Terratrend Limited v Modkha Marine Sdn Bhd (WA-24NCC-127-03/2024)

Kaedah-Kaedah Mahkamah 2012. Dan Dalam Perkara Perintah 7 Kaedah 2 Kaedah-Kaedah Mahkamah 2012 Page 2 of 12 ANTARA TERRATREND LIMITED (Syarikat UK No.: 8238800) … PLAINTIF DAN

MODKHA MARINE SDN BHD [No. Syarikat: 201601038969 (1209910-D)]

2.

BUREAU VERITAS (M) SDN BHD … DEFENDAN - [No. Syarikat: 198701001242 (159907-P)] DEFENDAN

This was the Plaintiff’s application in Enclosure 1 for pre-action discovery pursuant to Order 24 rule 7A of the Rules of Court 2012.

The Plaintiff sought discovery against all three Defendants arising from a dispute concerning a consignment of ball clay cargo.

Having considered the affidavits and submissions, I allowed the application against the 1st Defendant and dismissed it against the 2nd and 3rd Defendants.

The 1st Defendant has appealed. There is no appeal by the Plaintiff, the 2nd Defendant or the 3rd Defendant.

These Grounds focus on the order made against the 1st Defendant. I deal briefly with the position of the 2nd and 3rd Defendants for completeness. A]

The Plaintiff purchased approximately 50,000 metric tonnes of ball clay cargo from the 1st Defendant for shipment by sea.

The 1st Defendant declared the cargo as Group C cargo, namely cargo not liable to liquefy.

During loading, concerns arose as to the condition of the cargo. Subsequent testing indicated that the moisture content exceeded the transportable moisture limit, rendering the cargo unsafe for carriage.

The Plaintiff contends that the cargo may have been misdeclared and seeks discovery of documents relating to the sampling, testing and declaration of the cargo. Page 4 of 12 B] PRINCIPLES GOVERNING A PRE-ACTION DISCOVERY

The principles governing pre-action discovery under Order 24 rule 7A of the Rules of Court 2012 are settled.

In Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 8 CLJ 554, the Court of Appeal summarised the requirements that an applicant needs to fulfil under Order 24 rule 7A(3): “(i) state the material facts pertaining to the intended proceedings;

(ii) state whether the person against whom the order is sought is likely to be a party in the subsequent proceedings in the High Court;

(iii) specify or describe the documents sought and show that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made; and

(iv) identify the persons against whom the order is sought is likely to have or had the documents in his possession, custody or power.”

The threshold for pre-action discovery is a strict one and must be exercised with caution. In Bandar Utama Development Sdn Bhd & Anor v. Bandar Utama 1 JMB [2018] MLJU 697, the Court of Appeal emphasised that the power is discretionary and must not be used to facilitate fishing expeditions.

Further, the Court must be satisfied that the application is necessary and not a fishing expedition. As summarised in Nor Azihan bt Alias v. PMB Investment Bhd [2023] 10 MLJ 327, the burden lies on the applicant to show that the discovery sought is necessary to enable it to determine whether to commence proceedings and to avoid unnecessary litigation.

The question of necessity is therefore central. Where a Plaintiff is in a position to commence proceedings without the documents, pre-action discovery will generally not be warranted. Conversely, where the documents are required to enable the Plaintiff to properly assess or formulate its claim, the Court may exercise its discretion to grant the relief. C] DISCOVERY AGAINST THE 1ST DEFENDANT i)

In my judgment, the Plaintiff satisfied the requirements under Order 24 rule 7A in respect of the 1st Defendant.

The Plaintiff has identified a viable cause of action arising from the alleged misdeclaration of the cargo and the resulting loss.

The documents sought are directly relevant. They relate to: i) the manner in which the cargo was sampled; Page 6 of 12 ii) the procedures for the preparation and testing of the cargo samples; iii) the results of the testing conducted; and iv) the cargo declaration made.

These matters go to the central issue of whether the cargo was properly declared and whether there was any breach by the 1st Defendant.

In this regard the following passage by the Court of Appeal in Infoline (supra) is instructive: “c) in respect of a pre-action discovery for information contained in a document to be provided by a defendant the plaintiff must show that the information is necessary in order for him to determine if he can even commence legal action against the intended defendant. In such cases, the pre-action discovery order ought to be made to avoid unnecessary litigation thus saving costs, preventing wastage of time and resources which is what pre-action discovery seeks to achieve;” (emphasis added)

The 1st Defendant is plainly in possession, custody or power of such documents, being the party who supplied the cargo, procured the testing and made the declaration. ii)

The 1st Defendant contended that the application was a fishing expedition.

I did not accept this submission.

In Nor Azihan (supra), the Court recognised that a fishing expedition involves a general and unfocused search for documents.

The present application is not of that character. The documents sought are identified with specificity, including the relevant sampling dates, testing procedures and cargo declaration.

This was not an attempt at a general trawl for documents but a targeted request for identified categories of documents. iii)

The 1st Defendant further submits that the Plaintiff may commence proceedings and seek discovery in the ordinary course.

I do not accept this submission.

While it is correct that pre-action discovery is to be exercised with caution, as emphasised in Bandar Utama (supra), the Court must consider whether discovery is necessary in the circumstances of the case.

On the facts before me, the documents sought are necessary to enable the Plaintiff to properly assess and formulate its claim, including identifying the precise basis of liability and the parties responsible.

This is not a case where the Plaintiff is in a position to commence proceedings without the documents.

The documents sought are necessary to enable the Plaintiff to determine whether it has a viable claim, against whom such claim lies, and how such claim ought properly to be pleaded.

In such circumstances, pre-action discovery serves its intended purpose of avoiding unnecessary litigation and saving costs. iv) Conclusion as against the 1st Defendant

In the premises, I was satisfied that this was an appropriate case to grant pre-action discovery against the 1st Defendant.

I therefore ordered the 1st Defendant to give discovery of Items 1, 2 (as amended), 3 and 4 of Schedule A within 30 days. D]

For completeness, I briefly address the position of the 2nd and 3rd Defendants.

The Plaintiff did not satisfy the threshold for pre-action discovery against these parties.

The material before the Court did not demonstrate that discovery against them was necessary at this stage or that they were proper targets of the intended claim.

I therefore declined to grant the relief sought against the 2nd and 3rd Defendants. E]

For the reasons set out above, I allowed the Plaintiff’s application for pre-action discovery against the 1st Defendant, with modifications to the prayers. The application against the 2nd and 3rd Defendants was dismissed.

There was no order as to costs as between the Plaintiff and the 1st Defendant, while costs were awarded to the 2nd and 3rd Defendants. Dated this 24th day of April, 2026 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 11 of 12 PLAINTIFF : Jeremy Mark Joseph (Vinodhini Benjamin Samuel and Caleb Goh Hern-Ee together with him) Messrs Joseph & Partners Suite J-7-2, Solaris Mont Kiara, Jalan Solaris, 50480 Kuala Lumpur Tel: 03-6203 7877 Email: info@jnplaw.my 1ST DEFENDANT : Nadra Fatima Binti Mannan Messrs Kamilia Ibrahim & Co. No. 59-3, Kompleks Udarama, Jalan 2/64A, Off Jalan Sultan Azlan Shah (Off Jalan Ipoh), 52350 Kuala Lumpur Tel: 03-4051 2175 Email: kico@kamiliaibrahim.com 2ND DEFENDANT : Harneshpal Singh Bhullar a/l Karamjit Singh (Parvinder Kaur a/p Harbindar Singh together with him) Messrs Asta, Sathiya & Partners No. 19A, Tingkat 1, Lorong Bayu Tinggi 4C, Taman Bayu Tinggi, 41200 Klang, Selangor Tel: 03-3325 5335 / 017-612 9142 Email: astasathiya.hq@gmail.com Page 12 of 12 3RD DEFENDANT : Jason Lai Joongkeat (Tan Tong Fang together with him) Messrs Munhoe Suite J-3-12, Solaris Mont Kiara, No. 2, Jalan Solaris, 50480 Kuala Lumpur Tel: 03-6203 0355/03-6206 3357 Email: info@munhoelaw.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 24 rule 7A ▪ Order 24 rule 7A(3)

Bandar Utama Development Sdn Bhd & Anor v. Bandar Utama 1 JMB [2018] MLJU 697

Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 8 CLJ 554

Nor Azihan bt Alias v. PMB Investment Bhd [2023] 10 MLJ 327