Discovery applications must pertain to existing documents and not require new compilations; requests that shift the burden of proof or are filed late can be deemed abusive.

Introduction

[1] This Court is called upon to determine the second defendant's ("D2") application for discovery, filed pursuant to O 24 of the Rules of Court 2012 ("the Rules") via encl 386 ("the Application"). Through this Application, D2 seeks disclosure of documents relating to certain Islamic financing facilities granted by the plaintiff, Bank Kerjasama Rakyat Malaysia Berhad. The purpose, as stated, is to support D2's contention that the plaintiff's present action constitutes an abuse of the Court's process. The plaintiff resists the Application, asserting that it is, in substance, a veiled attempt to obtain interrogatories, that the documents sought are irrelevant to the issues in the current proceedings, and that the Application itself amounts to an abuse of process. The Court is therefore tasked to consider whether the Application falls within the boundaries of legitimate forensic inquiry, or strays into the realm of impermissible fishing.

Background Facts

[2] The plaintiff previously obtained judgment against D2 in Kuala Lumpur High Court Suit No. WA-22M-127-03/2019 ("Suit 127") for RM317,836,534.74 ("127 Judgment"). The 127 Judgment concerned breaches of Islamic financing facilities.

[3] In the current suit, the plaintiff alleges D2 engaged in data manipulation to divert funds assigned under Deeds of Assignment ("DOAs") and seeks declaratory reliefs to enforce its rights under securities (termed "Assigned Proceeds", "PGM Proceeds", and "NPP Proceeds"). D2 counterclaims, asserting that the plaintiff received RM441,261,700.56 from D2, exceeding the sum adjudged in the 127 Judgment.

[4] D2 filed the Application seeking discovery of the following:

a) Account statements breaking down principal, profit, purchase/selling prices, and balances under 10 financing facilities (listed in Schedule 1 of the Application); and

b) Documents allegedly showing payments made by D2 towards 127 Judgment.

[5] On 11 December 2024, I dismissed D2's application with costs in the sum of RM3,000.00. Dissatisfied with the dismissal, D2 has since filed a notice of appeal on 3 January 2025.

[6] By way of context, on the same date, I allowed the plaintiff's applications for discovery against Ambank (M) Berhad (Enclosure 167), against D1 (Enclosure 392), and against D2 (Enclosure 393). Prior to that, on 25 October 2024, Maybank Islamic Berhad had consented to a judgment agreeing to disclose documents to the plaintiff pursuant to the plaintiff's discovery applications in encls 168 and 221. No appeal has been filed against my decisions in respect of the contested discovery applications in Enclosures 167, 392, and 393.

Issues

[7] The Application addresses the following issues:

i) Whether the Application is for discovery of documents under O 24 or interrogatories under O 26 of the Rules;

ii) Whether the documents/information sought are relevant and necessary for the fair disposal of the matter;

iii) Whether the Application constitutes an abuse of process; and

iv) Whether the Application is oppressive or a "fishing expedition.

Counsels' Contentions

i) D2's Contentions

[8] Learned counsel for D2, Pavendeep Singh, contends that the documents sought through the Application are not only relevant but crucial to the fair disposal of its counterclaim. It argues that the core of its defence lies in establishing that the plaintiff is impermissibly attempting to recover sums that exceed the amount adjudicated in the earlier Suit 127.