P.G. DORAISAMY A/L P.GOPAL v Affin Hwang Investment Bank Berhad

Case Significance

Illustrates discovery where a claimant asserts a bank owed him duties as a non-customer under the Financial Services Act 2013: the Court of Appeal ordered production of targeted, relevant categories of documents needed to test that claim while declining an open-ended search, correcting the High Court's wholesale refusal.

This Court of Appeal decision is one of four related discovery appeals heard together under Order 24 of the Rules of Court 2012, this appeal concerning the respondent Affin Hwang Investment Bank Berhad. The appellant — a natural person and an advocate and solicitor, referred to here by role — is the plaintiff in a High Court suit who deposited over RM9 million across accounts with four investment banks and stockbroking firms from around 2013 to acquire shares in a public listed company, only to find in 2021 that no share trading accounts had been opened in his name. His discovery applications sought to establish what had happened to those deposits.

A distinctive strand of the case, relevant to a bank facing a claim by someone who was not conventionally its account-holder, was the scope of a bank's duty of care to non-customers in the setting of the Financial Services Act 2013. The appellant's position — that money he paid in was never applied to open the trading accounts represented — raised the question of what responsibilities the respondents owed him and what records would illuminate that question. Against that, the respondents relied on the objection that the applications were a "fishing expedition" and on statutory secrecy under section 43 of the Securities Industry (Central Depositories) Act 1991, all to be assessed within the requirements of Order 24 rules 3 and 7.

The court held that the High Court had erred in refusing discovery altogether. While appellate courts are cautious about disturbing discretionary interlocutory rulings, a total refusal of discovery that the appellant was in principle entitled to could not stand. The court set aside the decision below and allowed each of the four appeals in part, ordering discovery of the First and Second Category documents against the respondents, but not the Third. It set aside the High Court's costs order and made no order as to costs on the appeals.

The judgment is a useful illustration of how discovery operates where a claimant asserts a bank owed him duties as a non-customer: the court will order production of the targeted, relevant categories of documents needed to test that claim, while declining to sanction an open-ended search.