Amirely Bin Daud v Zulkifli Bin Osman (MA-22NCC-25-11/2025)

SYNTAX VALLEY PARKING (M) SDN BHD (No. Syarikat : 1383745-W) (suing pursuant to sections 347 and 348 of the Companies Act 2016 and the order of court dated 28 October 2025) ... Plaintiffs

MOHD FAIRUZ IZWAN BIN JAMIL (NO. K/P : 791105-10-5807) ... Defendants GROUNDS OF JUDGMENT (The plaintiffs' application in enclosure 9) A. INTRODUCTION [1] This is the plaintiffs' application, by the notice of application in Enclosure 9, for an order that the present action, Guaman Civil No. MA-22NCC-25-11/2025, be heard together with an earlier action pending in this Court between substantially the same protagonists, Guaman Civil No. MA-22NCC-3-01/2025. [2] The application is supported by the affidavit of the first plaintiff, Amirely bin Daud, affirmed on 15 April 2026 (Enclosure 10), and by a further affidavit of the same deponent affirmed on 10 June 2026 (Enclosure 12). The latter exhibits, as exhibit A-1, the statement of claim and the defence filed in the earlier action. [3] The order sought falls within Order 4 rule 1 of the Rules of Court 2012. The question raised is whether the conditions of that rule are satisfied and, if so, how the discretion which it confers ought to be exercised. [4] Two features of the matter require notice at the outset, and I identify them without prejudging the application. The first is that the two actions, though they arise from events concerning a single company, are not of the same juridical character: the earlier is a personal action, while the present is a statutory derivative action. The second is that the parties to the two actions are not identical, and the company itself stands on opposite sides of the record in each. [5] These grounds proceed in the following order. I first set out the material facts and the procedural history, drawn from the cause papers in this action and from the pleadings exhibited to Enclosure 12. I then identify the issue for determination, state the governing rule, and consider whether, and in what form, an order under that rule should be made. I decide nothing on the merits of either action. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The company at the centre of both actions is Syntax Valley Parking (M) Sdn Bhd, a private company limited by shares incorporated on 9 September 2020. According to the statement of claim in the earlier action, on incorporation its issued shares were held by Amirely bin Daud as to 127,500 shares (about 51 per cent) and by Zulkifli bin Osman as to 122,500 shares (about 49 per cent), and those two persons were then its only directors. [7] The earlier action, Guaman Civil No. MA-22NCC-3-01/2025, was commenced by writ; the statement of claim is dated 24 January 2025. In that action Amirely bin Daud sues alone, in his personal capacity, as plaintiff. The defendants are Zulkifli bin Osman (first defendant), Syahrul Hafiz bin Md Hashim (second defendant), Abd Kadir bin Md Idris (third defendant, there described with the title "Datuk"), and the company, Syntax Valley Parking (M) Sdn Bhd, itself (fourth defendant). The claim alleges, in summary, that in or about November 2022 the first and second defendants procured the transfer of shares belonging to the plaintiff in the company without his knowledge or consent and by forgery; that resolutions and instruments of transfer bearing the plaintiff's signature were fabricated; that he was wrongfully removed as a director; and that the company's funds were misapplied. The relief sought is personal to the plaintiff: declarations that the impugned transfers and resolutions are void, restoration of his shares and of his directorship, rectification of the register, and damages. [8] Of particular note for present purposes, at paragraph 41 of that statement of claim the plaintiff pleaded that, in respect of the alleged mismanagement of the company, he intended to file a separate derivative action against the defendants and others involved. [9] The defence in the earlier action, also exhibited, denies the allegations of fraud and forgery. Its essential position is that the impugned share transfers were effected with the plaintiff's knowledge and consent; that the relevant instruments were the statutory transfer forms under section 105 of the Companies Act 2016, lodged through the company secretary; and that there was no mismanagement. The authenticity of the transfers, of the resolutions and of the signatures said to appear on them is therefore squarely in issue. [10] The present action, Guaman Civil No. MA-22NCC-25-11/2025, is the derivative action foreshadowed in that earlier pleading. It is brought by two plaintiffs: Amirely bin Daud (first plaintiff) and the company, Syntax Valley Parking (M) Sdn Bhd (second plaintiff). The company sues pursuant to sections 347 and 348 of the Companies Act 2016 and the leave of this Court granted by order dated 28 October 2025. The defendants are Zulkifli bin Osman, Syahrul Hafiz bin Md Hashim, Abd Kadir bin Md Idris and Mohd Fairuz Izwan bin Jamil. The first plaintiff deposes in Enclosure 10 that he is a minority shareholder of the company and is authorised to affirm the affidavits on his own behalf and on behalf of the company. The derivative claim is directed to wrongs said to have been done to the company, including the misapplication of its funds; a special audit is said to have disclosed a substantial shortfall between recorded sales and receipts banked. Recovery in that action, if any, would enure to the company. [11] Three differences between the two records are material. First, the company is the fourth defendant in the earlier action but is a plaintiff in the present action; its alignment is reversed. Secondly, Mohd Fairuz Izwan bin Jamil is a defendant in the present action but is not a party to the earlier action, in which (on the defence) he features as the company secretary who lodged the transfer forms. Thirdly, the two actions differ in capacity: the earlier vindicates the first plaintiff's personal rights, whereas the present is pursued for the benefit of the company. The third defendant in each action is, however, the same individual; the same identity card number appears in both. [12] In Enclosure 10 the first plaintiff deposes that the facts in the two actions are substantially the same, that the parties are the same, that the same solicitors act in both, that common issues of fact and law arise, that a joint hearing would save costs and time without prejudice to any party, and that separate hearings would risk conflicting decisions. The assertion that the parties are "the same" must be read against the exhibited pleadings. Those pleadings show, as I have noted, that the parties overlap substantially but are not identical, and that the company's position is reversed. Where the affidavit characterisation and the exhibited pleadings differ, I act on the pleadings and not on the characterisation. [13] Two clerical features of the cause papers should be recorded and then put aside. The notice of application in Enclosure 9 is intituled as the plaintiffs' application and its prayers are framed accordingly, yet its filing endorsement describes the filing solicitors as solicitors "for the Defendant"; and the jurat to Enclosure 10, together with the Endorsement to Enclosure 12, refers to the affidavit as an affidavit "of the Defendant", although the deponent is the first plaintiff. These are evident slips. In substance, and on its prayers, the application is the plaintiffs' application, supported by the first plaintiff's affidavits, and I treat it as such. Nothing turns on the misdescriptions. C. THE ISSUE FOR DETERMINATION [14] The issue is whether the Court should order, under Order 4 rule 1 of the Rules of Court 2012, that this action be heard together with Guaman Civil No. MA-22NCC-3-01/2025; and, if an order under that rule is appropriate, in what form it should be made. D. THE GOVERNING RULE: ORDER 4 RULE 1 OF THE RULES OF COURT 2012 [15] Order 4 rule 1(1) provides that where two or more causes or matters are pending, and it appears to the Court that (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed therein arise out of the same transaction or series of transactions; or (c) for some other reason it is desirable to make an order under the rule the Court may order the causes or matters to be consolidated on such terms as it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of another. [16] Two points about the structure of the rule are pertinent. The first is that the conditions in sub-paragraphs (a) to (c) are disjunctive; the satisfaction of any one of them opens the door to an order. The second is that the rule confers a graduated discretion as to the form of relief. Consolidation in the strict sense the merger of the actions, governed by Order 4 rule 1(2) and (3), under which the file of one cause is carried on under the title of the other is but one of the available courses. The rule equally permits the lesser course of directing that the actions be tried at the same time, or one immediately after the other, while each retains its separate identity, pleadings and record. The choice among these courses is for the Court, to be exercised by reference to what the justice and convenience of the case require, consistently with the direction in Order 1A that the Court have regard to the overriding interest of justice and not merely to technical considerations. [17] The present application is, in its terms, for the two actions to be "heard together". That is an application for the second of the three courses a trial at the same time and not for consolidation in the strict sense. The distinction is not merely formal. Where, as here, the actions differ in capacity and the parties are not identical, the preservation of each action's separate identity may matter, and the form of any order should reflect that.

Whether a threshold condition under Order 4 rule 1(1) is satisfied [18] I consider first whether any of the conditions in Order 4 rule 1(1) appears to be satisfied. In my judgment the condition in sub-paragraph (a) that some common question of law or fact arises in both actions is plainly met, and the condition in sub-paragraph (b) is met in substantial part. [19] Both actions arise from the same course of events concerning a single company over the same period. The instruments said to have effected the transfer of shares in November 2022, the directors' resolutions said to have authorised those transfers and later corporate decisions, the lodgement of the statutory transfer forms with the Companies Commission of Malaysia, and the conduct of the same individuals Zulkifli bin Osman, Syahrul Hafiz bin Md Hashim and Abd Kadir bin Md Idris lie at the heart of each. The central contested question in the earlier action is whether the transfers and resolutions were genuine and authorised, or forged and procured without authority. That same question is integral to the derivative action, which is founded upon the proposition that those very acts were wrongful as against the company. The genuineness of the same instruments, resolutions and signatures will therefore fall to be determined in both actions, upon substantially the same documentary and oral evidence. That is a paradigm of a common question of fact within sub-paragraph (a). [20] There is also a substantial identity of the underlying transactions for the purposes of sub-paragraph (b). The series of share transfers and corporate decisions across 2022 to 2024, and the handling of the company's funds in that period, form the transactional substratum of both actions. The rights to relief in each though, as I come to explain, differently owned arise out of that same series of transactions.

(ii) The Distinct Character Of The Two Actions [21] It is necessary to confront the difference in character between the two actions. It was, on the affidavits, the foundation of the assertion that the parties and facts are "the same", and it bears directly on the form of any order. [22] The earlier action is a personal action. The first plaintiff sues to vindicate his own rights as shareholder and director: to set aside transfers of his own shares, to be restored to the register and to the board, and to recover damages personal to himself. The present action is a statutory derivative action. The company sues, through the first plaintiff and with the leave required by section 348 of the Companies Act 2016, to recover for wrongs done to the company itself. The distinction reflects a principle long settled in the law: that the proper plaintiff in respect of a wrong done to a company is, prima facie, the company itself, and that loss suffered by the company is recoverable by the company and not by the shareholder personally. The statutory derivative action in sections 347 and 348 of the Companies Act 2016 is the means by which a member may, with leave, bring proceedings in the company's name to vindicate the company's rights where those in control of it will not. [23] It follows that the relief in the two actions does not coincide. Recovery in the personal action enures to the first plaintiff; recovery in the derivative action enures to the company. The two actions are, in that sense, complementary rather than identical, and the company's appearance as a defendant in the one and as a plaintiff in the other is a function of that complementarity, not an anomaly. [24] The applicant's characterisation of the parties as "the same" is, therefore, not accurate, and I do not act upon it. But the inaccuracy does not defeat the application. Order 4 rule 1 does not require an identity of parties. It requires a common question of law or fact, or a common transactional origin, or some other reason rendering an order desirable. The difference in capacity and the non-identity of the parties go not to the existence of a common question which plainly exists but to the form which the order should take and to the management of the joint hearing. [25] Nor does the first plaintiff's earlier pleaded intention, at paragraph 41 of the statement of claim in the earlier action, to bring the derivative action "separately", stand in the way. A party's earlier procedural intention does not bind the Court's case-management discretion, which is to be exercised upon the position as it stands at the date of the application and in the interests of justice. That the derivative claim was conceived and commenced as a distinct proceeding, requiring its own statutory leave, is relevant to whether the actions should be merged; it is not a reason to try common questions twice.

(iii) The Exercise Of Discretion And The Form Of The Order [26] A threshold condition being satisfied, the remaining question is one of discretion. The Court must weigh, on the one hand, the savings in time and cost and the avoidance of inconsistent findings on common questions; and, on the other, any prejudice, embarrassment or procedural complication that a joint hearing would occasion. The governing concern is the just and efficient determination of both actions. [27] The considerations favouring a joint hearing are substantial. The actions share the same documentary record, the same witnesses, and the same central factual controversy the authenticity of the impugned transfers, resolutions and signatures. Were that controversy litigated twice, the parties would bear the cost of duplicated proceedings and the administration of justice would face the risk of inconsistent findings upon the very same question. That risk is the more troubling here, for a finding in the personal action that the transfers were forged, set against a contrary finding in the derivative action, or the reverse, would be irreconcilable in principle and corrosive of confidence in the process. The avoidance of precisely that mischief is among the express purposes of Order 4 rule 1. [28] Against this, no affidavit in opposition has been placed before me in these papers, and no specific prejudice has been identified. I am conscious that the materials before me are the applicant's, and I have assumed neither consent nor opposition on the part of the defendants; I decide the application upon the rule and upon the affidavit evidence and exhibited pleadings actually before the Court. Upon that material I can identify no prejudice that a properly structured order would not avoid. The differences in capacity and in party-alignment are real, but they are matters to be managed, not obstacles to a joint hearing. [29] Those differences do, however, determine the form of the order. Strict consolidation under Order 4 rule 1(2) and (3) would merge the two files under a single title and carry on the one action under the other. That course is, in my judgment, inapt here. It would tend to obscure the distinct juridical foundations of the two actions the personal claim and the statutory derivative claim and the distinct capacities in which the company appears. The preferable course, which secures the efficiency and the consistency that the rule seeks while preserving the integrity of each action, is to order that the two actions be tried at the same time before the same judge, each retaining its own pleadings, parties and record, with the evidence in one to stand as evidence in the other so far as it is relevant and admissible. [30] For completeness, prayer 1 of the notice of application, which seeks "leave" to make the application, is unnecessary: Order 4 rule 1 does not require leave to apply for an order under it. To the extent that any leave is needed, it is granted; but nothing turns upon it. F. CONCLUSION [31] For these reasons, the conditions of Order 4 rule 1(1) of the Rules of Court 2012 are satisfied: a common question of fact arises in both actions, and the rights to relief arise out of the same series of transactions. The difference in the juridical character of the two actions, and the non-identity of the parties, do not defeat the application; they bear only upon the form of the order. The balance of justice and convenience favours a single hearing of the common questions, and the appropriate order is that the two actions be tried at the same time before the same judge, rather than consolidated. G. ORDERS OF THE COURT [32] I accordingly make the following orders:

The application in enclosure 9 is allowed.

Pursuant to Order 4 rule 1 of the Rules of Court 2012, this action (Guaman Civil No. MA-22NCC-25-11/2025) and Guaman Civil No. MA-22NCC-3-01/2025 shall be tried at the same time before the same judge, each action retaining its own pleadings, parties and record.

The evidence adduced in either action shall stand as evidence in the other so far as it is relevant and admissible, without prejudice to the right of any party to object to admissibility.

The two actions are to be case-managed together, with liberty to apply for further directions for the conduct of the joint hearing.

The costs of this application shall be costs in the cause. (MELAKA) Lawyer For Plaintiffs : Puan Florencia a/p A. Sandanasamy Tetuan Florencia & Partners Peguambela dan Peguamcara No. 73-3, Plaza Damansara' Jalan Medan Setia 1, Bukit Damansara, 50490 Kuala Lumpur. Lawyer For Defendants : Encik Mohd Nazri bin Abd Hamid Tetuan Ms. Abu Dzarr & Nazri Peguambela dan Peguamcara No. 29-1, Jalan KF4, Kota Fesyen, MITC, 75450 Ayer Keroh, Melaka.