MALAYAN BANKING BERHAD 1. ) DSE CONSTRUCTION SDN. BHD. 2. ) HO HUP CONSTRUCTION COMPANY BERHAD PIHAK TERKILAN KUMPULAN LIZIZ SDN BHD

MALAYAN BANKING BERHAD 1. ) DSE CONSTRUCTION SDN. BHD. 2. ) HO HUP CONSTRUCTION COMPANY BERHAD PIHAK TERKILAN KUMPULAN LIZIZ SDN BHD

The application for general discovery was allowed because the three-fold test (existence, relevance, possession) was satisfied, the application was not untimely or prejudicial, and equitable fairness required disclosure to a non-borrower party implicated jointly and severally; disclosure granted with the qualification that Maybank must mark in its verifying affidavit any document not within its knowledge or possession. Costs awarded to applicant, costs in the cause.

Citation
AA-22NCC-10-09/2022 (Mahkamah Tinggi)
Parties
Plaintiff (original Suit); Defendant (counterclaim): Malayan Banking Berhad; Defendant (original Suit); Plaintiff (counterclaim): DSE Construction Sdn Bhd; Defendant (2nd Defendant, Applicant for Discovery): Ho Hup Construction Company Berhad; Defendant (counterclaim) / Borrower: Kumpulan Liziz Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
7 November 2023
Case Number
AA-22NCC-10-09/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Discovery Application in a Banking Dispute / Interlocutory Application for General Discovery Post Pleadings
Outcome
Application allowed with qualification; costs awarded to applicant (Ho Hup) with costs in the cause
Legal Topics
Discovery of Documents, General Discovery Vs Specific Discovery, Disclosure Obligations, Order 24 Rules of Court 2012
Source Language
Malay/English
Civil Procedure Banking Law Evidence Discovery of Documents General Discovery Vs Specific Discovery Disclosure Obligations Order 24 Rules of Court 2012

Case Brief

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Parties

Malayan Banking Berhad

Plaintiff (original Suit); Defendant (counterclaim)

DSE Construction Sdn Bhd

Defendant (original Suit); Plaintiff (counterclaim)

Ho Hup Construction Company Berhad

Defendant (2nd Defendant, Applicant for Discovery)

Kumpulan Liziz Sdn Bhd

Defendant (counterclaim) / Borrower

Procedural Posture

Civil Discovery Application in a Banking Dispute / Interlocutory Application for General Discovery Post Pleadings

Legal Issues

  1. 1 Whether an order for general discovery under Order 24 r 3 Rules of Court 2012 should be granted to a non-borrower third party implicated jointly and severally
  2. 2 Whether the documents requested are relevant and in the possession, custody or power of the bank
  3. 3 Whether the application is an impermissible fishing expedition and whether the timing is prejudicial

Ratio Decidendi

The application for general discovery was allowed because the three-fold test (existence, relevance, possession) was satisfied, the application was not untimely or prejudicial, and equitable fairness required disclosure to a non-borrower party implicated jointly and severally; disclosure granted with the qualification that Maybank must mark in its verifying affidavit any document not within its knowledge or possession. Costs awarded to applicant, costs in the cause.

Court Disposition

Application allowed with qualification; costs awarded to applicant (Ho Hup) with costs in the cause

Orders

  • Order for general discovery pursuant to Order 24 Rule 3 Rules of Court 2012 granted in favour of Ho Hup
  • Maybank to make and serve a list of relevant documents and file an affidavit verifying the list