Hitachi Systems Digital Services (Singapore) Pte. Ltd. (Formerly known as Hitachi Sunway Network Solutions (S) Pte. Ltd.) (Company No. 200300650Z) 1. Cuscapi Malaysia Sdn. Bhd. (Company No. 520415-W) 2. Cuscapi Berhad (Company No. 43190-H)

Hitachi Systems Digital Services (Singapore) Pte. Ltd. (Formerly known as Hitachi Sunway Network Solutions (S) Pte. Ltd.) (Company No. 200300650Z) 1. Cuscapi Malaysia Sdn. Bhd. (Company No. 520415-W) 2. Cuscapi Berhad (Company No. 43190-H)

On the balance of probabilities plaintiff proved goods were supplied and delivered and the corporate guarantee was valid and enforceable; defendants failed to discharge burden to prove dishonesty, breach of fiduciary duty, conspiracy or secret profit; KPMG report deficiencies and failure to call key witnesses...

Source-derived case information.

Citation
WA-22NCC-399-09/2018 (Mahkamah Tinggi)
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): Hitachi Systems Digital Services (Singapore) Pte. Ltd.; 1st Defendant (original Action); Plaintiff (counterclaim): Cuscapi Malaysia Sdn. Bhd.; 2nd Defendant (original Action); Plaintiff (counterclaim): Cuscapi Berhad; 2nd Defendant (counterclaim): Her Chor Siong; 3rd Defendant (counterclaim): Ong Chin Hui
Court
High Court
Jurisdiction
Malaysia
Judgment Date
31 December 2020
Case Number
WA-22NCC-399-09/2018 (Mahkamah Tinggi)
Procedural Posture
Commercial Contract Dispute for Goods Sold and Delivered and Enforcement of Corporate Guarantee With Counterclaim Alleging Breach of Fiduciary Duty and Conspiracy / Judgment After Full Trial
Outcome
Plaintiff Hitachi's claim allowed; counterclaim by CMSB and Cuscapi dismissed
Legal Topics
Goods Sold and Delivered, Corporate Guarantee, Breach of Fiduciary Duty, Dishonest Assistance and Conspiracy, Adverse Inference for Non Calling of Witnesses, Burden of Proof, Forensic/investigative Audit Evidence
Contract Law Company Law Equity and Fiduciary Duties Civil Procedure Evidence Law Goods Sold and Delivered Corporate Guarantee Breach of Fiduciary Duty +4 more

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Parties

Hitachi Systems Digital Services (Singapore) Pte. Ltd.

Plaintiff (original Action); 1st Defendant (counterclaim)

Cuscapi Malaysia Sdn. Bhd.

1st Defendant (original Action); Plaintiff (counterclaim)

Cuscapi Berhad

2nd Defendant (original Action); Plaintiff (counterclaim)

Her Chor Siong

2nd Defendant (counterclaim)

Ong Chin Hui

3rd Defendant (counterclaim)

Procedural Posture

Commercial Contract Dispute for Goods Sold and Delivered and Enforcement of Corporate Guarantee With Counterclaim Alleging Breach of Fiduciary Duty and Conspiracy / Judgment After Full Trial

Legal Issues

  1. 1 Whether Hitachi proved claim for goods sold and delivered and under the corporate guarantee
  2. 2 Whether the REV Agreement and the Guarantee were validly authorised by the boards of CMSB and Cuscapi
  3. 3 Whether HCS breached fiduciary duties by concealing price and making a secret profit

Ratio Decidendi

On the balance of probabilities plaintiff proved goods were supplied and delivered and the corporate guarantee was valid and enforceable; defendants failed to discharge burden to prove dishonesty, breach of fiduciary duty, conspiracy or secret profit; KPMG report deficiencies and failure to call key witnesses undermined counterclaim; accordingly judgment for Hitachi for the claimed sum with interest and costs and dismissal of counterclaim.

Court Disposition

Plaintiff Hitachi's claim allowed; counterclaim by CMSB and Cuscapi dismissed

Orders

  • Judgment entered jointly and/or severally against the defendants for USD 3,596,448.02 with interest at 5% per annum from 5 September 2018 until full payment or realization (equivalent RM14,488,290.85 based on BNM rate USD1.00=RM4.0285 as at 31 Dec 2020)
  • Counterclaim dismissed in its entirety