A trial judge's misunderstanding of the case and failure to evaluate evidence may warrant an appellate court's intervention and remittance for re-hearing.

[1] This appeal arises from the dismissal of the appellants action in the court below. In these grounds, the parties will be referred to as they were in the High court for expedience.

[2] The appellant company known as Kamdar Sdn Bhd was the plaintiff in the High court (the plaintiff). The plaintiff was, and remains until today, a wholly owned subsidiary of a public listed company known as Kamdar Group (M) Berhad (KGMB). At the material time, in 2005, KGMB was in the process of being listed.

[3] The three respondents were the defendants in the court below. The three defendants are Bipinchandra a/l Balvantrai, the 1st defendant (Bipinchandra); Jayesh R Kamdar Rajnikant, the 2nd defendant (Jayesh) and Yap Kim Hong, the 3rd defendant (Yap Kim Hong).

[4] At all material times, Bipinchandra was the Deputy Chairman and shareholder of the plaintiff, while Jayesh was the Executive Director of KGMB as well as the groups Chief Executive Officer of KGMB and its subsidiaries.

[5] Yap Kim Hong was a contractor who undertook building works for the plaintiff.

The Plaintiffs Multiple Causes Of Action Against The Defendants

[6] The plaintiffs claim against the three defendants in the court below was premised on misrepresentation, breach of statutory duties and (fraudulent) breach of fiduciary duties by Bipinchandra and Jayesh in relation to the plaintiff. Yap Kim Hong was alleged to have dishonestly assisted Bipinchandra and Jayesh in the fraudulent breach of their fiduciary duties.

[7] It was further alleged that all three defendants were participants in a fraud and had fraudulently applied to their own use of the plaintiffs monies. As a result of such misappropriation and/or misapplication of the plaintiffs monies, it was contended for the plaintiff that it had suffered loss.

[8] The defendants were also alleged to be constructive trustees for the plaintiff in respect of such misapplied or misappropriated funds. The total loss alleged to be suffered by the plaintiff exceeds RM8,842,306.00. By way of relief, the plaintiff seeks an account of the total monies of the plaintiff misappropriated or misapplied by the defendants, as well as a disgorgement of all such monies.

[9] In essence, it was contended for the plaintiff that the sum of RM8,842,306.00 was withdrawn by Bipinchandra and Jayesh from the plaintiffs bank account in breach of the duties and obligations owed by them to the plaintiff. These monies were withdrawn vide four cheque transactions between 23 March 2005 and 26 March 2005.

Details Of The Alleged Fraudulent Withdrawal And Utilisation Of The Plaintiffs Funds

[10] The first cheque was for a sum of RM5,762,306.00, which was utilised for the purchase of undersubscribed shares in the course of the listing exercise for KGMB. The purchased undersubscribed shares were then placed in the Central Depository System (CDS) account of Yap Kim Hong. The plaintiff alleges that Yap Kim Hong was the nominee of Bipinchandra and/or Jayesh.

[11] The second cheque was in the sum of RM2,420,000.00 and encashed by either Bipinchandra and/or Jayesh, and the monies allegedly misappropriated or applied by them for their own use.

[12] The third and fourth cheques in the sums of RM580,000.00 and RM80,000.00 respectively, were made out to Jayesh. All the cheques were signed by Bipinchandra. All the cheques were issued without the authority of the plaintiffs board of directors.

The Defences

[13] For the defendants, in essence, it is contended that these cheque transactions and monies were in reality an advance or loan autho