Syarikat Petaling Corporation Sdn Bhd v Topmatic Industrial Supplies Sdn. Bhd. (BA-22NCvC-487-10/2025)

This judgment concerns the Defendants’ application for discovery of the fire insurance policy and other documents relating to a fire that occurred at the Plaintiffs’ premises on 28 July 2024. Briefly, the Plaintiff 28/04/2026 13:04:08 BA-22NCvC-487-10/2025 Kand. 53 is engaged in the business of dealing in new and used machinery, power tools, hardware, and property management and the Defendant is a company operating in the field of industrial motors and related accessories.

The Plaintiff’s cause of action against the Defendant arises from obligations under a lease agreement and for services and goods supplied. Pursuant to the said agreement, the Defendant rented the Premises from October 2016 to November 2017 at a monthly rental of RM1,600.00 and stored goods therein. On 28 July 2024, a fire occurred at the Premises, resulting in damage to the Defendant’s goods. The Defendant contends that the said loss was occasioned by the Plaintiff’s negligence and breach of statutory and common law duties.

The loss or damage to the Defendant’s goods has given rise to a dispute and advanced a counterclaim, seeking compensation for the loss of its goods. The Plaintiff, in its response, denies liability, contends that the Defendant bore the obligation to insure its own goods, and submits that the counterclaim should be dismissed with costs as baseless and an afterthought. In summary, the discovery documents requested by the Defendant are as follows: -

Polisi insurans kebakaran bagi Premis tersebut;

(ii) Borang tuntutan Plaintif dan segala dokumen-dokumen sokongan (termasuk gambar-gambar, senarai barang-barang yang dimusnahkan dalam Kebakaran tersebut, anggaran nilai, laporan bomba dan laporan penyelaras insurans (‘loss adjuster’s report’)) yang dikemukakan kepada dan/atau dikeluarkan oleh Berjaya Sompo Insurance Berhad berkenaan dengan tuntutan insurans Plaintif bagi Kebakaran tersebut;

(iii) Segala surat-menyurat antara Plaintif dan Berjaya Sompo Insurance Berhad berkenaan dengan tuntutan insurans Plaintif bagi Kebakaran tersebut;

(iv) Surat keputusan dan/atau rekod pembayaran oleh Berjaya Sompo Insurance Berhad berkenaan dengan tuntutan insurans Plaintif bagi Kebakaran tersebu Plaintiff’s pleaded position.

The Plaintiff asserts that it was the Defendant’s responsibility to procure insurance to protect the goods stored at the Plaintiff’s premises and that the Plaintiff had no obligation to insure property not belonging to it. The Plaintiff expressly denies the Defendant’s counterclaim and, in any event, the Plaintiff contends that any insurance claim it may have with an insurer, relates solely to its own premises and not to the Defendant’s goods. Defendant’s pleaded positions

In its counterclaim, the Defendant asserts that it suffered loss and damage to its goods while they were stored at the Plaintiff’s premises and that the Plaintiff is liable to compensate for such loss. The Defendant further contends that the Plaintiff owed a duty of care, breached contractual and common-law obligations in respect of the premises, or otherwise caused or contributed to the loss of the goods.

The Defendant applies for an order compelling the Plaintiff to discover certain documents described as material documents relating to the fire and an insurance claim said to have been made by the Plaintiff arising from the Fire. The Defendant contends that these documents are necessary to litigate its counterclaim for loss suffered by reason of the destruction of its goods in the Fire and to demonstrate that the Plaintiff was unjustly enriched by retaining insurance proceeds. The Defendant further asserts that the Plaintiff’s insurance policy covered goods “held in trust” on the premises and that, if so, insurance monies payable in respect of third-party goods should be paid to the third party and not retained by the insured.

The Plaintiff opposes the Defendant’s application for discovery and the issues for determination are:

Whether the Defendant has satisfied the threshold requirements for an order of discovery against the Plaintiff; and

(ii) Whether, on the facts and materials before the Court, the documents sought are sufficiently specified, relevant, and necessary to the fair disposal of the Defendant’s counterclaim so as to justify an order for discovery. THE LAW AND RELEVANT FACTUAL BACKGROUND.

In summary, the discovery sought by the Defendant pertains to documents relating to the fire and the Plaintiff’s insurance arrangements. These include, among others, the insurance policy wording and schedule, the claim form submitted to the insurer, correspondence exchanged between the Plaintiff and its insurer, payment records, and documents evidencing the identification of the goods insured together with the compensation paid.

A party seeking discovery must satisfy the Court that the documents sought are likely to contain information enabling the applicant either to advance its own case or to prejudice that of its adversary. Further, the Defendant bears the burden of demonstrating that such documents exist, are relevant, and are, or have been, within the possession of the opposing party.

Order 24 of the Rules of Court 2012 (ROC 2012) serves as the statutory framework governing the discovery and inspection of documents in legal proceedings, primarily aimed at facilitating fair and efficient resolution of disputes by enabling parties to access relevant evidence in possession of their opponents or, in certain cases, non-parties.

In the High Court case of Pharr Lapp Sdn Bhd v Posco-Malaysia Sdn Bhd & Ors [2018] MLJU 1726, where the Learned High Court Judge, Mohamed Zaini Mazlan (as he then was) held that: - “The law on discovery [12] The essence of a discovery application is to enable a party to obtain documents which is not in its possession, with the main aim of alleviating any disadvantage that it may have in not possessing the documents sought. [13] To succeed, the plaintiff will need to demonstrate that the documents exist, are relevant, and that they are, or have been in the possession of the other party; Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581. [14] Relevancy is subjective, in that the documents sought must be relevant to the suit. The applicant may otherwise abuse them for its own agenda. [15] Relevancy will also enable the court to have the relevant information, with the aim of achieving justice between the warring parties; Rotta Research Laboratorium Spa & Anor v Ho Tack Sien & Ors [2010] 10 CLJ 491. [16] The Singaporean High Court elucidated further the requirements of relevancy in Manilal & Sons Pte Ltd v

Bhupendra KJ Shan (T/A JB International [1990] 2 MLJ It was held that the relevancy of the documents sought would be established, if it contains information that may either advance his case, or damage his adversary’s case, or it might lead him to a train of inquiry that may result in either of these consequences. [17] The court however must be vigilant to ensure that the application is not treated as what has been described as a ‘fishing expedition’; W A Pines Pty Ltd v Bannerman [1980] 30 ALR 559. The application must not be used for the plaintiff to trawl the documents sought, with the hope of finding something relevant or useful. It cannot be an exercise that would be oppressive to the party that the discovery is sought from

In my opinion, this Court’s power to order discovery is exercised to serve the interests of justice by ensuring that the parties have access to documents which are relevant and necessary for the fair determination of the issues before the Court. An order for discovery is an exceptional remedy and is not to be granted routinely or to facilitate a fishing expedition. The applicant bears the onus of showing: -

that the documents sought are arguably relevant to issues on the pleadings or to the fair disposal of the matter;

that the documents sought are particularised with sufficient details to enable both the Court and the opposing party to ascertain precisely what is being requested;

that the documents are within the possession, custody or power of the respondent party; and

that discovery is necessary for the fair disposal of the cause or to prevent a miscarriage of justice and that there is no adequate alternative means to obtain the information. Nguang Chan A.K.A Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40. Faber Merlin Malaysia Bhd v Ban Guan Sdn Bhd [1981] 1 MLJ 105.

The Court must not order disclosure of documents that are privileged, not within the respondent’s custody or control, unduly burdensome to locate or produce, or that would require a merits inquiry inconsistent to the discovery process. Where the issues in dispute are principally questions of fact capable of resolution by evidence other than broad discovery, the Court will exercise caution in directing production of documents that would amount to an unconstrained search into an opponent’s case. Applying these principles to the present application, the Court finds that the Defendant has not satisfied the requisite threshold to justify the order sought. Lack of adequate particulars

A fundamental requirement for any order of discovery is that the documents sought must be particularised. In the present case, the Defendant has identified categories of documents only in broad terms namely, documents “relating to the Fire and the Plaintiff’s insurance claim” but has not specified with requisite particularity the precise documents sought, the time periods to which the request is confined, or the specific elements of the counterclaim that each category of documents is intended to prove or disprove.

The Defendant submits that the documents sought would clarify or fill gaps and assist this Court in narrowing down and crystallizing the issues. However, in my opinion, a general assertion of relevance is wholly insufficient. The Defendant’s pleadings and submissions leave open multiple possibilities as to what documents might exist and how each would bear on its case. This lack of specificity renders the proposed discovery impermissibly broad and liable to produce an unregulated fishing expedition rather than targeted disclosure of documents directly material to the contested issues. Insufficient establishment of relevance and necessity

I agree with the Plaintiff that it is not sufficient for the Defendant, merely to assert that the documents are “highly relevant” or “would advance” its counterclaim. The Defendant must demonstrate a real and substantial connection between the documents sought and an issue properly arising on the pleadings. In this case, the purported relevance rests on a central factual contention, that the Plaintiff’s insurance policy covered goods belonging to the Defendant “as goods held in trust,” and that any insurance proceeds received by the Plaintiff were in truth payable to the Defendant.

I am not persuaded that the production of broad classes of the Plaintiff’s internal or insurer claim files are necessary to resolve that central factual dispute at this interlocutory stage. Determining whether third-party goods were covered by the Plaintiff’s policy, whether the Plaintiff made a claim in respect of those goods, and whether any sums paid are attributable to them requires consideration of substantive evidence on the pleaded facts including the terms of the policy, inventory records, delivery and custody records, and evidence from the insurer rather than a general order for discovery against the Plaintiff.

The Defendant’s submissions invite this Court to grant discovery irrespective of the merits, contending that the Court is not required to examine the merits in determining a discovery application. While it is true that discovery procedure should not be used as an opportunity to litigate the entire case prior to trial, but the Court, must be satisfied that the documents sought are connected to issues that are genuinely in dispute and that discovery is necessary to avoid an injustice. Where the requested discovery is deployed to establish core facts of the claim which are in dispute and which the applicant has not otherwise shown to exist in the respondent’s possession, the Court is entitled to consider, realistically and carefully, the strength and character of the factual basis for the request. In the present case the Defendant’s evidence falls short of demonstrating that discovery of the document classes sought is necessary for a fair trial rather than serving as a means of fishing for admissible material.

In my opinion, to compel discovery in such circumstances would amount to permitting the Defendant to embark upon a fishing expedition, thereby occasioning unfair prejudice to the Plaintiff as in the cases of Charterfield Corporation Sdn Bhd v Tan Sri Dato’ Seri Datuk Wira Syed Yusof B Tun Syed Nasir & Anor [2021] MLJU 2509Datuk Amar James Wong Kim Min & Anor v Pendaftar Pertubuhan [2004] 6 MLJ 235. Possession, custody or power

An order for discovery may be made only against a party in respect of documents within that party’s possession, custody, or power. In this case, the Defendant’s position assumes but has not established on proper evidence that the Plaintiff has custody, possession, or control of all insurance claim documentation and particulars of any payments made by the insurer which might identify the goods insured and the quantum attributable to them.

Insurance claim files, internal insurer investigations, and payment records may, depending on the circumstances, be in the hands of the insurer or otherwise beyond the Plaintiff’s control. The Defendant has not produced admissible evidence establishing that the specific documents sought are in the Plaintiff’s possession or are capable of being obtained by the Plaintiff from the insurer without infringing third-party rights. In the absence of such evidence, the Court cannot properly order discovery of documents that may not be within the Plaintiff’s control. Protasco Bhd v Tey Por Yee & Anor and Other appeals [2021] 6 MLJ 1 Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581 Alternative means of obtaining the information

The Defendant has not demonstrated that there are no alternative, less intrusive means of obtaining the information it seeks. If the Defendant’s case relies upon the terms of the Plaintiff’s policy, it may, through ordinary pleadings and targeted requests, obtain copies of the policy documents or seek admissions directed to the Plaintiff’s reliance on particular clauses. Where the dispute concerns whether particular goods were insured, documentary proof such as invoices, delivery notes, inventories, receipts, and contemporaneous correspondence can typically be identified and adduced by focused requests or by calling evidence. The Defendant’s general plea that discovery is necessary therefore fails to establish why wide-ranging discovery is the only realistic means of obtaining the relevant material. Undue burden and Broad Terms

In my view, the categories of documents sought in this case, are framed in broad terms that would, if ordered, require production of extensive claim files, internal correspondence, drafts, notes, and potentially privileged material. This Court must consider the proportionality of the order sought relative to the needs of the litigation. The Defendant has not demonstrated that the potential prejudice to the Plaintiff, namely the disruption and expense of searching broad classes of documents and the attendant risk of disclosing irrelevant or privileged material would be justified. An order for open-ended discovery would be unbalanced and is therefore inappropriate. The Defendant’s reliance on assertions about goods held in trust 24. The Defendant places reliance on the contention that the policy schedule and a “Contract Price Clause” indicate that goods “held in trust” were insured, and that the Plaintiff cannot retain insurance monies in respect of third-party goods. The Court accepts that, as a matter of principle, if a party receives insurance monies in respect of property in which a third party has an equitable proprietary interest, the receipt and retention of those monies may raise issues of entitlement and unjust enrichment. However, that contention is a central factual and legal matter to be determined on the merits after appropriate evidence is adduced.

The Defendant has not demonstrated, by affidavit or supporting documentation, that any part of the Plaintiff’s policy, schedule, or claim forms expressly identifies the Defendant’s goods by name, quantity, or description, that the insurer paid sums expressly attributable to those goods, or that the Plaintiff received and retained such sums rather than remitting them to lawful third parties. I am in the view that, in the absence of such demonstrative material, this Court cannot infer that the Plaintiff possesses the documents sought or that discovery is necessary to resolve those issues. The risk of abuse of process

Granting the broad discovery sought would risk turning the process into a tool for probing potential weaknesses in the Plaintiff’s case rather than a mechanism for disclosing documents plainly relevant and necessary to matters in issue. The Defendant’s repeated assertion that the Plaintiff’s alleged evasiveness and refusal to disclose reflects upon the Plaintiff’s genuineness is not a substitute for the evidentiary showing required to obtain an order for discovery. The Court must remain vigilant to ensure that procedural mechanisms are not employed to compel production of documents in aid of speculative theories.

For the reasons set out above, the Defendant has not satisfied the Court that the documents sought have been sufficiently particularised or that they are demonstrably within the Plaintiff’s possession, custody, or power. In addition, the Defendant has failed to prove that the documents are necessary for the fair disposal of its counterclaim in the sense required to justify the broad discovery order sought. Therefore, I dismiss the Defendants application with cost. Date: 28 April 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: Neo Chi Chyn [MESSRS FIROZ JULIAN] Solicitor for the Defendant: Long Jie Ren with Lee Hui Wen [MESSRS ARIFF ROZHAN & CO.]