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2022 MarsdenLR 2228
Pre-action discovery applications must be justifiable, and excessive requests are dismissed if the applicant can establish a viable claim without them.
Headnote:(A) Companies Act 1965 – Pre-action discovery – Orders sought by Plaintiff against 14 Defendants for various financial documents of Din's Trading from 1995 to 2021 due to alleged mismanagement and minority oppression – Court found discovery application excessive and of a fishing expedition nature, necessitating dismissal – Consent Judgment previously secured for document inspection emphasized. (Paras 23, 39, 48)
(B) Court found Plaintiff had sufficient information to commence proceedings, negating necessity for expansive discovery. (Paras 38, 40, 42)
Facts of the case: Plaintiff claimed minority oppression by co-directors post her appointment as director in 1973, citing forged documents and misappropriation of funds. (Paras 5, 7, 10)
Findings of Court: Discovery ordered dismissed on grounds of excessive scope, burden to financial institutions, and relevance, with costs awarded. (Paras 48)
Issues: Necessity for pre-action discovery against non-parties and compliance with procedural rules questioned. (Paras 27, 35)
Ratio Decidendi: Court reiterated that extensive discovery before action is unwarranted where the applicant already possesses sufficient basis to formulate their claim. (Paras 36, 39)
Result: Application dismissed.
JUDGMENT
Introduction
[1] By an Originating Summons filed on 13 January 2021, the Plaintiff seeks for discovery pursuant to O 24 r 7A Rules of Court 2012. The documents sought to be discovered are substantial, ning a long period of time.
[2] The discovery orders are sought against 14 Defendants (hereinafter referred to as "D"). The 15th Defendant is an intervener who successfully applied to intervene in the proceedings.
[3] The orders are:
(i) in respect of D1, D3, D6, D7, D8, D9, Statement of Accounts of Din's Trading from 1995 to 2021;
(ii) in respect of D1 to D12, Statement of Accounts of third parties (as named in Schedule B) who made payments to D in's Trading from 1995 to 2021;
(iii) in respect of D1 to D12, Statement of Accounts of third parties (as named in Schedule B) who received payments from Din's Trading from 1995 to 2021;
(iv) Statement of Accounts from banks yet to be identified;
(v) in respect of D1 to D12, information regarding the facilities, credit cards, fixed deposit, loans, overdrafts regarding any loans applied by Din's Trading for inter alia purchase of vehicles from 1995 to 2021;
(vi) in respect of D1 to D12, images and/or photos and/or records or cheque payment for any transaction made to and/or from Din's Trading from 1995 to 2021;
(vii) in respect of D1 to D12, documents for each transaction made to and/or from Din's Trading from 1995 to 2021;
(viii) in respect of D1 to D12, information and documents for opening and/or closing of Din's Trading from 1995 to 2021;
(ix) in respect of D1 to D12, signatories of accounts for Din's Trading for documents mentioned in item (i) to (viii) above from 1995 to 2021;
(x) in respect of D13, information and documents regarding tax paid by Din's Trading from 1995 to 2021; and
(xi) in respect of D14, all documents, records, correspondence, resolutions, ledgers, statement of accounts, payment vouchers, minutes of meetings, notices to shareholders and directors and all documents pertaining of Din's Trading from 1995 to 2021.
Grounds In Support Of The Application
[4] I begin first with the salient background facts.
[5] The Plaintiff is the owner of 2000 shares in Syarikat Din's Trading Sdn Bhd ("the Company") comprising of 10% of the total issued shares. The Company was incorporated on 13 May 1968 under the Companies Act 1965. Its business, according to the records of D14, was in shipping, forwarding agency, import and export.
[6] The Plaintiff is the sole administrator of the estate of Nordin bin Ayub, her late father, who passed away on 26 May 1973. The Company was listed as one of the assets of the deceased in the application for letters of administration. Her mother, Che' Su Binti Binti Chik was the co-administrator with the Plaintiff until her death on 8 September 2013.
[7] After the death of Nordin bin Ayub, the Plaintiff was appointed a director of the Company on 5 June 1973. However, two persons by the names of Kamal and Mazlan who were subsequently made directors of the Company conspired to oust the Plaintiff from the management of the Company by way of several resolutions passed.
[8] The Plaintiff claims that upon a search done at the Companies Commission of Malaysia the shareholding in the Company was changed without her knowledge and consent.
[9] I now come to the Plaintiff's reasons for applying for discovery. The following factual scenario prompted the present application.
[10] Sometime in 2014, upon the death of Che' Su Binti Binti Chik, the said Kamal applied for letters of administration to the estate of the deceased from the Kuala Lumpur High Court. The Plaintiff alleges that it was for the insidious purpose of controlling the deceased's shares in the Company. The application was supported with documents wherein the Plaintiff's signature was forged.
[11] Subsequent to the grant of letters of administration to Kamal, two other persons Muhammad Izzat and Muhamad Amirudin, were appointed as directors of the Company. This was
