JUDGMENT

Zaharah Hussain JC:

Introduction

[1] On 14 May 2024, this Court had dismissed both the Appellant's and Respondent's appeal ie striking out application.

[2] Both Appeal 44 and Appeal 45 have been consolidated and heard together pursuant to an Order dated 16 January 2024 upon the Appellant's application made under O 4 r 1 of the Rules of 2012 (ROC 2012).

[3] The Appeal 44, the Respondent's Striking Out Application under O 18 Rule 19(1) of the ROC 2012 (the Respondent's Striking Out Application) and (2) the Appeal 45, the Appellant's Striking Out Application filed pursuant to O 24 r 16(1) of the ROC 2012 (the Appellant's Striking Out Application)

Background Facts

[4] The Respondent used to have a business relationship with the Appellant in which the Appellant had supplied gold bars to the Respondent. Throughout their business relationship, numerous transactions had taken place between the parties.

[5] Given the numerous transactions that had taken place previously and the hurdles and difficulties faced by the Respondent to verify the transactions pleaded in the Appellant's claim (as the Respondent's documents were all submitted to the relevant authority for audit purpose), the Respondent had requested the Appellant to provide documentary evidence to substantiate its claims prior to the commencement of the Sessions Court Suit by the Appellant. At all material times, the Appellant has failed to do so.

[6] The transactions forming the subject matter of this suit are as set out in para 10 of the Appellant's Claim which are reproduced as follows:

[7] The Appellant thereafter filed a claim against the Respondent concerning the purported unpaid sum amounting to RM480,287.04 (details of which are as reflected in the table above)(Alleged Unpaid Sum) which the Appellant claimed to have paid and advanced for and on behalf of the Respondent to the Royal Malaysian Customs Department (Appellant's Main Averment). This forms the subject matter of the Sessions Court suit.

[8] The relevant paragraphs in the Appellant's Claim which are reflective of the Appellant's Main Averment are extracted and reproduced as follows for the Court 's reference:

"

13. Dengan itu, Plaintif memplidkan bahawa sepanjang transaksi perniagaan antara Plaintif dengan Defendan bagi bulan Mei 2018, Plaintif telah membayar satu jumlah sebanyak RM480,287.04... untulk Defendan.

...

25. Sebaliknya, Plaintif yang telah membuat pembayaran amaun GST yang berjumlah RM480,287.04 telah mengalami kerugian akibat daripada tindakan dan kelakuan Defendan...

...

27. Oleh yang demikian, Plaintif kini menuntut terhadap Defendan ...Amaun GST yang masih tertunggak dan terhutang yang berjumlah sebanyak RM480,287.04... "

(i) Appellant's Discovery Application

[9] The Appellant had sought for inter alia the following documents from the Respondent:

(i) GST Return Statement of the Royal Customs Department of Malaysia (Form GST-03) which contains details such as input tax and output tax which includes GST paid and collected for the month of May 2018;

(ii) invoices issued by the Respondent's suppliers and invoices issued to the Respondent's buyers or any accounting records to support the figures stated in the GST Return Statement (Form GST-03) stated in sub-paragraph (i) above; and

(iii) Respondent's Bank Statement for the month of October 2020 which shows the receipt of GST refund from the Royal Customs Department of Malaysia

[10] After hearing parties' respective submissions, the Sessions Court Judge decided in favour of the Appellant on 29 November 2022 (Discovery Order). The Respondent's compliance towards the Discovery Order was recorded under oath via the Respondent's Affidavit for Discovery affirmed by Fong Pok Yee on 6 December 2022.

(ii) Respondent's Discovery Application

[11] The Respondent sought for the Appellant's GST Return Statement of the Royal Customs Department of Malaysia (Form GST-03) and/or any other relevant form/document which contains the breakdown/specific details of the GST paid by