Bandar Utama Development Sdn Bhd & Anor

[2018] 4 MLRA v. Bandar Utama 1 JMB 345

BANDAR UTAMA DEVELOPMENT SDN BHD & ANOR

v.
BANDAR UTAMA 1 JMB

Court of Appeal, Putrajaya

Hamid Sultan Abu Backer, Abdul Rahman Sebli, Mary Lim Thiam Suan JJCA
[Civil Appeal No: B-02(A)-1303-07-2017]
26 June 2018

Civil Procedure: Appeal — Appeal to Court of Appeal — Appeal against exercise of

discretion by trial court — Approach of Appellate Court — Whether decision made
by trial court jurisprudentially flawed — Whether integrity of decision-making process
compromised

Civil Procedure: Discovery — Application for — Discovery v. pre-action discovery —

Whether jurisprudence related to discovery and pre-action discovery one and the same
— Whether different threshold tests for both such forms of discovery

Civil Procedure: Discovery — Pre-action — Pre-action discovery under O 24 r 7A of

the ROC 2012 — Whether pre-action discovery under Rules of Court a procedural right
— Whether pre-action discovery under Rules of Court an equitable remedy and not
granted as of right — Whether alternative remedies ought to be first resorted to —
Whether pre-action discovery ought not be ordered when identifiable cause of action has
arisen

Civil Procedure: Discovery — Pre-action — Scope and nature of pre-action discovery

— Whether pre-action discovery may be directed against parties having no contractual
nexus with each other — Whether pre-action discovery may relate to proposed cause of
action as well as relief — Whether threshold test for pre-action discovery higher than
that for discovery — Whether threshold test for pre-action discovery under O 24 r 7A of
ROC 2012 much higher than that prescribed under common law

The appellants were the developers and landowners of a residential

development. The respondent was the Joint Management Body (“JMB”)
formed pursuant to the Building and Consumer Properties Act 2007 (“the
Act”). The respondent comprised mainly purchasers of condominium units
in the appellants’ development. The respondent alleged that the appellants
had failed, refused or neglected to deliver the requisite strata titles to the
condominium units to the owners despite the lapse of some 10 years. The
respondent applied for pre-action delivery pursuant to O 24 r 7A of the
Rules of Court 2012 (“ROC 2012”) for inter alia, specific correspondences,
development orders and building plans in respect of the residential
development. The High Court allowed the respondent’s application and the
appellants appealed to the Court of Appeal.
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Held (allowing the appeal with costs):

(1) The appellate court will be slow to intervene in the discretionary exercise of
the trial court. In the instant case, the jurisprudence advocated by the trial court
to grant the order was jurisprudentially flawed. The jurisprudential flaw on the
face of the record was the failure of the High Court Judge to appreciate that
O 24 r 7A of the ROC 2012 had nothing to do with contracting parties unless
the rare exception applied. Consequently, the Court of Appeal had no other
alternative but to allow the appeal in limine. (paras 3-4)

(2) The jurisprudence related to discovery and pre-action discovery is not

one and the same even though both are placed in O 24 ROC 2012. Discovery
is related to parties to the action and has generally nothing to do with the
cause of action. It is related to relief if the applicant is the plaintiff; and to
deny liability or quantum if the applicant is the defendant. The threshold test
to satisfy the court to obtain an order for such discovery is low compared to
pre-action discovery. The threshold test for discovery by itself is high. (paras
10-11)

(3) Pre-action discovery is not related to contractual parties but addressed

to third parties who may be tort-feasors or parties who are necessary for the
purported plaintiff to succeed in a claim or a potential party to be the defendant.
Pre-action discovery can relate to the proposed cause of action as well as relief.
The threshold test to satisfy an order for pre-action discovery at common law is
high in contrast to an application for discovery in an action. The threshold test
to satisfy an order for pre-action discovery under O 24 r 7A is extremely high
compared to the common law right, as the rules set out specific requirements
and the court must exercise its power with caution and circumspect. It is a
power that must be exercised in a genuine case and not for the purpose of
annoying a third party or for fishing expeditions. (para 12)

(4) The common law position for pre-action discovery was explained in great
detail by the House of Lords in Norwich Pharmacal Company v Customs and
Excise Commissioners (“Norwich”). The principles enunciated in Norwich were
adopted and approved in Malaysia in First Malaysia Finance Berhad v. Dato’
Mohd Fathi Ahmad (“First Malaysia”) where the Malaysian court specified an
exception to the general rule in Norwich, that if, through no fault of his own,
a person gets mixed up in the tortious acts of others so as to facilitate their
wrongdoing, whilst he may incur no personal liability, he is under a legal duty
to assist the person who had been wronged by giving him full information and
in making disclosure of the identity of the wrongdoers. The court also stated
in First Malaysia that a Norwich Pharmacal order, being an equitable remedy,
will not be granted as of right even when the requirements for it are satisfied.
The court has a discretion as to whether to grant or refuse it. (paras 13 & 15)

(5) An application under O 24 r 7A of the ROC 2012 has many riders, apart
from what needs to be satisfied under the Norwich principle. The right of
discovery under the Rules cannot be equated to a procedural right. Since it still
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falls under the Norwich principle, such right is an equitable remedy and being
an equitable remedy, it will not be granted as of right. Those who seek the
remedy are required to come with clean hands. If there is an alternative remedy
available, such remedy must first be resorted to, or if an action can be filed
without pre-action discovery, it ought to be filed and subsequently discovery
orders should be obtained through the normal process. The courts should not
open the door to pre-action discovery when an identifiable cause of action
has arisen. In such cases, it will be an abuse of process to approach the court
through a pre-action discovery application. (para 16)

(6) Order 24 r 7A(5) of the ROC 2012 must be strictly construed by the court to
ensure the equitable remedy is not abused. There must be real material before
the court to grant the order. It cannot be based on evidence lacking credibility,
surmise or conjecture. Order 24 is “fact centric” and the test whether to grant
an order is set out under O 24 r 8 of the ROC 2012 itself. The court is not
required to lean towards the applicant unless the applicant has made out a
strong case for the equitable relief to be granted and the respondent has not
been able to credibly deny the applicant’s assertion or satisfy the court that
alternative relief is open to the applicant. (paras 17 & 19)

(7) In the instant case, there was an alternative action available to the
respondent and it would thus be an abuse of process for the respondent to
seek a pre-action discovery order. The court had failed to consider the salient
object and legal history related to a pre-action discovery order under O 24 r 7A
which is a new invent of the Rules of Court 2012, substantially based on the
jurisprudence in Norwich and many other cases inclusive of cases in Malaysia.
The trial judge had also failed to consider the test provided in O 24 r 8 in the
proper perspective, taking into consideration the factual matrix of the case and
statutory law as a whole, thereby compromising the integrity of the decision-
making process. The appellate court had no option but to intervene in the
discretionary power of the trial court to make just orders as the case warranted.
(para 20)

Case(s) referred to:

Ahmad Zahri Mirza v. Pricewaterhousecoopers Capital Sdn Bhd & Ors [2016] 1 MLRH
193 (refd)
Anglo Irish Bank Corporation plc v. West LB AG [2009] EWHC 207 (refd)
Avanes v. Marshall & Ors [2007] NSWSC 191 (refd)
Bayerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd
[2004] 4 SLR (R) 39 (refd)
Beckkett Pte Ltd v. Deutsche Bank AG Singapore Branch [2003] 1 SLR (R) 321 (refd)
Breakspear & Others v. Ackland & Another [2009] Ch 32 (refd)
British Steel Corporation v. Granada Television Limited [1980] 3 WLR 774 (refd)
Ching Mun Fong v. Standard Chartered Bank [2012] 2 SLR 22 (refd)
Clarke v. Earl of Ormonde [1821] Jac 108 (refd)
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Dorsey James Michael v. World Sport Group Pte Ltd [2014] 2 SLR 208 (refd)
Dunning v. Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454
(refd)
ECM Libra Investment Bank Berhad v. Foo Ai Meng & Ors [2014] 1 MLRA 275 (refd)
Faber Merlin Malaysia Bhd v. Ban Guan Sdn Bhd [1980] 1 MLRA 341 (refd)
First Malaysia Finance Berhad v. Dato’ Mohd Fathi Ahmad [1993] 1 MLRA 293 (refd)
Hartigan Nominees Pty Ltd v. Rydge [1992] 29 NSWLR 405 (refd)
Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 4 MLRA 203 (folld)
Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other Appeals [2014] 4
MLRA 732 (refd)
Kneale v. Barclays Bank plc (trading as Barclaycard) [2010] EWHC 207 (refd)
Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 MLRA
179 (refd)
Kuah Kok Kim v. Ernst & Young (a firm) [1996] 3 SLR (R) 485 (refd)
Loose v. Williamson [1978] WLR 639 (refd)
Marius Schreuders v. Grandiflora Nominees Pty Ltd [2014] VSC 310 (refd)
Millar & Another v. Hornsby & Others [2000] 3 ITELR 81 (refd)
Ng Giok Oh v. Sajjad Akhtar [2003] I SLR (R) 375 (refd)
Norwich Pharmacal Company v. Customs and Excise Commissioners [1973] 3 WLR
164 (refd)
Norwich Pharmacal Co v. Customs & Excise Commissioners [1974] AC 133 (refd)
O’Rourke v. Darbishire & Others [1920] AC 581 (refd)
Re Cowin v. Gravett [1886] 33 Ch 179 (refd)
Re Londonderry’s Settlement [1964] 3 All ER 855 (refd)
Re the Internine Trust and the Intertraders Trust; Sheikh Abdullah Ali M Alhamrani v.
Russa Management Ltd & Others [2004] JCA 158 (refd)
Re Tillot, Lee v. Wilson [1892] 1 Ch 86 (refd)
Rouse & Others v. IOOF Australia Trustees Limited [1999] 2 ITELR 289 (refd)
Sandra Stuart Curven & Ors v. Vanbreck Pty Ltd (as Trustee for the WS and NR
Harvey Family Trust) [2009] VSC A 284 (refd)
Schmidt v. Rosewood Trust Ltd [2003] 2 AC 709 (refd)
Yekambaran Marimuthu v. Malayawata Steel Berhad [1993] 4 MLRH 380 (refd)

Legislation referred to:

Rules of Court 2012, O 24 rr 7A(5), 8
Strata Management Act 2013, s 105(1), Fourth Schedule, cl 12

Counsel:
For the appellants: Max Yong (with S Malar with him); M/s Shui Tai
For the respondent: Alvin Julian (Munawwir with him); M/s Wong Teh & Associates
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JUDGMENT

Hamid Abu Backer JCA:

[1] The appellants appealed against the decision of the learned High Court
Judge who had allowed the respondent’s application for pre-action discovery
pursuant to O 24 r 7A of the Rules of Court 2012 (ROC 2012).

[2] Both parties among other cases had relied on the Court of Appeal’s case
of Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 4 MLRA 203, a judgment
of Her Ladyship Dato’ Mary Lim Thiam Suan who is also a panel member
of this coram. The judgment extensively deals with the new provision of the
Rules namely O 24 r 7A which was introduced and discussed in quite a number
of cases from other jurisdictions. Those cases give a multifold ideas, views and
opinions on how to exercise a discretion vested in the court and court alone.
The articulate discussion of the relevant cases in our view will stand as some
form of guidance for the trial courts to be guided when dealing with O 24 r 7A
of ROC 2012. To appreciate our judgment and to avoid repetition of the cases
related to O 24 r 7A, the judgment of Her Ladyship must be read together with
this judgment.

[3] It is trite that an appellate court will be slow in intervening in the

discretionary exercise of the trial court. [See Kyros International Sdn Bhd v.
Ketua Pengarah Hasil Dalam Negeri [2013] 3 MLRA 179; ECM Libra Investment
Bank Berhad v. Foo Ai Meng & Ors [2014] 1 MLRA 275]. In the instant case, we
find that the jurisprudence advocated by the trial court to grant the order was
jurisprudentially flawed and in consequence we had no other alternative but to
allow the appeal in limine.

[4] The major jurisprudential flaw on the face of record was the failure of the
learned judge to appreciate that O 24 r 7A has nothing to do with contracting
parties unless the rare exception applies. We will elaborate further on this issue
in the judgment.

Brief Facts

[5] The appellants are developer and land owner of residential development.
The respondent is the Joint Management Body pursuant to the Building and
Consumer Properties Act 2007. The respondent’s members as usual consist of
purchasers of the condominium units; and some of the units are also owned
by the appellants.

[6] The complaint of the respondent is principally related to contractual breach

of the Sale and Purchase Agreements with the purchaser of the units of the
appellants, that notwithstanding ten years have elapsed since the delivery of
vacant possession of the condominium and the appellants (the 1st appellant in
particular) have failed, refused and/or neglected to deliver the requisite strata
titles.
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[7] It is one of the arguments of the appellants that any issue in the particular
case related to strata title must be referred to the Strata Management Tribunal
pursuant to s 105(1) of the Strata Management Act 2013 (SMA 2013) as well as
the Fourth Schedule in particular cl 12. The said s 105 and the Fourth Schedule
read as follows:
“105. Jurisdiction of Tribunal

(1) The Tribunal shall have the jurisdiction to hear and determine any claims
specified in Part 1 of the Fourth Schedule and where the total amount in
respect of which an award of the Tribunal is sought does not exceed two
hundred and fifty thousand ringgit or such other amount as may be prescribed
to substitute the total amount.

(2) For the avoidance of doubt, the Limitation Act 1953 [Act 254] shall not
apply to the proceedings of the Tribunal.

(3) The jurisdiction of the Tribunal shall not extend to any claim in which
the title to any land, or any estate or interest in land, or any franchise, is in
question.”

“FOURTH SCHEDULE PART 1

Jurisdiction of the Tribunal

[Subsection 105(1)]

1. A dispute or complaint concerning an exercise or the performance of, or the

failure to exercise or perform, a function, duty or power conferred or imposed
by this Act the subsidiary legislation made under this Act, except for those
specifically provided for in this Part.

2. Subject to subsection 16N(2) of the Housing Development (Control and

Licensing) Act 1966 [Act 118], a dispute on costs or repairs in respect of a
defect in a parcel, building or land intended for subdivision into parcels, or
subdivided building or land, and its common property or limited common
property.

3. A claim for the recovery of Charges, or contribution to the sinking fund, or

any amount which is declared by the provisions of this Act as a debt.

4. A claim for an order to convene a general meeting.

5. A claim for an order to invalidate proceedings of meeting where any

provision of the Act has been contravened.

6. A claim for an order to nullify a resolution where voting rights has been
denied or where due notice has not been given.

7. A claim for an order to nullify a resolution passed at a general meeting.

8. A claim for an order to revoke amendment of by-laws having regard to the

interests of all the parcel owners or proprietors.
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9. A claim for an order to vary the rate of interest fixed by the joint management
body, management corporation or subsidiary management corporation for
late payment of Charges, or contribution to the sinking fund.

10. A claim for an order to vary the amount of insurance to be provided.

11. A claim for an order to pursue an insurance claim.

12. A claim for compelling a developer, joint management body, management

corporation or subsidiary management corporation to supply information or
documents.

13. A claim for an order to give consent to effect alterations to any common
property or limited common property.

14. A claim for an order to affirm, vary or revoke Commissioner’s decision.”

[8] The Memorandum of Appeal of the appellants sets out the grievance of the
appellants and inter alia reads as follows:
“1. The learned judge erred in law and in fact when she allowed the
respondent’s Saman Pemula dated 19 September 2016 by having failed to
consider that the Respondents ought to have exhausted available remedies
under the Strata Management Act 2013 before filing the Saman Pemula dated
19 September 2016.

2. The learned judge erred in law and in fact when she failed to consider
that there were available alternative avenues and sources for the respondent
to procure and obtain the information and documents sought and applied for.

3. The learned judge erred in law and in fact when she failed to consider that
respondent had written and applied for the same information and documents
to relevant authorities.

4. The learned judge erred in law and in fact when she failed to consider that
O 24 r 7A(3) of the Rules of Court 2012 is really to assist a prospective litigant
plaintiff to determine whether he has a viable claim against the intended
defendant.

5. The learned judge erred in law and in fact when she failed to address,
consider and/or inquire whether the appellants in the instant appeal, has in
their possession, custody or power of the documents sought to be discovered.

6. The learned judge erred in law and fact when she failed to address, consider
and/or inquire whether the documents sought are relevant to an issue arising
or likely to arise in the intended proceedings.

7. The learned judge erred in law and in fact when she failed to consider that
the respondent had already identified the parties and the cause of action in
their affidavits in a Pre-Action discovery under O 24 r 7A Rules of Court 2012
henceforth should have made a Pre-Trial discovery instead of under O 24 r 7A
Rules of Court 2012.
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8. The learned judge erred in law and in fact she failed to appreciate the
difference between a Pre-Action discovery and a Pre-Trial discovery by not
considering and appreciating that the documents sought and applied for will
only be for the sole purpose of supporting an established cause of action
against identified parties and not to assist and/or aid the respondent to
identify the parties and help establish a cause of action.

9. The learned judge erred in law and fact she failed to appreciate the
respondent was in a position to commence proceedings and had already
decided that they have a cause of action against the appellants and the
documents and discovery applied for was not to help ascertain whether they
have a viable cause of action but more to substantiate their cause of action in
evidence therefore only evidential in value.

10. This Memorandum of Appeal is prepared without the benefit of the

written Grounds of Judgment of the learned Judge and Notes of Evidence. In
the premises, the Appellants reserve their right to add further or other grounds
of appeal upon having received and studied the judgment of the learned
judge.”

[9] The respondent’s Originating Summons prayers read as follows:

“(A) that the defendants deliver to the plaintiff or the plaintiff ’s solicitors,
within 14 days commencing from the date of the Order to be made herein,
an Affidavit verifying whether the following documents are in the possession,
custody or power of the defendants:

(i) all correspondence (hereinafter referred to as the “Correspondence”)

between the defendants and the Pendaftar Tanah & Galian, Selangor
relating to the application for Strata Title for the individual parcels of
the Condominium situated at the residential development known as
Bandar Utama 1, Bandar Utama, Petaling Jaya Phase 1;

(ii) the original Development Order (hereinafter referred to as the

“Development Order”) that was approved by MAJLIS BANDARAYA
PETALING JAYA for the residential development known as Bandar
Utama 1, Bandar Utama, Petaling Jaya Phase 1;

(iii) any Amended Development Order (hereinafter referred to as the

“Amended Development Order”) that was approved by MAJLIS
BANDARAYA PETALING JAYA for the residential development
known as Bandar Utama 1, Bandar Utama, Petaling Jaya Phase 1;

(iv) the Lease (hereinafter referred to as the “Lease”) by which the Second
defendant, as the lessor, leased part of the land held under title bearing
particulars Geran 42995, Lot 27671, Seksyen 39, Bandar Petaling
Jaya, Daerah Petaling, Negeri Selangor vide Presentation Number
100323/2005 dated 27 December 2005 to FIRST NATIONWIDE
NETWORK SDN BHD (299093-U), as the lessee; and

(v) the original building plans (hereinafter referred to as the “Building

Plans”) that was approved by MAJLIS BANDARAYA PETALING
JAYA for the residential development known as Bandar Utama 1,
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Bandar Utama, Petaling Jaya Phase 1 together with any amendments

to the Building Plans (if any).

(B) that the defendants do produce and provide a copy each of the documents
stated in prayer (A)(i) to (A)(v) above that are in the defendants possession,
custody or power to the plaintiff within 14 days commencing from the date of
the Order to be made herein;

(C) costs of this Application to be borne by the defendants; and

(D) such further and/or other relief as this Honorable Court deems fit and
proper.”

Jurisprudence Related To Discovery And Pre-Action Discovery

[10] The jurisprudence related to discovery and pre-action discovery is not one
and the same even though both are placed in O 24 of ROC 2012.

[11] As a general rule, discovery is related to parties to the action. Discovery

under this head generally has nothing to do with cause of action but is related
to relief if the applicant is the plaintiff and to deny liability or quantum if the
applicant is the defendant. 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 [1993] 4

MLRH 380, 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 “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; (iii) as to “relevance”, our Rules of the High Court limit
discovery to documents which are “relevant to” or “relate” to
the factual issues in dispute; (iv) more particularly, the discovery
obligation applies to documents “relating to matters in question in
the action” [Rules of the High Court O 24, r 1(1)] or “relating to
any matter in question in the cause or matter” [O 24, r 3(1)]; (v) in
practice, the relevance is primarily determined by reference to the
pleadings but there need not be a pleading for a matter to be said
to be in issue.”

(b) What amounts to relevance was discussed in Surface Stone Pte

Ltd v. Tay Seng Leon And Another [2011] SGHC 223, in reliance
of the case of Compagnie Financiere du Pacifique v. Peruvian Guano
Co [1882] 11 QBD 55, where the court said: “It seems to me that
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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. I have put in the words “either directly or
indirectly”, because, as it seems to me, a document can properly be
said to contain information which may enable the party requiring
the affidavit either to advance his own case or to damage the case
of his adversary, if it is a document which may fairly lead him to a
train of inquiry, which may have either of these two consequences
...”

(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] 4 MLRA 732, the Federal
Court held: “(a) As for the discovery issue in the first appeal, the
documents sought were not only very extensive, but irrelevant
to the core issue. The documents sought only relate to the issue
of quantum of damages and went nowhere towards establishing
the issue of liability in the case. In the circumstances, in view
of the O 14A applications herein, the learned judge was correct
in holding that discovery was not necessary at that stage of the
proceedings. 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 was predicated on the issues involved in a particular case.
It followed that, in this case, the determination of the core issue
in the O 14A applications had rightly been decided to precede
the discovery. It followed further that the exercise of discretion by
the learned judge in the matter was in accordance with principles
which did not justify this court’s interference.”

[12] Pre-action discovery is not related to contractual parties but it is addressed

to third parties who may be tortfeasors, etc. or parties who are necessary for
the purported plaintiff to succeed in a claim or a potential party to be the
defendant. As a general rule, pre-action discovery can relate to proposed cause
of action as well as relief. The threshold test to satisfy an order for pre-action
discovery at common law was high in contrast to application for discovery in
an action. The threshold test to satisfy an order for pre-action discovery under
O 24 r 7A is extremely high in contrast to common law right, as the rules sets
out specific requirements and the court must exercise its power with caution
and circumspect. It is a power which must be exercised in a genuine case and
not for the purpose of annoying a third party or in cases related to fishing
expedition, etc.
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[13] The common law position for pre-action discovery was explained in great
detail by the House of Lords in Norwich Pharmacal Company v. Customs and
Excise Commissioners [1973] 3 WLR 164. A part of the judgment is reproduced
here to appreciate the intricate jurisprudence. The said part reads as follows:
“My noble and learned friends, Lord Cross of Chelsea and Lord Kilbrandon,
have dealt with the authorities. They are not very satisfactory, not always easy
to reconcile and in the end inconclusive. On the whole I think they favour the
appellants, and I am particularly impressed by the views expressed by Lord
Romilly MR and Lord Hatherley LC in Upmann v. Elkan [1871] LR 12 Eq
140; 7 Ch Ap, p 130. They seem to me to point to a very reasonable principle
that if through no fault of his own a person gets mixed up in the tortuous acts
of others so as to facility their wrongdoing he may incur no personal liability
but he comes under a duty to assist the person who has been wronged by
giving him full information and disclosing the identity of the wrongdoers. I
do not think it matters whether he became so mixed up by voluntary action
on his part or because it was his duty to do what he did. It may be that if this
causes him expense the person seeking the information ought to reimburse
him. But justice requires that he should cooperate in righting the wrong if he
unwittingly facilitated its perpetration.

I am more inclined to reach this result because it is clear that if the person
mixed up in the affair has to any extent incurred any liability to the person
wronged he must make full disclosure even though the person wronged has
no intention of proceeding against him. It would I think be quite illogical to
make his obligation to disclose the identity of the real offenders depend on
whether or not he has himself incurred some minor liability. I would therefore
hold that the respondents must disclose the information now sought unless
there is some consideration of public policy which prevents that.

Apart from public policy the respondents say that they are prevented by law
from making this disclosure. I agree with your Lordships that is not so. If it
were they could not even disclose such information in a serious criminal case,
but their counsel were, quite rightly, not prepared to press their argument so
far as that.

So we have to weigh the requirements of justice to the appellants against the

consideration put forward by the respondents as justifying nondisclosure.
They are two-fold. First it is said that to make such disclosures would or might
impair or hamper the efficient conduct of their important statutory duties.
And secondly it is said that such disclosure would or might be prejudicial to
those whose identity would be disclosed.

There is nothing secret or confidential in the information sought or in the

documents which came into the hands of the respondents containing that
information. Those documents are ordinary commercial documents which
pass through many different hands. But it is said that those who do not wish
to have their names disclosed might concoct false documents and thereby
hamper the work of the customs. That would require at least a conspiracy
between the foreign consignor and the importer and it seems to me to be in
the highest degree improbable. It appears that there are already arrangements
in operation by the respondents restricting the disclosure of certain matters if
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the importers do not wish them to be disclosed. It may be that the knowledge
that a court might order discovery in certain cases would cause somewhat
greater use to be made of these arrangements. But it was not suggested in
argument that is a matter of any vital importance. The only other point was
that such disclosure might cause resentment and impair good relations with
other traders; but I find it impossible to believe that honest traders would
resent failure to protect wrongdoers.

Protection of traders from having their names disclosed is a more difficult

matter. If we could be sure that those whose names are sought are all tortfeasor,
they do not deserve any protection. In the present case the possibility that any
are not is so remote that I think it can be neglected. The only possible way
in which any of these imports could be legitimate and not an infringement
would seem to be that someone might have exported some furozolidone from
this country and then whoever owned it abroad might have sent it back here.
Then there would be no infringement. But again that seems most unlikely.

But there may be other cases where there is much more doubt. The validity
of the patent may be doubtful and there could well be other doubts. If the
respondents have any doubts in any future case about the propriety of making
disclosures they are well entitled to required the matter to be submitted to the
court at the expense of the person seeking the disclosure. The court will then
only order discovery if satisfied that there is no substantial chance of injustice
being done.”

[14] In the Norwich case, the House of Lords stated that where a person, albeit
innocently and without incurring any personal liability, became involved in the
tortious acts of others, he came under a duty to assist one injured by those acts
by giving him full information by way of discovery and disclosing the identity
of the wrongdoers, and for that purpose, it mattered not that such involvement
was the result of voluntary action or the consequence of the performance of a
statutory duty or otherwise; and that, accordingly, prima facie the respondents
were under a duty to disclose the information sought. In this case, the court
held that a party could bring a specific action by writ against a person for
discovery in the name of a potential defendant if that person has facilitated the
wrongdoing of the potential defendant and has the necessary information. The
Norwich rule was applied in Loose v. Williamson [1978] WLR 639 and British
Steel Corporation v. Granada Television Limited [1980] 3 WLR 774.

[15] The principles enunciated in Norwich case was adopted and approved in
First Malaysia Finance Berhad v. Dato’ Mohd Fathi Ahmad [1993] 1 MLRA 293.
In this case, it was held that the general rule as laid down in Norwich case is
that discovery to find the identity of the wrongdoer is available against anyone
against whom the plaintiff has a cause of action in relation to the same wrong.
To this general rule, there is an exception that if, through no fault of his own,
a person gets mixed up in the tortious acts of others so as to facilitate their
wrongdoing, whilst he may incur no personal liability, he is under a legal duty
to assist the person who had been wronged by giving him full information
and in making disclosure of the identity of the wrongdoers. Further, the court
stated that a Norwich Pharmacal order being an equitable remedy will not be
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granted as of right even when the requirements for it were satisfied and the
court has discretion as to whether to grant or refuse it. [See Janab’s Key To Civil
Procedure, 5th edn pp 209 and 210].

[16] An application under O 24 r 7A has many riders in addition to what needs

to be satisfied under the Norwich principle. In addition, the right of discovery
under the rules cannot be equated to a procedural right. It still will fall under
the Norwich Pharmacal order which is stated as an equitable remedy. Being an
equitable remedy, it will not be granted as of right. It is trite that those who seek
equitable remedy is required to come with clean hands. If there is an alternative
remedy available that must be resorted or if an action can be filed without pre-
action discovery, it ought to be filed and subsequently discovery orders should
be obtained through normal process. Courts, through their judgment should
not open the door to pre-action discovery when identifiable cause of action has
arisen. For example, (a) if the claim is for contractual breach; or (b) for a tort
like normal road accident cases - an action ought to be filed first and thereafter
discovery order should be sought. In such cases, it will be an abuse of process
to approach the court by pre-action discovery application.

[17] In this respect, O 25 r 7A(5) must be strictly construed by court to ensure

the equitable remedy is not abused. In addition, there must be real material
before the court to grant the order. It cannot be based on evidence lacking
credibility or surmise or conjecture, etc O 24 r 7A(5) reads as follows:
“(5) An order for the discovery of documents before the commencement of
proceedings or for the discovery of documents by a person who is not a party
to the proceedings may be made by the court for the purpose of or with a
view to identifying possible parties to any proceedings in such circumstances
where the court thinks it just to make such an order, and on such terms as it
thinks just.”

[18] It must be noted that O 24 is ‘fact centric’. Pure reliance of cases within
and outside the jurisdiction as a general rule will not tie the hands of the court
in the exercise of its discretionary powers. The test whether or not to grant an
order is set out in O 24 r 8 itself which reads as follows:
“Discovery to be ordered only if necessary (O 24, r 8)

8. On the hearing of an application for an order under r 3, 7 or 7A, the court,

if satisfied that discovery is not necessary, or not necessary at that stage of the
cause or matter, may dismiss or adjourn the application and shall in any case
refuse to make such an order if and so far as it is of the opinion that discovery
is not necessary either for disposing fairly of the cause or matter or for saving
costs.”

[19] In essence, the court is not required to lean towards the applicant unless
the applicant has made out a strong case for the equitable relief to be granted
and the respondent has not been able to credibly deny the applicant’s assertion
or satisfy the court that alternative relief is or are open to the applicant. Having
examined further s 105 and the Fourth Schedule to the SMA 2013, we are in
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agreement with the appellants that the respondent’s concerns and complaints
ought to be address in that forum.

[20] We have read the appeal records and considered the able submissions of
the parties. We took the view that the appeal must be allowed in limine. Our
reasons inter alia are as follows:

(a) In the instant case, there is alternative action available to the

respondents.

(b) It will be an abuse of process for the respondents on the factual

matrix of the instant case to seek for a pre-action discovery order;

(c) In the anchor case relied on by the parties, namely the case of
Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 4 MLRA 203,
Her Ladyship Justice Mary Lim had considered the following
cases: Ahmad Zahri Mirza v. Pricewaterhousecoopers Capital Sdn Bhd
& Ors [2016] 1 MLRH 193 (refd); Anglo Irish Bank Corporation plc
v. West LB AG [2009] EWHC 207 (refd); Avanes v. Marshall & Ors
[2007] NSWSC 191 (refd); Bayerische Hypo-und Vereinsbank AG v.
Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR (R) 39 (refd);
Beckkett Pte Ltd v. Deutsche Bank AG Singapore Branch [2003] 1 SLR
(R) 321 (refd); Breakspear & Others v. Ackland & Another [2009] Ch
32 (refd); Ching Mun Fong v. Standard Chartered Bank [2012] 2 SLR
22 (refd); Clarke v. Earl of Ormonde [1821] Jac 108 (refd); Dorsey
James Michael v. World Sport Group Pte Ltd [2014] 2 SLR 208 (refd);
Dunning v. Board of Governors of the United Liverpool Hospitals [1973]
2 All ER 454 (refd); Faber Merlin Malaysia Bhd v. Ban Guan Sdn
Bhd [1980] 1 MLRA 341 (refd); Hartigan Nominees Pty Ltd v. Rydge
[1992] 29 NSWLR 405 (distd); Kneale v. Barclays Bank plc (trading
as Barclaycard) [2010] EWHC 207 (refd); Kuah Kok Kim v. Ernst
& Young (a firm) [1996] 3 SLR (R) 485 (refd); Marius Schreuders
v. Grandiflora Nominees Pty Ltd [2014] VSC 310 (distd); Millar &
Another v. Hornsby & Others [2000] 3 ITELR 81 (distd); Ng Giok Oh
v. Sajjad Akhtar [2003] I SLR (R) 375 (refd); Norwich Pharmacal Co
v. Customs & Excise Commissioners [1974] AC 133 (refd); O’Rourke
v. Darbishire & Others [1920] AC 581 (distd); Re Cowin v. Gravett
[1886] 33 Ch 179 (distd); Re Londonderry’s Settlement [1964] 3 All
ER 855 (distd); Re the Internine Trust and the Intertraders Trust; Sheikh
Abdullah Ali M Alhamrani v. Russa Management Ltd & Others [2004]
JCA 158 (distd); Re Tillot, Lee v. Wilson [1892] 1 Ch 86 (distd);
Rouse & Others v. IOOF Australia Trustees Limited [1999] 2 ITELR
289 (distd); Sandra Stuart Curven & Ors v. Vanbreck Pty Ltd (as Trustee
for the WS and NR Harvey Family Trust) [2009] VSC A 284 (distd);
Schmidt v. Rosewood Trust Ltd [2003] 2 AC 709 (distd). We also had
the benefit of looking at the facts of those cases. Those cases relate
to cause of action other than contract namely, tort, succession,
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transfer of shares, etc. In the instant case, the court had failed to
consider the salient object and legal history related to pre-action
discovery order under O 24 r 7A which is a new invent of the
Rules of Court introduced in the year 2012, substantially based on
the jurisprudence advocated in the Norwich case and many other
cases inclusive of cases in Malaysia. In almost all of these cases,
the golden thread was that the application was made against third
parties and not contracting parties or parties who have contractual
nexus by contract or statute.

(d) In addition, the learned trial judge had failed to consider the
test provided in O 24 r 8 in the proper perspective, taking into
consideration the factual matrix of the case and statutory law as a
whole, thereby compromising the integrity of the decision making
process.

(e) Once the integrity of decision-making process is compromised,

the appellate court has no option but to intervene in the
discretionary power of the trial court to make just orders as the
case warrants.

[21] For reasons stated above, the appeal was allowed with costs of
RM10,000.00 subject to allocatur and set aside the order of the High Court
and deposit to be refunded.