BA-22NCC-79-07/2021
High Court of Malaysia26 May 2022
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“10. Thereafter, the Plaintiff commenced the current action against the Defendants who were the shareholders and directors of City Amoeba pursuant to section 540 of the Companies Act 2016 for allegedly carrying on the business of City Amoeba with an intent to defraud the Plaintiff and/or for fraudulent purposes.”
“per approach to the question of whether discovery is “necessary” may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 (“Bayerische”) where the High Court of Singapore at paragraph [37] stated as follow”
“f the first defendant, in my considered opinion, is far too wide and wholly inappropriate. For this reason alone, the application ought to be dismissed; see Wong Hou Lianq & Anor v Wong Kie Yik & Ors [2015] MLJU 358. [16] In Wong Hou Lianq it was held that granting such a wide order for discovery without determining th”
“ocuments sought are necessary to fairly dispose of this suit and for saving costs. This was explained in the Court of Appeal case of Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn. Bhd. & Ors [2020] MLJU 1421, where S. Nantha Balan JCA explained that: [198] Further, it is also imperative for the respondents to”
“ILING portal 19 for discovery which will lead to further delay and expenses on the disposal of the said action.’ [emphasis added] 41. Also, in the case of Ho King Min & Anor v Lee Meng Leng & Ors [2020] MLJU 1925, the High Court in dismissing the Plaintiff’s discovery application against the Defendant and/or non-partie”
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Content
1 IN THE HIGH COURT MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL NO.: BA-22NCC-79-07/2021 BETWEEN PHOENIX BIQQ SDN. BHD. (previously known as Phoenix Moon Resources Sdn. Bhd.) [Company No.: 972627-V] … PLAINTIFF
1
YAM KONG WAH [I/C No.: 691212-01-5489]
2
LAI FUI YUN [I/C No.: 720830-10-5342] … DEFENDANTS GROUNDS OF JUDGEMENT
1
Enclosure 30 is the Plaintiff’s application pursuant to Order 24 rule 7A(2) and/or Order 92 rule 4 of the Rules of Court 2012 (ROC 2012) for an order for the discovery of documents listed in Schedule A and B of the application from five (5) other entities namely United Amoeba Sdn. Bhd. (UASB), De Amoeba Sdn. Bhd. (De Amoeba) S/N OfVmfVjjXkSnRq/20q/orQ and United Amoeba Trading (UAT), PICO International (M) Sdn. Bhd. (PICO) and Black Point Design Sdn. Bhd. (Black Point).
2
The Plaintiff in its Writ action against the Defendants claimed that the Defendants, the directors of City Amoeba Sdn. Bhd. (City Amoeba) had carried on the business of City Amoeba with an intent to defraud the Plaintiff or for fraudulent purposes, inter alia, by surreptitiously and/or unlawfully diverting all of City Amoeba’s businesses and proceeds (both current and future) to either UASB and/or De Amoeba, of which are the entities controlled directly and/or indirectly by the Defendants, to avoid the obligations to pay outstanding sums due and owing to the Plaintiff.
3
Hence, the Plaintiff in its Affidavit in Support in enclosure 30 claimed that the entries, information and/or documents sought in Schedule A and B of the application, pursuant to Order 24 rule 7A(2) of the ROC 2012 are relevant and will reveal that the 1st Defendant and/or 2nd Defendant had carried on the business of City Amoeba with intent to defraud the Plaintiff and/or for fraudulent purposes either through themselves, UASB, De Amoeba and/or United Amoeba Trading (UAT) which are the entities connected and/or controlled and/or related to them.
4
The issue before this Court is whether the Plaintiff’s application had fulfilled the requirements in Order 24 rule 7A(2) and rule 8 of the ROC 2012 for this Court to grant the Order sought in enclosure 30. S/N OfVmfVjjXkSnRq/20q/orQ
5
Vide Sessions Court suit No. WA-B52NCC-901-12/2019 (Suit 2019) dated 01.07.2019, the Plaintiff commenced an action against City Amoeba for an outstanding sum of RM425,483.27 due and owing to the Plaintiff for goods and services rendered.
6
Subsequently, on 08.07.2020 the Plaintiff obtained an order for Summary Judgment against City Amoeba for a partial outstanding sum amounting to RM115,685.75. Thereafter, on 07.01.2021, the Plaintiff entered Judgement in Default against City Ameoba for the balance outstanding amount of RM309,797.52. Hence, the total sum for both judgements were RM559,145.32.
7
As City Amoeba failed to pay the judgement sum, the Plaintiff initiated a garnishee proceeding against City Amoeba on 21.08.2020.
8
8.
Preamble
Pursuant to the garnishee proceeding, the Plaintiff alleged to have discovered that: a. the garnishee, Rimarisan Sdn. Bhd. (Rimarisan), had made payments of RM30,000 to City Amoeba on 14.08.2020; b. the garnishee, PICO, had paid RM77,413.15 to City Amoeba on 26.08.2020; S/N OfVmfVjjXkSnRq/20q/orQ c. the payments received were swiftly dissipated and/or transferred out from City Amoeba’s bank account; and d. only RM348.15 was left in City Amoeba’s CIMB bank account.
9
The Plaintiff then discovered that during and/or after the conclusion of Suit 2019, the Defendants had incorporated and/or caused to be incorporated-a. UASB on 18.12.2019, whereby the 1st Defendant and/or the 2nd Defendant is the de facto director of UASB and/or the person with whose directions or instructions the director of UASB was accustomed to act; and the 1st Defendant and/or the 2nd Defendant is the beneficial owner of all equities in UASB and the person having control over the said entity; and b. De Amoeba on 08.01.2021, whereby the 1st Defendant was the shareholder and director and subsequently was replaced by one Yam Xiao Tong, a person alleged to be related to the 1st Defendant.
10
Thereafter, the Plaintiff commenced the current action against the Defendants who were the shareholders and directors of City Amoeba pursuant to section 540 of the Companies Act 2016 for allegedly carrying on the business of City Amoeba with an intent to defraud the Plaintiff and/or for fraudulent purposes.
11
The Plaintiff claimed that the Plaintiff is a victim of fraudulent trading wherein City Amoeba had never intended to pay the outstanding S/N OfVmfVjjXkSnRq/20q/orQ judgement sum or any part thereof to the Plaintiff and other entities were incorporated by the 1st Defendant and/or the 2nd Defendant to surreptitiously and/or unlawfully divert all the City Amoeba’s businesses and proceeds (both current and future) to avoid the liability for the judgements in Suit 2019.
12
The Plaintiff stated that the Defendants are the beneficial owners and persons having control of UASB, De Amoeba and UAT and/or whose director is accustomed to acting on the directions or instructions of the 1st Defendant and/or the 2nd Defendant.
13
Premised on the above allegations, the Plaintiff has pleaded that the 1st Defendant and/or the 2nd Defendant are jointly and severally liable to the Plaintiff without any limitation for the sum of RM559,145.32, being the outstanding judgement sum.
14
As a result, the Plaintiff filed the application in enclosure 30 to move this Court pursuant to Order 24 rule 7A(2) of the ROC 2012 briefly for the following orders: a. All quotations, all purchase orders, all delivery orders, all invoices, all payment vouchers, all transaction slips or payment proof, statements of account and all letters, all emails, all messages and any form of letters between the representatives of UASB and PICO (as stated in Schedule A) from 18.12.2019 until the date enclosure 30 is disposed of by the Court. S/N OfVmfVjjXkSnRq/20q/orQ b. All quotations, all purchase orders, all delivery orders, all invoices, all payment vouchers, all transaction slips or payment proof, statements of account and all letters, all emails, all messages and/or any form of letters between the representatives of UASB and/or De Amoeba and/or UAT and Black Point (as stated in Schedule B) from 18.12.2019 until the date enclosure 30 is disposed of by this Court.
15
The law pertaining to the discovery of documents against a person who is not a party to the proceedings is provided under Order 24 rule 7A(2) of the ROC 2012 and further Order 24 rule 7A(3) provides that- “(3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall-
a
in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and
b
in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the S/N OfVmfVjjXkSnRq/20q/orQ documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.’ [emphasis added]
16
The Court shall refuse the application for discovery if it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs as provided under Order 24 rule 8 of the ROC 2012.
17
Hence, in an application for discovery against a non-party, the Plaintiff has to fulfil the following requirements: a. to specify or describe the documents in respect of which enclosure 30 is sought; b. to show that the documents sought to be discovered from the non-parties are relevant to issue(s) arising or likely to arise from the claim herein; c. to show that the non-parties against whom the order is sought are likely to have or have had the documents sought for in their possession, custody or power; and d. to show that the documents sought in Schedule A and B are necessary to fairly dispose of this suit or for saving costs.
18
The essential elements for an order for discovery were explained in the case of Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581 as follows: “The essential elements for an order for discovery are threefold; namely, first there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought. ...... As to "relevance", our Rules of the High Court limit discovery to documents which are "relevant to" or "relate" to the factual issues in dispute. More particularly, the discovery obligation applies to documents "relating to matters in question in the action" [Rules of the High Court, O. 24, r. 1(1)] or "relating to any matter in question in the cause or matter" [O. 24, r. 3(1)]. In practice, relevance is primarily determined by reference to the pleadings but there need not be a pleading for a matter to be said to be in issue. (See Phillips v. Phillips [1879] 40 LT 815, 821. In this context, relevance is defined broadly. It does not extend to documents relevant merely to a party's credibility unless that itself is a fact in issue. (See George Ballantine & Sons Ltd. v. Dixon & Son Ltd. [1974] 1 WLR 1125). If, however, the document's relevance is to a fact in issue, not simply to credibility, it has long been settled that relevance of an indirect kind suffices.” [emphasis added]
19
Therefore, the three elements for an order for discovery are: a. there must be a "document"; b. the document must be "relevant"; 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.
20
Having perused the application in enclosure 30 and all the cause papers filed therein, I decided to dismiss the Plaintiff’s application. I find the Plaintiff’s application did not fulfill the requirements in O24 rule 7A(3) and rule 8 of the ROC 2012. My reasons are stated below.
21
The Plaintiff’s pleaded case against the Defendants briefly as follows: a. that the Defendants, both directors of City Amoeba, had carried on its business with an intent to defraud the Plaintiff or for fraudulent purposes, inter alia, by surreptitiously and/or unlawfully diverting all of City Amoeba’s businesses and proceeds (both current and future) to either UASB and/or De Amoeba, of which are entities controlled directly and/or indirectly by the Defendants, to avoid the obligations to pay outstanding sums due and owing to the Plaintiff; and S/N OfVmfVjjXkSnRq/20q/orQ b. UASB and De Amoeba were incorporated and/or caused to be incorporated by the 1st Defendant and/or 2nd Defendant in anticipation or during the course or immediate conclusion of the Suit 2019 commenced by the Plaintiff against City Amoeba.
22
It is noted that the Plaintiff had not made any reference to the incorporation of UAT and the 1st and 2nd Defendants’ link to UAT in its Statement of Claim. The 1st and 2nd Defendants’ involvement in UAT was only raised in the Plaintiff’s affidavit in support of enclosure 30.
23
The Plaintiff contended that at all material times, both PICO and Black Point were City Amoeba’s customers and the Plaintiff had discovered that PICO and Black Point have continued to commercially engage the 1st Defendant and/or the 2nd Defendant for works and services similar to those of City Amoeba, either through UASB, De Amoeba and/or UAT.
24
The Plaintiff submitted that the application filed under Order 24 rule 7A(2) for discovery is relevant and necessary as the documents sought in Schedule A and B are relevant to an issue arising or likely to arise out of the claim made. The Plaintiff further contended that the said documents will or most likely will show that: a. the active participation and involvement of the 1st Defendant and/or 2nd in UASB, De Amoeba and/or UAT; and S/N OfVmfVjjXkSnRq/20q/orQ b. UASB, De Amoeba and/or UAT are now being surreptitiously used by the 1st Defendant and/or 2nd Defendant to commercially transact with PICO and Black Point in place of City Amoeba.
25
The Plaintiff contended that the Defendants had continued business dealings with City Amoeba’s previous customers. Pertaining to the dealings with PICO, according to the Plaintiff the former general manager of PICO, one Mr. Sun Heng Chung (Mr. Sun) had claimed that the 1st Defendant was personally dealing and continued to deal with PICO commercially under UASB, including for renovations of the interior of a Samsung Store located at Lot LG61, Lower Ground Floor of Setia City Mall in or around March or April 2021. He further claimed that the 1st Defendant has been consistently at the forefront of UASB and appears to be the person in control of UASB throughout its commercial dealings with PICO.
26
Hence, the Plaintiff claimed that the aforesaid information corroborated with the Plaintiff’s earlier findings via an employee of PICO around the end of May 2021 by the name of Raymond Cho Wee Jiun (Raymond), that the 1st Defendant had sent various quotations to PICO for renovation projects via UASB, including for a Samsung Store located at Setia City Mall and Pandora Store in Pavilion; and the said Raymond has been dealing mainly with the 1st Defendant regarding matters pertaining to UASB. However, it is to be noted that the Plaintiff did not plead these facts.
27
Pertaining to the dealings with Black Point, the Plaintiff contended that the 1st Defendant and/or the 2nd Defendant have been engaged by Black Point either via UASB and/or De Amoeba and/or UAT for various projects; and that there are few pending projects where Black Point will be engaging UASB or De Amoeba or UAT, including one project which the site, is at the Merdeka PNB 118. However, again, these facts were not the Plaintiff’s pleaded case.
28
In determining whether the documents are sufficiently described, the Plaintiff referred to the case of Billion Prima Sdn. Bhd. & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213, and submitted that there is no requirement for the Plaintiff to describe and name each and every document specifically since it is only required to describe the type or class of documents with reasonable precision. In this regard, the Plaintiff stated that the documents sought are clearly defined and specified without ambiguity; that the specific period for the required documents was stated; and that the entities were specifically named.
29
The Defendants, UASB and De Amoeba in opposing the Plaintiff’s application contended that the Plaintiff had failed to fulfil the requirements under Order 24 rule 7A(3)(b) and rule 8 of the ROC 2012; that the Plaintiff’s application is an abuse of the process of the court; and that Order 92 rule 4 of the ROC 2012 cannot be applied to cure the non-compliance or waive the requirements of Order 24 rule 7A (3)(b) and rule 8 of the ROC 2012. The Defendants and the S/N OfVmfVjjXkSnRq/20q/orQ non-parties claimed that the documents sought at Schedule A and B are couched in a general, wide and vague manner.
30
De Amoeba in reply contended that both the Defendants are not the directors, shareholders or beneficial owners of De Amoeba, hence they have no direct or indirect control over De Amoeba. It was further contended that the documents sought at Schedule B are not in De Amoeba’s possession and the Plaintiff had failed to prove that the documents sought which involved De Amoeba are necessary to fairly dispose of this suit or saving costs.
31
UASB in reply contended that the sole shareholder and beneficial owner of UASB is one Tho Hwee Min (THM). The 2nd Defendant was appointed as the director of UASB by THM/UASB on 30.08.2021 as deemed fit due to her experience in the nature of business of UASB. The 1st Defendant is not a director of UASB.
32
I agree with the Defendants’ and the non-parties submissions that the application made by the Plaintiff did not specify the particular business transaction, the specific type of documents and/or the precise date of the transaction sought in Schedule A and B. I find the description of the documents sought is generalised and there is no specification of documents that are intended to be inspected.The documents sought are All quotations, All Purchase Orders, All delivery orders, All invoices, All payment vouchers, All transaction slips or payment proof, All statements of account and All letters, All emails, All messages and any form of letters between the representatives of UASB and PICO (as in Schedule A) and between UASB, De Amoeba and UAT with Black Point (as in Schedule B) S/N OfVmfVjjXkSnRq/20q/orQ within the period of 18.12.2019 till the date of the order, which I find the document requested are too wide, vague and without reasonable precision. Though I am mindful that this Court has a discretion to order the discovery of any documents, however, a perusal of Schedule A and B, seems to suggest that the Plaintiff is basically seeking every document pertaining to the non-parties businesses and financial transactions and correspondences from 18.12.2019 till the date of the order. This I find is far too wide and vague which would mean even the irrelevant and not necessary documents would be subjected to the open-ended order, which may be detrimental and prejudicial to the non-parties and which would lead to further delay and expenses on the disposal of the action.
33
As decided in the case of Billion Prima Sdn. Bhd. & Anor v Nutech Co Ltd & Anor (supra), the Plaintiff has to describe the type or class of documents with reasonable precision. However, it is my considered view that the manner in which the documents are specified in Schedule A and Schedule B are not described and specified with reasonable precision. It is an open-ended discovery of All business and financial transactions and correspondence which may even expose the non-parties trade secrets which would be detrimental to their business.
34
The discretion to order the discovery of documents under Order 24 rule 7A against the non-parties i.e UASB, De Amoeba, UAT, PICO and Black Point must be exercised with caution when the documents sought are very general in nature, as not to cause prejudice to those entities for the risk of exposing irrelevant documents and which are not necessary that would prejudice the S/N OfVmfVjjXkSnRq/20q/orQ said non-parties. The Plaintiff cannot throw a wide net with the hope to find some evidence to strengthen its claim against the Defendants. There should be specifications or descriptions with reasonable precision on the type and particulars of documents sought by the Plaintiff.
35
Also, the Plaintiff did not plead and specify the business transactions between UASB, De Amoeba and/or UAT with Black Point and PICO and their relevance to the factual issues of the Plaintiff’s claim. It was never the Plaintiff’s case that PICO had continued to commercially engage the Defendants through UASB to defraud the Plaintiff. The Plaintiff’s contention that the Plaintiff had obtained information from Mr. Sun that the 1st Defendant was personally dealing and continued to deal with PICO commercially under UASB; and that the 1st Defendant has been consistently at the forefront of UASB; and appears to be the person in control of UASB throughout its commercial dealings with PICO, and as such, the said information corroborated with the Plaintiff’s earlier findings via an employee of PICO around the end of May of 2021 by the name of Raymond, that the 1st Defendant had sent various quotations to PICO for renovation projects via UASB are not pleaded in the Plaintiff’s Statement of Claim.
36
Likewise, facts pertaining to the Defendants’ purported dealings with Black Point, that the Defendants have been engaged by Black Point either via UASB and/or De Amoeba and/or UAT for various projects; and that there are few pending projects where Black Point will be engaging UASB or De Amoeba or UAT, including one project at the Merdeka PNB 118 are not the Plaintiff’s pleaded case. These are S/N OfVmfVjjXkSnRq/20q/orQ inferences made by the Plaintiff without providing any credible evidence and more so the engagements alleged are only suspected to take place or that there could be such engagement in the future. Even if any of such engagements were to take place, the Plaintiff was not able to pinpoint which one of the entities was involved. More so, it was never the Plaintiff’s pleaded case that Black Point had continued to commercially engage the Defendants through UASB, De Amoeba and/or UAT to defraud the Plaintiff. It is noted De Amoeba was only incorporated on 08.01.2021, however, the Plaintiff had made a blanket application in Schedule B to obtain documents from 18.12.2019, way before De Amoeba was incorporated. Moreover, I observe that in requesting the documents in Schedule B, the Plaintiff did not identify which of the non-parties, be it UASB, De Amoeba or UAT had a business transaction with Black Point. It was again a blanket request without specification. It is observed that the Plaintiff’s contention is general and seems to suggest that the Plaintiff is unsure about what the Plaintiff is looking out for.
37
Hence, the relevance of the documents sought by the Plaintiff is merely by making inferences based on the information obtained by the Plaintiff from third parties without credible evidence and also on non-pleaded facts. Further, the accuracy and credibility of this information are yet to be determined. I find YKE-6 in enclosure 40 provided by the Plaintiff to support the information received, is insufficient to show or suggest the 1st Defendant’s involvement with PICO on behalf of UASB because some of the documents are unsigned and the source of averments and authenticity of the documents are yet to be proven. Likewise, YKE-4 in enclosure 31 a cheque purportedly issued by the 1st Defendant to one of the S/N OfVmfVjjXkSnRq/20q/orQ suppliers on behalf of UASB is insufficient to suggest the purported intention to defraud the Defendants because the cheque exhibited does not confirm the Plaintiff’s allegation as the payment details are unclear and do not show to whom or who had issued the said cheques. Further, I agree with the learned counsel for the Defendants and the non-parties, that UASB and De Amoeba’s commercial engagement (if any) with the same suppliers of City Amoeba alone does not justify the discovery of documents in
Schedule
Schedule A and B. The Plaintiff has to show that the documents sought are relevant to an issue which is ‘likely to arise out of the claim made or likely to be made in the proceedings’, which they have failed to do so. 38. Though the threshold of relevancy requirement is lower under Order 24 rule 7A of the ROC 2012 given its purposive interpretation to achieve justice as explained in Billion Prima Sdn. Bhd. & Anor v Nutech Co Ltd & Anor (supra), the Plaintiff however, must explain how all these documents sought are relevant to an issue which is ‘likely to arise out of the claim made or likely to be made in the proceedings’. Apart from mentioning the Plaintiff’s suspicion of the Defendants’ intention to defraud the Plaintiff by diverting the Defendants’ business transactions through the named non-parties, the Plaintiff has not explained how All these documents sought would be relevant to an issue which is ‘likely to arise out of the claim made or likely to be made in the proceedings’. 39. Therefore, I find the failure to identify and describe the type of documents required with reasonable precision and with the absence S/N OfVmfVjjXkSnRq/20q/orQ of an explanation that the documents sought are relevant to the factual issues in the Plaintiff’s claim would be tantamount to a fishing expedition by the Plaintiff to obtain evidence to strengthen its claim. 40. I refer to the case of Licvem Shipping & Trading Aos & Anor v JLM Logistics (M) Sdn. Bhd & Ors [2016] 10 MLJ 247. In this case, the plaintiff sought to discover all invoices and bills in respect of the contract between the plaintiff’s client, AEL and the first defendant and all accounts and bank statements related to payments made under the contract between the first defendant and AEL. The High Court dismissed the Plaintiff’s application and held as follows: “[15] Although I am mindful that this court has a discretionary power to order the discovery of any document at any stage of the proceedings, the documents sought cannot be far too wide and further it has to be relevant and related to the factual issues. In the instant case, to seek for the discovery of documents in respect of all bank accounts and all statements of account of the first defendant, in my considered opinion, is far too wide and wholly inappropriate. For this reason alone, the application ought to be dismissed; see Wong Hou Lianq & Anor v Wong Kie Yik & Ors [2015] MLJU 358. [16] In Wong Hou Lianq it was held that granting such a wide order for discovery without determining the type and nature of the documents, apart from a fishing expedition by the plaintiffs, is detrimental as even documents which are wholly irrelevant to the said action would be subject to the open ended order S/N OfVmfVjjXkSnRq/20q/orQ for discovery which will lead to further delay and expenses on the disposal of the said action.’ [emphasis added] 41. Also, in the case of Ho King Min & Anor v Lee Meng Leng & Ors [2020] MLJU 1925, the High Court in dismissing the Plaintiff’s discovery application against the Defendant and/or non-parties found that the documents sought were too wide and vague and amounts to ‘merely fishing for evidence to prop up his case’. The Plaintiff in the case sought, among others, the following documents: ‘[46] Through Encl. 12, the Plaintiffs seek the following: … 2.2 The complete list of attendees at the Foundation Training Programme (“FTP”) organised by the Defendants at or about the period between 2015 and 2017; 2.3 Slideshows and other training materials used by the Defendants while carrying out the FTP sessions; … 2.7 The statements of accounts relating to the payment of commissions to the Defendants and/or GAR, Blimsmark S/N OfVmfVjjXkSnRq/20q/orQ and SIGM by third parties unknown to the Plaintiffs in relation to the projects stated in paragraph 22(b) of the said Defence; 2.8 The full Statement of Accounts of Bayswater Fiduciary Services Pte Ltd (“Bayswater”) and Western Union Business Solutions (“Western Union”) pertaining to the investment monies paid by the Plaintiffs for the projects mentioned in paragraphs 2.4 and 2.5 in accordance with the Defendants’ instructions; … 2.10 The full Statement of Accounts relating to the monies given to the Defendants by third parties unknown to the Plaintiffs for the purpose of praying the commissions of 5% to the Plaintiffs as consultants, and/or to the downlines of the Plaintiffs; … 2.12 E-mails, correspondence and/or any other communications between the Defendants and other third parties pertaining to the letters and WhatApp S/N OfVmfVjjXkSnRq/20q/orQ message sent to the Plaintiffs as pleaded in paragraphs 16.1, 16.2, 16.3, 16.4 of the Statement of Claim.’ [emphasis added] 42. It is my considered view, except for stating that the documents sought are necessary to fairly dispose of this suit and for saving costs, the Plaintiff had not sufficiently demonstrated how all the documents sought in Schedule A and B are necessary to fairly dispose of this suit and for saving costs. The Plaintiff has not explained to the satisfaction of this Court that the documents sought are necessary to fairly dispose of this suit and it would save costs. The Plaintiff had stated that these documents are relevant to the issues raised in its claim, however, it is imperative for the Plaintiff to satisfy this Court that these documents are not just relevant but also necessary to fairly dispose of this suit and for saving costs. Failing which, pursuant to Order 24 rule 8, this Court can refuse the discovery if it is satisfied that the discovery was not necessary either for disposing fairly of the cause or matter or for saving costs when the Plaintiff had failed to demonstrate that the documents sought are necessary to fairly dispose of this suit and for saving costs. This was explained in the Court of Appeal case of Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn. Bhd. & Ors [2020] MLJU 1421, where S. Nantha Balan JCA explained that: [198] Further, it is also imperative for the respondents to establish that the DSA is necessary. Relevance S/N OfVmfVjjXkSnRq/20q/orQ cannot be conflated with necessary, as what is relevant may not be necessary. [199] In our view, the question as to whether the document for which disclosure is sought is necessary is an important and we might, add pivotal component for the order of discovery under Order 24 Rule 7 ROC. Indeed, Order 24 Rule 8 ROC also makes it imperative that the Court to refuse discovery if it is satisfied that discovery was not necessary. [202] In our view, the proper approach to the question of whether discovery is “necessary” may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 (“Bayerische”) where the High Court of Singapore at paragraph [37] stated as follows: “The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough.” [203] Further, in paragraph [38] of the judgment, the Singapore High Court had considered Order 24 Rule 7 which is pari. materia with our Order 24 Rule 8 and stated that: “The court is, by O. 24 r. 7, concerned with the discretion to refuse disclosure of a document unless the necessity for disclosure is clearly demonstrated.” [emphasis added] S/N OfVmfVjjXkSnRq/20q/orQ 43. Therefore, it is my considered view that allowing the discovery of the documents listed in Schedule A and B will be prejudicial to the Defendants and the non-parties, as apart from being too wide and general, the Plaintiff had also failed to show that the documents sought are in the possession, custody and power of the non-parties. Further, the Defendants have vehemently denied the Plaintiff’s allegation that the Defendants are the controlling mind and have control over the day-to-day business of UASB, De Amoeba and UAT. More so, the Plaintiff’s basis for the discovery of the said documents is premised on mere suspicion and inferences made from pieces of information obtained from third parties and which are not supported with sufficient evidence. Additionally, the Plaintiff did not sufficiently demonstrate that the documents are necessary to fairly dispose of this suit and for saving costs. Based on the circumstances of this case, I agree and accept the submission by the Defendants and the non-parties that the application in enclosure 30 would be oppressive to the Defendants and the non-parties and is an abuse of the process in the Plaintiff’s attempt to fish for evidence to strengthen the Plaintiff’s claim. I find, through this application, the Plaintiff is trying to find answers to their riddles which they are unsure about. It is trite that fishing expeditions of such nature cannot be allowed by the Court and especially so when it involves entities that are not a party in this action. 44. Based on the reasons stated above, I find that the Plaintiff failed to substantiate its application in enclosure 30. Therefore, I ordered that S/N OfVmfVjjXkSnRq/20q/orQ the Plaintiff’s application in enclosure 30 be dismissed with costs of RM6000.00. Dated: 31st day of March 2023 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Chew Beng Han Randy (Messrs Randy Chew & Co.) For the 1st & 2nd Defendants : Foo Wen Cong (Messrs Foo & Chan) For the Non-Party : Yeap Shuang Shuang (United Amoeba & De Amoeba) (Messrs Tan & Yan Leong) S/N OfVmfVjjXkSnRq/20q/orQ
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