Richard Malanjum JCA:

Introduction

[1] There were two appeals before us involving the same parties.

[2] Both appeals were heard simultaneously at the request of the appellant and consented to by the respondent.

[3] The first appeal was against the decision of the learned High Court Judge in allowing the application by the respondent (encl 10) to retain the documents obtained pursuant to the Order of 9 March 1999 while the second appeal was against the decision of the same learned High Court Judge in dismissing with costs the application by the appellant (encl 7) to set aside the Order dated 9 March 1999 ('the said Order') made on ex parte application by the respondent.

[4] After hearing submissions of learned counsel for the parties we deferred our decisions. And on 12 February 2004 by way of oral judgment we allowed both the appeals. The respondent has applied for leave to appeal to the Federal Court. We therefore now state the reasons for our decisions.

Brief Background

[5] On 12 February 1999 the respondent filed a suit against the appellant and one other which was not involved in these appeals, alleging negligence on the part of the appellant while acting as the auditor for the respondent in the preparation of the Auditor's Reports on the respondent for the financial years ending 31 May 1995, 31 May 1996 and 31 May 1997.

[6] On filing the writ of summons and the statement of claim the respondent proceeded to file a summons in chambers (encl 3) praying on ex parte basis for several interim reliefs. The application was supported by an affidavit of one Koh Kim Chui affirmed on 9 January 1999.

[7] Upon hearing the ex parte application on 9 March 1999 the learned High Court Judge granted the several reliefs prayed for. In effect the main relief sought for was an Anton Piller Order with consequential orders thereto.

[8] On 16 March 1999 the appellant filed encl 7 praying for an order to set aside the said Order while on 17 March 1999 the respondent filed encl 10 seeking for an order that it could continue to retain the documents seized pursuant to the said Order.

[9] Both applications were heard on 23 March 1999 by the same learned High Court Judge who granted the said Order. And after hearing the parties he gave his judgment on 15 June 2001 in favour of the respondent herein.

[10] Dissatisfied with the said judgment, the appellant appealed to this Court.

The High Court Judgment

[11] In dismissing encl 7 and allowing encl 10 the learned High Court Judge premised his judgment on the following grounds, in summary:

(i) that he focused his judgment solely on the three grounds stated in encl 7;.

(ii) that his decision on encl 7 would automatically answer encl 10;.

(iii) that the first two grounds submitted by the appellant dealt with the failure by the respondent to make a full and frank disclosure during its ex parte application, of facts pertaining to documents seized pursuant to the said Order in relation to another suit MT3-22-1203-1998 (otherwise known as the Lau's suit). However, since the respondent and the plaintiff in Lau's suit were distinct and separate entities (with even the appellant admitting such position when opposing another application by the respondent) the two suits should not be taken to be interrelated. Hence there was no duty upon the respondent to disclose what transpired in Lau's suit;.

(iv) that there was no dispute that the appellant was in possession of the documents seized pursuant to the said Order and on the basis of paras 12 and 13 of the affidavit by Koh Kim Chui affirmed on 9 January 1999 the respondent was justifiably fearful that the appellant would alter, remove and/or destroy the documents seized;.

(v) that based on the subsequent affidavits of Koh Kim Chui (encl 9) affirmed on 16 March 1999 and (encl 22) affirmed on 20 April 1999 instances of alteration, tampering and doctoring of the working papers were alleged which would require further elaboration; and

(vi) that based on the reasons for dismissing encl