Fadley Faisal
The High Court on February 24 granted a man time to procure documentary evidence in a civil suit arising out of a development agreement, on citing travel complications due to COVID-19.
Haji Darryl Aidin bin Haji Maidin, represented by counsel Pengiran Izad Ryan bin Pengiran Laila Kanun Diraja Pengiran Haji Bahrin, appealed against the decision of a Senior Registrar made on February 16, 2021 ordering a judgement to be entered in favour of Hii Suk Ing, represented by counsel Yieng Sie Hu, unless Haji Darryl Aidin makes and serves Hii a further and better list of documents, defence and counterclaim within 30 days.
Judicial Commissioner Edward Timothy Starbuck Woolley heard that the proceedings arose from a development agreement Haji Darryl Aidin entered into with the owner of a piece of land in Kampong Kiulap, Gadong with the intention of developing a condominium.
Hii claims that Haji Darryl Aidin, being unable to undertake the development, sought her assistance to procure a developer who could complete the project, and entered into an agreement to pay Hii 50 per cent of the sale proceeds. It was further claimed that a suitable developer was found and entered into a memorandum of understanding that Haji Darryl Aidin would sell his interest in the project for BND1,000,000. The plaintiff claims that this sum was paid, but that Haji Darryl Aidin had never accounted to her for her share being BND500,000.
Haji Darryl Aidin denied that there was a legally binding agreement with Hii, or that the payment and the sales ever took place, except that he received a sum of BND818,000 for reimbursement to him of his costs incurred to date.
The action progressed further on October 8, 2020 requiring the parties to file and serve their lists of documents, verified by affidavit, within 45 days.
Hii met the requirements on November 17, 2020 while Haji Darryl Aidin requested for an extension of time to January 9, 2021.
Haji Darryl Aidin sought for time to obtain documents from Malaysia, which he claimed was difficult owing to COVID-19 restrictions there. Hii considered it unreasonable and refused.
Hii then filed and served a summons on December 1, 2020 upon seeing no list of documents had been filed by Haji Darryl Aidin and no applications were made to the court.
A hearing was fixed for January 19, 2021. However, on January 9, 202,1 Haji Darryl Aidin filed his list of documents with verifying affidavit. Hii was not satisfied that there had been full compliance with the order for discovery, and so continued with the summons.
In his affidavit opposing the grant of the unless order, the defendant stated that he had invested in a company called ABY Sdn Bhd which had undertaken the preparatory work and, after the project had been assigned to another developer the company, “has not been in active business and most of the partners involved in the project have left Brunei. As such, most of the documents are not in my possession and it has been challenging and difficult for me to reach the partners”.
He stated that there are still documents relating to the subject matter of the proceedings that he may only obtain by making personal attendance in Kuala Lumpur. In later affidavits, he again refers to the difficulty of travel to Malaysia as a result of COVID-19 restrictions.
Justice Woolley said, “I might point out at this stage that nowhere does he say what the documents are, the names of the ‘partners’ likely to have them, where those partners reside or work, and why he has been unable to contact any of them by telephone, e-mail or letter, making his attendance in Kuala Lumpur necessary. What is clear is that they relate to the payment he claims to have received of BND818,800 of which there seems little if any other documentary evidence.”
The first ground of appeal is that the defendant complied with the order for directions by filing his list of documents on January 9, 2021 and the summons should not have been proceeded with “as the object of the Plaintiff’s application had been achieved”.
Justice Woolley observed that the defendant admits to not having complied at all in respect of some of the documents.
It is also in the court’s knowledge that the defendant admits that further documents do exist, however, Justice Woolley said, “I am far from satisfied that he has explained properly and fully his attempts, if any, to procure them.”
The court, in the appeal, further found that the order should not have been pursued as finally, despite being late, the defendant furnished a further and better list of documents.
The court also found that the defendant’s failure to procure the documentary evidence was not done out of negligence but due to circumstances, making the unless order unnecessary.
The court finally ordered Haji Darryl Aidin to be given the chance to prove himself in a full trial and granted extended time for Haji Darryl Aidin under the unless order to 30 days from the judgement date of February 24.
However, seeing that Haji Darryl Aidin’s “irresponsible and arrogant” approach in giving vague and unsupported counter claims, the court then ordered for the costs of the appeal to be borne by Haji Darryl Aidin.
