PUTRAJAYA (May 26): Public Bank Bhd (KL:PBBANK) has failed in its appeal to set aside a RM560 million lawsuit filed by the National Feedlot Corporation (NFCorp) and four others, including its chairman Datuk Seri Mohamad Salleh Ismail, after the country’s apex court unanimously dismissed the bank’s appeal.
The three-member Federal Court bench led by Chief Judge of Malaya Datuk Seri Hasnah Mohammed Hashim in a unanimous decision on Monday dismissed the bank's appeal against a Court of Appeal (COA) decision.
Hasnah, who was flanked by Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli and judge Datuk Abu Bakar Jais, also allowed NFCorp’s cross-appeal to pursue exemplary and aggravated damages against the bank, which had not been awarded by the appellate court.
The originating suit in the High Court was filed by NFCorp, Mohamad Salleh, National Meat & Livestock Corporation Sdn Bhd, Agroscience Industries Sdn Bhd and Real Food Company against Public Bank for leaking details of their accounts and the proposed purchase of properties at KL Ecocity.
The High Court did not find that Public Bank had breached confidentiality.
On Aug 30, 2023, the COA had overturned the High Court’s decision, finding Public Bank liable for breaching its duty of confidentiality. The COA only awarded nominal damages of RM10,000 and ordered Public Bank to pay RM500,000 in costs.
This resulted in NFCorp going to the apex court to appeal for more damages, while Public Bank appealed to reverse the COA’s decision against it.
However, at the Federal Court, the judges did not make a determination on the quantum of damages to be awarded, as Hasnah, in her decision, said that the bench needed time to pore over documents and study the amount of damages to be awarded.
She set June 18 for the bench’s decision on damages.
However, she awarded NFCorp RM300,000 in costs, which is to be paid by Public Bank.
NFCorp’s lawyer Tan Sri Muhammad Shafee Abdullah told the bench that his clients are seeking RM560 million in damages: RM60 million in general damages, RM250 million in exemplary damages and another RM250 million in aggravated damages.
Shafee said that the COA and High Court judges did not consider that his client had suffered serious loss due to the bank’s breach of confidentiality.
“We have proven serious loss my client suffered and misconduct from the bank, which was linked to an Opposition member, who leaked it to the public. My client suffered huge losses due to this. This was not considered by High Court and Court of Appeal,” Shafee said in explaining the sum of RM560 million to the judge.
NFCorp’s questions to the Federal Court pertain to the quantum of damages awarded, while Public Bank’s questions are mainly on liability.
NFCorp and the four others had two questions, namely:
- The COA exercised full appellate jurisdiction in rehearing the appeal in relation to liability consonant with the requirement of Section 69 of the Courts of Judicature Act 1964, and in exercising that power of rehearing, reversed the entire High Court decision on virtually every pertinent issue relating to liability. Should the COA not exercise similar power of rehearing in dealing with the matter of damages?
- Since the COA found the causes of action in breach of confidentiality and fiduciary duty (all of which arise from common law and equity) and in breach of contract, even if (which is denied) there is no proof of damages, are not the more proof of the torts of confidentiality and fiduciary duty to bring about the entitlement for the plaintiffs’ damages to be assessed under equitable damages?
Meanwhile, the two questions posed by Public Bank were:
- Whether a bank’s implied contractual duty of confidentiality is a qualified duty (as opposed to an absolute duty), in that there are defences of exceptions to such a duty.
- Where a bank’s implied contractual duty of confidentiality is a qualified duty, whether a bank’s liability thereunder, in a banker-customer contract of service, is a fault-based liability (as opposed to strict liability).
COA overturned decision
The COA ruled that the High Court judge had ignored vital evidence from the bank’s domestic inquiry on its former clerk Johari Mohamad, who was implicated in the leak of confidential documents.
Politician and current Economy Minister Rafizi Ramli had at the time held a press conference to disclose the information along with NFCorp’s customer profile and balance summary (CF-BS), that led to Mohamad Salleh complaining on March 30, 2012, about wrongful disclosure and thus filed the suit.
Shafee described that the damages should be revised due to the bank’s atrocious conduct of having leaked the information which affected NFCorp’s reputation, as it had not gone ahead to make the purchase of the property that it was accused of.
Public Bank’s counsel KK Chan appeared with Poh Choo Hoe.