No duty of care exists between a third party and a consultant engaged by an employer, establishing the unsustainability of a counterclaim.

Introduction

[1] There are 2 sets of actions filed by the parties as follows:

[2] For ease of reference, the parties are referring to as according to their names.

[3] In the original action vide amended statement of claim, Symphony Life Berhad's claims against Ng Ying Yiing, Goh Hock Choy and Doa Huat Holdings Sdn Bhd.

In the counterclaim, Ng Ying Ying's claims against Symphony Life Berhad, Chin Jit Pyng, Ernst & Young Consulting Sdn Bhd and Brian Wong Wye Pong. However, Ng Ying Ying filed a notice of discontinuance against Brian Wong Wye Pong and it was agreed by parties the costs is RM2000.00.

[4] On 23 March 2021, Ng Ying Ying was first appointed by the Symphony Life Berhad as an independent Non-Executive Director. Three months later (on 24 June 2021), the Symphony Life Berhad's board approved the redesignation of Ng Ying Ying to Executive Director, and where she assumed the role as Group Chief Financial Officer ("GCFO") of the Symphony Life Berhad.

[5] Symphony Life Berhad pleaded that based on Ng Ying Ying's contract of employment, her duties, amongst others, are as follows:

(a) to perform duties and exercise the powers which the Board and Group Chief Executive Officer ("GCEO") assign to her.

(b) do all in her power to promote, develop and extend the business of the Symphony Life Berhad and of its related companies and subsidiaries and at all times and in all respects, conform to and comply with the proper and reasonable directions and regulations of the Board.

(c) report to the Board and GCEO.

[6] Further, Symphony Life Berhad avers that Ng Ying Ying's career specialisation is in the field of taxation. The Symphony Life Berhad further avers that Ng Ying Ying does not have any prior designation or held any role as a Chief Financial Officer nor any career or professional experience in relation to investment or treasury nor any involvement in capital or money markets.

[7] Symphony Life Berhad pleaded that amongst other, the act done by Ng Ying Ying had resulted in Symphony Life Berhad incurring loss in purchasing the shares and/or shares that did not generate profit, as follows:

(a) all purchases of such shares are made by Ng Ying Ying itself without obtaining a mandate or official authorization.

(b) Ng Ying Ying is aware that all share purchases are subject to a process of review and approval by management as well as the approval of the Investment Committee ("IC") as well as the Symphony Life Berhad's Board of Directors.

(c) Ng Ying Ying was aware that Board approval is required for capital market investments as advised by the GCEO and where Ng Ying Ying has acted outside her jurisdiction as GCFO.

(d) the actions of Ng Ying Ying who bought the shares despite knowing that the IC would be set up clearly showed Ng Ying Ying had a hidden agenda and acted mala fide to bring down the company.

(e) based on Ng Ying Ying's experience of having an accounting background, Ng Ying Ying should have known whether the purchase of the shares was beneficial or not. However, her's actions here have shown she had mala fide intent against Symphony Life Berhad.

[8] Based on the above, Symphony Life Berhad pleaded that it is clear that there is no valid reason to support Ng Ying Ying's action in the purchase of shares if Ng Ying Ying states that the purchase of shares is for the benefit of the Symphony Life Berhad as the purchase of shares did not generate profit but resulted in Symphony Life Berhad incurring loss.

[9] Wherefore, the Plaintiff claims for the following orders that Ng Ying Ying and the other 2 Defendants be jointly and severally liable for :

(a) damages in the sum of RM350,000.00 being the direct loss suffere