Ramly Ali JCA (delivering judgment of the court):

INTRODUCTION

The appellant herein was the defendant at the court below and the respondent was the plaintiff there. The appeal before us is against the decision of the learned High Court judge dated 4 March 2011 allowing the respondent’s application for statements of account to be provided by the appellant to the respondent.

The respondent’s claim against the appellant is for an account from the appellant based on consultancy agreements entered into between the respondent and one Alcatel Standard SA and other associated companies within the Alcatel Group. The respondent claimed that by virtue of a collateral agreement between the respondent and the appellant, a duty to account arose.

The appellant’s defence in brief is:

(a)the appellant was not an accounting party to the respondent but to Alcatel SA;

(b)the appellant was not the beneficiary of the contract and no consideration flowed to the appellant and there was no intention to create legal relations between the respondent and the appellant; and

(c)the respondent’s claim had disclosed no reasonable cause of action against the appellant.

FACTUAL BACKGROUND

The appellant had secured certain projects from Celcom Bhd and Telekom (M) Bhd with regards to a telecommunication network system in Malaysia, wherein the work for the projects would be undertaken and implemented by the appellant with the consultancy services, being provided by the respondent to the appellant.

The respondent entered into defining agreements with the appellant’s main company ie Alcatel-Lucent Trade International AG (also known as Alcatel Standard SA) and other associated companies within the Alcatel Group. The said agreements provide for the mode and manner of payments to be made to the respondent.

The respondent claimed that, over the years since 2000, the appellant rendered some form of accounts to the respondent and the respondent’s fees was computed and paid by the appellant in the region of USD7m. To the respondent, this was a collateral agreement by practice and conduct between the appellant and the respondent from 2000 until the appellant terminated the respondent’s services in 2009 and stopped rendering the accounts as to the deliverables provided, as a result of which the respondent was unable to compute the amount due to them and as a consequence could not get paid for the consultancy services rendered.

The respondent’s claim in the court below is therefore only for accounts pursuant to O 43 of the Rules of the High Court 1980.

The learned High Court judge in allowing the respondent’s application found that such a collateral agreement between the appellant and the respondent have been established and proved by practice and conduct of the parties and documentary evidence. In short, learned judge had found that the appellant is an accounting party under common law on the ground that the appellant is described as an ‘associated company’ in the consultancy agreements and the benefits of the contract were for the appellant and so the court may pierce the corporate veil such that it is not open for the appellant to say they are not a party to the consultancy agreements. The learned judge also found that consideration had passed to the appellant and a fiduciary relationship existed between the appellant and the respondent and the fiduciary duty to account arose consequently.

The appellant’s grounds of appeal before this court, essentially, inter alia, are as follows:

(a)no plea or justification to lift the corporate veil;

(b)no plea or justification for fiduciary duty to account;

(c)no contractual relationship established between the appellant and the respondent; and

(d)no disclosure of value of deliveries to end customer under the consultancy agreements.

LIFTING OF THE CORPORATE VEIL

The respondent’s pleaded case was the existence of a collateral agreement, separate from the consultancy agreements under which it was suing. Learned judge went beyond the pleaded case when he de