Interrogatories and discovery applications must be relevant and necessary for fair cause disposal; requests deemed fishing expeditions will be dismissed.

JUDGMENT

(Enclosures No 31 & 32)

Johan Lee Kien How JC:

Introduction

[1] On or about 30 July 2015 a sale and purchase agreement ("SPA") was entered into between the plaintiff and the first defendant to purchase the property known as Pajakan Negeri PN 51541, Lot No 11979, Mukim Ampang, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan ("Ampang land"). The purchase price was RM281,718,700 of which:

(i) a deposit of RM28,171,870 ("deposit") was payable upon execution of the SPA; and

(ii) the balance RM253,546,830 ("balance purchase price") was payable within 90 days from the date the SPA becomes unconditional on 20 December 2015 ("completion date"), with an extension of 30 days subject to the payment of interest on 19 January 2016 ("extended completion date").

The second defendant is said to be a person with authority and control over the first defendant. The third defendant is an established "political and corporate personality". He was also a former board member and director of the plaintiff. The fourth defendant is a principal from the legal firm Chan Tse Yuen & Co who was the former legal counsel for the plaintiff.

[2] According to cl 3.1 of the SPA, the deposit was to be paid to the first defendant after the SPA was executed. Clause 9.1 of the SPA states that the deposit will be forfeited in the event the plaintiff defaults in payment of the balance purchase price within the time specified. Clause 9.3 also stipulates that, the payment of the deposit should only be returned in circumstances where the first defendant has defaulted or if there are issues with the documents relating to the transfer of the Ampang land. Subsequently, the deposit was paid to the first defendant without any conditions. It is an undisputed fact that the plaintiff did not pay the balance purchase price within the extended completion date; due to the plaintiff's failure to pay the balance purchase price, the first defendant's solicitor issued a notice of termination dated 27 January 2016 to state that the SPA has been terminated on 19 January 2016 and the deposit has been forfeited. Despite the termination of the SPA, there were negotiations to enter into a new agreement and to extend time for the payment of the balance purchase price, but subject to the plaintiff showing proof of funds. The negotiations however failed.

[3] There are two applications by the plaintiff before this court, namely the application in encl 31 for leave to serve interrogatories on the first defendant ("interrogatories application") and the application in encl 32 for discovery against the defendants ("discovery application"), both dated 10 November 2020. This judgment shall deal with them separately.

Interrogatories Application (Enclosure 31)

[4] The interrogatories application is to serve the interrogatories as listed in Schedule 1 therein on the first defendant and is made under O 26 of the Rules of 2012.

[5] In encl 31, the plaintiff is seeking for the first defendant's director to answer the following questions:

No. Particulars

1. Look at para 15 of the Statement of Claim and para 8 of the 1 st defendant's Defence in respect of the payment of 10% deposit of RM28,171,870.00 paid by the plaintiff to the first defendant pursuant to the Sale and Purchase Agreement dated 30 July 2015 ("SPA"). If this amount of RM28,171,870.00 was deposited in a bank account at the time it was paid by the plaintiff;

1.1. Which bank?

1.2. What is the bank account number?

1.3. When was the Deposit effected?

1.4. At whose instructions?

2. If the answer to the 1st interrogatory is no:

2.1. Where did the first defendant deposit the amount of RM28,171,870.00 paid by the plaintiff?

2.2. When was the deposit effected?

2.3. How was the deposit effected?

2.4. At whose instructions?

3. Is the full amount of RM28,171,870.00 still being held by the first defendant?

4. If the answer to the third interrogatory is yes, where is this amount being held currently?

5. If the answer to the third interrogatory is no:

5.1. How much of RM28,171,87