Encik Wajdi Bin Mohamad v Cik Nur Shazwan Binti Shahdan (BA-22NCVC-2-01/2017)

MAHASURIA BINTI IDRIS

FAHRURAZI BIN HUSSAIN

SAFARI BIN SHAHRUDDIN (NO.KP: 740305-10-5385) ...DEFENDANTS JUDGMENT A. INTRODUCTION [1] The Plaintiff’s claim inter alia for general damages arising from the Defendants’ breach of the terms in their contract of employment. The said breach in respect of the each of the Defendants is as follows: - 2 [a] 1st Defendant - acting in conflict of interest and failed to supervise the 3rd Defendant which result to the improper accounting that caused the Payment Vouchers (PV) to go missing. The 1st Defendant also breached Discretionary Authority Limit (DAL) when she approved payments vouchers exceeding her authorized limit of approval to various companies, IT personnel and to herself. [b] 2nd Defendant - acting in conflict of interest contrary to the terms of letter of appointment, Staff Manual (Exhibit P4), and DAL. [c] 3rd Defendant - failed to maintain proper account of the Plaintiff and caused payment vouchers to go missing and failed to handle the finance department and has acted in contrary with his appointment letter and P4. [2] The damages sought by the Plaintiff are as follows: - [a] General damages in the amount of RM3,958,048.90 against the 1st Defendant; [b] General damages in the amount of RM962,220.00 against the 2nd Defendant; and 3 [c] General Damages in the amount of RM1,879,811.90 against the 3rd Defendant. [d] Interest at 5% per annum for the Judgement sum calculated from the date of filing of Writ Summons until realisation; and [e] Costs. B. BRIEF FACTS [3] The Plaintiff is a private limited company running a business, inter alia, in implementing human capital development program and the employer to all the Defendants. [4] All the (3) three Defendants are the employees of the Plaintiff. [5] The Plaintiff appointed a company registered as Saff Testing and Supervising Services (Saff Tass) via the letter dated 13.2.2012 as a Trainer Provider for the Leader Series Program for a contract value of RM 900,000.00. A total payment of RM 909,720.00 has been paid to Saff Tass. 4 [6] The Plaintiff also via its letter of appointment dated 11.7.2014 and 14.10.2014 appointed a registered company NRS Training Consultancy Sdn Bhd ("NRS") as a Trainer Provider for the same program. The value of the contract awarded to the NRS is RM 5,000.00 and RM 37,500.00 respectively. A total payment which has been paid out to NRS is RM 52,500.00. [7] The Plaintiff claimed that the 1st and 2nd Defendants were in conflict of interest when they influenced and manipulated the selection and nomination of the trainer provider which led to the appointment of Saff Tass and NRS in contradiction with the terms of their employment and P4. Their action also had led to the payment of RM 909,720.00 and RM 52,500.00 to Saff Tass and NRS, according to the Plaintiff, were in contrary with DAL because the 1st and 2nd Defendants’ vested interest in the two companies. [8] The Plaintiff also claimed that the 1st Defendant as Senior General Manager (SGM) and effectively as the Head of the Corporate Services department failed to supervise the 3rd Defendant who was the Head of Finance resulting in the latter failing to maintain proper accounts of the company 5 which result to the improper accounting that caused the PV amounting RM1,879,811.90 to go missing. [9] The details of lost PVs under the supervision of 3rd Defendant are as follows: No. PV Date PV Number Pay to Cheque No Amount

17/02/12 4201 Cimb Bank Berhad Cimb 358,059.35 2. 24/05/12 PV-000256 Cimb Bank Berhad Autopay 9,500.00 3. 21/06/12 P V- 0003G1 Cimb Bank Berhad Cimb 179,769.38 4. 01/08/12 PV-000411 Cash Cimb 10.000.00 5. 20/03/13 PV-001057 Shenviro Hall Sdn Bhd Cimb 99,250.00 6. 23/06/14 PV-002485 Cimb Bank Berhad Cimb 219,948.78 7. 25/09/14 PV-002745 Might Meteor Advanced Manufacturing Sdn Bhd Cimb 1.000.000.00 8. 30/09/14 PV-002876 Cimb Islamic Bank Berhad Cimb Islamic 3,284.39 TOTAL 1,879,811.90 6 [10] In their defence, the 1st and 2nd Defendants contended that the selection and appointment of Saff Tass and NRS was not under their authority or control. The alleged payments were processed after the project department approves “good to be paid”. The PVs then were be prepared by the Finance Executives, checked by Finance Manager while the 1st Defendant only verified and finally approved by the Managing Director or the Board of Directors. All the payments vide the payment vouchers actually had gone through the proper payment procedure as in the MMAM-QP-04 form. The 1st Defendant was not the ultimate approving signatories and the payment approval was actually given to the Managing Director and do not have absolute power to approves the cheques. Furthermore, the claim by the Plaintiff did not surfaced during the company’s annual audit in the year 2012, 2013 and 2014. [11] The 3rd Defendant vide his Statement of Defence pleaded the letter of termination dated 31.3.2015 did not state the ground that he was negligence or had failed to handled the Finance department and did not show that he had misused the authority or money of the company causing the RM1,879,811.00 be suffered by the Plaintiff. All the payment vouchers and other documents 7 entrusted to him were in proper condition and safekeeping when he left the Plaintiff on 30.4.2015. He denied causing the lost of the PVs amounting to RM1,879,811.00 because it were prepared by the executives or secretaries of the Plaintiff. All the PVs had gone through the proper payment procedure in the MMAM-QP-04 form. He also denied his involvement in the overall selection and appointment of Saff Tass and NRS but only involved in the preparation of the appointment letter only after it was agreed by the management. [12] All the Defendants contended that they have no personal knowledge about the investigative audit conducted by Aftaas Corporate Advisory Services Sdn Bhd (AFTAAS) as they no longer working with the Plaintiff at the time of the audit. They were not called to give explanation against all the allegations against them. The Plaintiff appointed AFTASS for the purpose to audit the adequacy of the internal control within the current system and improvement recommendation thereon and cause or reason for fraudulent act where applicable. 8 C. LIST OF WITNESSES [13] In the course of the trial, there are 8 witnesses had given their evidence, namely; [a] The Plaintiff’s Witnesses [i] PW 1 Norhuda binti Nordin – General Manager of the Plaintiff. [ii] PW 2 Don Rashid bin Mustafa – Auditor of AFTAAS Corporate Advisory Services Sdn Bhd. [iii] PW 3 Abd Halim bin Mohd Bisri-Director of the Plaintiff [iv] PW 4 Amirul Faiz bin Mohamed Adib-Account Executive of the Plaintiff. [v] PW 5 Zarina binti Husin - Director of NRS company and the spouse of the 2nd Defendant; [b] The Defendants’ Witnesses [i] DW 1 MahasuriabintiIdris–1st Defendant. [ii] DW 2 Fahrurazi bin Hussain – 2nd Defendant. [iii] DW 3 Safari bin Shahrudin - 3rd Defendant. 9 D. AGREED ISSUES TO BE TRIED [14] 1st Issue: Whether all the Defendants had breached the terms of letter of appointment, P4 and DAL in approving payments to the 3rd parties and to themselves. [15] 2nd Issue. Whether the Plaintiff is entitled to recover the losses suffered arising from the act of the Defendants. E. EVALUATION AND FINDINGS [16] 1st Issue: Whether all the Defendants had breached the terms of letter of appointment, P4 and DAL in approving payments to the 3rd parties and to themselves. [17] It was not disputed that the 1st Defendant holds the post of the SGM and also the Head of Corporate Service Department of the Plaintiff appointed on 10.2.2011. The 2nd Defendant was the Senior Manager of the Plaintiff appointed on 31.7.2010 while the 3rd Defendant was employed on 17.6.2010 as Senior Manager Corporate Services who was responsible to finance matters of the Plaintiff. It was also not disputed by the both parties as to the terms contained in the appointment letters, P4 and DAL. 10 [18] I took cognizance and the evidence of PW 1 that by the letter of appointments of the Defendants in Exhibit P1, P2 and P3 respectively, where the Defendants are bound by the terms and conditions contained therein, inter alia; "GENERAL CONDITIONS

You shall not at any time during the duration of the appointment directly or indirectly without prior written consent of the Company, engage or interest yourself, whether for reward or gratuitously in any work or business other than in respect of your duties to the Company.

You must comply with the organisation's rules, instructions and regulations embodied in the Staff Manual or however styled they may be, which are in force from time to time." 11 [19] At the same time, by the P4 also contained the relevant terms in respect of the conflict of interest in relation to employer and employee position of which the Defendants must adhered. The relevant Section 2 of P4 prohibits staff involvement in activities related to conflict of interest as well as breach of trust.

2.2 "Conflict of Interest"

2.2.1 Semasa dalam perkhidmatan, staf MMAM tidak dibenarkan mellbatkan diri secara langsung atau tidak langsung, tanpa mendapat kebenaran bertulis daripada pihak Pengurusan untuk rrielibatkan diri dalam kegiatan atau perniagaan yang membawa keuntungan kepada diri individu tersebut.

10.2 “Salahlaku”

10.2.1 Salahlaku ditafsirkan sebagai kesalahan atau kelakuan yang tidak patut dilakukan yang mana tidak berterusan dalam memenuhi syarat yang terdapat dalam kontrak perkhrdmatan. Ini termasuklah tidak mematuhi peraturan dan 12 syarat-syarat perkhidmatan, tingkahlaku yang boleh mengakibatkanpertelingkahan di antara staf bawahan dengan Pegawai atasan dan juga kelakuan tidak bermoral yang boleh menjatuhkan maruah organisasi darisegi padangan umum, operasi serta perniagaan.

10.2.2 Jika berlaku salahlaku di kalangan staf seperti yang dinyatakan maka, MMAM berhak mengambil tindakan disiplin yang sewajamya.

10.3 “Kategori Salahlaku dan Tindakan”

10.3.1 Kategori I i) Jenis salahlaku a) Kegagalan mematuhi arahan yang berpatutan b) -g) ... h) Bersubahat dengan staf yang lain dalam melakukan kesalahan-kesalahan di atas.

10.3.2 Kategori II i) Jenis salahlaku a) - b) 13 c) Menyebarkan maklumat sulit syarikat kepada umum. d) -k) I) Menyalahgunakan wang atau pun peralatan Pejabat untuk kepentingan peribadi. [20] In furtherance to the above,it is clear from the evidence that effective from 1.3.2014, the Plaintiff has enforced the DAL which provides for the following:

“Payment Vouchers / Purchase Orders” No.

Nilai sehingga

Nilai sehingga

Nilai sehingga RM 1,000,000.00

Nilai melebihi RM 1,000,000.00 Consultant & Executive Director Board of Director 14 [21] The Plaintiff submitted that 1st and 2nd Defendants by virtue of their senior positions in the Corporate Services department, Business Development department and the Capacity Building department were involved in the selection and appointment of Saff Tass and/or NRS and had greatly influenced the selection process since they have interest in both the companies. Therefore all the training contracts that were awarded to Saff Tass were as good as they were awarded to NRS directly. [22] The 1st and 2nd Defendants testified that the involvement of NRS and the 1st Defendant’s husband as the soft skill trainer was carried out by the project department who was given freedom and authority to select. Both of the Defendants contended that Saff Tass was not the proxy of NRS instead admitted that the former was the subcontractor to the latter. It follows that NRS had utilised Saff Tass as vehicle to receive the contract to carry the work and received the payments. [23] At this instance, I take note that the position of subcontractor was never pleaded by the Defendants and there is no evidence as to show the status of Saff Tass as 15 the subcontractor of NRS. In addition, the 1st Defendant also had admitted that she had introduced Saff Tass to her husband or NRS and also testified that Saff Tass was the subcontractor of NRS. With this position, I am of the view that NRS have also received benefits from all the training contracts that were awarded to Saff Tass by the Plaintiff. [24] The Plaintiff also submitted that the 1st and 2nd Defendants were in fiduciary relationship with the Plaintiff as its employee and specifically there was a relationship of trust and confidence between both parties and have acted for their own benefit without informing the Plaintiff of their interest in SaffTass and NRS.The 2nd Defendant was also a shareholder 30,000 units in the NRS. The selection and appointment of Saff Tass and NRS companies were made by all the Defendants Based on the results of the audit inquiry by AFTAAS by PW 2 that the following persons have acted as 1st and 2nd Defendants or nominees in both companies as follows: 16 [a] Zarina binti Husin (PW4), Director of NRS company and the spouse of the Second Defendant; and

Nabilia binti Naharuddin, Director of NRS company and shareholder (40,000 units) and the daughter of the 1stDefendant. [25] The 1st and 2nd Defendants submitted that it has always been the norm and practice of the Plaintiff to engage in a smart-partnership way of business whereby oftentimes, the Plaintiff would appoint staff, relatives or spouse and friends of the staff whom are PMSB certified, to provide training services. The 1st and 2ndDefendants had also given evidence that this norm and practice can also be seen through the conduct of the Plaintiff’s then Managing Director, Puan Jasmin Baba whereby her immediate family members had received contracts and/or jobs from the Plaintiff. Furthermore, there was no proof of proxy and any unlawful gains that the 1st and 2ndDefendants benefitted from the said appointment of NRS and Saff Tass. [26] Having this in mind, I of the view that the failure of the 1st and 2ndDefendants to notify or inform the Plaintiff of the involvement of the member of their family in Staff Tass and 17 NRS is an obvious conflict of interest to the Plaintiff. The 1st Defendant should not place herself in a position where her duty and her interest is in conflict especially by virtue of the mother and daughter relationship. It also raised a reasonable assumption that such interest exist when the 1st Defendant’s daughter is the director and shareholder of NRS. In addition, it was not disputed that the manager of NRS is the husband of the 1st Defendant. I find that 1st Defendant had acted in conflict of the Plaintiff’s interest when she introduced NRS to Staff Tass who eventually being awarded the contract by the Plaintiff. In such a case, I am of the view that the 1st Defendant had breached the terms of the staff manual where she had the obligation to refrain herself from the conflict of interest. [27] As to the 2nd Defendant, by virtue of his position as a shareholder in NRSof 30,000 unit shares, it is no doubt that the 2nd Defendant would receive some benefit. It is elementary principle or working of the company law that a shareholder of a private limited company will be paid dividend declared based on the end year profit of the company. Thus, I am satisfied that there is a conflict of interest of both Defendants in the award of the Plaintiff’s project 18 due to the shareholdings of 1st Defendant’s daughter and the 2nd Defendants himself in NRS. [28] It is well established that a contract of employment is a contract of confidence and trust. Sometimes it is called a contract of fidelity. It is also equally established in law that such term is implied in a contract of employment. What it means that the employee must not place himself in a position where his interest conflict with the interest of his employer.(see Stamford College Petaling Jaya v Loi Fook Seng [1994] 2 MELR 520; [1994] 2 ILR 679.) [29] In Zaharen Haji ZakariavRedmax Sdn Bhd & Other Appeals [2016] 7 CLJ 380, the Court of Appeal states that: “A fiduciary duty requires an employee to act in the interests of his employer, whereas the duty of fidelity requires an employee to have regard to his employer's interests. Inherent in that duty to have regard to his employer's interests must be a duty not to act in a manner which would be to disregard his employer's interests. Such acts must include acts that are inherently detrimental to his company's interests”. 19 [30] The New South Wales Supreme Court in Digital Plus Pty. Limited v. Christopher Hamis & Ors [2002] NSWSC 33, speaking on an employee's obligation to act with good faith and fidelity stated:- "An employee has a duty to act in the interests of the employer with good faith and fidelity. That duty is implied in every contract of employment if it is not otherwise imposed by an express term. In addition, the duty is imposed upon every employee by the law of fiduciaries, the relationship of employer and employee being recognizes as a paradigmatic fiduciary relationship. The duty of loyalty requires that an employee not place himself or herself in a position in which the employee's own interest in a transaction within the sphere of the employer's business operations conflicts with the employee's duty to act solely in the employer's interest in relation to that transaction. A fortiori, an employee may not take for himself or herself an opportunity within the sphere of the employee's business operations without the employer's fully informed consent." 20 [31] In Attorney General v. Blake [1998 w WLR 805], the English Court of appeal held: - “The employee must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third party without the informed consent of his employer." [32] At this juncture, being the employees of the Plaintiff, I find that all the three (3) Defendants must adhere and are bound to the rules and regulation set out by the Plaintiff as the employer. Any breach to such rules and regulation would verify invites the breach of fidelity. [33] From 27.7.2015 to 28.8.2015, the Plaintiff has conducted an audit inquiry through AFTAAS for the purposes of adequacy of the internal controls within the current system and improvement recommendation thereon and the cause or reason for fraudulent acts, where applicable. The Exhibit P12 was prepared by AFTAAS and the conclusions are as follows: “Due to several indications provided in Section 2.2 of this report, it is concluded that there are evidence of malpractices and conflict of interest issues conducted by staff of MMAM” 21 “According to Section 132 (2) (b), (c), (d), (e) of The Acts, MS, FR and SF have abuse their position to get advantage by using NRS as another company that competitive in nature and as a result may have caused the declining revenue of MMAM” “We also conclude that MS, FR and SF have abuse their power, responsibility and position given to them and has created the opportunity for themselves to re-create another company which was competitive in nature, negligence in conducting their jobs responsibility and non-compliance to several policies and procedures of MMAM.” “We have been informed by the Management that NRS have used Saff Tass as a proxy company to award a substantial contract. However, we are unable to prove they have benefited from the dealings because it involves a proxy company which we have no access to their documentation.” “There is also, breach of authority committed by MS for approving PV and approving of LQA by SF.” [34] Following the investigation audit process, the Plaintiff has suspended the 1st and 2nd Defendants’ work for two (2) weeks by giving half month salary through suspension notices dated 9.4.2015 as in exhibits P6 and P7. Prior to the notices the Plaintiff on 31.3.2015 had issue the letters of cessation of employment contract to the Defendants signed by the Managing Director one Jasmin Baba on the ground of termination that it was due to 22 company’s financial condition. However, more than 6 months later, on the 25.11.2015, the Plaintiff retracts the 31.3.2015 earlier notice of cessation to facilitate the allegations of conflict of interest and malpractices against the Defendants after the revelation of P12 based on the finding which detailed out the cause of the termination of the Defendants. [35] The Defendants also did not reply or dispute the termination of their employment for misconduct as stated in the letter of termination. The Defendants also have conceded to liability for the breaches of their contract of employment by accepting their termination of employment without protest or challenge. [36] Hitherto, the Defendants did not at any material time challenged or seek any relief for the dismissal to the Industrial Court or other relevant authority. With that in mind, I am satisfied that all the Defendants have accepted to the termination and the reasons as stated therein. [37] Although the Defendants only during the trial in their respective witness statements raise their objections that the notices of the termination by the Plaintiff were an afterthought with the unscrupulous intention to fabricate the Defendants due to the losses suffered by the Plaintiff, I am unable to support such 23 position since there were evidence before me to prove the Defendants’ contention. [38] In this aspect, the Defendants cannot approbate and reprobate and are stopped from contending now that they are not liable for the breaches of their employment contracts, which were also the substance of misconducts for which they were been terminated. (See Court of Appeal in Cheah Theam Kheng v. City Centre Sdn Bhd [2012] 2 CLJ 16 [33] In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v. News (UK) Ltd and others [1990] 3 All ER 376, at pp 3838-384: “There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” 24 [39] As for Plaintiff being the employer, it had already taken action against the Defendants, by terminating their services. In Pearce v. Foster [1886] (vol XVII) QBD 536 the Queen's Bench Division held as follows: "The rule of law is that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him”. And Lopes LJ in the same case at page 542 stated as follows: "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal." [40] The terminations of the Defendants as the employees of the Plaintiff were therefore valid and no longer open for challenge by the Defendants 25 [41] 2nd issue. Whether the Plaintiff is entitled to recover the losses suffered arising from the act of the Defendants. [42] To recap the amount of general damages claims against the Defendants are as follows:- [a] The 1st Defendant RM3,985,048.90 [b] The 2nd Defendant RM962,220.00 [c] The 3rd Defendant RM1,879,811.90 [43] It is settled law that the Plaintiff must prove the loss that it claims. It is not enough to just write the figures and throw them at the Court. In the Federal Court case of Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1994] 1 LNS 284; [1994] 3 MLJ 777 wherein the Court referred to the judgment of Lord Goddard in Bonham Carter v. Hyde Park Hotel Ltd 64, TLR 177, 178. "... plaintiffs must understand that if they bring actions for damages it is for them to prove their damage: it is not enough to write down the particulars, so to speak, throw them to the head of the Court, saying: "This is what I have lost, I ask you to give me these damages". They have to prove it." 26 [44] Having set out the legal principle that the Plaintiff must prove their claim for the losses. The law is clear that the person seeking a claim for damages has the burden of proving both the fact and the amount of damages before he can recover them. Damages must be proved with real or factual evidence as opposed to mere particulars, summaries, estimations, or general conclusion in order for a party to recover them - See PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; [2009] 7 MLJ 660. [45] I reminded myself that in considering the issue of quantum of damages, an award must be fair which means that must be a proper compensation for the loss sustained. In Inas Faiqah Mohd Helmi (A child suing through her father and next friend; Mohd Helmi Abdul Aziz v. Kerajaan Malaysia &Ors [2016] 2 CLJ 885) the Federal Court held that: “It is trite that damages serve as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any 27 risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future. Such a lower degree to be attached is best termed by the word 'possibility', 'chance', 'risk', 'danger' or 'likelihood', but regardless of the words used and their semantics, they must also essentially be a substantial one and not speculative”. [46] In Malaysian Rubber Development Corporation Bhd v. Glove Seal Sdn. Bhd. [1994] 4 CLJ 783; [1994] 3 MLJ 569, at 582 E, Mohd Dzaiddin, SCJ, speaking for the Supreme Court, quoted with approval, the above passage in the Popular Industries case. “It is a well-established principle that a court in assessing the quantum of damages to be awarded exercises a discretionary jurisdiction. It is mainly a matter of opinion or of impression that differences of calculation or assessment are to be expected. The quantification of damages cannot be assessed with precision or mathematical certainty”. 28 [47] Having outlined the principle, I will now deal with each and every damages claimed by the Plaintiff. G. GENERAL DAMAGES AS AGAINST THE 1ST DEFENDANT RM3,985,048.90 [48] The total amount RM3,985,048.90 claimed by the Plaintiff arising from the payment to Staff Tass and NRS of RM909,720.00 and RM52,500.00 respectively. The 2nd amount is RM1,143,017.00 being the amount of which the 1st Defendant has acted beyond the authority as Senior General Manager provided by DAL in approving the payment vouchers in question. The last amount is RM1,879,811.90 as damages for the 1st Defendant failure in supervising the 3rd Defendant which had caused the missing vouchers. [49] The 1st Defendant contended that the each and every payment is processed after it being endorsed as “good to be paid” by the project before the payment voucher can be issued. The cheques are then prepared and checked by the Finance Executive before being verified by her and finally approved by the Managing Director or the Board of Director. Without proper and complete documents in support including the certificate of fitness and agreed millstone, the relevant 29 cheques can never be approved by the authority concerned. As to the missing payment vouchers, the 1st Defendant submitted that she had no knowledge of such document since she was no longer working with the Plaintiff when the internal audit by AFTAAS was conducted. [50] In relation to the payment to Saff Tass and NRS, I find that the appointment of Saff Tass was made by the Plaintiff’s Puan Jasmin Baba as in Exhibit P24 while the appointment of NRS was made by the Plaintiff’s Senior Manager who is the 3rd Defendant. In respect to the appointments Staff Tass and NRS, I find that the appointments were proper with the approval for the Plaintiff and there is no evidence before me to suggest otherwise. There is also no evidence by the Plaintiff that either Staff Tass or NRS has not performed its’ part of their obligation to provide the service as per the contract. It follows that there is no reason for the Plaintiff not to pay these two companies for the job done. Furthermore, all the documents were verified by various levels and approved of payment by the authorized person. To my mind, one should demarcate the issue of conflict of interest with the fulfillment of contract and the delivery of job by the Staff Tass 30 and NRS. It is separate issue which should be taken against the individuals concerned for conflict of interest and not to blame the companies. What matters here is that the two companies had delivered their part of responsibility and the Plaintiff in fact had honored the payment for the job done unless the evidence shows otherwise which in this case are absent. [51] The Plaintiff also failed to show that the payment of RM909,720.00 or any part thereof or any profit, benefits or privileges had been received by the 1st Defendant for the reason that her daughter is the director and shareholder of Staff Tass.On the same footing, the Plaintiff also was unable to prove that the 1st Defendant has received the payment RM52,500.00 or any part thereof or any profit, benefits or privileges since her husband was involved as a soft skill trainer in NRS. To suggest otherwise on the premise that the 1st Defendant had received RM909,720.00 or any part thereof and RM52,500.00 or any part thereof due of her family relationship is unacceptable in the absence of the evidences to corroborates such allegation. All these allegations in respect of receiving the payment are only, to 31 my mind, are the conjecture of the Plaintiff.There is no evidence to support that such benefit had actually been received by the 1stDefendant Therefore, I find that the Plaintiff has failed to prove that the payment made are unlawful and the 1st Defendant had received all the monies paid to Staff Tass and NRS because of her relationship status. [52] As to the other payments made to various companies and personnel amounting to RM1,143,017.00 in contrary of the DAL, I find that there is no evidence before me that all these payments were unjustified and should not be paid to the various companies and individuals. I am of the view that the issues of payments to the various companies and individuals are validly made because of the job done. In other word, the exceeding of authority does not render the payment to be unlawful since the various companies and individual had performed their part of the responsibility. To my understanding, such payments were made in contravention of the DAL where the 1st Defendant had exceeded her authority as Senior General Manager to verify payment voucher up to RM100,000.00. Even though the 32 verification of payment voucher exceeds the DAL, it has undergone a series of process of verification, validation and approval by the respective level and authority of relevant personnel. In the present case the 1stDefendant only verified the payment voucher while the final approval is by the Managing Director whom the Plaintiff did not call as a witness. Therefore, with the approval of the payment voucher which exceeds the authority as provided by DAL, the Plaintiff is said to have the knowledge and has allowed such act by the 1st Defendant. [53] As to the missing voucher due to the failure to supervise, I find that the claim is duplicating the claim against the 3rd Defendant and therefore I will deal the matter under the claim of general damages against the 3rd Defendant. [54] At this juncture, in absence of other evidence, I am of the view that the Plaintiff claims for general damages amounting to RM3,985,048.90 cannot be considered as unlawful payment made to Staff Tass and NRS for RM909,720.00 and RM 52,500.00 respectively and other payments of RM1,143,017.00. These are payments for job done and delivered by Saff Tass and NRS to the Plaintiff and 33 inturn the Plaintiff had benefitted from the services rendered. To grants this damages prayed by the Plaintiff on the basis of the existence of conflict of interest would amount to unjust enrichment to the Plaintiff. The 1st Defendant has been dismissed from employment of the Plaintiff. Therefore, as against the 1st Defendant I find that the Plaintiff had failed to prove that the 1st Defendant is liable for the payments made to the various companies and personnel including Staff Tass and NRS on the basis of conflict of interest.The Plaintiff’s claim as against 1st Defendant for RM3,985,048.90 is disallowed. C. GENERAL DAMAGES AS AGAINST AS THE 2ND DEFENDANT FOR RM962,220.00. [55] The Plaintiff contended that the 2nd Defendant has caused the unlawful payment of RM909,720.00 and RM52,500.00 which amount to a total figure of RM962,220.00. This is the same amount under the 1st group of payment by the Plaintiff against the 1st Defendant. As mentioned earlier, the payments are not unlawful since it had gone through the process of verification, validation and approval by various levels of authorized personnel. In addition, it should be noted that the claim under this heading 34 is also brought against the 1st Defendant in respect of the payment made to Staff Tass and NRS. To allow general damages would result in a duplicity of claim by the Plaintiff and unjust enrichment. As stated by Lord Wright in Fibrosa Spolka Akcyjna Appellants; And Fairbairn Lawson Combe Barbour Limited Respondents [1943] AC 32 at p. 61: “It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money off or some benefit derive from another which it is against conscience that he should keep. Such remedies in English law are generically different” [56] In Tenaga Nasional Bhd v. Ichi-Ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557, the Federal Court stated:- “[93] In the context of the question posed, another important point to notice is that TNB's statutory claim under s. 38(3) is not a claim based on a cause of action in unjust enrichment or unjust benefit that gave rise to a right to restitution. In this respect, learned counsel for TNB submitted that the legislative intent behind TNB's 35 right to the loss of revenue under s. 38(3) to (5) is to ensure that the consumer is not unjustly enriched by being able to enjoy the electricity supplied by TNB without having pay in full and that the provision is premised on the principle of unjust enrichment. To support his submission, he specifically referred to the speech of Lord Wright in the House of Lords case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd [1942] 2 All ER 122, where at p. 135 Lord Wright said: It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution. 36 [57] It is very important to understand the context in which Lord Wright made the remark above. The case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd (supra) was referred to by this court in the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, where this court had recognized an independent cause of action in unjust enrichment. In that case, this court observed that the theoretical foundation of the right to restitution remedy as it is understood today is that it is founded on the law of unjust enrichment, which falls outside the domains of contract and tort. In underlining the significance of the law of unjust enrichment in relation to all the rights of the parties to a contract, the court said: “This is a good place to point out that remedies for contractual disputes are generally compensatory in nature, with damages assessed based on the loss suffered by the claimant. Restitutionary remedies, on the other hand, focus on any unjust enrichment to a party at the claimant's expense. It is aimed of restoring that enrichment to the claimant. It is clear on principle and on authority that the idea of justice behind this aim is that no one should be made richer through loss to another”. 37 [58] The Plaintiff also has failed to prove that the 2nd Defendant had received any amount monies or befitted for the payment of RM962,220.00 although he is the shareholder in NRS. In actual fact the Plaintiff has benefitted the services rendered by the NRS and by claiming back from 2nd Defendant of the amount on the basis of conflict of interest would be an act of unjust enrichment. Furthermore the 2nd Defendant’s employment has already being terminated by the Plaintiff. Therefore, I find that the Plaintiff claim as to the 2nd Defendant for RM 962,220.00 cannot succeed and disallowed. D. GENERAL DAMAGES AS AGAINST AS 3RD DEFENDANT FOR RM1,879,811.90. [59] The Plaintiff claimed that the 3rd Defendant who was in charge of the proper safekeeping of accounts records had failed in his duty to keep a proper record that had resulted the payment voucher from a period 17.2.2012 to 30.9.14 for the sum of RM1,879,811.90 have gone missing and cannot be traced in the Plaintiff’s record. This according to the Plaintiff had amounted to an unlawful payment being made. The 3rd Defendant, on the other hand, denied that there was 38 unlawful payment had occurred because the amount was for the payment to the various parties were validly made for the service rendered. In fact, the audit conducted for year 2014 did not reveal any loss of payment voucher or unlawful payment. It is unusual that the alleged missing payment voucher for year 2012, 2013 and 2014 were only discovered in year 2015 despite of the annual audits were conducted by the Plaintiff. Furthermore, the 3rd Defendant was no longer the employee of the Plaintiff and was never been called to clarify the matter. [60] I am inclined to agree to the fact that the Exhibit P12 did not reveal any loss of payment and any wrongful payments were made. In fact, from the evidence the auditor had applied the method of random sampling based on the Plaintiff’s account ledger which would have uncovered the discrepancies, if any. Furthermore, PW2 in his testimony had failed to refer to the Plaintiff’s account ledger in order to know the details of every transaction of the alleged missing payment vouchers. [61] I find that the Plaintiff failed to produce evidence of its losses arising from the missing payment vouchers and were 39 unable to prove that the 3rd Defendant had benefited from the missing payment vouchers. The Plaintiff cannot based on a mere assumption or strong possibility that the accounted payment of RM1,879,811.90. due to the missing payment vouchers were for the unlawful transaction paid to the parties by the 3rd Defendants. PW2, himself as an investigative auditor also was unable to confirmed that the missing payment vouchers of RM1,879,811.90 are for unlawful payments and agreed that the losses cannot be attributed to the 3rd Defendant. To make the matter worse, the 3rd Defendant was not called or at least attempt to call the him in the course of the investigation in order to explained as to the missing vouchers although his employment was already been terminated. PW2 also agreed that several individuals had handed the payment voucher in question. With this position, I find that the Plaintiff was unable to confirm as to when the payment voucher went missing and to conclude that it was the 3rd Defendant own doing without evidence to support, is a far fetch allegation without basis. As a whole PW2 in his audit report the findings of the details payment voucher had been traced solely based on the bank statements. However, PW2 was unable to confirm or prove 40 that the 1st, 2nd and 3rd Defendants had obtained financial benefits as to the missing vouchers because of some limitation factors due to lack of documents to support. [62] Having said the above I am unable find any cogent evidence in proving the extent of damages suffered attributed to the Defendant's with regards to the payment to various companies and the loss of payments vouchers.Therefore, bearing the foregoing in mind, I find that the Plaintiff had failed to prove both the facts and the quantum of damage as against the 1st,2nd and 3rdDefendants. [63] Having heard the evidences before me and submissions from both learned counsels and after having given much consideration, I, on the balance of probabilities, finds that the Plaintiff’s claim for damages against the Defendants is dismissed with costs of RM 15,000.00 each of the Defendant. 41 ROZANA ALI YUSOFF JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Dated: 3rd September 2018 Counsel for the Plaintiff Tetuan Wajdi Mohamad Yusri & Co L9-8 Menara Sentral Vista 150, Jalan Sultan Abdul Samad Kl Sentral East (Brickfields) 50470 Kuala Lumpur Counsel for the Defendant Tetuan Hasnan Hamzah No. 29B, 29C, Jalan Sarikei Off Jalan Pahang 53000 Kuala Lumpur 42 References:- I. Stamford College Petaling Jaya v Loi Fook Seng [1994] 2 MELR 520; [1994] 2 ILR 679. II. Zaharen Haji ZakariavRedmax Sdn Bhd & Other Appeals [2016] 7 CLJ 380 III. The New South Wales Supreme Court in Digital Plus Pty. Limited v. Christopher Hamis & Ors [2002] NSWSC 33, IV. Attorney General v. Blake [1998 w WLR 805 V. Pearce v. Foster [1886] (vol XVII) QBD 536 VI. Cheah Theam Kheng v. City Centre Sdn Bhd [2012] 2 CLJ 16 VII. Express Newspapers plc v. News (UK) Ltd and others [1990] 3 All ER 376, VIII. Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1994] 1 LNS 284; [1994] 3 MLJ 777 IX. PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; [2009] 7 MLJ 660. X. Helmi Abdul Aziz v. Kerajaan Malaysia &Ors [2016] 2 CLJ 885) XI. Malaysian Rubber Development Corporation Bhd v. Glove Seal Sdn. Bhd. [1994] 4 CLJ 783; [1994] 3 MLJ 569, at 582 E, XII. Fibrosa Spolka Akcyjna Appellants; And Fairbairn Lawson Combe Barbour Limited Respondents [1943] AC 32 XIII. Tenaga Nasional Bhd v. Ichi-Ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557 XIV. Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd [1942] 2 All ER 122 XV. Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453