Abdul Malik Ishak JCA (delivering judgment of the court):

[1]This is the judgment of this court.

[2]On 8 August 2011, the High Court dismissed Dato' Abul Hasan bin Mohamed Rashid's (the second defendant's) application for leave to issue third party notices as per encl 251. Aggrieved, the second defendant, a director of the first plaintiff, appeals to this court.

[3]The proposed third party by the name of Gordon Toh Chun Toh is the first defendant in the plaintiffs' civil suit and no leave is required under O 16 r�8 of the Rules of the High Court 1980 ('RHC') to issue third party notice to him and the second defendant subsequently proceeded to issue the third party notice against the first defendant (In re Burford, Burford v Clifford Ewe Keok Ngoh v Ooi Soon Tin & Ors [1926] 2 MC 107).

[4]The second defendant is seeking leave to bring third party proceedings for indemnity and contribution against the six directors of the first plaintiff. But before leave to issue a third party notice is granted to the second defendant, he must show a prima facie case.

[5]Now, the suit was filed on 7 April 2008. But it was only on 13 July 2011 that the second defendant sought leave to issue third party proceedings for indemnity and contribution against the six directors of the first plaintiff, namely:

(a)Dato' Bahari bin Haron;

(b)Mohd Noor bin Ibrahim;

(c)Lena Loh Yun Ling;

(d)Dato' Mohd Nadzir bin Mahmud;

(e)Goh Kar Chun; and

(f)Dato' Haji Sulaiman bin Ahmad.

[6]The third party proceedings must be viewed as independent proceedings between the second defendant as plaintiff and the six directors as defendants (Mat Abu bin Man v Medical Superintendent, General Hospital, Taiping, Perak & Ors Chong Yew Kee & Anor v Wah-Chang International Corp Pte Ltd & Anor (New Zealand Insurance Co Ltd, third party)

[7]When the High Court refused leave to issue third party notices on 8�August 2011, the second defendant moved the High Court orally for a stay of the trial pending disposal of his appeal at the Court of Appeal. But the High Court dismissed the second defendant's oral application for a stay. The second defendant then filed the present appeal by way of a notice of appeal dated 9�August 2011.

[8]On 16 August 2011, the second defendant filed an application by way of notice of motion to the Court of Appeal for an order to stay the trial before the High Court pending the disposal of his appeal. On 24 August 2011, the Court of Appeal dismissed the second defendant's application for stay with costs. And the trial commenced before the High Court on 31 August 2011.

[9]Essentially, the plaintiffs' claims against the second defendant are for:

(a)reach of the second defendant's fiduciary duties as a director of the first plaintiff;

(b)fraud upon the plaintiffs;

(c)conspiracy to defraud the plaintiffs; and

(d)rendering knowing assistance and dishonestly assisting Gordon Toh Chun Toh (the first defendant) in facilitating the misappropriation of the plaintiffs' funds.

[10]While the second defendant's claim for indemnity and contribution hinged on the following grounds:

(a)that the six directors of the first plaintiff individually or collectively as members of the Board of Directors of the first plaintiff have breached their fiduciary duties to the first plaintiff;

(b)that the six directors of the first plaintiff carried out the management of the plaintiffs' business without regard to proper procedure and internal controls;

(c)that the six directors of the first plaintiff acted contrary to the best interest of the plaintiffs; and

(d)that the six directors of the first plaintiff failed to ensure that proper accounting records are maintained in respect of the plaintiffs' financial affairs at all material times and to ensure that the same is true and accurate reflection of the financial status of the plaintiffs.

[11]Mr G Rajasingham for the plaintiffs emphasises the following salient facts:

(a)on 23 March 2007 (Friday) both Gordon Toh Chun Toh (first defendant) and the second defendant joi