The court held that to establish conspiracy to defraud, the plaintiffs must prove an agreement and overt acts that caused damage, with a burden of proof beyond reasonable doubt.

Appeal

[1] After a full trial, the Kuala Lumpur High Court dismissed with costs the claim of the appellants ("the plaintiffs"). On 31 May 2010, we heard and dismissed the plaintiffs' appeal against the decision of the High Court. We now give our grounds.

Finding Of Facts By High Court

[2] The second plaintiff is the wholly owned subsidiary of the first plaintiff.

[3] On 14 July 1997, Wong Kok Poh (PW1) and one Rita Tan resigned as directors of the first and second plaintiffs, while Sydney Lim ("Lim"), Cheong Ho Kuan ("Cheong") and Wisun Soon ("Soon") were appointed as executive directors of the first plaintiff.

[4] On 21 July 1997, one Yeoh Lam Jit ("Yeoh") was appointed as the chief executive officer ("CEO") of the first and second plaintiffs. Lim, Cheong and Soon were appointed to the board of directors of the second plaintiff and other subsidiaries of the first plaintiff.

[5] On 10 April 1998, four shareholders of the first plaintiff commenced a petition under s 181 of the Companies Act 1965 against Yeoh, Lim, Cheong and Soon vide Originating Petition No D2-26-17-1998 ("the s 181 petition") alleging, inter alia, that the affairs of the first plaintiff are managed in an oppressive and prejudicial manner The first plaintiff was named as a party.

[6] On 11 April 1998, an ex parte order was made in the s 181 petition, appointing two public accountants from Arthur Andersen as Receivers and Managers ("R & M") of the first plaintiff. The R & M then took over the powers and duties of the first plaintiff's directors. On 19 June 1998, the ex parte order was set aside.

[7] On 18 June 1998, Yeoh filed an ex parte Originating Summons No D2- 24-267-1998 ("the ex parte OS") in his personal capacity, seeking a scheme of arrangement and the restructuring of the plaintiffs and their subsidiaries. On 20 June 1998, an order in terms was made in the ex parte OS to last for three months.

[8] On 1 July 1998, PW1 and Rita Tan filed Suit No S2-23-44-1998 against Soon ("the defamation suit"). On 11 August 1998 and 4 September 1998, the defendants' firm, M/s Liew Hazalina, filed a memorandum of appearance and defence respectively for Soon in the defamation suit.

[9] The second plaintiff made payments to the defendants' firm, itemised as follows:-

(1) Invoice No SJY 908192 L1(001) for RM105,385 for legal work done and disbursements incurred in the s 181 petition;

(2) Invoice No SJY 980179 C4(001) for RM50,080 to the first plaintiff for professional work done and disbursements incurred with regard to the joint-venture agreement between the second plaintiff and one Euro Incentive Sdn Bhd;

(3) Invoice No SJY 980120 L1 and SJY 980120 L1(004) for RM90,300.50 and RM64,000 respectively for professional work and disbursements incurred in relation to the ex parte OS;

(4) Invoice No SJY 97006 C1(001) for the sum of RM154,704.40, being professional fees and disbursements incurred in respect of a series of transactions for the acquisition by Eastwards Ventures Sdn Bhd of an entity known as CY Properties Sdn Bhd;

(5) Invoice No SJY 970178 C1(002) for RM31,939 to the first plaintiff for professional work and disbursements done in respect of KIK Sdn Bhd and Sujitec Sdn Bhd;

(6) Invoice No SJC 980050 C1(001) for RM47,465 to the first plaintiff for professional work done and disbursements incurred in respect of a transaction in which Yeoh was negotiating to sell his personal shareholding in the first plaintiff to another individual; and

(7) RM25,000 to the defendants for Administration of "Litigation Fund" pursuant to the resolution for the non-refundable litigation fund.

[10] On 18 September 199