1. ) Chan Yee Fatt v 1. ) Pembinaan Kiwah Sdn. Bhd. (NA-24NCC-7-12/2021)

BETWEEN CHAN YEE FATT …PLAINTIFFS

TAN SIEW HOO & GAN SEE HOOI as trustees for Gan Hui Sen

AND PEMBINAAN KIWAH SDN BHD …DEFENDANTS

TOK HONG HOO GROUNDS OF JUDGMENT [Enclosure 30]

The plaintiffs in this case commenced an originating summons pursuant to section 346 of the Companies Act 2016 alleging (among others) that the Chan Yee Fatt v Pembinaan Kiwah 2 affairs of the first defendant company, Pembinaan Kiwah Sdn Bhd, were being conducted by the second and third defendants in an oppressive manner.

The case for fixed for hearing on 15 June 2022. Parties were directed to file their principal submissions by 18 May 2022 and their reply submissions by 1 June 2022.

The hearing proceeded on 15 June 2022 and continued on 17 June 2022. At the hearing, the court directed that the parties attempt a mediation of the dispute, with the view for the shares that were beneficially claimed by the plaintiffs to be bought out by the defendants at a price to be determined by an independent accountant.

Mediation was not successful.

On 15 October 2022, the plaintiffs filed an application in Enclosure 30 for the originating summons to be converted into a writ and for pleadings to be filed. Their intention to do so was communicated to the court in a case management conference held on 9 September 2022. It may be observed that this determination was made by counsel for the plaintiff well after affidavits had been exhausted and after written submissions in respect of Enclosure 1 had been filed.

It was readily apparent that there were material disputes on affidavits that could not be resolved without a trial of the action. I nonetheless dismissed the application for conversion, as I was of the view that trial need not proceed on the basis of pleadings, but instead on a list of issues to be tried that would be settled between the parties under the direction and supervision of the court. The court gave the following directions: Chan Yee Fatt v Pembinaan Kiwah 3

parties will be permitted to cross-examine the deponents of the affidavits;

parties would need to settle a list of issues to be tried that will act as common pleadings between the parties;

questions asked in cross examination may not stray from the issues to be tried;

parties to exchange and agree on the categorisation of trial documents;

parties permitted to lead evidence only for the purposes of proving a Part C document;

list of witnesses that were to be offered for cross-examination must be prepared by the next case management conference.

I directed that the plaintiff bear costs of RM5,000, which was to be paid forthwith. The reason was that the plaintiff was directed to bear costs was due to the fact that the application for conversion was only made after written submissions had been filed.

In my considered view, since all the allegations and refutations have already been set out in the affidavits previously filed, it would be more effective for the contentions of fact to be set out in a single list of issues to be tried settled between the parties, which would act as a set of common pleadings. Because this list would be settled under the direction and supervision of the court, it would be focussed on, and delimited only to, the issues that affected the court’s Chan Yee Fatt v Pembinaan Kiwah 4 determination of the merits of the case. There would not be tangential or irrelevant assertions that could potentially consume valuable court time at trial. This, in my view, would have greatly assisted in attaining the goal of disposing the case in an expeditious and economical manner, but without comprising justice or fairness.

In the course of a case management conference held on 19 May 2023, I gave further directions to modify the prior directions given. The plaintiff was permitted to call an accountant of the first defendant, for the purposes of proving the contention that the plaintiffs had been denied statutory information to which the plaintiffs ought to have been permitted access. This witness had not previously deposed an affidavit in the proceedings.

The conduct of a trial on the basis of a list of agreed issues to be tried that served as a set of common pleadings is not the norm, but I took the view that the particular set of circumstances in this case justified the directions given.

I was also of the view that the court was empowered to make such directions, and that the determination of whether or not such directions were desirable in the circumstances was entirely within the province of the discretion of the trial judge, for as long as the directions were given in furtherance of the pursuit of a just, expeditious and economical disposal of the case.

Order 28 rule 8(1) of the Rules of Court 2012 provides for the power of the court to order that proceedings to continue as it a cause or matter has been begun by writ: Chan Yee Fatt v Pembinaan Kiwah 5 Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8)

8.

Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

Now, it may be observed that the words, “may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof” are merely facilitative and also non-exhaustive. The court is not limited to the two options of either directing the filing of fresh pleadings or to direct that the affidavits stand as pleadings.

Order 28 rule 2 grants to the court the powers that the court possesses under order 34. It provides as follows:

Where the Court decides to make such an order referred to in rule (1), Order 34 shall apply with the necessary modifications.

Order 34 grants broad powers to the court manage the hearing of an action in a way that it considers appropriate. The main operative provision in this context is order 34 rule 1(1)(b), which provides as follows: Order 34. Pre-trial case management Orders and directions for just, expeditious and economical disposal of proceedings (O. 34, r. 1)

1.

Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that— … Chan Yee Fatt v Pembinaan Kiwah 6

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

The express words of order 34 permit a court to give directions as appears to the court best adapted to secure the just, expeditious and economical disposal of an action.

The broad powers under order 34 rule 1 are supplemented in order 34 rule 2 by examples of specific directions that may be given by the court at a case management conference. Order 34 rule 2, in as far as it is material to the present case, provides as follows: Pre-trial case management when directed by the Court (O. 34, r. 2)

2.

Without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings.

At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including— …

the filing of a statement of issues to be tried; …

whether the number of witnesses shall be limited and whether the evidence-in-chief of the witnesses specified be each limited to a single witness statement; …

the manner in which the action or proceedings is to be conducted.

Of particular relevance is subparagraph (u) above, which gives the power and discretion to the trial judge to give appropriate orders relating to the Chan Yee Fatt v Pembinaan Kiwah 7 manner in which proceedings are to be conducted, in order to secure the just, expeditious and economical disposal of the action.

For the reasons explained, I was of the view that the court was empowered to give the directions that it had.

The business of law is steeped in history, tradition and adherence to precedent. It does not mean, however, that the courts should be a slave to convention and to reject the adoption of novel procedures where it would be appropriate in the circumstances to do so. 31 July 2023 Azizul Azmi Adnan Judge High Court Seremban For the plaintiffs: Ms Ajeet Kau Sidhu & Ms Sonya Liew Yee Aun—YA Liew & Partners For the defendants: Mr Lum Man Chan & Ms Siti Nur Atiqah binti Mohamad