Appsmiths Sdn Bhd v 1. ) Jason Kok Chin Hwa (WA-22NCvC-19-01/2023)

Decision was reserved to 3-10-24. These are my Grounds of Decision. [2] The plaintiff’s claim is based solely on the tort of conspiracy to injure the plaintiff using unlawful means: i. Committed by the 1st, 6th and 7th defendants; and ii. Committed by the 1st, 2nd, 3rd and 4th defendants. [See Statement of Claim at Bundle A1 (Enclosure 94) at pages 45 - 69] [3] Although the 5th defendant Priority Energy Services, LLC is named in the suit and in the Statement of Claim particulars, it is not involved in this trial as the plaintiff has discontinued its claim against the 5th defendant. A Notice of Discontinuance was filed dated 17-01-2024 [Enclosure 129]. Although stated with liberty to file afresh, based on the facts, no leave to discontinue with liberty to file afresh was in fact granted by the Court as required by Order 21 rule 3 of the Rules of Court 2012. [See Lee Ngan Hoo v Insp Sarawanan A/L Panrengam & Ors [2024] MLJU 1273 HC]. [4] The plaintiff is Appsmiths Sdn Bhd represented by Messrs Gan Partnership. The 1st defendant is Jason Kok Chin Hwa represented by Messrs Chellam Wong. The 2nd to 4th defendants are Kok Wei Chuen, Tai Crest Resources Sdn Bhd and Grit Energy Sdn Bhd respectively represented by Messrs Tham Teoh & Partners. The 6th defendant is Priority Artificial Lift Services, LLC represented by Messrs Azmi & Associates. The 7th defendant is Deleum Oilfield Services Sdn Bhd represented by Messrs A I Nathan. [5] The plaintiff claims against the 1st,2nd to 4th, 6th and 7th defendants for the following reliefs-a. Damages to be assessed and paid by the 1st, 2nd to 4th, 6th and 7th defendants to the plaintiff jointly and/or severally;’ b. An account and inquiry be taken for the revenue and profits earned and/or benefits made or retained by the 1st, ,2nd to 4th, 6th and 7th defendants as a result of the conspiracy; c. An Order that the 1st, 2nd to 4th, 6th and 7th defendants pay aggravated damages to the plaintiff jointly and/or severally; d. An Order that the 1st, 2nd to 4th, 6th and 7th defendants pay exemplary damages to the plaintiff jointly and/or severally; e. An Order that the 1st, 2nd to 4th, 6th and 7th defendants pay punitive damages to the plaintiff jointly and/or severally; f. Interest at the rate of 5% per annum on all sums ordered to be paid by the 1st, 2nd to 4th, 6th and 7th defendants to the plaintiff from the date when the cause of action arose until the date of judgment; g. Interest at the rate of 5% per annum on all sums ordered to be paid by the 1st, 2nd to 4th, 6th and 7th defendants to the plaintiff from the date of the judgment until full and final settlement; h. Costs on a solicitor-client basis; i. Any further and/or other reliefs that this Honourable Court deems fit and proper. [6] The 1st, 2nd to 4th, 6th and 7th defendants in their defences rejected the plaintiff’s claim. Indemnity claim by the 7th defendant against the 1st defendant [7] The 7th defendant has also in this suit filed an indemnity claim against the 1st defendant to be indemnified by the 1st defendant in the event the 7th defendant is found liable to the plaintiff. [See Bundle of Pleadings between the 7th defendant and the 1st defendant, Bundle A2 (Enclosure 121)]. Another suit [8] There is also another suit filed by the plaintiff against the 1st defendant allegedly for breach of duty of fidelity/contractual duties and/or fiduciary duties owed to the plaintiff in Kuala Lumpur High Court Suit No.: WA- 22NCC-262 [“Suit 262”]. This suit is before another Judge. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) the Statement of Claim paragraph 15 at page 50. See also First Defendant’s Witness Statement (Jason Kok Chin Hwa) WSDW1 (Enclosure 114) at Q and A 7). [9] The plaintiff’s counsel at the beginning of the trial on 17-01-2024 informed me that the plaintiff would not be leading evidence in respect of the averments in the plaintiff’s Statement of Claim at paragraphs 30.3 [d - g], [i], [l] and [q] as they relate to Suit 262. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) the Statement of Claim at pages 58 - 61]. Background Facts The parties [10] The plaintiff is involved in carrying on, establishing, organizing, managing, promoting, developing and operating oilfield services, which also include production optimization, flow assurance, digital oilfield integration, software development and any other related services. [11] The 1st defendant was the former Managing Director of the plaintiff. [12] The 2nd defendant is the father of the 1st defendant. The 2nd defendant is also one of the directors and shareholders of the 3rd defendant, as well as the sole director and shareholder of the 4th defendant. [13] The 3rd defendant is involved in the business of sales, maintenance and fabrication of flare tips, flare stacks, flare ignition equipment, flare accessories and incinerators or thermal oxidizers. The 3rd defendant holds a Petroliam Nasional Berhad (“PETRONAS”) license and conducts its business in the oil and gas industry. [14] The 4th defendant is involved in, amongst others, support activities for mining and quarrying oil and gas extraction service activities. [15] The 6th defendant is a company incorporated in the United States and involved in the manufacturing of gas lift valves ("GLV”) and accessories. [16] The 7th defendant is a company incorporated in Malaysia and involved in, amongst others, the provisions of wireline equipment and services and other oilfield related products and services for oil and gas industry. Material dates and events [extracted from Enclosures 36, 112 and 134, Common Chronology of Events] [17] On 13-10-2016 the plaintiff was incorporated. [18] On 01-01-2017, the 1st defendant was employed as the Managing Director of the plaintiff. [19] In end 2017/beginning 2018 PETRONAS invited tenders [“Tender”] for the provision of GLV and insert strings equipment, accessories and services for its subsidiary PETRONAS Carigali Sdn Bhd (“PETRONAS Carigali”). [20] By a letter of authority dated 16-01-2018, the 6th defendant (“Letter of Authority”) authorised the plaintiff as its duly appointed representative to participate in the Tender called by PETRONAS. [See Agreed Facts between the plaintiff and 6th defendant, D3 (Enclosure 112) at paragraph 2. See also Common Bundle of Documents (Part B), Bundle B2 (Enclosure 54) at page 24]. [21] On 27-08-2018, the plaintiff issued a principal support letter (“Principal Support Letter”) to the 7th defendant. [See Common Bundle of Documents (Part B), Bundle B2 Enclosure 54 at pages 28 and 36]. [22] In or around March 2019, PETRONAS Carigali awarded the Tender to the 7th defendant with a duration of three (3) plus one (1) year. [See Plaintiff’s Bundle of Documents Bundle B5 (Enclosure 117) at pages 4 - 5]. [23] On 10-06-2019, the 7th defendant issued a letter of award to the plaintiff (“Letter of Award”) as the vendor for the provision of GLV and insert strings equipment and accessories for the 7th defendant [“GLV Contract”]. [See Common Bundle of Documents (Part B), Bundle B2 Enclosure 54 at page 38]. [24] On 08-06-2020, the 1st defendant tendered his resignation as Managing Director of the plaintiff. [25] In January 2023 the plaintiff filed this suit against the defendants based solely on the tort of conspiracy to injure the plaintiff using unlawful means. [26] No prior letter of demand was ever sent by the plaintiff to the defendants alleging the tort of conspiracy to injure the plaintiff using unlawful means. Court Pleadings The pleaded case of the plaintiff [27] The plaintiff alleges two conspiracies-i. Firstly, there is an alleged conspiracy between the 1st, 6th and 7th defendants to injure the plaintiff. ii. Secondly, there is an alleged conspiracy between the 1st, 2nd, 3rd and 4th defendants to injure the plaintiff. First alleged conspiracy between the 1st, 6th and 7th defendants to injure the plaintiff [28] The pleaded case of the plaintiff is that the 1st, 6th and 7th defendants committed conspiracy to injure the plaintiff using unlawful means when instead of the plaintiff contracting directly with PETRONAS Carigali, the 1st defendant diverted the GLV Contract as follows- i. PETRONAS Carigali would order the GLV from the 7th defendant. ii. The 7th defendant would order the GLV from the plaintiff. iii. The plaintiff would order the GLV from the 6th defendant. iv. The 6th defendant would supply the GLV directly to the 7th defendant who would in turn supply the GLV to PETRONAS Carigali. [Arrangement”] [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Statement of Claim at pages 54 – 57, paragraphs 26 – 29. See also Plaintiff’s Written Submissions (Enclosure 145) at paragraph 41]. [29] The plaintiff pleaded that at all material times the plaintiff is capable of performing the GLV Contract and because of the Arrangement / said conspiracy the plaintiff has lost the GLV Contract exclusively and all the profits arising therefrom. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Statement of Claim at page 57, paragraph 29]. The Pleaded Defences of the 1st, 6th and 7th defendants [30] The 1st defendant pleaded that the plaintiff did not possess the financial capability and required facilities for the provision of the GLV. The GLV contract required three warehouses in Labuan, Kemaman and Miri and a RM 2 million bank guarantee which the plaintiff could not fulfil and hence the decision was made for the plaintiff to be a sub-contractor instead. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Amended Defence of the 1st defendant at page 82 paragraph 9 and page 84 paragraph 16]. [31] Thus, the defence of the 1st defendant is that plaintiff was not able to contract directly with PETRONAS Carigali as alleged by the plaintiff. [32] The 6th defendant denied any conspiracy to injure the plaintiff. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Defence of the 6th defendant at page 137, paragraphs 18 and 18.3]. [33] The 7th defendant denied any conspiracy to injure the plaintiff. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Defence of the 7th defendant at page 168 paragraph 15.4]. Second alleged conspiracy between the 1st, 2nd, 3rd and 4th defendants to injure the plaintiff [34] The pleaded case of the plaintiff is that the 1st, 2nd, 3rd and 4th defendants committed conspiracy to injure the plaintiff using unlawful means to deprive the plaintiff from getting the GLV Contract. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Statement of Claim at page 67 paragraph 32]. [35] The alleged conspiracy is therefore the same as the first conspiracy i.e. to deprive the plaintiff from getting the GLV Contract exclusively. The particulars of the alleged conspiracy are in the Statement of Claim at paragraphs 30 - 31. [36] However, as I have mentioned above the plaintiff’s counsel at the beginning of the trial on 17-01-2024 had informed me that the plaintiff would not be leading evidence in respect of the averments in the plaintiff’s Statement of Claim at paragraphs 30.3 [d - g], [i], [l] and [q] as they relate to Suit 262. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Statement of Claim at pages 58 - 61]. The Pleaded Defences of the 1st, 2nd, 3rd and 4th defendants [37] The 1st defendant repeated his defence that he has pleaded against the first alleged conspiracy i.e. that the plaintiff did not possess the financial capability and required facilities for the provision of the GLV. The GLV contract required three warehouses in Labuan, Kemaman and Miri and a RM 2 million bank guarantee which the plaintiff could not fulfil and hence the decision was made for the plaintiff to be a sub-contractor instead. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Amended Defence of the 1st defendant at page 85 paragraph 22.1]. [38] The 2nd, 3rd and 4th defendants in their Defence denied any conspiracy to injure the plaintiff. They aver that it is the prerogative of the 6th and 7th defendants to act in the best interest of their companies in awarding any contract to any party. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Defence of the 2nd, 3rd and 4th defendants at page 99, paragraphs 10 and 11]. Trial Process [39] The plaintiff called one witness. He is Larry Michael Peacock PW1 (“Larry”) the Chief Executive Officer and director of the plaintiff. [40] The 1st defendant DW1 testified in his own defence. [41] The 2nd – 4th defendants called the 2nd defendant DW2 to testify on their behalf. [42] The 6th defendant called Joseph Kutac DW4 [Vice President of Gas Lift for the 6th defendant] to testify on its behalf. [43] The 7th defendant called Yam Kee Joon DW3 [Technical Advisor of the 7th Defendant] to testify on its behalf. [44] Parties filed written submissions. The Issues to Be Tried Agreed by the Parties [45] The plaintiff and the 1st ,2nd to 4th and 7th defendants have filed The Agreed Issues to Be Tried dated 19-06-2023 [Enclosure 39] to be determined by this Court. The plaintiff and the 6th defendant have also filed the Agreed Issues to Be Tried dated 08-01-2024 [Enclosure 113] to be determined by this Court. These set out numerous issues to be tried. [46] However, at the conclusion of trial, counsel for the plaintiff now says, and I quote from his written submissions at Plaintiff’s Written Submissions (Enclosure 145) at paragraph 7, that-The essential basis of the Plaintiff’s case at the trial may be summarised in this way. The 1st Defendant, being the former Managing Director of the Plaintiff, has conspired together with the other Defendants by unlawful means to injure the Plaintiff. As a result, the Plaintiff has lost all the benefits and profits arising from or in relation to PETRONAS Carigali Sdn Bhd’s (“PCSB”) tender contract in terms of the supply of GLV and the provision of GLV testing using its AVT System Technology (“GLV Contract”). [47] Therefore, the real issues can now be reduced to the following-i. Whether the 1st, 6th and 7th defendants have committed the tort of conspiracy to injure the plaintiff using unlawful means? ii. Whether the 1st, 2nd, 3rd and 4th defendants have committed the tort of conspiracy to injure the plaintiff using unlawful means? iii. Whether the plaintiff is entitled to the reliefs prayed for in the Statement of Claim? Court’s analysis Sections 101 to 103 of the Evidence Act 1950 [48] I propose to begin by setting out briefly the law on burden of proof in Malaysia. The law on the burden of proof in Malaysia is governed by sections 101 to 103 of the Evidence Act 1950. Section 101 of the Evidence Act 1950 states: Burden of proof 101 (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. [49] Section 102 of the Evidence Act 1950 states: On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [50] Section 103 of the Evidence Act 1950 states: Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [51] The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel AG CJ had said- "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [Emphasis added] [52] The burden of proof therefore lies on the plaintiff to prove issues 1 to 3. Issue 1 - Whether the 1st, 6th and 7th defendants have committed the tort of conspiracy to injure the plaintiff using unlawful means? The law on conspiracy to injure [53] The law on conspiracy to injure has been settled for some time. The principles are-i. There are two separate and distinct torts of conspiracy. ii. The first is a situation where unlawful means have been used. This is known as ‘unlawful means conspiracy or wrongful means conspiracy’. The plaintiff need not prove that there has been a predominant intention on the part of the conspirators to injure him. iii. The second is a situation where lawful means have been used. This is known as ‘unlawful means conspiracy or simple conspiracy’ or ‘conspiracy to injure’. Unlike the first category, this second category requires that the plaintiff proves that there has been a predominant intention on the part of the conspirators to injure him. [See the House of Lords decision of Lornho plc v Fayed [1992] 1 AC 448 and Global Ventures Network Sdn Bhd v Lokman bin Dato’ Mohd Kamal and another appeal [2018] 6 MLJ 103 CA at [18] per Mary Lim JCA]. iv. The agreement to injure can be inferred from the acts of the conspirators. There need not be a written agreement to injure. [See Deepak Jaikishan a/l Jaikishhan Rewachand & Anor v Intrared Sdn Bhd (previously known as Reetaj City Centre Sdn Bhd and formerly known as KFH Reetaj Sdn Bhd) & Anor [2013] 7 MLJ 437 HC at [100] per Nallini Pathmanathan J citing Kuwait Oil Tanker Co SAK and another v Al Bader and others [2000] 2 All ER (Comm) 271 English CA]. v. To prove the tort of conspiracy by unlawful means a plaintiff must prove-

There was an agreement between two or more persons to injure the plaintiff. It is sufficient to prove that the conspirators have acted in combination with the common intention to injure the plaintiff and this can be inferred from the overt acts of the conspirators;

The intention to injure the plaintiff need not be the predominant intention of the conspirators;

The conspirators used unlawful means to injure the plaintiff. It is not a defence that their primary purpose was to further or protect their own interests; and

The conspirators’ unlawful acts have resulted in loss or damage to the plaintiff. [See SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 CA at [14] per Low Hop Bing JCA] vi. The burden is on the plaintiff to prove there is a conspiracy agreement among the conspirators to injure him. [See Kang Hai Holding Sdn Bhd v Megafest Sdn Bhd (in liquidation) & Ors and another appeal [2020] 6 MLJ 464 CA]. vii. The plaintiff will have to prove conspiracy on a balance of probabilities now that the Federal Court has said this is the standard of proof to be applied to all civil claims including for civil fraud. [See Sinnaiyah and Sons v Damai Setia [2015] 5 MLJ 1 FC]. Application of law to facts Allegation by plaintiff [54] As stated earlier the plaintiff asserts that due to the two conspiracies the plaintiff did not contract directly with PETRONAS Carigali, the 1st defendant together with the rest of the defendants diverted the GLV Contract to the defendants and thus the plaintiff has lost the GLV Contract and the profits arising therefrom. Defence of the 1st defendant [55] The 1st defendant in his defence pleaded that the plaintiff did not possess the financial capability and required facilities to tender for the GLV Contract exclusively. The GLV contract required three warehouses in Labuan, Kemaman and Miri and a RM 2 million bank guarantee which the plaintiff could not fulfil and hence the decision was made for the plaintiff to be a sub-contractor instead. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Amended Defence of the 1st defendant at page 82 paragraph 9 and page 84 paragraph 16]. Analysis by Court [56] I agree with the defence of the 1st defendant. In my view the plaintiff has failed to prove conspiracy by the defendants. The 1st requirement that - “There was an agreement between two or more persons to injure the plaintiff. It is sufficient to prove that the conspirators have acted in combination with the common intention to injure the plaintiff and this can be inferred from the overt acts of the conspirators” – is clearly not proven. [57] The plaintiff has failed to prove PETRONAS Carigali would have awarded to it the GLV Contract if it had bid for the tender and failed to prove the 2nd to 4th, 6th and 7th defendants had conspired with the 1st defendant to prevent a bid from the plaintiff. [58] Not only is there no evidence of any conspiracy as alleged, the 1st defendant in fact did send an email dated 24-05-2018 to the Chief Operating Officer of Appsmith Global one Joel Rodgers giving an update on the requirements to bid for the GLV Contract. Joel Rodgers in an email dated 25-05-2018 replied that “I don’t think we have the cash flow to do this. We may need to kill it”. [See Common Bundle of Documents (2) (Part B) Bundle B3 (Enclosure 73) email dated 24-05- 2018 and Reply email dated 25-05-2018 at page 176]. Adverse inferences [59] Joel Rodgers was never called by the plaintiff to testify. No witness from PETRONAS Carigali was also called to support the plaintiffs’ case that PETRONAS Carigali would have awarded to it the GLV Contract if it had bid for the tender. [60] The failure of the plaintiff to call Joel Rodgers or a witness from PETRONAS Carigali to testify to support the plaintiff’s case can only give rise to an adverse inference under section 114 Illustration [g] of the Evidence Act 1950 that if they were to testify, their evidence would affect the plaintiff adversely. [See Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515 at [92] HC per Nallini Pathmanathan J and Marappan A/L Muthusamy v R Sivam A/L Ramasamy [2014] 4 MLJ 428 at [28] CA per Rohana Yusuf JCA]. Testimony of the 1st defendant [61] The 1st defendant has testified that looking at the Tender requirements it was clear the plaintiff did not possess the financial capability to provide a RM 2 million bank guarantee and fulfil the GLV contract requirement to have three warehouses in Labuan, Kemaman and Miri. [See First Defendant’s Witness Statement (Jason Kok Chin Hwa) (Enclosure 114) (WSDW1) Q and A 12 - 14]. I find his testimony credible. This evidence has not been contradicted by the plaintiff witness Larry Michael Peacock PW1 to my satisfaction. [62] I also find that the subsequent actions of the 1st defendant to still get a role for the plaintiff as a ‘middleman’ in the GLV Contract in the Arrangement had in fact benefited the plaintiff. Instead of getting zero the plaintiff gets a cut in the deal. The Arrangement, to recap was-i. PETRONAS Carigali orders GLV from the 7th defendant. ii. The 7th defendant orders the GLV from the plaintiff. iii. The plaintiff orders the GLV from the 6th defendant. iv. The 6th defendant supplies the GLV directly to the 7th defendant. v. The 7th defendant supplies the GLV to PETRONAS Carigali. [63] The Arrangement had benefited the plaintiff as it had earned a total revenue of RM 7,855,118 in the year 2019 [See Plaintiff’s Bundle of Documents Bundle B5 (Enclosure 117) at page 34] and RM 209,676 in 2020 a covid year [See Plaintiff’s Bundle of Documents Bundle B5 (Enclosure 117) at page 63]. [64] My finding that conspiracy is not proven is further supported by the fact that neither Joel Rodgers from its US Head office nor Larry Michael Peacock PW1 the Chief Executive Officer and director of the Plaintiff queried why the 1st defendant didn’t get the GLV Contract exclusively for the plaintiff or objected to being a ‘middleman’ taking a smaller cut. No proof from Larry Michael Peacock PW1 [65] Larry Michael Peacock PW1 also never produced any evidence that the plaintiff was able to provide a RM 2 million bank guarantee and fulfil the GLV contract requirement to have three warehouses in Labuan, Kemaman and Miri as required by PETRONAS Carigali. [66] All Larry Michael Peacock PW1 could say during the trial was that the plaintiff can borrow this RM 2 million [See Notes of Proceedings (Enclosure 138) at page 133] and rent three warehouses in Labuan, Kemaman and Miri. [See Notes of Proceedings (Enclosure 138) at page 24]. I view these statements as after-thoughts and self-serving. No such suggestions from Joel Rodgers from its US Head office nor Larry Michael Peacock PW1 the Chief Executive Officer and director of the plaintiff are documented at the material time of Tender. [67] The witness for the 6th defendant Joseph Kutac has testified that the plaintiff’s allegation of conspiracy is not true at all. As far as the 6th defendant is concerned he testified that the 6th defendant will supply the GLV to any party that orders from it. I find his testimony credible. [68] The witness for the 7th defendant Yam Kee Joon has testified that the plaintiff’s allegation of conspiracy is not true at all. He testified that the 7th defendant had dealt at all times with the 1st defendant in good faith and was awarded the GLV Contract by PETRONAS Carigali based on its own network and connections I find his testimony credible. [69] The plaintiff tried to support its allegation of conspiracy against the defendants on the ground that the orders from the 7th defendant placed with the plaintiff dropped in the years 2020 and onwards. [70] However, in the Letter of Award dated 10-06-2019 [See Common Bundle of Documents (Part B) Bundle B (Enclosure 54) at pages 38 - 43], there is a commitment clause (cl. 1.2) and a non-exclusivity clause (cl. 14). Both clauses state that any commitment from the 7th defendant to the plaintiff to acquire GLV is contingent upon the issuance of specific purchase orders and, crucially, provides that the Letter of Award to the plaintiff is non-exclusive, in that the 7th defendant has reserved its right to acquire the GLV from suppliers other than the plaintiff. [71] In conclusion, I reject the claim of conspiracy. Issue 2 - Whether the 1st, 2nd, 3rd and 4th defendants have committed the tort of conspiracy to injure the plaintiff using unlawful means? [72] This second conspiracy is also based on the same premise to injure the plaintiff using unlawful means to deprive the plaintiff from getting the GLV Contract exclusively. [See Amended Bundle of Pleadings

Bundle A1 (Enclosure 94) Statement of Claim at page 67, paragraph The particulars started from paragraphs 30 - 31]. [73] The particulars of the alleged conspiracy are in paragraphs 30 - 31. I observe that the particulars are drafted widely to give the impression of a grand scheme to injure the plaintiff. But in reality, a careful perusal shows that the particulars all or mainly relate to alleged breaches of fiduciary duties owed by the 1st defendant to the plaintiff and on matters totally unrelated to the alleged conspiracy to injure the plaintiff using unlawful means to deprive the plaintiff from getting the GLV Contract. [74] In fact, as I have mentioned above the plaintiff’s counsel at the beginning of the trial on 17-01-2024 had informed me that the averments in the plaintiff’s Statement of Claim at paragraphs 30.3 [d - g], [i], [l] and [q] all relate to Suit 262. [75] There are no particulars linking the 2nd, 3rd and 4th defendants to the Arrangement. Events and acts by the 1st, 2nd, 3rd and 4th defendants post the Tender and award of the GLV Contract cannot be interpreted to support the existence of a conspiracy. What is important is that these events and acts do not at all support the plaintiff’s allegation that the 1st, 2nd, 3rd and 4th defendants conspired together to prevent the plaintiff from getting the GLV Contract exclusively but instead to set up the Arrangement. [76] The 1st defendant repeated his defence against the first alleged conspiracy i.e. that the plaintiff did not possess the financial capability and required facilities for the provision of the GLV. The GLV contract required three warehouses in Labuan, Kemaman and Miri and a RM 2 million bank guarantee which the plaintiff could not fulfil and hence the decision was made for the plaintiff to be a sub-contractor instead. [See Amended Bundle of Pleadings Bundle A1 (Enclosure 94) Amended Defence of the 1st defendant at page 85 paragraph 22.1]. [77] After the 1st defendant has resigned from the plaintiff there is nothing wrong in law if he joined forces with his dad in business or if he has business dealings with the rest of the defendants. That may or may not be a breach of any fiduciary duty owed to the plaintiff but this issue is the subject matter in Suit 262 and not relevant in the suit before me. [78] In view of my finding on the first conspiracy, there is again no basis to support this second conspiracy. I therefore dismiss it. Issue 3 - Whether the plaintiff is entitled to the reliefs prayed for in the Statement of Claim? [79] In view of my findings on the first and second conspiracies, I rule that the plaintiff is not entitled to the reliefs prayed for in the Statement of Claim. Other Issues [80] Submissions were also made before me on certain issues that would become relevant if I had ruled there were indeed the two conspiracies. For completeness, I shall answer them. These issues are-i. Whether this Honourable Court may order assessment of damages as prayed for by the plaintiff? ii. Whether this Honourable Court may order damages be assessed in conjunction with an account and inquiry be taken? iii. Whether a corporate plaintiff can be granted aggravated and exemplary damages? Whether this Honourable Court may order assessment of damages as prayed for by the plaintiff? [81] The plaintiff contends I can make an order for assessment of damages as it was prayed for by the plaintiff in its paragraph 34(a) of the Plaintiff’s Statement of Claim. The plaintiff relies on Labuan Ferry Corp Sdn Bhd v Chin Mui Kien (trading under the name and style of Econ Focus Enterprise) & Ors and other appeals [2018] 3 MLJ 256 CA, Rathnavel s/o Packirisamy & Ors v Koperasi NLFCS Bhd [2022] 3 MLJ 319 CA, Infra Elite Development Sdn Bhd v Pacific Treasure Land Sdn Bhd [2002] 6 MLJ 545 HC and Pertama Makmur Sdn Bhd v Hong Leong MSIG Takaful Bhd (formerly known as Hong Leong Tokio Marine Takaful Bhd) [2017] 10 MLJ 506 HC. [82] I don’t agree with the plaintiff. The Federal Court in a recent decision of Golden Star & Ors v Ling Peek Hoe & Anor & Another Appeal [2024] 4 MLRA 345 FC held- [10] … we pause to remind that unless specifically ordered by the trial judge before the start of proceedings or unless there is consent between the parties, a trial judge must always run the trial in its entirety and not leave some part of the decision-making to another occasion; or worse, to another person such as the Registrar in this case… [11] The bifurcation of the conduct of any trial should only be carried out in the most necessary and appropriate cases. Courts should avoid conducting trials in truncated fashion or instalments as it frequently leads to a waste of valuable resources and time, unnecessarily prolonging time spent in Court in the final analysis. … [83] In the case before me, I had not ordered the bifurcation of the trial. There was also no consent by parties to decide liability first. Whether this Honourable Court may order damages be assessed in conjunction with an account and inquiry be taken? [84] The plaintiff contends I can make an order for damages be assessed in conjunction with an account and inquiry be taken. The plaintiff relies on Island Records Ltd v Tring International plc and another [1995] 3 All ER 444, Honda Giken Kogyo Kabushiki Kaisha (also known as ‘Honda Motor Co Ltd’) v MForce Bike Holdings Sdn Bhd & Anor [2021] 6 MLJ 594 CA and Honda Giken Kogyo Kabushiki Kaisha v Mforce Bike Holdings Sdn Bhd [2023] 1 LNS 1158 HC. [85] I agree with the plaintiff. In Honda Giken Kogyo Kabushiki Kaisha (also known as ‘Honda Motor Co Ltd’) v MForce Bike Holdings Sdn Bhd & Anor [2021] 6 MLJ 594 CA the Court of Appeal did make such an order-an inquiry as to damages in respect of the plaintiff’s wrongful infringement of the defendant’s copyright or at the defendant’s option, an account of profits and payment to the defendant of all sums found due upon taking such inquiry or account. Whether a corporate plaintiff can be granted aggravated and exemplary damages? [86] In my view a corporate plaintiff cannot be granted aggravated damages. [See Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 1 LNS 62 at [91] CA, Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 English CA, Pearson Hardman Industries (M) Sdn Bhd v Mes Technoservice Malaysia Sdn Bhd [2021] 1 LNS 2197 HC and Golden Season Pte Ltd and others v Kairos Singapore Holding Pte Ltd and another [2015] SGHC 38]. [87] A corporate plaintiff can be granted exemplary damages. [88] I thank counsel for the parties for their submissions which have greatly assisted me.

[89] For the reasons above, I dismiss the plaintiff’s suit with costs of RM 50,000 to the 1st defendant, costs of RM 30,000 to the 2nd to 4th defendant, costs of RM 30,000 to the 6th defendant and costs of RM 30,000 to the 7th defendant subject to allocatur. Indemnity claim by the 7th defendant against the 1st defendant [90] I dismiss the indemnity claim by the 7th defendant against the 1st defendant with costs of RM 20,000 to the 1st defendant subject to allocatur. …………(signed)………….. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 03 October 2024. COUNSEL: 1) Gan Khong Aik, Lee Sze Ching and Cheah Zhi Qian (Pupil in Chamber) for plaintiff. (Gan Partnership (Kuala Lumpur)) 2) Ramesh Kanapathy and Tharshana Sivananthan for 1st defendant. (Chellam Wong (Kuala Lumpur)) 3) Law Cheun Yao and Teoh Tiong Jin for 2nd, 3rd and 4th defendants. (Tham Teoh & Partners (Kuala Lumpur)) 4) Mohd Wafiy bin Azman, Wardah Yumna binti Yunus and Ahmad Iqbal Rohaizan (Pupil in Chamber) for 6th defendant. (Azmi & Associates (Kuala Lumpur)) 5) Nav Singh and Aimy Qisteena binti Mohamad for 7th defendant. (A I Nathan (Kuala Lumpur)) LEGISLATION REFERRED TO: 1) Order 21 rule 3 of the Rules of Court 2012. 2) The Evidence Act 1950 Sections 101, 102, 103 and 114 Illustration [g]. CASES REFERRED TO: 1) Deepak Jaikishan a/l Jaikishhan Rewachand & Anor v Intrared Sdn Bhd (previously known as Reetaj City Centre Sdn Bhd and formerly known as KFH Reetaj Sdn Bhd) & Anor [2013] 7 MLJ 437 HC. 2) Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 English CA. 3) Global Ventures Network Sdn Bhd v Lokman bin Dato’ Mohd Kamal and another appeal [2018] 6 MLJ 103 CA. 4) Golden Season Pte Ltd and others v Kairos Singapore Holding Pte Ltd and another [2015] SGHC 38. 5) Golden Star & Ors v Ling Peek Hoe & Anor & Another Appeal [2024] 4 MLRA 345 FC. 6) Honda Giken Kogyo Kabushiki Kaisha (also known as ‘Honda Motor Co Ltd’) v MForce Bike Holdings Sdn Bhd & Anor [2021] 6 MLJ 594 CA. 7) Honda Giken Kogyo Kabushiki Kaisha v Mforce Bike Holdings Sdn Bhd [2023] 1 LNS 1158 HC. 8) Infra Elite Development Sdn Bhd v Pacific Treasure Land Sdn Bhd [2002] 6 MLJ 545 HC. 9) Island Records Ltd v Tring International plc and another [1995] 3 All ER

10) Kang Hai Holding Sdn Bhd v Megafest Sdn Bhd (in liquidation) & Ors and another appeal [2020] 6 MLJ 464 CA. 11) Kuwait Oil Tanker Co SAK and another v Al Bader and others [2000] 2 All ER (Comm) 271 English CA. 12) Labuan Ferry Corp Sdn Bhd v Chin Mui Kien (trading under the name and style of Econ Focus Enterprise) & Ors and other appeals [2018] 3 MLJ 256 CA. 13) Lee Ngan Hoo v Insp Sarawanan A/L Panrengam & Ors [2024] MLJU 1273 HC. 14) Lornho plc v Fayed [1992] 1 AC 448. 15) Marappan A/L Muthusamy v R Sivam A/L Ramasamy [2014] 4 MLJ 428 at [28] CA. 16) Pearson Hardman Industries (M) Sdn Bhd v Mes Technoservice Malaysia Sdn Bhd [2021] 1 LNS 2197 HC. 17) Pertama Makmur Sdn Bhd v Hong Leong MSIG Takaful Bhd (formerly known as Hong Leong Tokio Marine Takaful Bhd) [2017] 10 MLJ 506 HC. 18) Raja Chandranath Roy v. Ramjai Mazumdar [1870] 6 BLR 303. 19) Rathnavel s/o Packirisamy & Ors v Koperasi NLFCS Bhd [2022] 3 MLJ 319 CA. 20) Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 1 LNS 62 at [91] CA. 21) Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515 at [92] HC. 22) SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 CA. 23) Selvaduray v Chinniah [1939] MLJ 253 SC. 24) Sinnaiyah and Sons v Damai Setia [2015] 5 MLJ 1 FC.