Nallini Pathmanathan J:

INTRODUCTION

[1]This dispute emanates from a conflict that arose primarily between the first plaintiff, one Deepak Jaikishan a/l Jaikishan Rewachand, and the first defendant, Intrared Sdn Bhd, an entity that is a subsidiary of the financial institution known as Kuwait Finance House (M) Sdn Bhd. The plaintiffs also enjoyed a banker-customer relationship with the latter.

[2]As a consequence of the conflict, which related to the purchase of a commercial building that was in the process of being constructed, the plaintiffs claim that they have suffered vast losses arising from the acts of the first defendant, Intrared, which the plaintiffs maintain amount to a breach of contract.

[3]Further or alternatively, the plaintiffs maintain that the first defendant conspired with Kuwait Finance House (M) Sdn Bhd to cause them injury, and caused immeasurable loss to the plaintiffs’, particularly the first plaintiffs, credit reputation.

[4]The first defendant categorically denies these allegations, in so far as the second defendant is concerned, the plaintiffs seek to establish that there are sufficient grounds for the corporate veil of the second defendant, a wholly owned subsidiary of Intrared, to be lifted such that it and Intrared are effectively one and the same.

THE JUDGMENT

[5]I summarise below the relevant paragraphs dealing with the several issues arising in the course of the judgment, which make for easier reference:

(a)the factual matrix underlying the case is set out under ‘Salient facts’ and spans paras 1–54;

[2013] 7 MLJ 437 at 446

(b)the issues arising for adjudication are set out at para 55;

(c)the cause of action premised on a breach of the share sale and purchase agreement between the plaintiffs and Intrared is dealt with at paras 57–71;

(d)the issue of waiver is dealt with at paras 72–89;

(e)the tort of conspiracy to injure is dealt with from paras 90–170;

(f)the issue of whether the corporate veil of the second defendant, Prestige Scale Sdn Bhd ought to be lifted is dealt with a paras 172–191;

(g)the issue of damages is dealt with from paras 192–249.

SALIENT FACTS

[6]The salient facts relating to this dispute are as follows:

THE PLAINTIFFS

The plaintiffs in the original action, namely Deepak Jaikishan a/l Jaikishan Rewachand, the first plaintiff (‘Deepak’) and Ezul Ehsan bin Ismail, the second plaintiff (‘Ezul’) were the shareholders and directors of the second defendant, Prestige Scale Sdn Bhd from 23 October 2007 until 30 July 2008. One Sharizal bin Ahmad was also a Director of Prestige Scale.

PRESTIGE SCALE SDN BHD AND ‘GLOMAC’ TOWER

In or around 2007, the two plaintiffs, through the corporate vehicle of Prestige Scale Sdn Bhd, where they were shareholders and directors, sought to purchase a commercial building that was in the process of being developed and constructed. The building, known as the Glomac Al Batha Tower KLCC (‘the building’), was being constructed by the original owner, Glomac Al Batha Sdn Bhd (‘Glomac’). The sale price of the building was RM576,853,150 based on an estimation of RM1,050 per sqft and RM50 per car park space.

KUWAIT FINANCE HOUSE (M) SDN BHD AND INTRARED SDN BHD

In order to finance the purchase of the building, Prestige Scale sought financing from Kuwait Finance House (M) Sdn Bhd (‘KFH’). KFH is a financial institution that offers financing facilities with Islamic features. KFH is also one of the shareholders of the first defendant in the original action. Intrared (‘Intrared’) was incorporated by KFH on 19 June 2008 and was [2013] 7 MLJ 437 at 447initially known as KFH Reetaj Sdn Bhd. Its founding shareholders, Dr Radzuan Rahman and Dato’ CK Wong were both nominees for KFH.

FINANCING FACILITIES BETWEEN KFH AND PRESTIGE SCALE SDN BHD FOR THE PURCHASE OF ‘GLOMAC’ TOWER

Pursuant to a letter of offer dated 25 October 2007, KFH offered a Musyarakah financing facility amounting to RM12m to Prestige Scale for the proposed project, namely the construction and purchase of the building. On 25 Febru