Trustees and associated parties breached fiduciary duties, resulting in liability for damages to recover misused Trust funds.

Introduction

[1] These appeals are directed against the decisions of the High Court in Johor Bahru involving Civil Suit No 22-228-2009 (the 228 Suit) and Civil Suit No 23NCVC-106-07/2012 (the 106 Suit). One noteworthy feature of these 2 Suits which deserves early mention is that the 106 Suit was originally filed in the Kuala Lumpur High Court as Civil Suit No: MTKL- 22 NCC-1512-09/2011 but was subsequently transferred to the High Court in Johor Bahru and registered as the 106 Suit. Both the 228 Suit and the 106 Suit were ordered to be consolidated and heard together by this Court on 19 June 2012 pursuant to which the 2 Suits proceeded in the Johor Bahru High Court in that manner. It is also necessary to mention that the 228 Suit was filed in 2009 whilst the 106 Suit was filed in 2011. The trial in the Court below commenced on 1 October 2012 and ended on 23 May 2016. After a full trial, the High Court delivered its decision on 22 December 2016 allowing the claims by the plaintiffs in both suits. The learned judge furnished 2 separate grounds of judgment, one for each suit.

[2] There are 10 separate appeals filed to this Court arising from the above High Courts decisions. We heard these appeals together. These appeals are:-

a. J-02(NCVC)(W)-219-02/2017 (the 219 Appeal);

b. J-02(NCVC)(W)-220-02/2017 (the 220 Appeal);

c. J-02(NCVC)(W)-221-02/2017 (the 221 Appeal);

d. J-02(NCVC)(W)-222-02/2017 (the 222 Appeal);

e. J-02(NCVC)(W)-223-02/2017 (the 223 Appeal);

f. J-02(NCVC)(W)-224-02/2017 (the 224 Appeal);

g. J-02(NCVC)(W)-225-02/2017 (the 225 Appeal);

h. J-02(NCVC)(W)-226-02/2017 (the 226 Appeal);

i. J-02(NCVC)(W)-227-02/2017 (the 227 Appeal); and

j. J-02(NCVC)(W)-228-02/2017 (the 228 Appeal);

The first 4 appeals and the last 6 appeals originated from the High Courts decisions in the 228 Suit and the 106 Suit respectively.

[3] Further mention must also be made to the fact that the 222 Appeal and the 223 Appeal were struck out by this Court on 11 December 2017 and 14 December 2017 respectively for want of sanction under s 38(1)(a) of the Bankruptcy Act 1967 since the appellant in both appeals namely Kanawagi a/l Seperumaniam, the first defendant in the 228 Suit and the fourth defendant in the 106 Suit, had been adjudged a bankrupt on 30 May 2013. The motions for leave to file an appeal to the Federal Court in respect of the 222 Appeal and the 223 Appeal were respectively dismissed by the said Court on 26 September 2018 and 29 October 2018. Therefore, as it stands now, insofar as the 228 Suit and the 106 Suit are concerned, the fourth defendant is bound by the decisions and orders of the High Court in both suits ergo these decisions and orders remain intact. In other words, where the learned judge made his decision in the 106 Suit from which these 5 appeals arise, the decision against the fourth defendant binds him and it is not open to this Court to reverse the decision because the learned judge had made specific findings against him. Likewise, any decision made by this Court against the other defendants in the 224 to 228 Appeals and where it concerns the fourth defendant will inevitably bind him as well and each of the defendants is liable for the same damage and must also compensate for the whole of it. The learned judge in this regard found all the defendants liable for causing the same and indivisible damage to the Trust. His Lordships findings clearly linked every defendant and hence every other appeal herein. The Federal Courts decision in the case o