Nallini Pathmanathan JC:

INTRODUCTION

[1]The plaintiff, Tekital Sdn Bhd, which is a company incorporated in Malaysia by two Italian nationals, namely one Carlo Allaria and one Penna Luciana, brings this action against the six defendants claiming that these defendants conspired to injure them, and perpetrated a fraud against them. In essence the plaintiff invested in a company known as Auto Parking Inc Sdn Bhd (‘API’) which is now in liquidation. API, a private limited company, was at all material times involved in the car park business, ie it conducted the business of operating and managing car parks. The plaintiff maintains that it made such investment premised on various misrepresentations made to Carlo Allaria and Penna Luciana on behalf of the plaintiff, by one Edison De’ Cruz, on behalf of API. Edison De’ Cruz is said to be the central character in a stable/group of companies including API and the Stess group of companies, which, it is contended he runs, operates and manages through the six defendants in this suit.

[2]Pursuant to an agreement dated 18 March 2004, the plaintiff paid a sum of RM1.2m by way of investment in API. The parties to this agreement were stated to be the plaintiff and API. However all monies paid pursuant to this agreement were paid in actuality to Stess Sdn Bhd and it was Stess Sdn Bhd that sold a 10% shareholding in API to the plaintiff. In short, in consideration of the payment of the sum of RM1.2m, the plaintiff became a 10% equity shareholder of API. Additionally the plaintiff became entitled to receive, under the terms of the agreement, a ten per cent share of the profits of API periodically.

[3]The plaintiff also contends that it was represented to Carlo Allaria that the plaintiff’s shares in API would be repurchased upon the close of the venture at a cost of RM7 per share. It was however an express term of the agreement that in the event of any default in the payment of profits or the venture failing, API would, on demand from the plaintiff, repurchase the plaintiff’s ten percent shareholding.

[4]The plaintiff received profits on one occasion after considerable prompting. After this however, these promised payments of profits were never made. Neither were the plaintiff’s shares in API repurchased. The plaintiff maintains that it was cheated of its investment by Edison de’ Cruz and his nominees, namely the first, second and third defendants. Attempts were made by the plaintiff to recoup his losses, inter alia, by filing a civil suit as well as lodging police reports which resulted in the institution of criminal proceedings. The plaintiff instituted a suit against Edison De’ Cruz and API in D3–22–1492 of 2006 claiming, inter alia, the repurchase of the shares at RM7 per share and for an account of profits under the shareholder’s agreement. The plaintiff has been granted judgment in terms of its claim.

[5]Then on 18 November 2009, API was wound up. Edison De’ Cruz was adjudicated bankrupt.

[6]In the present suit the plaintiff contends that the six defendants in this suit conspired with each other and acted in concert so as to deny the plaintiff its legitimate claim for the repurchase of its investment in API and an account of profits since 2005. This, it is contended, was done by stripping or siphoning off the assets of API, namely the management of no less than 16 car parks and its systems, and transferring these ‘assets’ or ‘businesses’ to other corporate entities such as the fourth, fifth and sixth defendants immediately prior to or soon after API was wound up. Thereafter these entities, particularly the fourth defendant, Auto Parking (M) Sdn Bhd continued to operate these 16 car parks which were originally managed by API prior to its liquidation.

[7]As of April 2010, the plaintiff contends that the first and second defendants engineered matters such that the fourth defendant took over 14 of the 16 car parks originally managed by API prior to liquidation. Further it is contended that the third defen