Azimah Omar JC:

GROUNDS OF JUDGMENT (After full trial)A. BACKGROUND FACTS

[1]The present case begs for no extremity of lengths to discuss and determine its issues. As a prelude, this Court highlights that the factum of a fraud is undisputed in the present case. There is a mutual consensus between every person and parties involved in this case that indeed there was a fraud. What is left to be determined is merely, the measure of damages entitled to the victim of the fraud, and the persons liable and complicit to the fraud. The fraud dealt with in this case is but a recycling of Islamic Accepted Bills (“IABs”), which is similar to the mechanisms of a Banker’s Acceptance of which the drawdowns from the IABs were procured on the basis of a sham transaction, and the proceeds from the drawdowns were utilised to pay matured IABs which are due for payments. This recycling of IABs is undisputed and even admitted by the alleged fraudsters, the Defendants.

[2]Now, what has been laid upon this Court is the Plaintiff’s air-tight case, which has left no stone left unturned. The Plaintiff’s case generally covers the Defendants’ liabilities either through complicity to the fraud or sheer recklessness and negligence which had led to the Plaintiff’s injuries. The Defendants however, have very little to no defence to exonerate themselves from liability and complicity in the fraud. Their defences mainly pertain to demarcating themselves from any participation in the fraud, and apportioning the blame to other persons but not themselves. Nevertheless, the undisputed fact remains, the fraud had occurred and the proceeds from the fraud indeed had benefited the Defendants. What irks this Court the most is the Defendants’ defence that it is the Bank’s negligence that had led to the occurrence of fraud, in which a fraud which the Defendants themselves benefitted from. Preliminarily, this Court must stress that this Court shall never be an instrument of fraud and would never legitimize any act of deceit or fraud and lift the liability off of the fraudster or tortfeasor merely because the victim of the fraud was ‘negligent’ enough to be fooled by the façade set up by the fraudster or tortfeasor. A fraud is a fraud and any measure of negligence is never a defence for the fraudster to plea.

[3]Preliminarily as well, this Court does not hesitate to disagree with the destitute contention by the Defendants that this Court ought to disregard the Plaintiff’s Statement of Claim (allegedly pleading only on breach of contract) as the Plaintiff has abandoned the Statement of Claim and settle for a cause of action purely in tort (in their counter-claim). Against this fallible contention, this Court reminds the parties that it is already well settled that a claimant can plea a concurrent action in contract and in tort. It is verily common that breaches to a contract arose from the negligence of a partisan which in turn led to the non-performance and breach of the contract’s terms. Negligence in performance and breach in performance are not mutually exclusive and there is no confusion at all that a tortious act may as well be a breach of contract. (see Henderson v Merrett Syndicates ; Bank Utama (M) Bhd v Insan Budi Sdn Bhd

[4]The Plaintiff {Maybank Islamic Berhad (“Maybank”)} is a financial institution, a bank, licensed under the Islamic Financial Services Act 2013.

[5]The 1^st Defendant {Aldwich Enviro-Management Sdn Bhd (“AEM”)} is a private company incorporated in Malaysia while the 2^nd Defendant {Aldwich Berhad (“AB”)} is a wholly owned subsidiary of AEM. Both companies generally deal with waste management business and trades in oil and gas. Relevant to the present case, AEM and AB deals with the recycling of used catalysts (“spent catalysts”) used in the manufacturing process of precious metals (in this case, platinum) in which AEM and AB will process the spent catalysts to salvage residual precious metals from the spent catalysts.

[6]The 3^rd Defendant {Kamalul Arifin