KENANGA INVESTORS BERHAD 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

KENANGA INVESTORS BERHAD 1. ) ZULRAFQ CAPITAL SDN BHD 2. ) TAN SRI ZULHASNAN BIN RAFIQUE PIHAK TERKILAN 1. ) DATUK WIRA ISMITZ MATTHEW 2. ) MUHAMMAD TAQIUDDIN HALIM

Although the requested payment records were relevant, ordering discovery would improperly shift the burden of proof from the applicants to KIB and the request was overly broad amounting to a fishing expedition; accordingly the discovery application is dismissed and costs are awarded to KIB.

Citation
WA-22NCC-489-07/2023 (Mahkamah Tinggi)
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): KENANGA INVESTORS BERHAD; 1st Defendant (original Action); Plaintiff (counterclaim): ZULRAFQ CAPITAL SDN BHD; 2nd Defendant (original Action); Plaintiff (counterclaim): TAN SRI ZULHASNAN BIN RAFIQUE; 2nd Defendant (counterclaim): MUHAMMAD TAQIUDDIN HALIM; 3rd Defendant (counterclaim): DATUK WIRA ISMITZ MATTHEW
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 September 2024
Case Number
WA-22NCC-489-07/2023 (Mahkamah Tinggi)
Procedural Posture
Interlocutory Discovery Application Under Order 24 Rules 3,4,5 Rules of Court 2012 in Commercial Division; Related to Underlying Contract Dispute for Specific Performance/damages / Interlocutory (application for Discovery and Interim Stay) — Application Heard and Dismissed
Outcome
Discovery application dismissed; interim stay not granted; costs awarded to respondent
Legal Topics
Discovery, Inspection, Burden of Proof, Fishing Expedition, Interim Stay, Specific Performance, Put and Call Option Agreement, Guarantee
Source Language
Malay/English
Civil Commercial Contract Civil Procedure Evidence Discovery Inspection Burden of Proof +5 more

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Parties

KENANGA INVESTORS BERHAD

Plaintiff (original Action); 1st Defendant (counterclaim)

ZULRAFQ CAPITAL SDN BHD

1st Defendant (original Action); Plaintiff (counterclaim)

TAN SRI ZULHASNAN BIN RAFIQUE

2nd Defendant (original Action); Plaintiff (counterclaim)

MUHAMMAD TAQIUDDIN HALIM

2nd Defendant (counterclaim)

DATUK WIRA ISMITZ MATTHEW

3rd Defendant (counterclaim)

Procedural Posture

Interlocutory Discovery Application Under Order 24 Rules 3,4,5 Rules of Court 2012 in Commercial Division; Related to Underlying Contract Dispute for Specific Performance/damages / Interlocutory (application for Discovery and Interim Stay) — Application Heard and Dismissed

Legal Issues

  1. 1 Whether the requested payment records and transaction documents are relevant for discovery
  2. 2 Whether ordering discovery would improperly shift the burden of proof to the respondent
  3. 3 Whether the discovery request is an impermissible fishing expedition

Ratio Decidendi

Although the requested payment records were relevant, ordering discovery would improperly shift the burden of proof from the applicants to KIB and the request was overly broad amounting to a fishing expedition; accordingly the discovery application is dismissed and costs are awarded to KIB.

Court Disposition

Discovery application dismissed; interim stay not granted; costs awarded to respondent

Orders

  • Discovery application under Order 24 Rules 3,4,5 dismissed
  • No interim stay of proceedings granted