Dcn Diving Pacific Pte Ltd v Ahmad Faizal Bin Othman (WA-22NCvC-668-10/2021)

AHMAD FAIZAL BIN OTHMAN

BAZALANUL AZAM BIN YUSOF

KHAIRUL ARIF BIN AHMAD KHALIL

RUHM MARINE SDN BHD

RUHM HOLDINGS SDN BHD (NO. SYARIKAT: 1418062-V) …DEFENDAN-DEFENDAN JUDGEMENT 29/04/2025 16:42:53

The Plaintiff’s claim against the Defendants is for conspiracy in inducing a company called Del Sol Offshore Sdn. Bhd. (“Del Sol”) to breach its contract of payment to the Plaintiff.

The case proceeded to a full trial where both sides relied on the agreed statement of facts, issues to be tried, Bundle of Documents and oral evidence of witnesses. Brief facts

The undisputed fact is that the Plaintiff was awarded a sub contract by Del Sol which was the main contractor of a Petronas project in

The sub contract was for supply of diving equipment as well as manpower for a part of the project.

The Plaintiff completed its scope of work on around 3rd of May 2019 and the Plaintiff invoiced Del Sol for the payment of the same which amounted, after giving a credit note, to USD 1,908,232.64.

Part of the payment was paid leaving a balance of USD 1,399. 758. unpaid by Del Sol. Del Sol was ultimately wound up on 17/8/2021. However, the Plaintiff alleges that before being wound up, Del Sol was paid by Petronas which included the sum owed to the Plaintiff.

The Plaintiff further alleges that instead of making payment to the Plaintiff, the Defendants had conspired to transfer the sum of money owing to the Plaintiff to the 4th Defendant in which they were also Directors. Thus, this suit of conspiracy against the Defendants for inducing the breach by Del Sol.

The Defendants denied the conspiracy as they had resigned as Directors in 2019 much before the purported payment by Petronas. Their shares in Del sol had been sold to a 3rd party who is now responsible for the affairs of Del Sol.

Any help rendered by any one of the Defendants to the Plaintiff was merely to assist the Plaintiff who was hard pressed to recover the money owed.

In this case the burden of proof clearly lie upon the Plaintiff to prove conspiracy as is stipulated in the various provisions of the Evidence Act 1950. Section 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.

A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. Section 102 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.

A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to his possession. Therefore, the burden of proof is on A.

A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B. Section 103 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.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

The general meaning of conspiracy is an agreement between more than one person to do an unlawful act. In this case the Plaintiff alleges that the agreement between the Defendants is to induce a breach of contract.

In the case of SCK Group Bhd & Anor V Sunny Liew Siew Pang & Anor [2010] 2 MLRA 541 it was held: “The tort of conspiracy was not constituted by the conspiritional agreement alone. For conspiracy to take place, there must also be an unlawful object or if not in itself unlawful, it must be brought by unlawful means. There must be a co-existence of an agreement with an overt act causing damage to the appellants. Hence the tort was complete only if the agreement was carried into effect thereby causing damages to the appellants.”

The Plaintiff contends that if the corporate veil is lifted the relationship between the Defendants is clearly established as the first 3 Defendants are the parties in control of not only the 4th and 5th Defendants but also Del Sol. The sale of Del Sol’s shares to a 3rd party is a mere eye wash and the first 3 Defendants maintained control over Del Sol even after they had relinquished their Directorship and sold of their shares.

The proof that the 1st 3 Defendants maintained control over Del Sol is the various messages between the Plaintiff and one of the 3 Defendants discussing how the Plaintiff could recover the unpaid sum owed by Del Sol even after they had resigned as Directors of Del Sol.

In the Court’s view the Plaintiff’s allegation is farfetched, unsubstantiated and mere speculation. In the Court’s view an adverse inference on the sale of Del Sol shares by the first 3 Defendants to a 3rd party can only be drawn if the sale occurred immediately or within a short period of time upon Del Sol receiving payment from Petronas. In this case it is an undisputed fact is that the payment was made 2 years after the shares were sold by the Defendants.

In fact, the person who bought the Del Sol shares had approached the one of the Defendants to purchase the shares as on paper Del Sol had unrealised credit which reflected its profitability. He was therefore induced to buy the shares based on this unrealised credit owed to Del Sol and not for any other reason. This fact negated any theory of conspiracy or that the person who bought the shares was merely a proxy for the Defendants.

In short, the Defendants had disproved any illegalities in the sale of the Del Sol shares although the burden was upon the Plaintiff to prove otherwise.

Another important fact that the Court deemed to be the basis of the Plaintiff’s entire claim is the payment received by Del Sol from Petronas. Besides the mere believe by the Plaintiff that such payment was made there is not an iota of evidence on the payment by Petronas or the amount which was paid, let alone the money received was diverted to the Defendants.

Without the proof of this payment Petronas and diversion of the funds to the Defendants the whole foundation of the Plaintiff’s case collapses. A case cannot be said proven based merely on the believe of the Plaintiff.

In the Court’s view in this case the Plaintiff has failed even to show an agreement between the Defendants amounting to a conspiracy, let alone the carrying out the agreement to do so. Without proof of an agreement between the Defendants the whole theory of conspiracy collapses.

Another important omission in this case is the conspiracy must involve Del sol itself as a party to the conspiracy and have to be made a party to this suit. It was decided in the SCK group (Supra) “Next, it is significant for us to observe that although the Plaintiff’s claim alleged that Yeoh, Cheong Soon and Lim had conspired with the defendants to defraud the plaintiffs, the plaintiffs had not named these alleged co-conspirators as co-defendants in this action. The plaintiffs also did not give any reason or explanation therefore.”

The Court ruled that the Plaintiff had failed to prove on a balance of probabilities the cause of action of conspiracy against the Defendants. The Court therefore dismissed the Plaintiff’s claim with a cost of RM100,000. Dated: 29.4.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Mahathir Abdullah Tetuan Mahathir 19A-21-3A, Level 21 Business Suite, Wisma UOA Centre Jalan Pinang 50450 Kuala Lumpur. For the Defendant: Nama Peguamcara: T. Sudhar; Nadeem Rafiq; Balasubramaniam Ravi Sankar Tetuan Thangaraj & Associates, Unit D1-3A-13, Blok D-1 Solaris Dutamas No. 1 Jalan Dutamas 1 Hartamas Heights 50480 Kuala Lumpur. Nama Peguamcara: Mansur Ussaimi Bin Mohd Salleh Tetuan Mansur & Yazrudin, Unit D1-3A-13, Blok D-1 JC153, Tingkat 1, Jalan BMU 7, Bandar Baru Merlimau Utara 77300 Merlimau, Melaka.

SCK Group Bhd & Anor V Sunny Liew Siew Pang & Anor [2010] 2