Fraudulent misrepresentation established as defendants conspired to defraud plaintiff using fictitious companies and documents, breaching fiduciary duties.

JUDGMENT

Ong Chee Kwan J:

Introduction

[1] This judgment deals with a claim by a company against its director and general manager for fraud committed in respect of various nonexisting projects. The facts in support of the fraud are overwhelming and the defences raised are found to be entirely without merits.

Background Facts

[2] The Plaintiff is a company incorporated in Malaysia under the Companies Act 2016 (previously Companies Act 1965) (' CA 2016').

[3] The First Defendant ('D1') is a director of the Plaintiff and also a registered shareholder of the Plaintiff. D1 holds the shares in the Plaintiff as nominee for various individuals which will be elaborated below.

[4] The Second Defendant ('D2') is a beneficial shareholder of the Plaintiff and also the lawful husband of D1.

[5] D2 was actively involved in the incorporation of the Plaintiff and had worked together with the following individuals leading to the incorporation of the Plaintiff:

a) Lim Tick Seng (NRIC No 780726-01-5595) ('Lim');

b) Neo Yong Tak @ Liang Yongda (Singapore Passport No E2735991B) ('Neo');

c) Ngiam Chian Lee (Singapore Passport No E2280934J) ('Ngiam');

d) Chuah Jooi Min (NRIC No 730507-07-5349) ('Chuah'); and

e) Koh Kim Tiong (Singapore Passport No E2413760L) ('Koh')

[6] The Plaintiff was incorporated on 18 January 2012 with a paid-up capital of RM1,000.00 divided into 1,000 shares of RM1.00 per share. The registered shareholders of the Plaintiff as at 18 January 2012 were as follow:

[7] At all material times the parties mentioned in para 5 above together with D1 in addition to forming the Plaintiff also agreed that D2, Chuah and Koh shall become beneficial shareholders of the Plaintiff. Pursuant thereto, Trust Deed No 1, Trust Deed No 2, Trust Deed No 3, Trust Deed No 4, Trust Deed No 5, Trust Deed No 6 and Trust Deed No 7 (hereinafter collectively referred to as "the said Trust Deeds") were entered into between the relevant parties.

[8] The Plaintiff had on 3 April 2013 allotted additional 999,000 shares ('Additional Shares') to the following shareholders:

a) 599,400 shares to D1;

b) 99,900 to Lim;

c) 149,850 to Neo; and

d) 149,850 to Ngiam.

[9] The registered shareholders of the Plaintiff following the allotment of the Additional Shares therefore were as follows:

[10] The actual shareholders both registered and beneficial of the Plaintiff taking into account the initial allotment of shares, the said Trust Deeds and Additional Shares can best be summarized as follows:

[11] The Plaintiff from the date of its incorporation on 18 January 2012 has four directors namely D1, Lim, Ngiam and Neo. This is not disputed.

[12] Lim is based in Johor while Ngiam and Neo are Singaporeans who are based in Singapore. As such, the day-to-day operations of the Plaintiff's office in Kuala Lumpur were left to the Defendants.

[13] The Plaintiff has one bank account with CIMB Bank Berhad bearing account no 1482-0002663-05-3 ('Plaintiff's Account') where D1 together with Koh are the authorized co-signatories.

[14] The present action involves a claim by the Plaintiff against the Defendants for breach of their fiduciary duties and for fraudulent misrepresentation. The facts giving rise to the claims relate to 3 purported projects which will now be narrated.

[15] The Defendants at all material time had represented the followings to the Plaintiff:

(1) a company known as BB Tech Services Sdn Bhd (Co. No 238452-T) ('BB Tech') was purportedly appointed as a contractor by Petronas Dagangan Berhad (Co. No 101472- H) ('PDB') to provide labor, materials, equipment, services and facilities for pipeline inspection work at SC23-SC95 Kertih Regional ('Project 1') and that BB Tech purportedly subcontracted Project 1 to the Plaintiff;

(2) BB Tech was purportedly also appointed as a contractor by Petronas Gas Berhad (Co. No 101671-H) ('PGB') to provide labor, materials, equipment, services and facilities for pigging work at Kertih Regional ('Project 2') and BB Tech had purportedly sub-contracted Project 2 to the Plaint