereby the High Court stated “…[42] On the issue of necessity, I have taken the liberty of referring to the case of Bqyerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155 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.” [24] This was also clearly stated in M Wealth Corridor Sdn Bhd v BJ Properties Sdn Bhd & Ors [2022] 9 MLJ 721 whereby the High Court at para 63 stated S/N glUpvfskrU6RaVltHHiv3Q “…It bears in mind to repeat this part of the Malaysia Debt Ventures judgment. For a interrogatories application to succeed, the applicant is required to show how it would lead to fair disposal of the trial or savings of cost…” [25] Again there was nothing put forward here to prove to this Court that by obtaining the Defendant’s Statement of Account it would lead to a fair disposal of trial or save cost. It was mere [26] Hence, it is clear that the document sought under this application is neither necessary nor relevant to the case and does not in any way ensure disposing fairly of the cause or matter or for saving costs. The second limb is not fulfilled. D. CONCLUSION [27] Based on the abovementioned analysis and findings, this Court dismissed the Plaintiff’s application for discovery of documents under Order 24 Rules 3, 7, 12 and 16 Rules of Court 2012 dated 13.11.2024 (Enclosure 11) without an order for cost. Dated on 7th of March 2025 Phulrani Kaur a/p Gurcharon Singh Majistret Mahkamah Majistret Slim River Plaintiff Solicitor : Rajesweri Paramasevam (Messrs Salvan Rajes & Associates) Defendant Solicitor : Natasha Parvena (Messrs Loh Velu & Partners) S/N glUpvfskrU6RaVltHHiv3Q