Mohamad Ariff J:

INTRODUCTION

The plaintiff in this case is a former remisier of the defendant, previously known as Mayban Securities Sdn Bhd, and now as Aseambankers Malaysia Bhd. The full trial itself has been long and extended, with 12 witnesses called for the plaintiff and six for the defendant. The plaintiff himself gave evidence as PW12. Nevertheless, two main issues can be identified on the facts of this case. First, whether the plaintiff was lawfully suspended from trading and subsequently terminated as the defendant’s remisier or commissioned dealer’s representative under a standard remisiers’ agreement (‘SRA’) executed by the parties, and secondly, whether the plaintiff remains liable to indemnify the defendant for the remaining losses sustained by his clients in respect of share dealings conducted by him on their behalf. The issue of indemnity is also covered by the defendant’s counterclaim.

THE PLAINTIFF’S PRAYERS FOR RELIEF

The details of the claims are comprehensively spelt out in the plaintiff’s amended statement of claim and the defendant’s counterclaim. As for the plaintiff’s claims, the reliefs prayed are:

(a)compensation and/or damages arising from the defendant’s alleged breach of the SRA and the defendant’s unlawful termination of the plaintiff’s service as its remisier;

(b)payment of the sums of RM510,000 and RM32,808.90 being overdue commissions under a special incentive scheme earned by the plaintiff from July to September 2004 and October 2004 respectively;

(c)damages in respect of libel/defamation resulting from the alleged unlawful suspension and termination;

(d)exemplary damages for the alleged unlawful suspension and termination;

(e)loss of earnings and consequential loss from October 2004 and continuing resulting from the unlawful suspension and termination and the loss of the plaintiff’s dealer’s representative licence due to the termination;

(f)refund of the plaintiff’s security deposit of RM1,775,826.90;

(g)an order that the defendant ‘do indemnify and pay to the plaintiff all losses and consequential loss incurred and/or sustained by the several direct clients of the plaintiff in respect of any dealing in/or omission to deal in Liqua shares by reason of the unlawful suspension of the plaintiff by the defendant, such losses ‘arising from acts of the company directors and/or employees which directly or indirectly contravene or breach any of the Securities Laws, the Exchange Rules, Rules of MCD and Rules of the Clearing House’ as provided under cl 12.4.2 of the said agreement.’;

(h)interest on all outstanding sums and damages at 8%pa; and

(i)costs.

THE COUNTERCLAIM

The defendant’s counterclaim is based principally on the indemnity clause in the SRA (cl 6.1), and on this basis the defendant claims for the outstanding debts of the remisier’s clients in respect of margin accounts and non-margin accounts. The figures as at 17 September 2001 are a total of RM6,180,447.49 for losses under the margin accounts and RM453,131.65 for losses under the non-margin accounts. See para 33 of the amended defence and counterclaim. Further to these claims, the defendant also claims:

(a)a declaration that the plaintiff’s termination as a remisier by the defendant is lawful and valid;

(b)a declaration that the defendant has lawfully withheld the plaintiff’s commission and security deposit by reason of the indebtedness caused by the plaintiff’s clients;

(c)in the alternative, an order that the defendant may utilise the plaintiff’s commission and security deposit to set off the outstanding debts of his clients; and

(d)costs.

THE BACKGROUND FACTS

The facts of this dispute between the parties, as distilled from the testimony of witnesses and the documentary evidence, can be summarised as follows. The plaintiff was one of the top-performing remisiers in the defendant company until certain share trading events occurred which led to his suspension and subsequent termination as a remisier. These events centred on share dealings in Liqua shares by