ITS Testing Services (M) Sdn Bhd v DP Fluiteq Sdn. Bhd. (WA-22IP-24-03/2024)

DP FLUITEQ SDN. BHD.

DEV MENON A/L GOPALAN

PETER CHANG NGI LEE

MURUGAN A/L SELVARAJ (IDENTIFICATION CARD NO.: 700927-10-6191) … DEFENDANTS S/N 1e5U045boEmaXix8BB/Ytg GROUNDS OF JUDGMENT A. Introduction [1] The plaintiff sought an interim injunction to restrain the defendants from, inter alia, using the plaintiff’s confidential information (“Injunction Application”). [2] After considering the evidence before the court and hearing counsel’s submissions, the court dismissed the Injunction Application. B. Background Facts [3] The 2nd and 3rd defendants were former employees of the plaintiff. They incorporated the 1st defendant, and are its directors and shareholders. The 4th defendant is also a former employee of the plaintiff. [4] The plaintiff claimed that sometime in August 2023, it became aware that its client, Carigali-PTTEPI Operating Company Sdn Bhd (“CPOC”) had engaged the defendants to provide, inter alia, water analysis and microbial monitoring solution related services. These are services provided by the plaintiff. [5] It is the plaintiff’s contention that the 2nd to 4th defendants had unlawfully used and exploited the following confidential information of the plaintiff (“Confidential Information”) for the benefit of the 1st defendant: a. Formulas, designs, specifications, machine and tooling files, process flow, drawings, know-how, manuals, S/N 1e5U045boEmaXix8BB/Ytg technical documents, fact sheets and/or instructions for the design, installation and integration of the devices and methods for testing, inspection and analysis; b. Client lists, contacts, sales, marketing and promotional information; c. Non-public financial and operational information, including but not limited to financial reports and information about earnings, expenses and investments, pricing information, order lists, vendor or supplier lists, contract information, customer data, business development materials, costs of goods, personal files, company policies, manuals, guidelines, procedures and standard operating procedures, and videos and memos; d. Business intelligence of the plaintiff, including market research report in relation to the industry; and e. Any document marked confidential, internal use only, proprietary, or by such other means as to indicate the intent is that the document is confidential to the plaintiff. [6] The plaintiff claimed that without the Confidential Information, the defendants would not have been able to provide services to CPOC. [7] The plaintiff has also been offering testing and inspection services involving an application for water analysis and microbial monitoring solution under the “Sidestream” name, brand, indicia or mark S/N 1e5U045boEmaXix8BB/Ytg (“Sidestream Application”). The plaintiff claimed the defendants used the plaintiff’s specifications, designs, drawings and know-how to develop devices and products for sample taking that are identical or similar to the devices and products in the Sidestream Application. [8] Thus, this claim was filed by the plaintiff on the basis of the following allegations: a. That the defendants had committed a breach of confidentiality and intellectual property infringement, in using the Confidential Information; b. That the defendants had committed the tort passing off, in making reference to the Sidestream Application; c. That the defendants conspired to injure the plaintiff by infringing the plaintiff’s intellectual property and/or otherwise unlawfully using the Confidential Information; and d. That the defendants unlawfully interfered with the plaintiff’s trade. [9] In the Injunction Application, the plaintiff sought an interim injunction to restrain the defendants from, inter alia, using the Confidential Information. S/N 1e5U045boEmaXix8BB/Ytg C. The Injunction Application [10] The Injunction Application is made under order 29 rule 1 of the Rules of Court 2012, which provides that: “(1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's originating process, counterclaim or third party notice, as the case may be.” [11] In the Injunction Application, the plaintiff is seeking: a. An injunction to restrain the defendants from disclosing, retaining, accessing, using, and/or transferring the Confidential Information, until judgment is given in this action; b. An order for the defendants to deliver up to the plaintiff or its solicitors all materials, information leaflets, literature, brochures, advertisements, and/or documents in their control, custody, or possession which contain or refer to the Confidential Information; and c. An injunction to restrain the defendants from making reference to the features of the Sidestream Application and/or using the “Sidestream” name, brand, indicia or mark, until judgment is given in this action. S/N 1e5U045boEmaXix8BB/Ytg [12] In Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah [1995] 1 MLJ 193, the Court of Appeal held at page 206I that a judge hearing an application for an interlocutory injunction should undertake the following enquiries: “(1) he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried…

having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal …

the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo … Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial …” S/N 1e5U045boEmaXix8BB/Ytg (emphasis added) D. Considerations And Findings [13] Guided by Keet Gerald Francis (supra), I considered the facts of the present case, and found that: a. On the face of documentary evidence before the court, the facts of this case do not disclose bona fide serious issues to be tried; and b. The balance of convenience lies against allowing the Injunction Application. [14] The plaintiff’s pleaded case is that the defendants had unlawfully conspired to injure the plaintiff by breaching the confidentiality of and/or exploiting the Confidential Information. The plaintiff claimed that CPOC had engaged the 1st defendant for the same or similar services of the plaintiff, and that without using the Confidential Information, the 1st defendant would not have been able to render any services to CPOC. The plaintiff also referred to the 1st defendant’s website, offering services that are described with reference to features of the Sidestream Application. [15] I note that in support of its claim of CPOC’s engagement of the 1st defendant, the plaintiff relied on a WhatsApp message from one Shahriman Sharir, who had provided a LinkedIn post made by Petroknowledge Sdn Bhd (“PKSB”). The LinkedIn post contains a photo S/N 1e5U045boEmaXix8BB/Ytg of the 3rd and 4th defendants, taken with representatives of PKSB, in front of a CPOC logo. The plaintiff claimed the photo clearly showed that there existed a business relationship between the 1st defendant, PKSB and CPOC. [16] I find the plaintiff’s allegation that CPOC had engaged the 1st defendant for services to be purely speculative. The plaintiff had concluded that a business relationship existed between CPOC and the 1st defendant based only on a social media post. The post at best shows some form of business connection between CPOC and the 1st defendant. It does not prove that CPOC engaged the 1st defendant for services, and it certainly fails to show that the defendants had misappropriated the Confidential Information and used it in an unlawful manner for the purpose of the engagement. [17] Further, the crux of the plaintiff’s claim is that without the Confidential Information, the 1st defendant would not have been able to render services to CPOC. Yet, the Confidential Information has not been set out with sufficient specificity, and in a manner that would enable the documents that fall within the scope of the Confidential Information to be identified. [18] In Risk-X Sdn Bhd v Capital Market Risk Advisor Sdn Bhd & Ors [2017] 8 MLJ 475, the court held that in a claim for use of confidential information, the confidential information must be clearly identified: “[40] It is trite that the plaintiff can only succeed in an action for breach or infringement of plaintiff’s right where the defendant is proved to have used confidential information, directly or S/N 1e5U045boEmaXix8BB/Ytg indirectly obtained from the plaintiff without the consent, express or implied of the plaintiff. Bullen & Leake & Jacob’s in the book Precedents of Pleading (17th Ed) noted that four requirements may be identified:

the claimant must identify clearly the information which is alleged to be confidential;

the information itself must have ‘the necessary quality of confidence about it?’;

‘that information must have been imparted in circumstances importing an obligation of confidence’; and

‘there must have been an unauthorised use of that information to the detriment of the party communicating it’. [41] It is also trite that the particulars of what is alleged to be confidential information must be pleaded. In Diamond Stylus Co Ltd v Bauden Precision Diamonds Ltd [1973] RPC 675; [1972] FSR 177, an application for an interlocutory injunction refused because confidential information was not defined.” (emphasis added) S/N 1e5U045boEmaXix8BB/Ytg [19] In the present case, the Confidential Information – as reproduced below – has been described in a general manner: a. Formulas, designs, specifications, machine and tooling files, process flow, drawings, know-how, manuals, technical documents, fact sheets and/or instructions for the design, installation and integration of the devices and methods for testing, inspection and analysis; b. Client lists, contacts, sales, marketing and promotional information; c. Non-public financial and operational information, including but not limited to financial reports and information about earnings, expenses and investments, pricing information, order lists, vendor or supplier lists, contract information, customer data, business development materials, costs of goods, personal files, company policies, manuals, guidelines, procedures and standard operating procedures, and videos and memos; d. Business intelligence of the plaintiff, including market research report in relation to the industry; and e. Any document marked confidential, internal use only, proprietary, or by such other means as to indicate the intent is that the document is confidential to the plaintiff. S/N 1e5U045boEmaXix8BB/Ytg [20] I find that the Confidential Information is merely a list of information that any company in the same business as the plaintiff and the 1st defendant would be likely to have in its possession. The plaintiff failed to identify with sufficient detail as to what information of the plaintiff had been used by the defendants in an unlawful manner and for the purpose of the alleged engagement with CPOC. [21] I accept that the exact documents may not be able to be identified. However, the Confidential Information should have been identified with a level of detail that would reveal what information was wrongfully used by the defendants in the unauthorised manner alleged by the plaintiff, and in what way the information was utilised for the purpose of the alleged engagement with CPOC. Instead, the claim for breach of confidence was pleaded in too general a manner, with reference to items, files, reports and drawings that have not been specifically identified. [22] Two further points must be noted. First, there is no evidence that CPOC had engaged the 1st defendant for services similar to services offered by the plaintiff. CPOC has also denied the engagement. [23] Second, it is the defendants’ stand that the 1st defendant’s operations are carried out based on established industry practices and standard procedures that are publicly available. The defendants highlighted the standard methods relied on by the 1st defendant to provide services, and claimed that these methods are available commercially in the open market, and are not proprietary to the plaintiff. In addition, the defendants provided evidence of the use of the Sidestream Application S/N 1e5U045boEmaXix8BB/Ytg across multiple industries, casting reasonable doubt on whether the application is proprietary information exclusive to the plaintiff. [24] I am cognisant that the defendants’ position will need to be further examined at the full trial of this action. However, for the purpose of the Injunction Application it is sufficient for me to conclude – by taking into account the insufficiency of the details of the Confidential Information and the failure of the plaintiff to specifically set out how the Confidential Information was used in an unauthorised manner by the defendants – that on the face of documentary evidence before the court, the facts of this case do not disclose bona fide serious issues to be tried. [25] Further, the wide and general manner in which the Confidential Information is described, coupled with the fact that the Confidential Information has not been clearly defined, will result in an injunction granted in favour of the plaintiff to be too broad or vague. Thus, if the court allows the Injunction Application, the legitimate business activities of the 1st defendant will be disrupted, creating disproportionate and unjust hardship to the 1st defendant. On the other hand, the plaintiff has not shown what imminent or irreparable harm may result if the Injunction Application is not allowed. Balancing the competing interests of the parties, I find that the balance of convenience lies against the grant of an injunction in favour of the plaintiff. E.

[26] For the reasons set out above, the Injunction Application is dismissed, with costs. S/N 1e5U045boEmaXix8BB/Ytg Dated 7 February 2025 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur Counsel: Plaintiff : Joshua Teoh (together with Jasmine Sia Wan Jin) of Messrs. W.J. Sia Law Chambers 1st and 2nd defendants : S. Raven (together with Danial Hazizan) of Messrs. S Ravenesan 4th defendant : Sohan Yong Tharumarajah of Messrs. T Tharuma & Associates S/N 1e5U045boEmaXix8BB/Ytg