Anand Ponnudurai JC:

INTRODUCTION

[1]The Plaintiff commenced this action against 6 Defendants. The 1^st Defendant (“01”)was a former employee and Director of the Plaintiff who had subsequently incorporated the 2^nd Defendant (“02”) which the Plaintiff pleads is in competition with it and that D1 had breached his fiduciary duties by attempting to solicit its customers as well as inducing the Plaintiff’s sales team to resign and join D2.

[2]Whilst D1 was the majority shareholder and a Director of D2, it is pleaded that the 3^rd, 4^th, 5^th and 6th Defendants (“03, 04, 05 and 06”) are the other shareholders of D2 with D3 being the only other Director of D2 besides D1.

[3]Pursuant to close of pleadings, D3 filed Enclosure 22 whilst D4 to D6 filed Enclosure 24, both of which were premised on Order 18 rule 19 of the Rules of Court 2012 (“ROC”) to strike out the Plaintiff’s claim against them.

[4]As both enclosures were based on primarily the same facts, they were heard together. Having considered all submissions and upon hearing Learned counsel, I had allowed both Enclosure 22 and 24 with costs and directed that the Plaintiff’s claim against 01 and 02 only proceed to trial.

[5]I will now set out the facts in more detail, the pleaded cases, the respective contentions/submissions and my analysis of the same with my reasons for allowing both applications.

THE FACTS/PLEADED CASES

[6]From the Statement of Claim, the background facts and the basis of the Plaintiff’s claim can be summarised as follows:-

6.1the Plaintiff is the sale and marketing arm of the ACE Group of Companies which is in the business of trading precious metals with emphasis on gold bullion trading;

6.2D1 was a Director of the Plaintiff from 22nd November 2019 until his resignation on 2^nd October 2020. D1 was also the Plaintiff’s Chief Operating Officer since 2011 who was subsequently redesignated to Chief Sales Officer in 2018;

6.3in such positions, D1 had unrestricted access to the Plaintiff’s confidential information and owed fiduciary as well as statutory and contractual duties to the Plaintiff, all of which have been set out in detail;

6.4the Plaintiff became aware in or around May 2020 that its customers had received solicitation letters from D2 offering services which were similar to those proffered by the Plaintiff and that D1 and D3 were the contact persons;

6.5a search with Suruhanjaya Syarikat Malaysia (“SSM”) revealed that D2 was incorporated on 15th May 2020 whilst D1 was still Director of the Plaintiff and it is contended that neither D1 nor D2 sought the Plaintiff’s permission prior to its incorporation;

6.6that 01 had between May 2020 to August 2020 approached its employees to induce them to resign whereafter the Plaintiff’s entire sales team left and joined employment with 02;

6.7it is pleaded that the Plaintiff has suffered a loss of business since the departure of 01 and it is contended that 01 has become a constructive trustee for the Plaintiff for all money received due to the breaches by 01 which the Plaintiff is entitled to trace;

6.8In relation to the other Defendants, the Plaintiff pleads that D3 to D6 had unlawfully conspired to injure the Plaintiff’s business by unlawful means by incorporating D2 to compete and to destruct the Plaintiff business;

[7]All 6 Defendants were represented by the same solicitors and through their joint statement of Defence, the following was their pleaded case in essence;

7.1that 01 was forced to resign from the Plaintiff in March 2020 pursuant to a dispute with another director/majority shareholder whereafter he was precluded from being involved in the management of the Plaintiff and not paid salaries etc. since April 2020. In this regard, 01 has provided records of the Employee Provident Fund which indicates that contributions to the same had ceased in April 2020 As such, he had only incorporated 02 after he had resigned from the Plaintiff;

7.201 acknowledges that he owes the Plaintiff various duties but denies any breaches of the same as