1. ) HALIL IZRAN BIN ZAHID 2. ) NAIMAH BINTI MOHAMAD NOH 3. ) SITI NURUL AIN BINTI MOHD ZAWAWI 4. ) LOW PEI FENG 5. ) YULIZAH BINTI PARDI 6. ) FATIN NURAIN BINTI KAMARUZAMAN 7. ) HARYANTI BINTI IBRAHIM 8. ) MOHD SHAHRIL BIN MOHD SHAFI 9. ) MOHD SYAFIQ BIN MOHD SHAH 10. ) NUR HIDAYAH BINTI MARZUKHI 11. ) KAMARUZAMAN BIN AMAT 12. ) MUHAMMAD HAFIZ BIN ABDUL RAHMAN SITHIRAVEL 13. ) SITI NUR AISHAH BINTI SALIMON 14. ) AZNIZA BINTI MOHAMED 15. ) WAN HABIBULLAH BINTI WAN IBRAHIM 16. ) MOHD RIZAL BIN...

Case Significance

Illustrates the limits of pre-action discovery under Order 24 rule 7A of the Rules of Court 2012 and the prohibition in rule 7A(7) on non-party discovery once proceedings are on foot, and the rule that a public authority's decision must be challenged by judicial review under Order 53 rather than collaterally.

This High Court decision at Kuala Lumpur concerns applications for discovery in a dispute between a group of house purchasers and their developer over delay in delivering vacant possession. The purchasers' underlying claim was for liquidated ascertained damages for late delivery under their sale and purchase agreements, the developer having attributed the delay to the completion of a water-supply system. The purchasers applied for discovery, in part framed as pre-action discovery under Order 24 rule 7A of the Rules of Court 2012 and in part directed at a person who was not a party to the proceedings. The court dismissed the applications. On the pre-action limb, it held that the purpose of pre-action discovery is to enable a prospective plaintiff to identify a cause of action and the proper party to sue; but here proceedings had already been commenced against the developer, so an application cast as pre-action discovery was procedurally improper. As to documents sought from a non-party, it held that Order 24 rule 7A(7) prohibits such discovery once proceedings have been commenced, so discovery against a non-party was not available at that stage. The court also treated part of the exercise as an impermissible collateral challenge to an extension of time that had been granted by the Ministry of Housing and Local Government: the proper remedy for challenging that decision was judicial review under Order 53, which the purchasers had not pursued within the prescribed time, and a discovery application could not be used to mount such a challenge sideways. Finding the applications procedurally misconceived, the court dismissed them. In each respect the applications sought to use a discovery mechanism for a purpose the rules do not permit once litigation has begun. The judgment is a useful illustration of the limits of pre-action and non-party discovery once proceedings are on foot, and of the rule that a decision of a public authority must be challenged by judicial review rather than collaterally.