Westports Malaysia Sdn Bhd v 1. ) Oracle Corporation Malaysia Sdn Bhd (WA-22NCvC-94-02/2020)

ORACLE CORPORATION MALAYSIA SDN BHD

BANK OF AMERICA MALAYSIA BERHAD (NO. SYARIKAT : 199401025304 (310983-V) …DEFENDAN-DEFENDAN (MELALUI TINDAKAN ASAL) ANTARA ORACLE CORPORATION MALAYSIA SDN BHD (NO. SYARIKAT : 172798-A) …PLAINTIF DAN WESTPORTS MALAYSIA SDN BHD (NO. SYARIKAT : 192725-V) …DEFENDAN (MELALUI TINDAKAN BALAS) 16/08/2022 09:27:45 WA-22NCvC-94-02/2020 Kand. 337

The Plaintiff made an application under Order 24 Rule 16 of the Rules of Court 2012 (“the Rules”) to strike out the Defendant’s defense and counter claim and enter judgment in favor of the Plaintiff. In the alternative the Plaintiff asked for the Defendant to comply with the order of discovery given by the Court.

Order 24 Rule 16 of the Rules provide as follows:

Failure to comply with requirement for discovery (O. 24 r. 16)

If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

Meanwhile the 1st Defendant made an application under Order 24 Rule 17 for an order that the Court cancels the Discovery Order or vary the Discovery Order.

Order 24 Rule 17 states as follows:

Revocation and variation of orders (O. 24 r. 17) Any order made under this Order (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in connection with which the original order was made.

The Plaintiff’s claim is founded on cause of action under contract whereby the Plaintiff alleges that the 1st Defendant had breached the contract by not fulfilling the terms of the contract resulting in the contract being terminated.

The contract between the Plaintiff and the 1st Defendant was for the 1st Defendant to provide various cloud application for use by the Plaintiff which included ‘Enterprise Resource Planning’, ‘Human Capital Management’ and many other such applications.

It is the Plaintiff’s contention that the applications do not perform as has been represented by the 1st Defendant and therefore the 1st Defendant has breached the agreement and Plaintiff are entitled to a remedy.

This case is set for a full trial for 4 days from 25th to 30th of August

As a preparation for the trial the Court had given an order for discovery against the 1st Defendant, on an application for the discovery of documents.

Both the applications by the Plaintiff and the 1st Defendant are in relation to the Order of Discovery given by the Court via a Court Order dated 24/11/2021. The Plaintiff alleges that the discovery order has not been complied with and therefor the application to enter judgement.

The 1st Defendant contends that the order has been complied with and as the Order is termed in broad terms some of the documents are found not available or cannot be supplied and therefore the application by the 1st Defendant to vary the Order. The 1st Defendant’s Affidavit Filed in Pursuance of the Discovery

As a result of the Discovery order the 1st Defendant filed the affidavit ( encl. 211) enclosing the documents requested by the Plaintiff. After perusing the affidavit the Court is satisfied that a major portion of the Discovery Order has been complied with. The Plaintiff’s application to enter judgment against the 1st Defendant is baseless.

Similarly the 1st Defendant’s application to amend the Discovery Order is unnecessary. If any other documents become relevant during the course of the Trial, the Court will then decide whether those documents are in the possession of the 1st Defendant and needs to be produced. Conclusion

In the upshot the Court dismissed both the application of the Plaintiff and the 1st Defendant and ordered cost in the cause. The Court also disallowed the 1st Defendant’s application to stay proceedings to await a decision on an appeal to the Court of Appeal. Dated: 15.8.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES: For the Plaintiff: Tetuan Azhar & Wong 16-08 Level 16 Menara Centara 360 Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur For the Defendants: Tetuan Shook Lin & Bok 20th Floor AmBank Group Building 55 Jalan Raja Chulan 50200 Kuala Lumpur Tetuan Shearn Delamore & Co. 7th Floor Wisma Hamzah-Kwong Hing No. 1 Leboh Ampang 50100 Kuala Lumpur