Directors differ in liability based on roles; non-executive directors are not liable for executive conduct absent joint wrongdoing.

[1] The plaintiffs have sued the defendants for losses arising out of breach of fiduciary duties as executive directors or senior executives of one or more of the plaintiffs as well as for negligence in the discharge of duties and for unauthorised payments. It is a colossal claim made by a multinational conglomerate against its key executive directors and officers. The defendants have taken a stand that they are not liable as all their actions have been approved by the boards and committees of the plaintiffs. The defendants were merely carrying out on the base what had been approved at the board. The 1st and 2nd defendants ventured further and claimed that if indeed they are liable as claimed, then the whole board members and members of the various committees who had approved and authorised their actions are to be held liable.

[2] Perhaps it is an extension of the aphorism that he also serves who only stands and wait or more appropriately in the boardroom context, he also serves and hence are liable who only sits and signs the various board papers. There is also the appealing argument advanced by the 1st and 2nd defendants - that of collective responsibility of the whole board.

Parties

[3] There are two suits which applications by the third parties to set aside the third party notices and Statements of Claim are being heard together. The first suit in Suit No D-22NCC-2379-2010 involves the Qatar Project and shall be referred to as the Qatar Project suit. The second suit in Suit No D-22NCC-2391-2010 relates to the Bakun Project and shall be referred to as the Bakun Project suit.

The Plaintiffs

[4] The 1st and 2nd plaintiffs in the Qatar Project suit are also the 1st and 2nd plaintiffs in the Bakun Project suit. Likewise the 1st and 2nd defendants are the same 1st and 2nd defendants in both suits.

[5] The 1st plaintiff, Sime Darby Berhad ("Sime Darby"), is a Public Listed Company listed on Bursa Malaysia Berhad. In November 2007, Kumpulan Sime Darby Berhad ("KSD"), Golden Hope Plantations Berhad and Kumpulan Guthrie Berhad merged to form Sime Darby. Sime Darby can clearly be described as a multi-national corporation and conglomerate with diversified businesses in Malaysia and 20 other countries. Its core businesses are plantation, property, industrial, motors, energy and utilities and healthcare. Sime Darby is the ultimate holding company of the entire Sime Group of Companies ("the Sime Group") which comprises some 560 companies as at 30 September 2010.

[6] The 2nd plaintiff Sime Darby Engineering Sdn Bhd ("Sime Darby Engineering") is a wholly-owned subsidiary of Sime Darby. Sime Darby Engineering is a member of the Sime Group of Companies. It is part of the group of companies within the Energy & Utilities Division ("E&U Division") and provides engineering, procurement, construction, installation, hook-up and commissioning services relating to the oil and gas industry.

[7] The 3rd plaintiff in the Qatar Project suit is Sime Darby Energy Sdn Bhd ("Sime Energy") which is a wholly-owned subsidiary of Sime Darby and a member of the Sime Group. It is part of the group of companies within the E&U Division and an investment holding company, which provides operating and maintenance services to an independent power producer.

[8] The 4th plaintiff in the Qatar Project suit is Sime Darby Marine Sdn Bhd ("Sime Marine"). It is a wholly-owned subsidiary of Sime Darby and a member of the Sime Group.

[9] The 5th plaintiff in the Qatar Project suit is Sime Darby Marine (Hong Kong) Pte Ltd ("Sime Marine HK") incorporated under the laws of Hong Kong. It is a wholly-owned subsidiary of Sime Darby and a member of the Sime Group. It is an investment holding company.

[10] The 2nd plaintiff ("Sime Engineering") is a w