(English) Directors' Fraud, Piercing the Corporate Veil (Case Analysis on Keller (M) Sdn Bhd v Ong Leong Chiou & Ors) by Mr Lau Kee Sern (Messrs Kee Sern, Siu & Huey)

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Everything you need to know about Directors' Fraud, Piercing the Corporate Veil

Title: Directors' Fraud, Piercing the Corporate Veil

In-Depth Case Analysis: Keller (M) Sdn Bhd v Ong Leong Chiou & Ors

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Webinar Outline

# 01 Acronyms of engineering terms used in the contract

#02 Case Progress

• From High Court to Federal Court (6 years)

#03 The Law in relation to Piercing the Corporate Veil

• Principle of Veil of Incorporation

#04 Parties

• Overview
• Plaintiff v 4 Defendants
• Background of Defendants

#05 Chronology & Background

• Main - Sub Contractor
• From 13 September 2013 - 11 March 2014 (Confirmation Of Guarantee)

# 06 Problems

• Chain of Contracts and Intended Payment
• Problem (1) - Reversal of Payment for EBW
• Problem (2) - Payment Guarantee

#07 Plaintiff’s Claims

• Plaintiff’s Cause of Actions
  • Breach of FBP Contract & GA Contract
  • Misrepresentation
  • Lifting the Corporate Veil
  • Unjust Enrichment

1st issue: Whether D2 is liable to the Plaintiff for the EBW?

• Court Decision

2nd issue: Whether D2 has proved its counterclaim against the

Plaintiff?

• Court Decision

3rd issue: Whether D1 & D3 can be made jointly and severally

Liable with D2 for the amount owing by D2 to the Plaintiff?

• Factor(1): Whether D1 & D3 knew that the EBW would not be paid for by D4?
  • David Wong Hon Leong v Noorazaman bin Abnan [1995] 4 CLJ 555

• Court Decision

• Factor(2): Whether D1, D2 & D3 having knowledge of EBW would not be paid, are liable to Plaintiff when the contract stipulated D2 is obligated to pay Plaintiff?
  • Court Decision

• Factor(3): The reversal of payment only accrued after EBW was completed
  • Court Decision

• Factor(4): Missing page in the Blank Bill No.4 which was sent to Plaintiff for the FBP Contract

• Factor(5): Whether D2 & D3 were operating as a single economic entity under D1’s directions
  • Epic Quest Sdn Bhd v Sheila Eleanor De Costa [2011] 8 CLJ 518

• Court Decision

• Factor(6): The resignation D2 directors and transfer their shares to third parties
  • Wong Kar Juat & Anor v S7 Auto Parts (M) Sdn Bhd [2015] 9 CLJ 590

• Gurbachan Singh v Vellasamy [2015] 1 MJL 773
• Salomon v A Salomon & Co Ltd [1897] AC 22
• Prest v Prest and others [2013] 4 All ER 673

#08 High Court’s Decision

#09 Issues dealt in the Court of Appeal

• Issue 1: Single economic unit & lifting the corporate veil
• Issue 2: The claim for the remaining guarantee of RM717,721.96 against D4

• Court of Appeal’s Decision

#10 Issues dealt in the Federal Court

• Issue(1): Appellants sought to try on the findings of facts made at the trial stage

• Issue(2): The position in law in relation to disregarding the Corporate veil

• Prest v Prest and Others [2013] 4 All ER 673
  • Wrongdoing - Facade & Sham
• Other methods
  • Disregarding the Corporate Veil;
• Fraud Unravels Everything

• Issue(3): Whether the application of the evasion principle applies to the present facts?
• Issue(4): The applicability of the doctrine where joint tortfeasors and joint liability is established
• Issue(5): Whether the single economic unit test expounded in Law Kam Loy v Boltex is confined to Industrial Court matters?

#11 Speaker’s Comment

• Categories of Piercing the Corporate Veil
• Concealment Principle
  • VTB Capital plc v Nutritek International Corp
  • Jones v Lipman
  • Gencor ACP v Dalby
  • Trustor AB v Smallbone
• Evasion Principle
  • Gilford Motor Co Ltd v Horne

#12 Conclusions