The court established that actions meeting the criteria of conspiracy can provide grounds for damages upon proving intentional injury directed at the plaintiff.

[1] The appellant/plaintiff appeals against the decision of the High Court Judge for dismissing its claim based on the tort of 'conspiracy to injure' against the 1st and 2nd respondents/defendants jointly, and severally came up for hearing on 30 March 2015. Upon hearing we reserved judgment. My learned sister Badariah Sahamid JCA and learned brother Abdul Rahman Sebli JCA have read the draft judgment and approved the same. This is our judgment.

Preliminary

[2] Before we set out the brief facts of the case it must be noted that:

(i) The learned counsel for the 2nd respondent had submitted no case to answer at the High Court and no evidence was led on behalf of the 2nd respondent. Such a conduct is fatal to the 2nd respondents' case and gives the appellant procedural advantage to anchor the cause of action as well as to give probative force to his evidence. Support for the proposition is found in a number of cases. Hamid Sultan Abu Backer J (as he then was) had dealt with it in great detail in the case of Datuk M Kayveas v. Chong Chek Ah & Ors, 2011 MarsdenLR 4463 and we do not intend to repeat the same here. The said judgment had been affirmed by the Federal Court. [See Datuk M Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors; [2013] 2 MLJ 765; [2013] 5 CLJ 949; [2013] 6 AMR 101].

(ii) There was one common director by the name of Amir Hussain (DW1) and/or representative of the 1st and 2nd respondents acting on behalf of the 2nd respondent who had played a major role to deprive the appellant of its right to recover the judgment sum or part thereof against the 1st respondent by way of winding up proceedings. Amir Hussain and the 2nd respondent benefitted out of the land transaction of the 1st respondent herein, to the detriment of the appellant. The 1st respondent's land was transferred to the 2nd respondent.

(iii) The 1st and 2nd respondents including their common solicitor who was cited as the 3rd defendant (against whom the appellant has withdrawn the action) were instrumental in defeating the appellant's right to recover the judgment sum or part thereof by way of winding up proceedings.

(iv) The learned trial judge had accepted the evidence of the appellant that it did not enforce the judgment expeditiously because of the 1st respondent's representation that it will be settled and that the appellant had been induced to withhold the enforcement of the said judgment. The learned counsel for the appellant reproduces the relevant part of the judgment as follows:

"60. Essentially the oral evidence of the plaintiff is the same as the factual background of the case narrated above. Additionally, he said when Mr Loh Eng Wee approached him for the second time for the settlement of the said judgment, he came together with Mr Khoo Boo Tee. He said, although Mr Khoo Boo Tee was then no longer on record the director of the 1st defendant due to his bankruptcy status, but he who was still involved in the affairs of the 1st defendant company had urged him to withhold all execution proceedings as financially insolvent 1st defendant was in the midst of seeking assistance from the third party to revive the development project to which he agreed. He further said that he was aware of the 1st defendant being presented with a winding up petition by Public Bank Bhd in 2007.

...

86. On this point of submission considering the covering letter of the service of the said judgment dated 21 May 2001 (at para 82(2) above) which was not at all challenged, I am inclined to think that the 1st plaintiff was aware and had the knowledge about the said judgment against it. Consequently, despite the noncalling of the two representatives of the 1st defendant as witnesses by the plaintiff, I believe such representation as alleged by the plaintiff did actually take place ..."

(v) Contrary to t