Tan Ka Han v Aia Bhd. (JA-22NCC-25-03/2025)

There are three suits before this Court involving the same Defendant - AIA Bhd, but different Plaintiffs. In each of these suits, the parties filed mirror interlocutory applications namely—

Plaintiff Application for disclosure of documents to prove wrongful termination and blacklisting.

Defendant’s Application to strike out large portions of the Plaintiff’s claim, alleging the pleadings are frivolous and exaggerated (with billions claimed as damages). S/N jClGqh61S0q2tyHNqaJCg

Application to consolidate and transfer this Johor Bahru suit to Kuala Lumpur to be heard with a related case.

All the applications were heard together. Suit no. JA-22NCC-24- 03/2025 was treated as the lead case, and the decision on each application in this suit shall apply equally and bind the other two suits.

Parties filed written submissions together with bundles of authorities for each of the applications, and oral submissions were heard on 10 September 2025. The Court reserved its decision on 30 September

What follows are the Court’s decisions and the grounds thereof.

The Plaintiffs were insurance agents of the Defendant and were entitled to allowances, commissions, and incentives in accordance S/N jClGqh61S0q2tyHNqaJCg with the Agency Compensation Handbook. Their agency contract was terminated due to allegations of misconduct related to “premium financing”. Following the termination, the Defendant also referred the Plaintiffs to the Life Insurance Association of Malaysia (LIAM) to be listed under Category 1 of the Referred Agent Listing, thereby preventing them from continuing in the financial services industry.

The Plaintiffs contend that the terminations were wrongful, unlawful, and procedurally irregular. Hence, the Plaintiffs claim to have lost substantial future income, suffered reputational harm, and endured emotional distress. They seek, among others, declarations that the terminations were wrongful and unlawful, payment of outstanding commissions, special damages for loss of future income, general damages, exemplary and aggravated damages, removal of their names from LIAM’s Referred Agent Listing, publication of apologies in national newspapers, interest, and costs.

The Defendant denies that the terminations were wrongful or unlawful. According to the Defendant, the Plaintiffs had breached the express terms of the agency contracts as well as their fiduciary duties by participating in a fraudulent scheme designed to manipulate the Defendant’s remuneration system through practices such as “premium financing” and sales to non-genuine customers.

The Defendant further asserts that the referral of the Plaintiffs to LIAM’s Referred Agent Listing was proper, justified, and protected by privilege. It rejects the quantum of damages claimed as excessive, speculative, and motivated by greed. S/N jClGqh61S0q2tyHNqaJCg

The Court in Yekambaran Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581 articulated the foundational principles governing discovery as follows— "[1] 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 person against whom the order for discovery is sought".

The Court of Appeal in Suruhanjaya Pilihan Raya & Ors v. Kerajaan Negeri Selangor & Another Appeal [2018] 1 CLJ 258 in relying on the Federal Court decision in Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Other Appeals [2014] 7 CLJ 597; [2014] 6 MLJ 31 further explained the principles of discovery as follows— “[77] In Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Other Appeals [2014] 7 CLJ 597; [2014] 6 MLJ 31, the Federal Court held that the underlying principle which underscores the discovery process is that it must be predicated on the issues involved in a particular case. In the present case, the application for discovery of the locality code and locality name was clearly not predicated on the issue involved, which is whether the missing addresses had tainted the 2016 delimitation exercise, S/N jClGqh61S0q2tyHNqaJCg given that the prayer for discovery of the addresses of the 136,272 voters had been withdrawn”. [emphasis added]

The Court in Suruhanjaya Pilihan Raya & Ors further highlighted the following— “[78] The law further requires that the documents sought to be discovered must be in the other party's possession before an order for discovery can be issued: Yekambaran Marimuthu (supra at para. 65). Since the locality code and locality name for the 2003 and 1994 delimitation exercises is not in the Election Commission's possession, the High Court was in no position in any event to allow prayer 1A(iii), which was to compel the Election Commission to furnish the locality code and locality name for purposes of the substantive judicial review hearing”. [Emphasis added]

The law on discovery is governed by Order 24 of the Rules of Court 2012 (“ROC 2012”). Order 24 Rule 8 ROC 2012 sets a threshold for the Court to grant an order for discovery as follows— “Discovery to be ordered only if necessary (O. 24, r. 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”. S/N jClGqh61S0q2tyHNqaJCg

The Court of Appeal in Malaysia Debt Ventures Berhad v. Platinum Techsolve Sdn Bhd & Ors [2020] CLJU 1252 explained the following— "[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".

In the present application, the Plaintiff contends that the documents sought, including the Agency Compensation Handbook, commission and sales records, investigation papers, and LIAM referral correspondence, are essential to show wrongful termination, rebut allegations of misconduct, and quantify loss. The Defendant argues the requests are overly broad, that many documents are already available to the Plaintiff, and that the application is premature and amounts to an abuse of process.

Hence, it falls to the Court to decide whether each category of document meets the requirements of relevance and necessity without being oppressive. The Court views that— S/N jClGqh61S0q2tyHNqaJCg

Agency Compensation Handbook and circulars The Plaintiff relies on the Handbook to establish his contractual entitlements, including commissions, bonuses, and retirement income. As these form the foundation of the damages claim, the Handbook is clearly relevant and necessary for a fair disposal of the matter. The Defendant’s objection that the Plaintiff already has a copy does not, in itself, displace the Plaintiff’s entitlement to ensure the Court is presented with the complete and current version. Accordingly, discovery of this document is warranted;

Commission and sales records The Plaintiff contends that these records, being maintained by the Defendant, are necessary to verify actual income earned and to calculate alleged loss of future income. The Defendant objects that such records are already accessible to the Plaintiff. However, given the pleaded issue of quantum, these records are directly material and not oppressive to produce. The Court finds this category relevant and necessary; S/N jClGqh61S0q2tyHNqaJCg

Records of policies under the Plaintiff’s portfolio The Plaintiff asserts these records are essential to rebut the allegation of “premium financing” and to demonstrate that the policies procured were genuine. While the Defendant argues this is an impermissible fishing exercise, the Court notes that the allegation of misconduct lies at the core of the termination, and these records are prima facie relevant to that issue. The Court is satisfied that discovery should be allowed, subject to appropriate case management directions to avoid unnecessary duplication or overbreadth;

Investigation and termination records The Plaintiff seeks internal reports, audit papers, and correspondence concerning the decision to terminate his contract. The Defendant resists on grounds of confidentiality and privilege. The Court accepts that any document forming the basis of the allegation of misconduct is central to determining whether the termination was justified. Discovery is therefore allowed for non-privileged documents in this category. The Defendant may, if necessary, assert specific claims of privilege by affidavit. S/N jClGqh61S0q2tyHNqaJCg

LIAM referral documents The Plaintiff seeks disclosure of correspondence relating to his referral to LIAM’s Referred Agent Listing. The Defendant submits that such a referral was proper and privileged. The Court notes, however, that the referral is pleaded by the Plaintiff as a key act giving rise to reputational damage. Documents evidencing the Defendant’s role in the referral are thus relevant and necessary for the fair disposal of the claim. Discovery is therefore ordered, again subject to the Defendant’s right to raise any specific claim of privilege.

Accordingly, the Plaintiff’s application for discovery is allowed in part. The Defendant is directed to give discovery of the following categories of documents—

the Agency Compensation Handbook and relevant circulars;

the Plaintiff’s commission and sales records;

the list of policies under the Plaintiff’s portfolio;

investigation and termination records, save for documents properly protected by privilege; and

correspondence and documents relating to the Plaintiff’s referral to LIAM’s Referred Agent Listing. Discovery shall be given within the period directed by the Court, with liberty to the Defendant to S/N jClGqh61S0q2tyHNqaJCg file an affidavit to support any specific claim of privilege. In all other respects, the application is dismissed.

The Court’s power to strike out pleadings is provided under Order 18 rule 19 of the Rules of Court 2012 and the Court’s inherent jurisdiction. A pleading may be struck out if it discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of process. The Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 held that a striking out application should only be allowed in plain and obvious cases where a claim is, on its face, obviously unsustainable.

In Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425, the Federal Court stressed that a striking out order should not be made summarily if there is an issue of law that requires lengthy argument and mature consideration, or if there is an issue of fact that is capable of resolution only after taking viva voce evidence during trial. In Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] MLJU 12 the Federal Court sets that the test for striking out is whether the claim on the face of it is "obviously unsustainable". S/N jClGqh61S0q2tyHNqaJCg

In the application before this Court, the Defendant applies to strike out large portions of the Plaintiffs’ pleadings, particularly the claim for special damages exceeding RM447 billion, as well as claims for general, exemplary, and aggravated damages. It contends that these are frivolous, vexatious, scandalous, speculative, and amount to an abuse of the process of the Court.

The Plaintiffs oppose the application, maintaining that their claims are properly pleaded and supported by the facts, and that striking out at this stage would unjustly preclude them from pursuing their substantive case.

Based on the Plaintiff’s Statement of Claim, the Court views as follows—

Special damages (future income until retirement) Although the quantum of RM447 billion appears extraordinarily high, the Plaintiff has linked it to contractual entitlements under the Agency Compensation Handbook. Hence, an exaggerated claim, as what is pleaded by the Plaintiff, is not in itself a reason to strike out where there is an arguable basis. The issue of sustainability should be tested at trial; S/N jClGqh61S0q2tyHNqaJCg

General damages: The Plaintiff has pleaded reputational harm arising from termination and blacklisting. Whether they are proven, and to what extent, is a matter for trial;

In light of the above analysis, this Court opines that it is not a plain and obvious case for striking out. The Plaintiff’s claims, however extravagant, disclose triable issues that must be resolved at trial with evidence. The appropriate forum to test the merits of these claims is at trial, not summarily at this interlocutory stage. C. Defendant’s Application for Consolidation and Transfer (Enclosure 12)

The Court’s power to order consolidation and transfer is derived from Order 4 of the Rules of Court 2012 and the Court’s inherent jurisdiction. The Federal Court in Central Securities [(Holdings)] Bhd v. Haron bin Mohamed Zaid [1978] CLJU 20 explained that— "The main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is "some common question of law or fact bearing sufficient importance in proportion to the rest" of the subject-matter of the actions "to render it desirable that the whole should be disposed of at the same time" (see: Payne v. British Time Recorder Co [1921] 2 KB 16: Horwood v. British Statesman Publishing Co Ltd [1929] WN 38: Daws v. Daily Sketch [1960] 1 WLR 126: [1960] 1 All ER S/N jClGqh61S0q2tyHNqaJCg 397). Where this is the case, actions may be consolidated where the plaintiffs are the same and the defendants are the same".

The Court in Low Long Yoong & Anor v. Low Kok Choon & Anor [2014] 4 CLJ 577 held that the most important task in a transfer application is to ascertain which court has the closest nexus to the dispute. In fact, the Court of Appeal in Jaya Sudhir Jayaram v. Nautical Supreme Sdn Bhd [2019] 6 CLJ 292 highlighted on the followings— “[8] We do not for a moment disagree that Suit 165 could have been filed as a counterclaim in Suit 544 and the fault for not doing so lies squarely on Jaya Sudhir's shoulders. Nonetheless, given the clear commonality of the issues and facts in two suits, the main purpose of consolidation as stated by the Federal Court in Central Securities (Holdings) Bhd v. Haron Mohamed Zaid [1978] CLJU 20; [1978] 1 LNS 20; [1979] 2 MLJ 244 and raised by Jaya Sudhir's counsel before us has clearly been achieved. The Federal Court held at p. 251 paras D-G as follows— the main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is 'some common question of law or fact bearing sufficient importance in proportion to the rest' of the subject-matter of the actions 'to render it desirable that the whole should be disposed of at the same time'...”

In the case before this Court, the Defendant applies to consolidate these suits’ with Kuala Lumpur High Court Suit No. WA-22NCC-858- 12/2024 and for the present suits’ to be transferred to the Kuala Lumpur High Court (Commercial Division). The Defendant argues that the claims across the suits are virtually identical, with pleadings, affidavits, and submissions being “cut and paste” versions and that S/N jClGqh61S0q2tyHNqaJCg the same counsel appears in all suits. It contends that consolidation would save substantial judicial time, avoid duplication of interlocutory hearings, and prevent inconsistent findings on the same issues of fact and law.

The Plaintiffs oppose the application, contending that the Johor Bahru High Court is the proper forum and that each agency contract is distinct, with different factual contexts and witnesses. The Plaintiff argues that consolidation will cause prejudice and procedural embarrassment, depriving him of his chosen forum and may lead to delays.

This Court takes into account the following factors—

a review of the pleadings and interlocutory applications indicates significant overlap, particularly in respect of the allegations of misconduct involving premium financing and the Defendant’s termination of agency contracts. This supports the Defendant’s contention that similar factual and legal issues arise across the suits;

the suits are broadly at the same interlocutory stage, with no trial dates yet fixed. This reduces the risk of procedural prejudice, such as that noted in Ng Joo Soon, where consolidation was refused because one action was already ready for trial;

there is a real risk of inconsistent findings if the suits proceed separately, as different courts may reach conflicting conclusions S/N jClGqh61S0q2tyHNqaJCg on essentially identical issues. This weighs heavily in favour of consolidation; and

although the Plaintiff raises concerns of prejudice, these can be mitigated by clear case management directions. Accordingly, the potential prejudice does not outweigh the efficiencies to be gained from consolidation.

For these reasons, the Court finds that consolidation and transfer would promote judicial efficiency, reduce costs, and avoid inconsistent findings without causing undue prejudice.

For the reasons stated above, the Court makes the following orders—

Plaintiff’s application for disclosure of documents (Enclosure 8) is allowed in part, limited to the following categories of documents—

the Agency Compensation Handbook and relevant circulars;

(ii) the Plaintiff’s commission and sales records;

(iii) the list of policies under the Plaintiff’s portfolio; S/N jClGqh61S0q2tyHNqaJCg

(iv) investigation and termination records, save for documents properly protected by privilege; and

correspondence and documents relating to the Plaintiff’s referral to LIAM’s Referred Agent Listing ave for documents properly protected by privilege. Discovery shall be given within the period directed by the Court. In all other respects, the application is dismissed.

Defendant’s application to strike out portions of the Statement of Claim (Enclosure 10) is dismissed. The Plaintiffs’ claims, however extravagant, disclose triable issues which must be determined at trial;

Defendant’s application for consolidation and transfer (Enclosure 12) is allowed. This suit shall be transferred to the Kuala Lumpur High Court (Commercial Division) and consolidated with Kuala Lumpur High Court Suit No. WA- 22NCC-858-12/2024 for case management and trial together; and

the costs of all three applications shall be in the cause. This court also record that based the Plaintiff consent, for the general damages, Plaintiff will withdraw the quantify amount and to be determine at the trial. S/N jClGqh61S0q2tyHNqaJCg As for the discovery, its agreeable between parties for the Defendant to produce the documents within 30 days from today date. Dated : 30 September 2025 Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Peguamcara Defendan : AIA Bhd. Tetuan Skrine Peguamcara Plaintif P1 : Lua Wei Hun P2 : Tan Ka Han P3 : Lim Kien Siang Tetuan Pang Kiat, Yu Qi Law Chambers S/N jClGqh61S0q2tyHNqaJCg