The standard of proof for conspiracy to defraud in civil claims is established as a balance of probabilities, requiring disclosure of material facts during adjudication proceedings.

JUDGMENT

(Enclosure 1)

Hayatul Akmal Abdul Aziz J:

Introduction

[1] This action is based on the tort of conspiracy to defraud or to injure the plaintiff when the defendants allegedly conspired to initiate false adjudication proceedings under the Construction Industry Payment and Adjudication Act, 2012 (CIPAA) against the plaintiff, resulting in losses.

[2] At the end of a full trial and on a balance of probabilities, I find for the plaintiff, a final judgment was entered against the First Defendant and I ordered as follows:

- Prayer 30(i)(a) is not allowed,

- Prayer 30(i)(b) (a.-b.) are allowed and for damages to be assessed,

- Prayer 30(ii) & 30(iii), costs of RM25,000.00 against the First Defendant (D1), to be paid within 30 days from today.

[3] Aggrieved, the First Defendant (D1) filed this appeal. My reasons are as follows:

Brief Facts

[4] The salient facts gathered from the cause papers and the submissions filed are as follows:

4.1 Firstly, it is to be noted that on 22 April 2024 (the first day for full trial), the Second Defendant (D2) failed to appear or appoint a solicitor concerning the present suit. I therefore ordered as follows:

(1) Final judgment to be entered against D2.

(2) Damages are to be assessed.

(3) The counterclaim by D2 against the plaintiff is dismissed.

(4) A global cost of RM10,000.00 was awarded to the plaintiff against D2 to be paid within 30 days from the order date.

(5) D1's application in seeking indemnity against D2 is allowed and a global cost of RM10,000.00 was awarded to D1 against D2.

4.2 The trial then proceeded between P and D1.

4.3 The witnesses at the trial are as follows: -

(1) The Plaintiff's witnesses:

(a) PW1 Soh Lieh Sieng (Consultant Claim)

(b) PW2 Tan Hui Sheng (P's Vice President Contract and Commercial)

(2) The First Defendant witness:

(c) DW1 Leong Hong Kit (Construction Claim Consultant).

4.4 In a nutshell:

(a) In 16 April 2015, D2 was awarded and duly appointed as a sub-contractor for the Ps structural and architectural works under the project:

"Proposed Construction of 30-storey Jland Tower at Komtar JBCC, Jalan Wong Ah Fook, Johor Baharu, Johore" (the said Project).

(b) On 22 June 2015, P terminated D2.

(c) D2 alleged that P had failed to pay the sum of RM3,676,452.44 for works completed.

(d) On 06 June 2017, D2 was wound up via Winding up Petition No WA-28NCC-73-02/2017 taken by Woodland Roof Systems Sdn Bhd.

(e) On 08 September 2017, D2 engaged the services of D1 as a Claims Consultant to take an adjudication proceeding under the Construction Industry Payment and Adjudication Act 2012 (CIPAA) against P without the required sanction from the office of the Official Receiver.

(f) A Notice of Adjudication dated 09 March 2018, resulted in an Adjudication Decision in favour of D2 being granted by the adjudicator.

(g) P later discovered that D2 had already been liquidated during adjudication.

(h) D2 later filed an action before the High Court to enforce the adjudication decision it had secured against P.

4.5 P subsequently:

(a) Applied to set aside the Adjudication Decision via an Originating Summons (OS 211) because D2 had no locus to initiate the adjudication proceeding.

(b) D2 was already in liquidation and did not have the required sanction from the Official Receiver.

(c) The High Court set aside the said adjudication decision.

4.6 P then filed the present suit against the defendants, claiming they had conspired to defraud it.

Agreed Issues To Be Tried

[5] On 22 April 2024, the parties revised and agreed to the following issues:

(a) Whether D1 knows D2 was wound up during the adjudication proceeding.

(b) Whether D1, as the claim consultant, must inform P and the adjudicator of the winding up status of D2.

(c) Whether P has a valid cause of action (conspiracy to defraud) against D1.

Arguments By The Parties

I had duly considered the submissions of the respective parties.

[6] In a nutshell, P argued that:

6.1 D2 was appointed as the sub-contractor for the structural and architectural works for the said project:

(1) Aft