Vazeer Alam Mydin Meera FCJ (Majority):

Introduction

[1] The Plaintiff/Respondent, Vertex Blue Consulting Sdn Bhd, is in the business of providing advertising and media services. The Plaintiff was the successful bidder in a tender exercise conducted by RTM to appoint an independent sales agent to carry out the sales of the Advertising Time Slots for its TV2, TVOkey and 33 radio stations ("Tender Exercise"). RTM comes under the purview of the Defendants/Appellants.

[2] The parties then entered into a Concession Agreement dated 4 July 2017 for a period of 5 years ("Concession Agreement").

[3] The Plaintiff claimed that the Defendants, in breach of contract, had wrongly terminated the Concession Agreement. Thus, the Plaintiff filed a suit in the High Court seeking, inter alia, a declaration that the Concession Agreement was wrongly terminated, and claiming damages based on losses it had allegedly suffered.

[4] The Defendants denied breach of contract and alleged that it was the Plaintiff who had in fact breached the Concession Agreement by failing to pay the contractually guaranteed minimum sum. Thus, the Defendants contended that the termination of the agreement was lawful, and counterclaimed the sum of RM43,482,881.27 as damages.

The High Court Discovery Orders

[5] At the High Court , the Plaintiff filed two applications under the Rules of 2012 for discovery of documents, which may be categorised as:

(a) a General Discovery Application; and

(b) a Specific Discovery Application for six categories of documents.

[6] A Consent Order for general discovery was recorded on 15 October 2019, and the specific discovery application was granted on 4 February 2020.

[7] The Defendants cooperated and gave discovery of the documents sought. The Defendants in fact arranged for the Plaintiff to be present at the RTM premises for the purpose of inspection and production of the documents sought. However, the Plaintiff complained that the Defendants' compliance with both orders was incomplete and unsatisfactory. Consequently, the Plaintiff filed a Further Discovery Application on 8 July 2021, seeking additional documents from the six categories specified earlier. This application was granted on 12 October 2021 ('Order').

[8] In the Order, para 6 was an unless order ('the Unless Order') which stated as follows:

"(6) that unless the Defendants comply with the Orders made herein, the Defendants' Defence and Counterclaim in this Suit dated 28 February 2019 and filed herein, shall stand struck out without further Order of Court and the action herein shall be adjudged in the Plaintiff's favour with the requisite Orders and/or Judgment entered as prayed for by the Plaintiff."

[9] Subsequently, although further documents were provided on 19 November 2021, the Plaintiff contended that the Defendants were still in breach of the Order by failing to fully comply with its terms. Thus, on the first day of trial, the Plaintiff sought an adjournment, and when it was not allowed by the Court , counsel then raised the issue of the Defendants' non-compliance of the Order and sought default judgment as per the terms of para (6) of the Order.

[10] Having heard oral submissions of parties on 17 November 2022, the learned High Court Judge (HCJ) ordered as follows:

(i) A declaration that the termination of the Concession Agreement dated 4 July 2017 via the Termination Notice dated 10 December 2018 is unlawful;

(ii) General and/or special damages to be assessed by the Court ;

(iii) Defendants' Amended Defence and Defendants' Counterclaim dated 27 October 2022 be struck out; and

(iv) Costs of RM15,000.00 to be paid by the Defendants to the Plaintiff.

[11] The learned HCJ, made the following findings:

(i) The Plaintiff requested the Court to adjourn the trial to allow parties to further discuss and identify the documents that remain to be furnished. However, the HCJ denied this request, noting that the case was filed in 2019 and more than three years have passed without a re