Breach of fiduciary duties must consider the separate legal identities of corporate entities, impacting enforceability of agreements.

[1] This appeal by the appellant is against the decision of the High Court which had dismissed the appellant's claim and allowed the respondent's counter claim for bonus and director's fees for the year 2014. Her Ladyship further ordered the bonus and the director's fees for the year 2014 to be assessed.

[2] For the purpose of this judgment, the parties will be referred to as they were in the High Court.

Material Facts

[3] The plaintiff is a member of the Texchem Group of Companies which provides laboratory analytical testing as well as consultancy services in particular, in the field of chemistry.

[4] By a letter of appointment dated 1 July 1998, the defendant was appointed by Fumakilla Malaysia Berhad ('Fumakilla') as a chemist on 1 July 1998. One of the terms of appointment was that he may be transferred to any of the associate companies or subsidiary within the Texchem Group:

TRANSFER

It is a term and condition of employment that you may be transferred to any of the subsidiary or associate Companies within the Texchem Group.

[See: p 623 Common Bundle of Document (CBD)].

[5] During his tenure with Fumakilla the defendant entered into two agreements:

a. Confidentiality Agreement dated 9 August 1999 (See: Record of Appeal Volume 2C; p 684); and

b. Conflict of Interest Agreement (Form 10A) dated 7 September 2007 (See: Record of Appeal Volume 2C: p 687).

[6] On 1 July 2009, the defendant was transferred to the plaintiff, a company within the Texchem Group of Companies and promoted to the position of Assistant General Manager:

Dear Mr Yeow

Transfer

The Company is pleased to advise that you will be transferred from FUMAKILLA MALAYSIA BERHAD to ACUMEN SCIENTIFIC SDN BHD with effect from 1 JULY 2009 ...

[7] This was followed by another promotion in the same company as a General Manager with a further salary increment effective 1 January 2010 (see: letter dated 1 January 2010; p 544 CBD). On 1 January 2011 the defendant was appointed as a Working Director of the plaintiff. The only terms revised were in respect bonus and salary.

[8] Four years later, on 6 November 2014, the defendant tendered his resignation, giving 3 months' notice, the last day of service being on 5 February 2015. Five months after his resignation, the defendant joined Amcen Lab Sdn Bhd ('Amcen') as its General Manager.

[9] The plaintiff's case against the defendant is for breach of the two agreements executed and breach of fiduciary duty. It is contended by the plaintiff that the defendant at all material time was bound by the terms of the Confidentiality Agreement and the Conflict of Interest Agreement which he had executed earlier. It was further contended by the plaintiff that the defendant breached his fiduciary duties by disclosing and making use of the plaintiff's confidential information, and had utilised the confidential information for his personal interest to the detriment of the plaintiff's interest.

[10] According to the plaintiff from 23 December 2014 until 12 January 2015 the defendant used the plaintiff's property, a Dell latitude E4300 laptop to communicate and receive emails relating to Amcen's operation using his personal email address. In his capacity as Associate Consultant of Amcen the defendant had also conducted an evaluation and monitoring of Dynacraft Industries Sdn Bhd between 3 July 2014 and 4 July 2014. It was also alleged that on 2 September 2014 the defendant's sister, Yeow Bee Hsia, assisted in generating email addresses for Amcen created for the defendant when he was still an employee of the plaintiff. The plaintiff further alleged that the defendant himself had registered the website 'amcen.com.my' on behalf of Amcen as