Tambahan lagi, tiada perjanjian bertulis antara Plaintif dan Defendan yang menyatakan bahawa Defendan perlulah membayar imbuhan Pengarah kepada Plaintif yang dituntut di Mahkamah ini. [22] Malahan SP1 melalui keterangan di Mahkamah melalui soal balas oleh peguam defendan juga turut mengesahkan bahawa tiada resolusi yang diluluskan pemegang saham syarikat berkenaan bayaran imbuhan Pengarah kepada Plaintif seperti berikut:- Defendant’s solicitor: I put it to you that, Mr Koh, there’s no resolution approved by the shareholders for payment of director’s remuneration or director’s fee. Do you agree? : Yes … Defendant’s solicitor: Hold on there, Mr Koh. I just want to clarify that when you say yes, you mean you agree that there was no resolution? : Yes [23] Mahkamah turut merujuk kes Mahkamah Rayuan, Ever-Yield Sdn Bhd v Yap Keat Choon and other appeals [2023] 2 MLJ 90 yang mengikut keputusan dalam kes Guinness Plc v Saunders [1990] 2 AC 663 seperti berikut:- [28] A director of a company therefore does not have a right to be remunerated as of right by virtue of his office except as provided by its constitution or approved by its shareholders. In Re Richmond Gate Property Co Ltd [1964] 3 All ER 936, it was held that in the absence of any resolution concerning the amount of directors’ remuneration passed pursuant to the articles in general meeting prior to the liquidation of the company, the directors were thus not entitled to any remuneration. In Guinness Plc v. Saunders [1990] 2 AC 663, the articles provided that the remuneration of the director performing services for the company outside the scope of the ordinary duties of a director was to be determined by the company’s Board as a whole. The House of Lords held that as no determination had been made by the Board, the relevant director was not entitled to any remuneration. The director in question had been given special remuneration by a committee of the Board, an act which the committee had no authority to perform. Accordingly the director had to return the remuneration. Even his claim for quantum meruit was refused since in that case the parties could be said to have agreed how remuneration was to be decided, but instead not followed. [29] Neither is the fact that a person is a director of a company in itself makes that person an employee, which would otherwise entitle him to remuneration as an employee. … [32] A number of facets to the requirements governing the discharge of the role of a director as a fiduciary is enacted in the Companies Act 1965, chief amongst which is the duty to act in good faith in the best interest of the company under s. 132(1) and the prohibition against improper use of company’s property, position, corporate opportunity or competing with the company under s. 132(2). Directors deciding to remunerate themselves in the absence of any authorisation by general meeting or any provision in the articles would clearly be infringing their role as fiduciaries and violate these statutory requirements, risking the penalty of imprisonment upon conviction, and being liable to the return of the secret profits or damages (see for instance the Privy Council’s decision in Mahesan v. Malaysian Government Officers Co-Operative Housing Society Ltd [1974] 1 LNS 83; [1978] 1 MLJ 149). The clearest pronouncement by the local courts on this point yet may be found in the judgment of Raus J (as His Lordship then was) in the case of Shanmugam Paramsothy v. Thiagarajah Pooinpatarsan & Ors [2001] 8 CLJ 683; [2004] 5 MLJ 31, where His Lordship ruled most instructively as follows: ... directors have no right to be paid for their services, and cannot pay themselves or each other or to make presents to themselves out of the company’s assets, unless authorised to do so by the instrument which regulates the company or by the shareholders at a properly convened meeting. The principles of law governing payments by companies of remuneration such as fees, allowances, and other benefits to directors are therefore free from any ambiguity. [24] SP1 dalam keterangan di Mahkamah yang boleh membuktikan beliau menjalankan tugas sebagai Pengarah Syarikat selepas tarikh penstrukturan syarikat Defendan dari tempoh 1 Januari 2023 sehingga 31 Mac 2023. [25] Keterangan Plf tidak konsisten di Mahkamah di mana Plf tidak tahu perbezaan antara director’s fee, salary dan remuneration justeru menimbulkan anggapan bahawa Plf juga tidak tahu apa yang dituntut olehnya dalam tuntutan balas ini sepertimana berikut:- Defendant’s Solicitor : And the second two lines, starting from, “Of my director’s remuneration,” You are referring to director’s remuneration, right, Mr Koh? : As long as my understanding, the remuneration could be the same as director’s fee. Defendant’s Solicitor : But you are referring to director’s remuneration. Correct? : I'm not sure. … Defendant’s Solicitor: Do you agree with me, right, as of now, in your pleadings, your counterclaim and also your witness statements, you have referred to director’s remuneration, director’s fee, salary as part of your counterclaim? SP1: Yes. Defendant’s Solicitor :Alright. So, based on your years of experience as a director, are you aware that director’s fee, director’s remuneration and director’s salary, they are different? : Not confirmed.” [26] Justeru itu, tuntutan balas ini adalah satu tuntutan yang remeh, mengaibkan serta salahguna proses mahkamah sepertimana dalam Aturan 18 Kaedah 19 Kaedah Kaedah Mahkamah 2012. Striking out pleadings and endorsements (O. 18, r. 19 ) 19(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that: