Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 MarsdenLR 566

HIGH COURT MALAYA SHAH ALAM
KANESIN S V S SAPPANIAPPLY – Appellant
Versus
VYTHILINGAM SAPPANI & ORS – Respondent
[Suit No: 22NCC-81-10-2018]

Petitioner Advocates:Sanjeev Kumar Rasiah,Ilias Ramli ,Respondent Advocate: Tee Wei Fong

The principle of res judicata does not bar a subsequent application for specific discovery of documents even after a prior general discovery order.

Headnote:(A) Rules of Court, 2012 – Order 24 rules 7, 12, and 16 – Specific discovery application – Plaintiff sought discovery of financial documents regarding Kamatchy Estate proceeds – Defendants failed to provide full disclosure after previous order – Principle of res judicata does not apply to subsequent specific discovery applications. (Paras 2, 5, 13, 16)

Facts of the case:

Plaintiff alleged mismanagement of funds from Kamatchy Estate by first and second defendants, with proceeds being improperly banked in D1's personal account.

Findings of Court:

Defendants had not adequately disclosed documents ordered in prior proceedings, necessitating specific discovery.

Issues

: The court addressed the relevance and necessity of documents sought, and whether prior orders barred the application.

Ratio Decidendi:

Plaintiff's fresh application was justified; prior general discovery does not preclude a targeted request for specific documents.

Result:

Application granted with costs in the cause.

Judgement Key Points

Key Points: - The principle of res judicata does not bar a subsequent application for specific discovery of documents if the application is bona fide, relevant, and necessary (!) (!) . - The plaintiff sought specific discovery of financial documents concerning the Kamatchy Estate proceeds after the defendants failed to provide full disclosure following a prior general discovery order (!) (!) . - The court found the documents sought highly relevant to the matter in dispute and necessary for fair disposal of the suit (!) (!) . - The defendants did not deny that the requested documents were in their possession, custody, or control (!) . - Order 24, rule 7 of the Rules of Court, 2012 permits an order for specific discovery even if a party has already made or been required to make a list of documents under earlier rules (!) (!) . - The application for specific discovery was granted with costs in the cause (!) .

Whether the principle of res judicata bars a subsequent application for specific discovery of documents after a prior general discovery order.

Whether a plaintiff can seek specific discovery of financial documents relating to the proceeds of sale of an estate when previously disclosed documents were insufficient.

Whether the necessity requirement for discovery is satisfied when the documents sought relate directly to the matters in issue and the opposing party has not denied possession.

JUDGMENT

Gunalan Muniandy J:

[1] This is the plaintiff's application for specific discovery of documents under O 24, r 7, 12 and 16 of the Rules of , 2012 (' ROC ') against all the Defendants.

Grounds In Support Of encl 31

[2] The plaintiff's grounds for bringing this application are explained in the Plaintiff's submission as follows:

(1) It is undisputed that the Kamatchy Estate has been managed by the 1st and 2nd defendants ('D1 and D2') since December 2015, whereas the proceeds from sale of the palm fruit were collected and retained by them. This is acknowledged by D1 and D2. In fact, monies from the proceeds of the sale were banked in into the personal bank account of the D1.
(2) Pursuant to the Investment Contract, the proceeds of the sale of the palm oil fruits were to be channelled to the 3rd Defendant ('D3').
(3) As a director and shareholder of the 3rd defendant, the Plaintiff had requested for the accounts of the proceeds of the sale derived from the Kamatchy Estate from the 1st defendant but there was no response from the 1st Defendant.
(4) The Plaintiff then filed this suit herein against the Defendants, and on 9 January 2019 the Plaintiff filed an application for general discovery of documents (encl 10) against the defendants.
(5) This Honourable Court had on 30 April 2019 allowed the Plaintiff's application for the general discovery but the defendants failed and/or refused to give full and frank disclosure in the list of documents that are in their 'possession, custody and/or power'.
(6) All that the Defendants had disclosed in the list of documents for the general discovery were the cause papers and affidavits in relation to the previous legal proceedings. These have no relevance to the Plaintiff's suit herein.
(7) This prompted the Plaintiff to file the application herein for specific discovery of documents.
(8) The documents sought by the Plaintiff are highly 'relevant' and/or 'relate' to the matter herein as it is the Plaintiff's case that the all the proceeds of sale of palm fruit from Kamatchy Estate have been collected and retained by the 1st and 2nd Defendants, to the extent that the investment money invested by the Plaintiff has never been repaid till today.
(9) The Defendants have never denied in their affidavit evidence [in all the four Defendants' Affidavits In Reply ('DAIRs')] on the relevancy of the documents sought by the Plaintiff.
(10) The Defendants also never denied in their affidavit evidence (in all the four DAIRs) that the documents sought by the Plaintiff are in their 'possession, custody and/or power'.

The Defendants' Contentions

(1) It was a fishing expedition but this Honourable Court on 30 April 2019 granted an Order in Terms of the Plaintiff's Discovery Application (Enclosure 10).

(2) Having filed the said application (Enclosure 10), the Plaintiff is now estopped from filing this application (encl 31) on the grounds of res judicata and/or issue estoppel.

(3) The Plaintiff has no right to rely on the Investment Contract dated 8 December 2015 as in related proceedings he had affirmed an Affidavit stating that he signed the Investment Contract under duress and asked the Court to declare the same null and void.

(4) The Plaintiff cannot now file this proceeding and seek Orders pursuant to the said Investment Contract which he has admitted in his said Affidavit as being illegal, null and void.

The Law Applicable

[3] Order 24 r 7 (2) ROC 2012(supra) provides as follows:

"(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3."

[4] The Plaintiff brought to the Court's attention the English case of Dolling Baker v. Merrett [1991] 2 All ER 890, where the Court held that:

"It is to be noted that that is subject to r 8. There is then provision for the determination of issues before discovery, and the form of the list of documents. One then comes to r 7, under which the first part of the summons was l

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