The court ruled that a discovery application must demonstrate necessity and relevance, which was not established in this case, leading to dismissal of the application.

JUDGMENT

Ahmad Shahrir Mohd Salleh J:

(Enclosure 95)

Introduction

[1] The plaintiffs claim that the defendants had misappropriated monies belonging to them from their various accounts maintained at several banks. In pursuing their claim against the defendants, the plaintiffs applied for discovery under O 24 r 7A(2) of the Rules of 2012 as well as O 92 r 4 of the same Rules.

[2] The application was made after proceedings against the defendants have commenced. They are made against a total of seven banks for various statements of accounts, photocopies of scanned cheques and statements of credit card accounts of the plaintiffs, the 1st defendant and several others. After hearing arguments, the plaintiffs' application was dismissed and subsequently the plaintiffs appealed.

Brief Background Facts

The Plaintiff's Case

[3] The 1st plaintiff and his wife founded a business concern which later became a group of companies consisting of the 2nd, 3rd and 4th plaintiffs ("Group Companies"). The Group Companies run the business of property leasing and business letting.

[4] The 1st defendant was the personal assistant of the 1st plaintiff. She was initially employed for that position by the 2nd plaintiff and later by the 3rd plaintiff. She held the job for approximately 27 years and was responsible in assisting the 1st plaintiff to manage the operations of the businesses of the Group Companies.

[5] As the personal assistant for the 1st plaintiff and an employee of the Group Companies, the 1st defendant's task covered a wide multitude of responsibilities which included:

(a) attending to all business and personal matters of the 1st plaintiff and his wife,

(b) assisting the 1st plaintiff in preparing payments to be made by the Group Companies to various parties for work done and services rendered including utilities payments,

(c) assisting the 1st plaintiff to collect monthly rentals from tenants of premises owned by the Group Companies and remitting them into the bank accounts of the Group Companies and preparing the necessary reports,

(d) assisting the 1st plaintiff in the maintenance of the properties owned by the Group Companies,

(e) assisting the 1st plaintiff to liaise with the property agents in respect of tenancies of the properties of the Group Companies, and

(f) providing translation services between Mandarin, English and Malay languages to the 1st plaintiff for his personal documents and to the Group Companies for business documents.

[6] The 1st defendant was also responsible in managing the personal and business affairs of the 1st plaintiff and his wife which included assisting them:

(a) in preparing the cheques for all payables, whether from the 1st plaintiffs bank account as well as the couple's joint bank account,

(b) in making online payments using the internet banking services of the 1st plaintiffs bank account as well as the couple's joint bank account,

and specifically on a fortnightly basis at their residence:

(c) in updating the necessary information about the couple's personal finances and banking matters,

(d) in updating the necessary information about the Group Companies' finances, receivables and banking matters,

(e) in procuring the signatures on cheques of the 1st plaintiff or of the couple for payables in respect of their personal affairs as well as the business affairs of the Group Companies.

[7] Due to the unique position held by the 1st defendant and the demands of her job scope, she was granted wide access and possession of the plaintiffs' bank accounts and cheque books as well as all the necessary information to enable the 1st defendant to administer the bank accounts on behalf of the plaintiffs. The 1st defendant was also given the usernames and passwords to operate the plaintiff's and the couple's online banking.

[8] Towards the end of March 2021, the 1st plaintiff and his wife discovered that their joint fixed deposits of RM200,000.00 placed at United Overseas Bank (Malaysia) Bhd ("UOB") have been withdrawn without their knowledge.