GROUNDS OF JUDGMENT

Preamble

Enclosure 32 is the defendant's appeal against the decision of the learned Senior AssistantRegistrar on 10 May 2002, dismissing the Defendant's application vide Summons in Chambers dated 13 December 2001 (Enclosure 27A).

The relevant prayers sought by the Defendant in the said application are as follows:

“1. that the plaintiff do within 30 days from the date of the order:

(a) make and file an affidavit by one of its directors or officers stating whether it has or hasat any time had in its possession, custody or power the documents described in the Schedule below and if any of the said documents are not now in its possession, custody or power stating when it parted with the same and what has become of the same; ...

2. that the plaintiff do within 30 days from the date of the order:

(a) cause to be bound and paginated a copy of all the documents described in the Schedule below which are now itspossession, custody or power and serve a copy of the bound documents on the defendant; and ...

Schedule

All the:-

(a) quotations secured by the plaintiff from the carrier(s) and issued by the carrier(s) to the plaintiff;

(b) purchase orders issued by the plaintiff to the carrier(s);

(c)agreements between the plaintiff to the carrier(s);

(d) invoices issued by the carrier(s) to the plaintiff;

(e) proof of payments made by the plaintiff to the carrier(s);

(f) official receipts issued by the carrier(s) to the plaintiff; and

(g) such other documents which are similar in nature to any of the aforesaid documents;

in carrying out the plaintiff's ocean freight forwarding services to the Freight Forwarding, Customs Clearance and Inland Transportation Agreement dated 9 September 1998 and in relation to the following 32 invoices issued by theplaintiff to the defendant...”

A tall order indeed!

Background facts

Quite simply, the Plaintiff's claim against the Defendant was based onthe Freight Forwarding, Customs Clearance and Inland Transportation Agreement dated 9 September 1998 (the contract) between the Plaintiff and another third party on one side and the Defendant on the other.

Pursuant to the terms of the contract,the Plaintiff issued 32 invoices for the services rendered. Upon the Defendant's failure to pay, the Plaintiff caused their solicitors to issue a letter of demand for RM371,821.12 being the amount outstanding under the said invoices.

In their defence, the Defendant disputed the Plaintiff's claim, contending that the suit in the Plaintiff's name alone was unsustainable. They alleged that it was the Plaintiff who had breached the terms of the contract, by failing to providethe documents pertaining to the services itemised in the invoices and the supporting documents for third party billings. They also denied any obligation to pay, maintaining that payment need only be made within 30 days of receipt of a correct itemised invoice,and disputed the amount claimed by the Plaintiff on the grounds that there had been overcharging.

Through the Defendant's counterclaim, they sought damages to be assessed and for an order that accounts be taken of all profits and commissionsreceived by the Plaintiff in respect of the ocean carrier charges.

The rephrasing efforts

When the Defendant's appeal came up for hearing on 28 October 2002, thePlaintiff objected to the unduly wide and uncertain ambit of paragraph (g) of Schedule in the application; on the grounds that the Defendant's failure to identify the specific documents they were seeking discovery of, made it impossible for the Plaintiffto aver an affidavit stating whether they were or had been in possession of any particular documents.

This led the Court to direct the Defendant to rephrase paragraph (g) which they did, to read:

“suchother documents (including correspondence) which are similar in nature to any of the aforesaid documents and all records and accounts maintained by the plaintiff in connection with the performance of the Freight Forwarding, Customs Clearance and Inland TransportationAgreeme