The trio are former 1MDB directors Kamal Ali and Norazman Ayob, and the company’s former chief financial officer Azmi Tahir.
A three-member bench chaired by Justice S Nantha Balan said there was no inordinate delay on Irwan’s part in bringing third-party proceedings against the three individuals.
This was because an agreement was in place which put the filing of pleadings in abeyance, the judge said.
“He (Irwan) was waiting for documents from 1MDB’s solicitors who had initially given the impression that they would supply everything asked for by Irwan’s solicitors.
“However, 1MDB’s solicitors later resiled and said they would not be giving the requested documents. Of course, had they stated their position from the onset, Irwan would have applied for discovery,” Nantha added.
Also on the panel hearing the appeal were Justices Azmi Ariffin and Ahmad Kamal Shahid.
The appeals court set aside a High Court ruling handed down on Sept 6 which struck out a third party notice taken out by Irwan and co-defendant Arul Kanda Kandasamy on May 30 against six individuals.
They were Kamal, Norazman, Azmi and the company’s former chairmen Lodin Wok Kamaruddin and Asri Hamidin @ Hamidon, and its current chairman Johan Mahmood Merican.
Only Irwan appealed against the decision.
Today, Nantha said Irwan’s action against Azmi, Norazman and Kamal were neither frivolous nor an abuse of process as he had levelled many allegations against them.
He said the trio had filed their defence to the third party action and would have to answer for their respective roles.
“We do not think that it is entirely correct to say that it is for 1MDB to choose who they wish to sue. That is only partly correct,” he added.
Nantha said in the present case, the third parties may be held liable to contribute to the claim made by 1MDB against Irwan.
“As for the claim against Norazman and Kamal, while they owe duties to 1MDB, this does not mean that Irwan cannot seek a contribution from them,” he added.
In setting aside the High Court’s decision, Nantha said the bench was persuaded that the main criticisms directed at the judicial commissioner’s ruling were well-founded.
Irwan was represented by Lavinia Kumaraendran and Mavin Thillainathan, Wan Aizuddiin Wan Mohamed and Rahmat Hazlan acted for Azmi while Razlan Hadri Zulkifli appeared for Kamal and Norazman.
1MDB filed its suit against Irwan and Arul Kanda Kandasamy, accusing them of breach of trust and conspiracy that resulted in US$1.83 billion in losses in connection with the company’s investment in 1MDB-Petrosaudi Ltd. The monies were said to have been later converted into investments into Brazen Sky Ltd and recoverable from the Bridge Global Fund.
1MDB also alleges that both Irwan and Arul committed breach of trust and conspiracy by misappropriating US$3.5 billion in company funds paid to Aabar Investments and US$1.265 billion paid to the International Petroleum Investment Company on May 9, 2017.
In addition, 1MDB claims that Irwan colluded with Arul to execute an extension of an employment agreement which saw the company pay RM2,905,200 to Arul, disregarding 1MDB’s interests, resulting in losses suffered by the company.
Consequently, 1MDB is seeking US$6.59 billion in damages from both defendants for these violations, and an additional RM2.9 million from Irwan in connection with the extension of the employment agreement.
Trial of the suit is ongoing, with three witnesses having already testified for the plaintiff. It is scheduled to resume on Jan 13.