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2021 MarsdenLR 1681
HIGH COURT MALAYA KUALA LUMPUR
NEWLAKE DEVELOPMENT SDN BHD – Appellant
Versus
ZENITH DELIGHT SDN BHD & ORS – Respondent
[Suit No: 22NCVC-279-06-2014]
The court ruled that the admission of bank statements as evidence was essential to address issues of breach of trust, emphasizing the relevance over privilege.
Headnote:(A) Evidence Act 1950 – Section 126 – Personal Data Protection Act 2010 – Admission of bank statements as evidence – The court determined that the bank statements related to a deposit were relevant to issues of breach of trust and fiduciary duties and therefore admissible despite objections regarding privilege and privacy (Paras 21, 37, 42).
(B) The court ruled that previous High Court decisions regarding the relevance of the bank statements did not constitute res judicata as the merit of the case had not been conclusively determined (Paras 61, 75).
(C) The court emphasized that admissibility of documents for trial is governed by the Evidence Act rather than discovery rules (Paras 76, 78).
Facts of the case: The plaintiff sought to admit bank statements to prove alleged fraudulent misrepresentation and breaches of trust by the defendants in a land sale transaction wherein a significant deposit was made (Paras 15, 16, 29).
Findings of Court: The court found the bank statements relevant, allowing their admission as evidence in trial after dismissing claims of privilege and the applicability of the PDPA (Paras 21, 82).
Issues: The key issues included the admissibility of the bank statements, the relevance of previous court rulings, and the applicability of legal professional privilege (Paras 20, 60).
Ratio Decidendi: The court held that bank statements are internal documents, not covered by privilege, and their admission was necessary for the administration of justice (Paras 32, 57).
Result: Plaintiff's application to admit bank statements was allowed.
Key Points: - The court ruled that bank statements are relevant and admissible as evidence to address issues of breach of trust and fiduciary duties (!) (!) (!) . - Bank statements are considered internal documents of a solicitor's firm and are not covered by solicitor-client privilege as they do not constitute communications for seeking legal advice (!) (!) (!) . - The Personal Data Protection Act 2010 (PDPA) was found not to apply to the bank statements in this case because the data subject (D1) was a corporate entity, not an individual, and the statements did not identify or make identifiable other individual clients (!) (!) (!) . - Even if the PDPA were applicable, disclosure of the bank statements was permitted under the Act for the administration of justice and compliance with legal obligations, including court orders (!) (!) (!) (!) . - Previous High Court decisions regarding the relevance of the bank statements did not constitute res judicata because the merits of the case had not been conclusively determined (!) (!) . - The admissibility of documents for trial is governed by the Evidence Act, not discovery rules (!) (!) . - The court allowed the plaintiff's application to admit the bank statements as evidence (!) (!) (!) . - The bank statements were relevant to ascertain the whereabouts of the deposit monies and to determine potential breaches of stakeholder duties and conspiracy to defraud (!) (!) . - The court emphasized that the prejudicial effect of the bank statements did not outweigh their probative value (!) . - The bank statements were previously tendered as evidence in a criminal trial of one of the defendants (!) .
What is the admissibility of bank statements as evidence in cases of alleged breach of trust?
What are the conditions under which legal professional privilege does not apply to bank statements?
How does the Personal Data Protection Act 2010 affect the admissibility of bank statements in court proceedings?
JUDGMENT
Introduction
[1] This trial concerns only the 1st to 4th Defendants (collectively the "Defendants") as the Plaintiff's ("P") action against the 5th to 11th Defendants had been struck out. After a full trial, I dismissed P's suit against the Defendants. I delivered my decision and grounds of judgment on 15 January 2021. P filed an appeal against my judgment on 22 January 2021.
Voir Dire
[2] The 2nd Defendant ("D2") is a firm of solicitors. The 3rd Defendant ("D3") is an advocate and solicitor. D3 was at all material time the Managing Partner of D2. D2 and D3 are collectively referred to as "D2&3".
[3] During the trial, P sought to admit certain documents ("Subject Documents") as evidence. The Subject Documents consist of:
(i) the bank statements ("Bank Statements") pertaining to the Office Account No 1474-0000551-10-3 ("Office Account") and the Client Account No 1474-0000553-10-9 ("Client Account") of D2 for the period from December 2010 to February 2012("Relevant Period");
(ii) the account opening form and supporting documents pertaining to the opening of the Office Account and the Client Account of D2;
(iii) two letters from CIMB Bank Bhd to Jabatan Siasatan Jenayah Komersil, Polis DiRaja Malaysia, both dated 17 June 2015, enclosing (i) and (ii) above.
[4] D2&3 objected to the Subject Documents being admitted as evidence at the trial. The 1st Defendant ("D1") and 4th Defendant ("D4") likewise objected. D1 and D4 are collectively referred to as "D1&4".
[5] After a voir dire, I allowed P's application to admit the Subject Documents as evidence at the trial. D2&3, being aggrieved with the said decision, filed an appeal to the Court of Appeal on 10 February 2021. D1&4 did not appeal against the said decision. These are the grounds for my decision.
Litigation History
[6] Vide a High Court order dated 29 October 2019, the learned High Court Judge, Justice Dato' Indera Mohd Sofian bin Tan Sri Abd Razak (now JCA) ("Subsequent HCJ") had dismissed two separate applications by D1&4 and D2&3 respectively to expunge the Bank Statements from the documents that P intends to rely on for the trial. The trial dates were fixed for August 2020.
[7] D1&4 made the application to expunge the Bank Statements pursuant to O 18 r 19 of the Rules of 2012 ("RoC") and/or the inherent powers of the Court under O 92 r 4 of the RoC ("encl 251").
[8] D2&3 made a separate application to expunge the Bank Statements pursuant to O 34 r 8 of the RoC and/or the inherent powers of the Court under O 92 r 4 of the RoC ("encl 285").
[9] Both encl 251 and encl 285 were heard together and dismissed on 29 October 2019. The Subsequent HCJ delivered his grounds of judgment dated 29 October 2019 in respect of the dismissal of encl 251 and encl 285.
[10] D1&4 filed an appeal to the Court of Appeal against the dismissal of encl 251.
[11] D2&3 did not appeal against the dismissal of encl 285. However on 21 July 2020, D2&3 filed a Notice of Motion at the Court of Appeal seeking leave to file a Notice of Appeal about 8 months out of time against the dismissal of encl 285. That Notice of Motion was fixed for case management at the Court of Appeal on 6 August 2020.
[12] D1&4's appeal to the Court of Appeal against the dismissal of encl 251 was fixed for hearing on 24 July 2020. At that hearing, both parties recorded a consent order on the following terms ("Consent Order"):
"The appeal is withdrawn on the following terms:
1. The documents in issue are to be classified as Part C documents;
2. The parties are at liberty to raise any and all issues without limitation with respect to the admissibility of these documents at trial; and
3. Costs of this appeal are in the cause to follow the event of the trial"
Background Facts
[13] P was interested to purchase a piece of land ("Land") which was introduced by D3. D3 allegedly informed P that the Land deal has to be done through a company which he controlled (ie D1) via a back to back transaction. This means there would be two separate sa
