In delivering their ruling virtually today, Court of Appeal judges Mohamad Zabidin Mohd Diah, Lee Heng Cheong and Ahmad Nasfy Yasin also ordered the case to go for retrial in the High Court.
Liew’s press officer, Mary Chin, said in a statement that the Court of Appeal allowed the appeal by Liew and one Samsuri Baharuddin against the decision by High Court judge Chew Soo Hoo in Tawau in 2014.
Borneo Samudera Sdn Bhd (BSSB) had claimed more than RM557 million in damages from Liew, Samsuri and Siti Rahfizah Mihaldin, Liew’s former clerk, in the High Court.
The Tawau High Court then ruled on Sept 30, 2014 that Liew and two others had unlawfully induced a group of Bagahak scheme smallholders to breach their JVA with BSSB, a subsidiary of state-owned Sawit Kinabalu.
The other two were Samsuri, the attorney for a group of 819 smallholders in the Bagahak smallholders’ scheme, and Siti.
Chew had awarded RM557 million in damages to BSSB.
In the hearing of the appeal today, Chin said, the Court of Appeal delivered its ruling after finding there was merit in the duo’s appeal.
“The appeal is allowed. The decision of the High Court judge dated Sept 30, 2014 is set aside and we order the matter to be remitted to the High Court for retrial after the determination of the arbitration,” the Court of Appeal said in delivering its decision.
This said arbitration is to decide on the validity of a joint venture agreement (JVA) between the group of smallholders in the Bagahak scheme and BSSB.
Chin, however, clarified that the Tawau High Court did not order RM557 million in damages against Liew but merely ordered BSSB’s claim for damages to be assessed by the high court’s deputy registrar then.
In its claim against Liew and Samsuri, BSSB had asked for damages of RM557,641,716.29.
Chin said the Court of Appeal in its grounds of decision today said, among others, that the judgment by Chew in 2014 was a nullity as the latter should not have proceeded with the trial.
This was because there was supposed to have been an arbitration to decide on the validity of the JVA between the smallholders and BSSB.
She said that BSSB had applied for the dispute between the parties in the High Court suit to be arbitrated in accordance with the terms of the JVA.
Chin said Justice Gopal Sri Ram, sitting in the Court of Appeal, had in 2008 ordered that the High Court suit be stayed in favour of arbitration.
“In addition to the Court of Appeal’s ruling that the trial judge’s decision was a nullity, it also ordered that there be a retrial in Tawau.
“But this can only take place after the arbitration tribunal has decided on the enforceability of the JVA,” she said.
Malik Imtiaz Sarwar, Alex Decena and Jordan Kong appeared for Liew and Samsuri today while Jeyan Marimuttu and Jimmy Chang appeared for BSSB.