1. ) N2N CONNECT BERHAD 2. ) NGN CONNECTION SDN BHD 3. ) N2N GLOBAL SOLUTIONS SDN BHD 4. ) HERMES BOS SDN BHD 5. ) NETINFINIUM SOLUTIONS SDN BHD 1. ) CHUA TIONG HOONG 2. ) AHMAD ASHRAF BIN AZMAN 3. ) SHYAM SUNDAR RAYUDU 4. ) WONG VOON FUI 5

W-02(IM)(IPCv)-32-01/2024 Kand. 69 26/03/2025 16:25:40 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(IM)(IPCv)-32-01/2024 BETWEEN 1. N2N CONNECT BERHAD (NO. SYARIKAT: 523137-K) 2. NGN CONNECTION SDN BHD (NO. SYARIKAT: 742157-T) 3. N2N GLOBAL SOLUTIONS SDN BHD (NO. SYARIKAT 741093-K) 4. HERMES BOS SDN BHD (NO. SYARIKAT: 1091813-A) 5. NETINFINIUM SOLUTIONS SDN BHD (NO. SYARIKAT: 1015043-M) … APPELLANTS AND 1. CHUA TIONG HOONG (NO. K/P: 7000731-03-5045) 2. AHMAD ASHRAF BIN AZMAN (NO. K/P: 851215-02-6167) 1 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3. SHYAM SUNDAR RAYUDU (NO. PASPORT: Z2431071) 4. WONG VOON FUI (NO. K/P: 770116-05-5523) 5. FINEVO TECHNOLOGY SDN BHD (NO. SYARIKAT: 1253439-P) 6. AK PARTNER HYBRID CONNECT SDN BHD (NO. SYARIKAT: 1238880-H) … RESPONDENTS [Dalam Perkara Mengenai Guman No. WA-22IP-16-03/2024 Di Mahkamah Tinggi Malaya Di Kuala Lumpur ANTARA 1. N2N CONNECT BERHAD (NO. SYARIKAT: 523137-K) 2. NGN CONNECTION SDN BHD (NO. SYARIKAT: 742157-T) 3. N2N GLOBAL SOLUTIONS SDN BHD (NO. SYARIKAT 741093-K) 4. HERMES BOS SDN BHD (NO. SYARIKAT: 1091813-A) 5. NETINFINIUM SOLUTIONS SDN BHD (NO. SYARIKAT: 1015043-M) … PLAINTIF-PLAINTIF 2 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal DAN 1. CHUA TIONG HOONG (NO. K/P: 7000731-03-5045) 2. AHMAD ASHRAF BIN AZMAN (NO. K/P: 851215-02-6167) 3. SHYAM SUNDAR RAYUDU (NO. PASPORT: Z2431071) 4. WONG VOON FUI (NO. K/P: 770116-05-5523) 5. FINEVO TECHNOLOGY SDN BHD (NO. SYARIKAT: 1253439-P) 6. AK PARTNER HYBRID CONNECT SDN BHD (NO. SYARIKAT: 1238880-H) … DEFENDAN-DEFENDAN DAN 1. GENERAL RESERVE OF DIGITAL ASSETS LIMITED (NO. SYARIKAT: 2689283) 2. CFINANCIALS INC. 3. STELLARBYTE SDN BHD (NO. SYARIKAT: 1273848-D) 4. SINERGY TECHNOLOGIES (M) SDN BHD) (NO. SYARIKAT: 963101-W) 5. WINVEST GLOBAL SDN BHD (NO. SYARIKAT: 1052060-P) …PENCELAH-PENCELAH)] 3 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal CORAM: AZIZAH BINTI HAJI NAWAWI, JCA AZIZUL AZMI BIN ADNAN, JCA MOHD FIRUZ BIN JAFFRIL, JCA JUDGMENT [1] The following is the judgment of this Court in relation to the Appellants/Plaintiffs’ appeal against the decision of the High Court dated 8.12.2023 wherein the Appellant/Plaintiffs’ application for discovery against the Respondents/Defendants was dismissed with costs. [2] For purposes of convenience, the parties will be referred to in their original capacities at the High Court. PARTIES TO THE PROCEEDINGS [3] The 1st Plaintiff: N2N is a public limited company incorporated in Malaysia. N2N was previously known as N2N Connect Sdn. Bhd. N2N is presently listed on the Bursa Malaysia ACE Market and N2N is in the business of investment holding, researcher and developer of software packages, provider of design, programming, consultancy services and related activities and management of investment properties. [4] The 2nd Plaintiff: NGN Connection is a private limited company incorporated in Malaysia. NGN is a wholly owned subsidiary of N2N and 4 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal NGN is in the business of providing managed network services, consultancy services, sales, marketing, and related activities. [5] The 3rd Plaintiff: Global Solutions is a private limited company incorporated in Malaysia. Global Solutions is a wholly owned subsidiary of N2N and is in the business of being a researcher and developer of software packages and provider of design, programming, consultancy services and related activities. [6] The 4th Plaintiff: Hermes Bos is a private limited company incorporated in Malaysia. Hermes Bos is a subsidiary of Global Solutions and is in the business of being a researcher and developer of software packages and a provider of design, programming, consultancy services and related activities. [7] The 5th Plaintiff: Netinfinium is a private limited company incorporated in Malaysia. Netinfinium is a wholly-owned subsidiary of N2N Connect Holdings Sdn Bhd and N2N Connect Holdings Sdn Bhd is a shareholder of N2N. Netinfinium, like Global Solutions, is in the business of being a researcher and developer of software packages and provider of design, programming, consultancy services and related activities. [8] The N2N Group works as a collective enterprise for the purpose of creating, developing, enhancing, marketing, advertising, promoting and further training its staffs to providing integrated e-commerce securities trading solutions to local and international stock broking firms and financial institutions and certain regional firms as well. 5 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal THE DEFENDANTS [9] The 1st Defendant, Nicholas, is a Malaysian citizen of full age. Nicholas is currently a director of Finevo and AK Partner. He is also former director of N2N, Global Solutions, Hermes Bos and a former Operations Director of NGN Connection. [10] The 2nd Defendant, Ashraf, is a Malaysian citizen of full age. Ashraf is a director and shareholder of AK Partner and is a former employee of N2N. [11] The 3rd Defendant, Shyam, is a citizen of Indian nationality as known to the Plaintiffs and of full age. Shyam is a former employee of Global Solutions. [12] The 4th Defendant, Voon Fui, is a Malaysian citizen and a former employee of Netinfinium. The employment history of the Defendant Individuals shall be dealt with in Part C below. [13] The 5th Defendant, Finevo is a private limited company incorporated in Malaysia. Finevo is purportedly in the business of computer programming activities, computer consultancy and computer facilities management activities. [14] The 6th Defendant, AK Partner, is a private limited company incorporated in Malaysia. AK Partner is purportedly in the business of computer consultancy. 6 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal EMPLOYMENT HISTORY OF THE INDIVIDUAL DEFENDANTS WITH THE PLAINTIFFS [15] Nicholas was at all material times an employee and / or a director of N2N, Global Solutions, Hermes Bos and the Operations Director of NGN Connection as early as 10-08-2000. He was appointed as an employee of N2N on 02-01-2004. He resigned as a director of N2N on or around 30-03- 2017 and ceased to be a director of NGN, Global Solutions and Hermes Bos on or around 18-06-2018. His last held position was as an Operations Director at NGN Connection until his last date of employment on or around 31-08-2018. As at 18-08-2020, Nicholas is and continues to be a director of Finevo and as at 11-01-2021, he is a director of AK Partner. The table below shows Nicholas’s directorship in the N2N group of companies: No. Company Appointment Resignation Date Date 1 N2N Connect Berhad 10-08-2000 30-03-2017 2 NGN Connection Sdn Bhd 05-09-2007 18-06-2018 3 N2N Global Solutions Sdn 05-09-2007 18-06-2018 Bhd 4 Hermes Bos Sdn Bhd 21-11-2004 18-06-2018 5 N2N Advanced Learning Sdn 09-09-2015 18-06-2018 Bhd 6 Global Fin Net Sdn Bhd 09-09-2014 18-06-2018 7 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] Ashraf was at all material times an employee of Global Solutions and his last held position was Product Manager and Department Head of the Mobile Management System Department until his last date of employment on or around 27-11-2018. Ashraf is a director and shareholder of AK Partner and was appointed as a director of AK Partner on or around 14-03-2019. [17] Shyam was at all material times an employee of Global Solutions and his last held position was as Technical Manager of the Back-Office System Department until his last date of employment on or around 06-03- 2019. To the best of the Plaintiffs’ knowledge, Shyam is currently employed and/ or engaged to provide services to the Defendant Companies and/ or act on the instructions of the Defendant Individuals or any one of them. [18] Voon Fui was at all material times an employee of Netinfinium and his last held position was as Principal Consultant until his last date of employment on or around 14-11-2018. To the best of the Plaintiffs’ knowledge, Voon Fui is currently employed and / or engaged to provide services to the Defendant Companies and / or act on the instructions of the Defendant Individuals or any one of them. BACKGROUND OF THE PRESENT APPEAL [19] On 31.3.2021 the Plaintiffs commenced proceedings against the Defendants for: a) Copyright infringement. b) Breach of confidence. 8 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal c) Misuse of confidential information and trade secrets. d) Breach of employment contracts and duties of fidelity, fiduciary and trust. e) Conspiracy and dishonest assistance. f) Unlawful interference with trade. g) Conversion. (collectively “Plaintiffs’ claims”) [20] On 2.4.2021, the Plaintiffs obtained an ex-parte Anton Pillar Order (APO) against all of the Defendants. Between 5.4.2021 to 15.4.2021, the APO was executed by the appointed Supervising Solicitors against all of the Defendants except the 2nd Defendant and a substantial number of documents and information were downloaded from Defendants’ devices (APO information). [21] On 8.4.2021, the Defendants applied to set aside the APO. The said application was dismissed on 24.9.2021. The Defendants then appealed to the COA against the dismissal. [22] In the meantime, Defendants 1, 4 and 5 applied for a protective order over what they alleged were confidential documents and information within the APO information. On 12.4.2021, the HC issued a Protective Order (PO). [23] On 9.11.2022, the Plaintiffs applied for an order regarding a protocol for extracting the information it needed for its case from the APO 9 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal information. However, before that application was dealt with and before any information was extracted, on 6.7.2023, COA made an order allowing the Defendants’ appeal and set aside/discharged the APO (COA order). The Plaintiffs applied for leave to appeal to the FC against the COA order setting aside the APO. [24] Soon after the filing of the said application for leave, the Plaintiffs on 25.7.2023 applied for discovery of the Defendants documents. [25] In turn, by an application dated 10.8.2023, Defendants 1, 4 and 5 applied to amend the PO to protect any of their confidential documents that may ordered to be discovered under the Plaintiffs application. Note: The Plaintiffs appeal to the Federal Court in relation to the setting aside of the APO was allowed prior to hearing of this appeal. DECISION OF THE HIGH COURT [26] The learned JC (now HCJ) dismissed the Plaintiffs’ application for discovery on the following premise: a. the Plaintiffs only deposed of the relevance of the items sought for and not their necessity; b. the source codes apart from being confidential are copyrighted works of the Defendants’ customers. Similarly, item 7 which involves the 5th and 6th Defendants’ proposal to 15 companies are highly confidential as they include highly sensitive data and trade secrets of the Defendants concerned; 10 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal c. In relation to Item 3 which consists of 145 files in Appendix 2 which the Plaintiffs categorised as “List Agreement”, the request for correspondences and all other documents/folders and/or subfolders as set out in Appendix 7, the sheer number of agreements indicates that the Plaintiffs may be on a fishing expedition. Ordering the discovery of all 145 items would be too time consuming with the trial fixed in May 2024 (after several postponements); d. Item 10 which concerned all files and documents contained in the HP Server are no longer in the Defendants possession as the server was seized by the police on 28.4.2022; and e. In relation to item 24, this list was substantially derived by the Plaintiff from the execution of the APO which have been set aside. It was information that they should never have had. SUMMARY OF THE PLAINTIFFS’ GROUNDS OF APPEAL [27] The Plaintiff’s mounted their appeal based on the following points: i. that the learned JC should not have decided the matter based on the circumstances surrounding the APO application; ii. that the learned JC did not take into consideration the Amended Schedule A; 11 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal iii. that the learned JC failed to consider that the Plaintiffs have sufficiently addressed the relevance and necessity of the requested documents; iv. that the Plaintiffs’ application is not a fishing expedition; and v. that the requested documents could adversely affect the Defendants’ case and/or support the Plaintiffs’ case. SUMMARY OF DEFENDANTS SUBMISSION IN REPLY [28] The Defendants’ response to the Plaintiffs’ appeal is summarised below: i. there has been an inordinate delay by the Plaintiffs; ii. the Defendants do not have a list of all the seized information and documents; iii. there was tampering of the Defendants’ devices, email accounts and cloud storage; iv. the Defendants do not have access to the Protected Bundles; v. the requested documents are not within the Defendants’ control; vi. The Plaintiffs have not fulfilled the elements for discovery; and vii. The 2nd to the 4th Defendants should not be part of this appeal. 12 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal THE LAW ON DISCOVERY OF DOCUMENTS PURSUANT TO ORDER 24 RULE 3, 7, 8A AND 16 OF THE RULES OF COURT 2012 [‘ROC 2012’] [29] Order 24 Rule 3 of the ROC 2012 (‘O 24 r 3’) reads as follows: “(1) Subject to the provisions of this rule and of rules 4 and 8, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of documents which are or have been in his possession, custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. (2) … (3) … (4) The documents which a party to a cause or matter may be ordered to discover under paragraph (1) as follows: (a) the documents on which the party relies or will rely; and (b) the documents which could – (i) adversely affect his own case; 13 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) adversely affect another party’s cause; or (iii) support another party’s case.” [30] Order 24 Rule 7 of the ROC 2012 (‘O 24 r 7’) reads as follows: “(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it. (2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3. (3) An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions: 14 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) a document on which the party relies or will rely; (b) a document which could— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. (4) An order under this rule shall not be made in any cause or matter in respect of any party before an order under rule 3 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable.” [31] Order 24 Rule 8A of the ROC 2012 (‘O 24 r 8A’) reads as follows: “After the making of any order under rule 3 or 7, the party required to give discovery under any such order shall remain under a duty to continue to give discovery of all documents falling within the ambit of 15 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal such order until the proceedings in which the order was made are concluded.” [32] Order 24 Rule 16 of the ROC 2012 (‘O 24 r 16) reads as follows: “(1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. (2) (There is no paragraph (2)) (3) (There is no paragraph (3)) (4) (There is no paragraph (4)) (5) A party who is required by any rule in this Order, or by any order made thereunder, to make a discovery of documents or to produce any document for the purpose of inspection or any other purpose, but who fails to comply with any provision of that rule or with that order, as the case may be, may not rely 16 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal on those documents save with the leave of the Court.” [33] It is trite law that the Court has a discretion to grant discovery pursuant to any of the limbs under Order 24 ROC 2102 where a party is able to, inter alia, establish the fact that the documents were in the other party’s possession, that these documents are relevant and necessary for the fair and economic disposal of the legal proceedings. [34] In so far as the application of the law on discovery is concerned, the legal principles for an order of discovery of document is well settled. The elucidation in the case of Yekambaran s/o Marimuthu v Melayawata Steel Berhad [1994] 2 CLJ 581 details the requisite elements for an order for discovery. This was affirmed by the Court of Appeal in the case of Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1JMB [2019] 10 CLJ 516 at paragraph 11, page 526 summarised as follow: - “[11] ... The threshold test to satisfy the court to obtain an order for discovery is low in contrast to pre-action discovery. The threshold test for discovery by itself is high and was explained in a number of cases. To name a few are as follows: (a) In Yekambaran Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581, the Supreme Court set out the threshold test the applicant had to satisfy to succeed in an application for discovery. The court held: "(i) the essential elements for an order for discovery are threefold; namely, first there must be a "document", secondly, the document must be 17 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought; (ii) the documents sought must be relevant and/or related to the factual issues in dispute; …… (b) What amounts to relevance was discussed in Surface Stone Pte Ltd v. Tay Seng Leon and Another [2011] SGHC 223, in reliance on the case of Compagnie Financiere du Pacifique v. Peruvian Guano Co [1882] 11 QBD 55, where the court said: "It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary...." (c) As a general rule, discovery orders will not be granted if it is not relevant to the core issues. In Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other Appeals [2014] 7 CLJ 597, the Federal Court held: "…The learned judge's decision in dismissing discovery at that stage of proceedings was in line with the underlying principle under O. 24 r. 4 which underscored that the discovery process 18 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal was predicated on the issues involved in a particular case." [35] The High Court in Amsteel Mills Sdn Bhd v Ann Joo Steel Berhad [2019] 1 LNS 1585 summarised the requirements for the Court’s consideration in relation to the threefold essential elements for an order for discovery at page 9, paragraph 27 as follows: “it is pertinent to note that authorities and the rules seem to say that a discovery can be allowed only on three (3) grounds as per Yekambaran s/o Marimuthu (supra) whereby relevancy, the necessity and fair disposal of the case being the main requirements.” [36] This prime issue of ‘necessity’ is further expounded by the High Court in Golden Affinity Development Sdn Bhd (In Liquidation) v Lim Yok Wah & Ors [2020] 1 LNS 1420 which referred to the Court of Appeal case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Berhad & Ors [2009] 5 MLJ 40 on this very issue. At paragraphs 25, page 10, the High Court held that: “[25] The key test to be applied in a discovery application is the test of necessity as expounded in Nguang Chan aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Berhad & Ors [2009] 5 MLJ 40 in which Tengku Baharuddin Shah JCA held as follows: “As stated earlier the real issue is compliance with r. 13(1) which stipulates that discovery may only be ordered if the court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. 19 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal The test is necessity not fairness and it is for the applicant to satisfy the court, see Dolling-Baker’s case and Ventouris v. Mountain… If necessity is not the prime concern of the court, allowing discovery would tantamount to allowing the respondents to fish for evidence which defeats the propose of the rule by causing the appellants to suffer unfair disadvantage if they fail to comply with an order which is oppressive and incapable of compliance.” [37] The High Court in the Golden Affinity Development case (supra) also followed an earlier High Court decision in Goo Saw Jin v. Hwang Sze Yunn & Anor [2018] MLJU 367 at paragraph 26, page 11 in applying the principle of necessity as follows: “[42] On the issue of necessity, I have taken the liberty of referring to the case of Bqyerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155 where the High Court of Singapore at paragraph 37 stated as follows: “The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough.” [Emphasis added]” 20 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [38] Based on the above authorities, the guiding principles for an application for discovery are as listed below: (a) The documents sought are relevant and necessary for the applicant’s case; (b) These documents are or have been in the possession, custody and/or power of the opposing party; and (c) Failure of the opposing party to disclose the documents will prejudice and harm the interest of the applicant for a fair trial. [39] The Plaintiffs in their affidavit in support of Encl. 423 detailed the relevance of the Requested Documents. For ease of reference, they have been reproduced below: [39.1] Items 1, 2 and 24 of Schedule A relate to the Defendants’ software. These documents are relevant to, amongst others, the pleaded issues of whether the Defendants’ software infringes upon the copyright that subsists in the Plaintiffs’ software, whether the Defendant Individuals have breached their employment terms or duties to the Plaintiffs, and whether the Defendants have committed the tort of breach of confidence and/or misuse of confidential information and trade secrets. Their production is necessary in order for a comparison of the Defendants’ infringing software and the Plaintiffs’ software. 21 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [39.2] Items 3 to 9 of Schedule A relate to the documents specifically containing the Plaintiffs’ proprietary information (e.g. containing the phrase “N2N”, which is the name of the Plaintiffs’ group of companies, in the file name or content of the documents and files) found to have been retained in the possession of the Defendants. These documents are relevant to amongst others, the pleaded issues of whether the Defendant Individuals have breached their employment terms or duties to the Plaintiffs, and whether the Defendants have committed the tort of breach of confidence and/or misuse of confidential information and trade secrets, as the Defendants ought to no longer have any of the Plaintiffs’ proprietary information in their possession upon cessation of their employment with the Plaintiffs. These documents are relevant to proving whether the Defendants have misused and taken advantage of the Plaintiffs’ confidential information and trade secrets for the benefit of the Defendant Companies’ business. [39.3] Item 10 of Schedule A relates to the stolen HP Server belonging to the Plaintiffs. The content of the stolen HP Server would be relevant to establish that the Defendants are in the wrongful possession, retention and/or detention of the Plaintiffs’ Confidential Information and Trade Secrets. [39.4] Items 11 to 22 of Schedule A relate to correspondence among the Defendants which (based on the seized APO Information) have been specifically identified as making references to the Plaintiffs’ trade and business, after the 22 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant Individuals had ceased employment with the Plaintiffs. These documents are relevant to among others the pleaded issues of whether the Defendants have conspired to injure the Plaintiffs by unlawful means or dishonestly assisted Nicholas for the same. These documents are also relevant to the pleaded issues of whether the Defendant Individuals have breached their employment terms or duties to the Plaintiffs, and whether the Defendants have committed the tort of breach of confidence and / or misuse of confidential information and trade secrets. [39.5] Item 23 of Schedule A relates to all other documents which (based on the seized APO Information) have been specifically identified as making references to the Plaintiffs’ trade and business. These documents are relevant to among others the pleaded issues of whether the Defendants have conspired to injure the Plaintiffs by unlawful means or dishonestly assisted Nicholas for the same. These documents are also relevant to the pleaded issues of whether the Defendant Individuals have breached their employment terms or duties to the Plaintiffs, and whether the Defendants have committed the tort of breach of confidence and/ or misuse of confidential information and trade secrets. [40] It is to be noted, upon the advice of the learned JC, the Plaintiffs had amended the list in Schedule A which consists of almost 1400 items 23 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal reducing the number of items significantly by almost 80%, based on the amended Schedule A which was furnished to the High Court. OUR DECISION [41] Having reviewed the appeal record and the submission of parties (both written and oral), our unanimous decision is as follows: a. Firstly, due to the existence of a Consent Judgment between the Plaintiffs and the 2nd to the 4th Defendants dated 1.3.2024 (Enc. 46: one of which has not been set aside by any subsequent court order: see Ganapathy Chettiar v Lum Kum Chum & Ors; Menachi v Lum Kum Chum & Ors [1981] 2 MLJ 145 FC), the Plaintiffs pursuit of this appeal against 2nd to the 4th Defendants is unwarranted and not permissible as the Consent Judgement operates as an estoppel against the Plaintiffs. Our view on this issue is fortified by the Federal Court decision of Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Beh [1998] 1 MLJ 393 at page 419, Peh Swee Chin FCJ stated as follows: “… Now a consent order or a judgment by consent is undoubtedly based on an agreement of both parties where consent to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgment by consent is based is vitiated by any ground recognized in equity as vitiating such free consent, such as fraud, mistake, total failure of consideration (see Hudderfiled Banking Co Ltd v Henry Lister & Sons [1895] 2 Ch 273 and 24 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal the cases cited therein), then such a perfected consent order or judgment by consent could be set aside in a fresh action filed for the purpose. Grounds which could vitiate such free consent should also include misrepresentation, coercion, and undue influence and other grounds in equity.” Based on the record of appeal before us, we find no reasons to disregard the terms of the said Consent Judgment dated 1.3.2004. b. Secondly, contrary to the findings of the learned JC, we find that: i. The documents sought by the Plaintiffs are relevant and necessary for the purposes of their claim against the remaining Defendants 1, 5 and 6; ii. These documents are or have been in the possession, custody and/or power of the Defendants concerned; and iii. The failure of the Defendants to disclose the documents will prejudice and harm the interest of the Plaintiff for a fair trial. c. Thirdly, in arriving to our above decision, we disagree with the findings of the HC that the Plaintiff only deposed of the relevance of the items sought for and not their necessity. Our reading of the AIS finds to the contrary. The Plaintiffs have not only addressed the issue of relevancy, but also listed why the documents requested are necessary for the fair disposal of the 25 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal matter or the saving of costs: see Infoline Sdn Bhd (sued as trustee of the Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363 and Goo Saw Jin v Hwang Sze Yunn & Anor [2018] MLJU 367. d. Fourthly, whilst the confidentiality of the nature and contents of some of the documents sought by the Plaintiffs is a matter of concern, it is not one of the elements to be considered in an application for discovery. What is paramount is “the relevancy and necessity” for the Courts to decide whether an application for discovery should be allowed. This is a mixed question of law and fact which have to be addressed. In so far as confidentiality is concerned, a mechanism to protect such confidential information similar, to the Protective Order made by the High Court on application by the Defendants herein, can be devised and agreed upon between parties. In any event, any document that is disclosed pursuant to an order for discovery can only be used for the purposes of the litigation to which the discovery relates, and not for any other collateral purpose. Misuse of such information could give rise to a separate cause of action in favour of the discloser of the information. e. Fifthly, in relation to the HC’s finding that the volume of the documents requested is akin to a fishing expedition and that it will delay the trial, the issue for determination is whether the proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the Plaintiffs’ case or damage the 26 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendants’, bearing in mind that under Order 24 Rule 3 and Rule 7 ROC 2012, such an application can be filed at any stage of the proceedings (see Hansfield Development and others v Irish Asphalt Ltd and others [2010] IEHC 32). The voluminous documents sought should not be a ground to deter the granting of an order for discovery (see Faber Merlin Malaysia Bhd v Ban Guan Sdn Bhd [1981] 1 MLJ 105). Additionally, the learned JC decided the application based on the original Schedule A and not to the substantially reduced amended Schedule A, which was filed based on the Court’s advice. f. Last but not least, we find that the learned JC had placed emphasis on the fact that the list under item 24 of Schedule A was substantially derived by the Plaintiff from the execution of the APO which has been set aside and that it was information that they should never have had. Towards this end, we are compelled to state that the elements required in the granting of an APO are as follows: (i) applicant must have a strong prima facie case; (ii) there is a serious potential or actual damage to the applicant; and (iii) there must be convincing evidence that the defendant had in its possession incriminating evidence with a real risk of destruction. 27 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal See: Anton Piller KG v Manufacturing Processes Ltd and Others [1976] 1 All ER 779. These requirements have a higher threshold compared to an application for discovery under Order 24 of the ROC 2012. [42] Based on the above reasons, we find that an appellate interference is warranted. The Plaintiffs’ appeal is hereby allowed. The Order of the High Court is hereby set aside with costs. Dated: 21 March 2025 -Sgd- (MOHD FIRUZ BIN JAFFRIL) Judge Court of Appeal Malaysia Putrajaya 28 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel/ Solicitors For the Appellant: 1. Suaran Singh Sidhu 2. Gooi Yang Shuh 3. Chow Xing Hui 4. Ashwinathan Selvanathan 5. Cheryl Chung Ke Han [Messrs Law Partnership] For First, Fifth & Sixth Respondent: 1. Himahlini Ramalingam 2. Leejia Rou 3. Aiman Haqeem Al Sadat [Messrs Mrs Himahlini & Co.] For the Second, Third & Fourth Respondent: 1. Wendy Lam Mei Kuan 2. Wong Jia Ee 3. Ng Zong Hui [Messrs Kheng Hoe & Lee Yuen] 29 S/N LGeoVojZvEm4eC5Fse6UjQ **Note : Serial number will be used to verify the originality of this document via eFILING portal