Inspection of documents in court proceedings is permissible only if deemed necessary for fair disposal; documents must be available for production.

JUDGMENT

Alice Loke Yee Ching JC:

Introduction

[1] The Appellant in this appeal is the Third Party and the Respondent the 2nd Defendant, in the proceedings in the Sessions Court. For convenience, they will be referred to as in the Court below. The proceedings before me are in relation to two matters:

(i) an appeal filed against the decision of the Sessions Court to dismiss the Third Party's application for production and inspection against the 2nd Defendant; and

(ii) an application by the 2nd Defendant [Encl 4] to adduce new evidence for the purposes of the appeal.

Background Facts

[2] The dispute between the parties arose out of the following factual scenario.

[3] Sometime in early March 2018, the Plaintiff was keen to rent suitable premises for its recycling business. The premises was to be used as a plastic recycling processing plant.

[4] At the material time, the 1st Defendant was the main tenant of property identified as Lots 11779 and 11781, comprising of Blocks 1, 2, 3, 5 and an office premise at Jalan Ikan Mata Duyong, Teluk Gong, 42000 Port Klang, Selangor ("the Properties"). The 1st Defendant was interested to let out the properties, and engaged The Roof Realty Sdn Bhd.("Roof Realty"), a real estate company for that purpose.

[5] The 2nd Defendant was the agent acting for Roof Realty. She showed two properties to the Plaintiff. The 2nd Defendant was informed that as the Plaintiff required the premises for a plastic recycling processing plant, it was imperative that Certificates of Compliance and Completion ("CCC") have been issued for the premises the Plaintiff wishes to rent. The 2nd Defendant then brought the Plaintiff to view the Properties.

[6] After the viewing the Plaintiff agreed to rent the Properties. Earnest deposit of RM 120,000 was issued in two cheques to be held by Oristana Sdn Bhd as stakeholders pending the execution of a formal tenancy agreement. The agreement was to be executed by the 1st Defendant as the landlord and Plaintiff as tenant. The Plaintiff also requested to be furnished copies of the CCC for the Properties.

[7] However, before the tenancy agreement could be executed, the Plaintiff discovered that the 1st Defendant was not the landlord. The Plaintiff also found that the copies of the CCC provided were in fact not in respect of the Properties.

[8] Upon such discovery, the Plaintiff informed that she did not wish to proceed with the rental of the Properties and demanded for a refund of the earnest deposit. By this time, one of the cheques had already been cashed and the monies credited to the account of the 1st Defendant.

[9] Despite repeated demands, the 1st Defendant refused to refund the sum of RM 113,208.00 demanded to the Plaintiff, resulting in the Plaintiff filing the instant suit against both the Defendants.

[10] The 2nd Defendant then issued a Third Party Notice against Lee Siou Keng. She alleged that Lee Siou Keng had represented to her that the 1st Defendant was the landlord of the Properties and that CCC had been issued in respect of the Properties. She also alleged that the Third Party had forwarded to her copies of the CCC via a Whatsapp message as well and an email dated 26 March 2018.

[11] The suit by the 2nd Defendant against the Third Party was premised on misrepresentation. She claimed that the misrepresentation by the Third Party had caused the Plaintiff to file this suit against her. She therefore sought to be indemnified in respect of all damages and costs in the event she is ordered to pay the same to the Plaintiff.

The Application For An Order For Production For Inspection

[12] In view of the pleaded case of the 2nd Defendant, on 4 November 2020 the Third Party requested for further and better particulars in relation to the alleged CCC forwarded by her. She requested to be given time, date and mode of transmission of the CCC as alleged. The 2nd Defendant responded to state that the CCC was sent by the Third Party via Whatsapp and email on 26 March 2018.

[13] On 18 November 2020, the Th