A party's mental capacity is essential in litigation; courts must ensure compliance with discovery orders to uphold justice and prevent fraud.

JUDGMENT

Liza Chan Sow Keng JC:

Introduction

[1] This Court on 25 August 2021 allowed the 3rd Defendant ("D3")'s application in Enclosure ("Enc") 135 for discovery against the 1st Defendant ("D1") and made an Order against D1's representative for production of all the following documents that are in his possession, custody or power, in the form of exhibit to an affidavit and if not then in his possession, custody or power, when he parted with it and what has become of it within fourteen (14) days from the date of the Order (Encl 161):

a. Dr Soraya Kunanayagam's medical report and diagnosis on the 1st Defendant's mental state/capacity and matters in respect of his mental state/capacity;

b. Tengku Mizan Hospital medical reports and diagnosis in regard to the 1st Defendant's mental state/capacity and matters in respect of his history of dementia and treatment from 2017 till present;

c. General Hospital Kuala Lumpur's medical reports and diagnosis in regard to the 1st Defendant's mental state/capacity and matters in respect of his history of dementia and treatment from 2017 till present;

d. D1's Declaration of Trust dated 13 May 2016; and

e. The Warrant to Act and/or any similar appointment of solicitors executed by D1 in relation to the appointment of D1's former solicitors, Messrs Thomas Phillip and Messrs Kanesalingam & Co to represent D1.

[2] The reasons for allowing the discovery application, the background leading to the filing of this suit, the nature of the Plaintiffs' suit have been set out in my first grounds of judgment - see Sitrac Corporation Sdn Bhd & Anor v. Dato' Syed Hamzah Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee Syed Hamzah) & Ors ("the first Grounds of Judgment").

[3] This Grounds of Judgment is to be read together with the first Grounds of Judgment.

Background To Making The "Unless Order"

[4] Pursuant to the order in Encl 161, D1's representative was to file the affidavit and produce the documents within 14 days of the order ie by 8 September 2021.

[5] In the meanwhile, given the developments that have unfolded in the midst of trial through Dr Soraya's testimony, D3, the 2nd Defendant ("D2") and the Plaintiffs respectively made an application to amend their pleadings inter alia claiming that that the impugned Order obtained against SSM in OS 131 may have been or was obtained while D1 was incapable of managing and administering his affairs and this was deliberately concealed from the Court in OS 131 and this Court.

[6] All 3 amendment applications were consented to by D1 on 21 September 2021. On 21 September 2021, the non-compliance of the discovery order was into its 13th day. After hearing the parties, an 'Unless Order' in the terms as contained in Encl 176 was issued ordering:

(i) that D1's representative is required to produce all documents as ordered pursuant to the Court Order dated 25 August 2021 (encl 161) within a period of seven (7) days from the date of the Order; and

(ii) should D1's representative fail to abide with the Unless Order within the required time period, the Court may make an order under O 24 r 16(1) of the Rules of 2012 .

[7] The 'Unless Order' made against D1's representative was to give him another 7 days to ensure obeyance ie by 30 September 2021, after discounting the weekend of 25th and 26 September 2021. Trial was fixed to continue on 18 October 2021.

[8] 3 days after the 'Unless Order' was made, on 24 September 2021, in purported compliance thereof, D1's representative through his solicitors filed and served an Affidavit in Encl 173 producing the Declaration of Trust dated 13 May 2016 as prescribed under paragraph (d) of the Court Order in Encl 161.

[9] On 29 September 2021, D1's representative filed an application in Encl 181 to strike out paras 17 to 20, and 21-25 of the reamended statement of Claim ("SOC") or alternatively, para 20A be struck out, in the further alternative, the reamended writ and reamended SOC be struck out.

[10] During case management on 4 October 2021