Elaine Gay Chow Song v Zung Zang Holdings Sdn Bhd (WA-24NCC-237-05/2025)

ELAINE GAY CHOW SONG

KWAN HUNG CHEONG (NRIC NO. 630427-12-5053) …PLAINTIFFS

ZUNG ZANG HOLDINGS SDN BHD

WONG NYUK CHING

KWAN PHUI HA

SEBASTIAN KWAN KUAY TAT

ZUNG ZANG TRADING SDN. BHD (COMPANY NO. 199401011641 / 297320-P) (FORMERLY KNOWN AS ZUNG ZANG WOOD PRODUCTS SDN BHD) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosures 144, 158 and 184)

This action concerns a Sandakan-based family and the Zung Zang group of companies. The patriarch was Kwan Chee Hang (deceased). The key players are: a) the 2nd Plaintiff (“P2”), Michael Kwan (deceased) and the 3rd Defendant (“D3”), who are the children of Kwan Chee Hang (deceased); b) the 1st Plaintiff (“P1”), P2’s wife; c) the 2nd Defendant (“D2”), P2’s mother; and d) the 4th Defendant (“D4”), P2’s nephew. The disputes between family members have spawned litigation since 2003.

P1 and P2 filed the present action on 5-5-2025 under section 346, 464 and/or 465 of the Companies Act 2016 (“CA”) to seek remedies that can be broadly summarised as follows: S/N WfHnZvtm6kCWveQyuxdL/w Defendant, Zung Zang Holdings Sdn Bhd (“ZZH”); Defendants are exercising their powers in a manner oppressive, discriminatory, prejudicial to P1 and P2 and/or in disregard of their interests; Although there is reference to sections 464 and/or 465 of the CA, the action was filed as an Originating Summons and characterised as an oppression action. It was not pursued as a winding-up Petition. Background facts

The ultimate holding company of the Zung Zang group was Kwan Chee Hang Sdn Bhd (“KCHSB”). Prior to 3-6-2003: a) KCHSB held 100% of the shares in Zung Zang Trading Sdn Bhd (previously known as Zung Zang Wood Products Sdn Bhd) (“D5” or “ZZT”); b) ZZT held 80% of the shares in ZZH; and c) ZZH held 85% of the shares in Granright Enterprise Sdn Bhd (“GESB”) and 80% of the shares in Zung Zang Plantation Sdn Bhd (“ZZP”). S/N WfHnZvtm6kCWveQyuxdL/w The other shareholders in ZZT, GESB and ZZP were P1 and/or P2.

This case concerns ZZH. As noted, before 3-6-2003, the shareholding of ZZH was as follows: Shareholder of ZZH No. of Shares Percentage ZZT 80,000 80% P1 20,000 20%

On 3-6-2003, the records show that the 80% equity in ZZH that was held by ZZT was transferred to P1 and P2 in equal shares (“Transferred ZZH Shares”) and the resulting shareholding of ZZH changed as follows: Shareholder of ZZH No. of Shares Percentage P1 40,000 40% P2 20,000 + 40,000 60%

At some point after a series of litigation, the records show another change in the shareholding of ZZH in that the structure before 3-6- 2003 was reinstated (“Re-transfer of Shares to ZZT”). It has been ascertained that the Re-transfer of Shares to ZZT occurred on 1-4-

2015.

The Plaintiffs say that the Re-transfer of Shares to ZZT was done fraudulently without their knowledge. In addition to the Re-transfer of Shares to ZZT, Michael Kwan (deceased) was appointed by ZZT as its Corporate Representative in ZZH before he passed away on 12-9-2024 and several events transpired: S/N WfHnZvtm6kCWveQyuxdL/w a) On 6-11-2019, the Board of Directors of ZZH was reconstituted by the appointment of Michael Kwan (deceased), D2 and D3. This was done with a members written resolution passed by ZZT’s Corporate Representative according to section 290(1)(a) of the CA; b) On 29-7-2021, P2 was adjudicated a bankrupt (“P2’s Bankruptcy”); and c) In an EGM held on 22-11-2021, P1 was removed as a director of ZZH pursuant to Article 69 and section 206(1)(a) of the CA in the presence of a representative of the Official Assignee (Sandakan) representing P2.

Now, GESB and ZZP are asset-rich subsidiaries of ZZH and both companies have been under liquidation since 15-1-2016. There are millions pending distribution by the liquidators of GESB and ZZP, hence the intense interest in controlling the shares of ZZH as a major contributory of these wound up subsidiaries.

To complete this brief background, the Plaintiffs filed Kuala Lumpur High Court Civil Suit No. WA-22NCC-523-10/2022 (“Suit 523”) against the Companies Commission of Malaysia (“CCM”), the Company Secretary of ZZH, ZZH and ZZT to complain about the Re-transfer of Shares to ZZT effected on 1-4-2015 and the acts and omissions CCM as well as the corporate actions taken since then. The Plaintiffs seek various remedies, including: S/N WfHnZvtm6kCWveQyuxdL/w a) the return of the Transferred ZZH Shares now back in the name of ZZT; b) the removal of ZZT from the register of members; c) reversing the actions of ZZT’s Corporate Representative; d) various related ancillary or consequential relief against the CCM and Company Secretary; and e) repayment of RM442,000 and damages.

The parties skirted around the obvious overlap of issues raised in this action and in Suit 523. However, they were happy to allow Suit 523 and this action to run concurrently in 2 separate courts. Procedural history

The following interlocutory applications were filed following the initiation of the action: No. Application Enclosure a) P1/P2’s ex-parte application for appointment of R&M (filed 5-5-2025 and part heard) (ordered ex-parte on 7-5-2025; lapsed and ad interim refused on 28-5-2025) Enclosure 4 b) D2/D3/D4’s application to set aside ex-parte order dated 7-5-2025 (filed 27-5- 2025 and part heard) Enclosure 25 S/N WfHnZvtm6kCWveQyuxdL/w c) P1/P2’s ex-parte application for mareva injunction against ZZH (filed 21-7-2025) (ordered ex-parte on 23-7-2025; ad interim granted 4-8-2025 and pending disposal) Enclosure 99 d) P1/P2’s application for leave to cross examine D3 on her affidavits (filed 25-9- 2025 and pending disposal) Enclosure 134 e) D2, D3, D4’s application pursuant to Order 14A Rule 1 and/or Order 33 Rules 2 and 5 of the Rules of Court 2012 (“RC”) (filed 16- 10-2025 and pending disposal) Enclosure 144 e) Application by liquidator of subsidiary to appear as amicus (filed 22-10-2025 and pending disposal) Enclosure 146 f) P1/P2’s application to stay the hearing of Enclosure 144 (filed 20-11-2025 and dismissed on 16-12-2025) Enclosure 156 g) P1/P2’s application to transfer/consolidate this action to the High Court hearing Suit 523 (filed 20-11-2025 and pending disposal) Enclosure 158 S/N WfHnZvtm6kCWveQyuxdL/w h) P2’s application to withdraw proceedings against all Defendants Enclosure 184 These do not include related applications like those seeking leave to file further affidavits.

Preliminary questions as to the locus standi of P1 and P2 to commence and maintain this action that stem from the question of P1’s shareholding in ZZH as determined in prior legal proceedings, and the status of P2 as an undischarged bankrupt came up repeatedly during the ventilation of the interlocutory applications to different effect.

By the time this matter came up before me for the first time, these and other questions had been consolidated into a single application filed by the D2, D3 and D4 in Enclosure 144 pursuant to Order 14A Rule 1 and/or Order 33 Rules 2 and 5 of the RC.

P1 and P2 then filed Enclosures 156 and 158 with a Certificate of Urgency following this Court’s direction that Enclosure 144 be heard first on 17-12-2025. On 16-12-2025, this Court heard and dismissed Enclosure 156 and directed that the decision on Enclosure 158 be deferred pending the hearing and outcome of Enclosure 144.

This Court has now heard Enclosure 144 over 2 hearing dates and these are the Court’s grounds of Judgment in respect of Enclosures 144 and 158. Before the due date for delivery of the decision on these enclosures, P2 further filed Enclosure 184 for S/N WfHnZvtm6kCWveQyuxdL/w leave to withdraw proceedings with liberty to refile and no order as to costs. Analysis and findings

In Enclosure 144, counsel for D2 to D4 argued that the following are threshold questions of law suitable for determination as preliminary issues (“Questions”): Question 1 a) Whether the 1st and 2nd Plaintiff’s shareholding in the 1st Defendant has already been determined by the Federal Court Order, read together with the Federal Court Grounds of Judgment dated 7-10-2013 in the Federal Court Civil Appeal No. 02(f)-50-07/2012 and 02(f)-51-07/2012(S); Question 2 b) Whether the 1st Plaintiff was lawfully removed as director of the 1st Defendant’s board of directors; Question 3 c) Whether the 2nd Plaintiff, being adjudicated bankrupt and remaining an undischarged bankrupt, has been disqualified from being a director in the 1st Defendant pursuant to Section 198(1)(a) of the Companies Act 2016; Question 4 d) Whether the 2nd Plaintiff, upon being adjudicated bankrupt and remaining an undischarged bankrupt, has lost possession, S/N WfHnZvtm6kCWveQyuxdL/w control and custody of his shares in the 1st Defendant pursuant to Section 8(1)(b) of the Insolvency Act 1967 and therefore cannot exercise any independent right or control over the same without the Director General of Insolvency consent and/or approval; Question 5 e) Whether the 2nd Plaintiff, being an undischarged bankrupt, has failed to obtain the sanction from the Directors General of Insolvency prior to the filing of Enclosure 1 herein, as required under Section 38(1)(a) of the Insolvency Act 1967; and Question 6 f) Whether the Plaintiffs’ claim in Encl. 1 vis-à-vis the shareholding structure and directorship of the 1st Defendant, are barred by the principle of res judicata, multiplicity of proceedings and estoppel in light of the 523 Suit, decision in Federal Court Federal Court Civil Appeal No. 02(f)-50-07/2012 and 02(f)-51-07/2012(S) and decision in Zung Zang Trading Sdn Bhd v Kwan Hung Cheong & Anor [2021] 4 MLJ 86.

Enclosure 144 was moved pursuant to Order 14A and Order 33 Rules 2 and 5 of the RC. The law in this area is well-established and need not be restated. Order 14A allows for the determination of questions of law or construction in any cause or matter at any stage of the proceedings. Order 33 Rule 2 allows for the determination of questions of fact or law or partly of fact and partly of law, to be tried before the trial of the cause or matter.

Order 14A and/or Order 33 Rule 2 of the RC is not normally invoked in the context of an Originating Summons, but there is no reason in principle why these provisions should be limited to actions begun by writ. Here, at least, the parties have managed to entangle themselves in a growing web of unresolved applications that promised to further and unnecessarily protract the proceedings.

In opposing Enclosure 144, P1 and P2 only argued that the determination of the Questions will not bring the matters herein to a conclusion and that they are triable. At the heart of the dispute is the effect of the Federal Court Order of 7-10-2013 in the Federal Court Civil Appeal No. 02(f)-50-07/2012 and 02(f)-51-07/2012(S) (“FC Order 2013”).

It cannot seriously be disputed that FC Order 2013 determined if P1 and P2 were legitimate shareholders of ZZH. The Re-transfer of the Shares on 1-4-2015 which stripped P1 and P2 of their shareholding in ZZH was effected by CCM administratively pursuant to FC Order 2013 and impugned in Suit 523. The purpose of asking Question 1 is to ascertain what FC Order 2013 decided.

P1 and P2 argued that viva voce evidence from the litigants and counsel involved in 2013 is required to explain the outcome of clarification of the FC Order 2013 at the material time, why the Re-transfer of Shares was not effected by the victors immediately after FC Order 2013 and why committal proceedings against P1 and P2 in that regard had failed.

Further, P1 and P2 argued that Justice Atan Mustaffa Yussof Ahmad had, in these proceedings, previously observed when dismissing P1 and P2’s application to appoint an interim R&M, that the disputed shareholding and directorship issues are matters properly to be determined at trial in Suit 523. P1 and P2 also highlighted that in Suit 523, a prior Order 14A application was dismissed on 30-10-2023.

This Court takes the view that Justice Atan’s observations about whether the question is triable in Suit 523 are not binding as they are clearly obiter dicta. As this Court indicated in its procedural ruling to hear Enclosure 144, there is no reason to defer the determination of issues if they are within the Court's jurisdiction and properly before it for decision.

As for Suit 523, the parties and the scope of their issues there overlap with issues here, but are also different. The complaints pleaded in Suit 523 are more wide-ranging than those raised in these proceedings. For instance, there is a focus on allegations of wrongdoing by CCM that do not feature here. Thus, this Court need not speculate on what questions, if any, were framed, and the reasons for the dismissal of the Order 14A application there.

In any case, where common questions of fact and law are by design of the litigants, put before 2 different courts of concurrent jurisdiction, questions as to which Court should decide the issue are governed by considerations of when a temporary stay of one to defer to the determination of the other come into play. It is S/N WfHnZvtm6kCWveQyuxdL/w ultimately a matter of discretion after weighing all relevant factors, to achieve the efficient and fair resolution of the dispute as a whole.

In the circumstances, this Court took the vacancy of the Court hearing Suit 523 into consideration in dismissing P1 and P2’s application in Enclosure 156 to stay the hearing of Enclosure 144. It was also brought to the attention of this Court that before the Court hearing Suit 523 fell vacant, the Judge who was slated to try Suit 523 had also ordered the determination of preliminary questions similar to Question 1 pursuant to Order 33 Rule 2 of the

Ultimately and most crucially, this Court does not agree with P1 and P2’s characterisation of the dispute around the FC Order 2013. The subjective interpretation of litigants and counsel on its meaning or their conduct in response to it are entirely irrelevant. Even the manner in which CCM effected the Re-transfer of Shares to ZZT is irrelevant. That cannot alter what has been fundamentally decided by the Federal Court about who is entitled to the Transferred ZZH Shares.

As will also be detailed in the next part of this Judgment, it is generally impermissible to look at extrinsic evidence to resolve ambiguities in a judgment. The dispute calls only for this Court to interpret and give effect to FC Order 2013 based on the words of the sealed order and in the event of ambiguity, its grounds and the pleadings.

Questions 4 and 5 address the effect of P2’s Bankruptcy on his ability to commence and maintain this action. They are pure questions of law on the vesting of the bankrupt’s property in the Director General of Insolvency (“DGI”). It is undisputed that P2 commenced this action in the capacity of a shareholder of ZZH shares while he was an undischarged bankrupt without the prior sanction of the DGI.

This Court therefore agrees that Questions 1, 4 and 5 are decisive of the locus standi of P1 and P2 in an oppression action under section 346 of the CA. The locus standi of P1 and P2 is an important threshold issue because remedies under that provision are only available to a member or debenture holder of a company.

Thus, Questions 1, 4 and 5 above are suitable for determination without a full hearing, whether in conjunction with a trial of Suit 523 or otherwise. Sufficient facts are available here and now for this Court to interpret FC Order 2013 and determine the effect of P2’s Bankruptcy.

For reasons that will follow, this Court found it unnecessary to decide on Question 2 on P1’s Removal as a Director, Question 3 on P2’s disqualification to hold office as a Director due to his bankruptcy or Question 6 on whether the re-ventilation of issues around the shareholding and governance structure of ZZH is barred by res judicata, multiplicity of proceedings and estoppel.

Question 1 asks whether P1 and P2’s shareholding in ZZH has already been determined by the Federal Court in the Federal Court Civil Appeal No. 02(f)-50-07/2012 and 02(f)-51-07/2012(S) as recorded in FC Order 2013. Those proceedings emanated from the trial of actions at the Sandakan High Court. The Grounds of Judgment is reported in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 MLJ 799.

In FC Order 2013, the Federal Court had affirmed the concurrent findings of the Court of Appeal and High Court that: a) the Transferred ZZH Shares were fraudulently transferred from ZZT to P1/P2 on 3-6-2003; and b) the transfer of KCHSB’s shareholding in ZZT were fraudulently transferred to P2 on 4-6-2003. Thus, P2 was found to have abused his position as a director to gain absolute control of the plantation lands of GESB and ZZP for himself and P1.

The impugned transfer of ZZT shares from KCHSB to P2 occurred on 4-6-2003 and the impugned transfer of ZZH shares from ZZT to P1 and P2 occurred on 3-6-2003. However, the Federal Court appeared to have cited the wrong dates in its final order by ordering at the conclusion of its Grounds of Judgment, and in the sealed Order of the Federal Court: S/N WfHnZvtm6kCWveQyuxdL/w “(2) That the shareholdings of the members of Zung Zang Wood Products Sdn Bhd [now ZZT] to be restored to the position as at 3.6.2003, that is before the impugned transfer of shares, and that the shareholdings of the members of Zung Zang Holdings Sdn Bhd to be restored to the position as at 4.6.2003, that is, before the impugned transfer of shares.

Obviously, the shareholding of ZZH as at 4-6-2003 would reflect the shareholding after the impugned transfer of shares from ZZT to P1 and P2, not before. However, P1 and P2 took the position that they could therefore legitimately keep the shares of ZZH despite the clearly adverse findings against them by the High Court, Court of Appeal and Federal Court on the matter.

This conundrum does not pit the sealed FC Order 2013 against the grounds of judgment. Ultimately, the final dispositive orders of the Federal Court at the end of its grounds of judgment were drawn up and sealed as FC Order 2013 with the same reference to “4-6- 2003” as the end of the period “before the impugned transfer” of the Transferred ZZH Shares.

Although P1 and P2 doggedly maintained that there is no ambiguity in the words of the FC Order 2013, this Court sees this glaring one i.e. 4-6-2003 is not the end of the period before the impugned S/N WfHnZvtm6kCWveQyuxdL/w transfer of the Transferred ZZH Shares. Rather, it was the start of the period after the impugned transfer of the Transferred ZZH Shares.

P1 and P2 urged this Court to find that the FC Order 2013 cannot be interpreted any other way than they have done i.e. “the shareholdings of the members of Zung Zang Holdings Sdn Bhd [are] to be restored to the position as at 4.6.2003…” ignoring the concurrent findings of the High Court, Court of Appeal and Federal Court on their fraudulent conduct in effecting the impugned transfer of ZZT’s shares in ZZH and the words that followed in the said Order about the intended state to be restored i.e.“…before the impugned transfer of shares.”

In support of this, P1 and P2 argued that the FC Order 2013 had been clarified with the Court at the time. They also argued that a prior attempt to cite P1 and P2 for contempt of court for failing to remove themselves from the register of members had failed. However, the minutes of said clarification of the FC Order 2013 were not available, and the committal application was dismissed on an unrelated technical ground. In other words, this Court can only surmise that the FC Order 2013 was either left for future interpretation or the ambiguity simply went unnoticed at the time.

For legal support, P1 and P2 cited Dharshini a/p Ganeson v Doraisingam a/l Thambyrajah [2020] 1 LNS 638 on the effect of a judgment or order drawn up and perfected, and the dissenting judgment of the Court of Appeal in Tahan Steel Corp v Bank Islam Malaysia Bhd [2012] 2 MLJ 314 (“Tahan Steel”) that the final sealed order must prevail against the written grounds of S/N WfHnZvtm6kCWveQyuxdL/w Judgment. As noted, the grounds of Judgment in this case also contained the same factual aberration on the dates when it set out the orders made.

Tahan Steel concerned a claim by a borrower against the bank for repudiation of an Islamic financing facility. There was an apparent inconsistency between the sealed order that declared both the al-istisnaa’ agreements, namely, the Asset Purchase Agreement (“APA”) and the Asset Sale Agreement (“ASA”), had been validly terminated by the borrower, whereas the grounds of judgment only discussed the lawful termination of the APA and allowed the bank’s counterclaim on the ASA and securities.

Quite apart from it being a dissenting view, it is noted that the principle cited was directed at resolving the practical conflict between what the sealed order said and what the grounds implied, and was part of the broader dissent that the appellant should have also been freed from the ASA and corresponding securities. The majority did not adopt the view that the sealed order must prevail over the grounds, but reconciled the inconsistency by separating the ASA from the APA for remedial purposes i.e. ASA obligations was still relevant for accounting between the parties.

In other words, the majority in Tahan Steel did not set out a binding universal and overriding rule that the sealed order must prevail over the grounds. In fact, problems with ambiguous orders or those that appear to conflict with reasoning and logic are not unprecedented. This Court was referred to Ng Bak Soon & 2 Ors v Lee Chin & Anor [2014] 1 LNS 1548 (“Ng Bak Soon”) where S/N WfHnZvtm6kCWveQyuxdL/w confusion arose because the Court of Appeal had directed the High Court to assess “damages for breach of a collateral contract”

The High Court ruled in Ng Bak Soon that a sealed order must be read in context of the full judgment, pleadings and background and harmonized the order and reasoned judgment by interpreting the order purposively. In that case, the collateral contract was breached, rescission was impossible, so damages in lieu of rescission were the correct relief.

In declining to put on “blinkers” in construing the sealed order, the High Court in Ng Bak Soon found support for its approach in Hong Kong Bank (Malaysia) Bhd v Raja Letchumi Ramarajoo [1996] 4 CLJ 155 and Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 CLJ 833, appellate decisions that made the following observations on construing ambiguous court orders i.e.: a) The order must be read holistically and in the context of the full judgment, pleadings and background; b) The order must be construed in light of the entire litigation history for context, not just the immediate events; and c) The proper mode of construction is to give effect to every part of it, if possible, and not to nullify one clause unless it is impossible to reconcile it with another. S/N WfHnZvtm6kCWveQyuxdL/w See also Zen Courts Sdn Bhd v Bukit Jalil Development Sdn Bhd & Ors [2017] MLJU 1078 on the applicable principles of construction of judicial pronouncements on which, as in this case also, there was no disagreement between the parties.

Adopting the above approach, this Court has read FC Order 2013 in the context of the judgment of the Court of Appeal and Federal Court in that case and had no difficulty arriving at the conclusion that FC Order 2013 could not be literally, logically or purposively construed to mean that P1 and P2 should keep the spoils of their fraudulent acts.

To resolve the ambiguity, this Court can only conclude that the dates were inserted out of the context in the dispositive part of FC Order 2013, having regard to the judicial imperative of undoing the impugned transfers of ZZH and ZZT shares by P2. The duty of this Court is to interpret FC Order 2013 to give effect to every part of it, unless it is impossible to reconcile it with another. Respectfully, it is impossible to reconcile the dates appearing in FC Order 2013 with the statement that things were to be returned to the state “before the impugned transfers.”

The above view is fortified by the Court of Appeal’s interpretation in Civil Appeal No. S-02(NCvC)(A)-68-01/2018] (“ZZH Winding Up Appeal”). In the ZZH Winding Up Appeal, ZZT had petitioned to wind up ZZH in Companies (Winding Up) Petition No. SDK- 28NCC-4/4/2016 in Sandakan on just and equitable grounds.

An objection to ZZT’s locus standi was raised because FC Order 2013 was construed there to mean that ZZT is not a member with locus standi to petition the winding up of ZZH since its shares have been transferred to P1 and P2. P1 and P2 were in control of ZZH in the conduct of that litigation, and as they must have known, the Court of Appeal rejected their argument and held as follows:

When raised in these proceedings, P1 and P2 argued that the decision of the Court of Appeal in the ZZH Winding Up Appeal does not apply or bind this Court because: S/N WfHnZvtm6kCWveQyuxdL/w a) the parties, facts and causes of action are different there since in that case, ZZT (as 80% shareholder) had initiated proceedings to wind up ZZH on just and equitable grounds; and b) ZZT ultimately lost the cause as the Court found no just and equitable grounds to wind up ZZH. P1 and P2 also argued stridently that the decision of the Court of Appeal in the ZZH Winding Up Appeal should not be followed because it was wrongly decided.

This Court is unable to agree as it was P1 and P2 that put in issue ZZT’s locus standi as a shareholder of ZZH in the ZZH Winding Up Petition, and they did so by making reference to their interpretation of FC Order 2013. Contrary to the interpretation advanced by P1 and P2 however, it was the finding of the Court of Appeal that ZZT is the legitimate 80% shareholder of ZZH and therefore, vested with locus standi to petition the winding up of ZZH.

Thus, even though ZZT ultimately failed to wind up ZZH on just and equitable grounds, the Court of Appeal’s finding on ZZT’s shareholding according to the Court’s interpretation of FC Order 2013 is an authoritative and binding interpretation. Further, as P1 and P2 were privy to the decision in the ZZH Winding Up Petition, this Court also considers that issue estoppel operates.

As far as this Court is concerned, the Court of Appeal has settled the argument and held that the Federal Court in FC Order 2013 intended that P1 and P2 relinquish and return the shares that they S/N WfHnZvtm6kCWveQyuxdL/w had fraudulently appropriated and that the shareholdings revert to the status quo before the fraudulent transfers took place in both ZZT and ZZH, and the FC Order 2013 must be construed accordingly.

This Court agrees with the above interpretation of FC Order 2013. Any attempt to re-visit the outcome of FC Order 2013 as it relates to P1 and P2’s right to shares that they transferred to themselves fraudulently, is to re-litigate matters that are barred by issue estoppel and res judicata. The shareholding of ZZH was to revert to the position before the impugned transfer and before the impugned transfer, P1 had no shares or rights to any shares in

Bearing in mind that the claim by P1 herein is premised on minority shareholder oppression – a claim that can only be brought by a shareholder – the claim as filed by P1 is accordingly unsustainable because P1 is not a shareholder nor was she ever a lawful shareholder by reason of the findings of FC Order 2013.

Accordingly, Question 1 is answered as follows: Whether the 1st and 2nd Plaintiff’s shareholding in the 1st Defendant has already been determined by the Federal Court Order, read together with the Federal Court Grounds of Judgment dated 7 October 2013 in the Federal Court Civil Appeal No. 02(f)-50- 07/2012 and 02(f)-51-07/2012(S) S/N WfHnZvtm6kCWveQyuxdL/w ANSWER: Yes. The Federal Court Order, read together with the Federal Court Grounds of Judgment dated 7 October 2013 in the Federal Court Civil Appeal No. 02(f)-50-07/2012 and 02(f)-51-07/2012(S), found that the 80% shareholding in ZZH that P2 had caused to be transferred to P1 and P2 on 3-6-2003, were transferred fraudulently, and were accordingly ordered to be restored to ZZT. P1 therefore has no lawful claim to any share in ZZH, is not presently a shareholder of ZZH, and therefore has no locus standi to maintain an action under section 346 of the CA in relation to the affairs of ZZH.

Again, P1 and P2 has railed against the manner in which the Re-transfer of Shares to ZZT occurred at the hands of CCM and the failure, ignorance and paralysis of D2 and D3 as directors of ZZH, but these are issues that can, if appropriate, be properly dealt with in Suit 523, which is still pending or in other appropriate proceedings. To move the Court under section 346 of the CA, the door here is closed to P1 on a threshold point of locus standi.

The matter of the shares that P2 gained in ZZH from the impugned transfer on 3-6-2003 may be similarly dealt with as above, and it is not disputed that apart from those shares, P2 is a legitimate shareholder of his 20% of shareholding in ZZH. However, Questions 4 and 5 ask whether P2 has locus standi to assert rights associated with his shares in ZZH in the light of his bankruptcy, by commencing litigation without the prior approval of the DGI.

The answers to Questions 4 and 5 do not appear to be controversial based on what is now trite law. Pursuant to section 8(1)(b) of the Insolvency Act 1967, all of P2’s assets vest in the DGI. If there are rights associated with those assets to be litigated, they are choses in action that are also assets vested in the DGI. Accordingly, section 38(1)(a) of the Insolvency Act 1967 provides that: “Where a bankrupt has not obtained his discharge –

The bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to his person) without the previous sanction of the

In Akira Sales & Services (M) Sdn Bhd v Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513 (“Akira”), the Federal Court considered the above provision in the context of an appeal from a judicial review after an Industrial Court claim for unjust dismissal. The Federal Court held that sanction of the DGI was not required although the claimant was an undischarged bankrupt.

It highlighted that in Ho Ken Seng v Progressive Insurance Sdn Bhd [2013] 2 MLJ 335, the Federal Court has previously held that section 38(1)(a) should not be given too extensive an interpretation, that it does not apply to the action upon which the bankruptcy was secured, and that it: “should be limited to a new chose in action that could affect the assets or proprietary rights of a bankrupt intended for S/N WfHnZvtm6kCWveQyuxdL/w distribution to his creditors (see: Boaler v Power [1910] 2 KB 229]).”

In reviewing the authorities on this point, the guiding principles are that a right of action is treated in law as a chose in action i.e. a species of property, and the reason why sanction of the DGI is required for an undischarged bankrupt to maintain an action in court is because the DGI is vested with this property. As further explained by the Federal Court in Akira: “[22]… Despite the breadth of the definition, there are certain causes of action personal to the bankrupt which do not vest in his trustee. In Bailey v Thurston [1903] 1 KB 137, Cozens-Hardy LJ said that unexecuted contracts for purely personal service do not vest in the trustee and that with respect to future services, a bankrupt can sue for his remuneration under the contract, subject only to the right of the trustee to intervene and claim the fruits of the litigation.”

Thus, the purpose of section 38(1)(a) of the Insolvency Act 1967 is not, as might commonly be assumed, to prevent an undischarged bankrupt from depleting assets through unsanctioned litigation to the detriment of the general body of creditors, but to give legal effect to the vesting of the bankrupt’s cause of action, and with it the locus standi to pursue it, in the DGI.

Therefore, P2 cannot exercise rights over his shares in ZZH independently of the DGI, and cannot file this action independently of the DGI. On the facts, Enclosure 1 was filed on 5-5-2025 at a S/N WfHnZvtm6kCWveQyuxdL/w time when P2 remained an undischarged bankrupt and without the prior sanction of the DGI.

The main issue in this case was whether the subsequent retrospective sanction of the DGI can repair the situation for P2, and the short answer to that is no, based on binding authority. In Akira, the Federal Court held: “[21] Only previous sanction will do. Subsequent sanction, which is not previous sanction, could not change the fact that the undischarged bankrupt was not competent to institute, maintain or defend the action at the material time.”

As noted, once Enclosure 144 came up for hearing, P2 sought to discontinue the action with liberty to re-file (Enclosure 184), claiming to do so out of an abundance of caution and in recognition of the fact that P2 did not have the prior sanction of the DGI to pursue this action. It was a concession, but one that came too late in the day.

After hearing parties, this Court dismissed Enclosure 184 on grounds that P2 was incompetent to file any proceedings without prior sanction of the DGI and held that since all actions taken by or on behalf of P2 in these proceedings are null and void, there is liberty to refile to the extent of any acts of oppression alleged against P2 here which merits have not been ventilated, but awarded costs against P2.

The answers to Questions 4 and 5 are therefore as follows: Question 4 Whether the 2nd Plaintiff, upon being adjudicated bankrupt and remaining an undischarged bankrupt, has lost possession, control and custody of his shares in the 1st Defendant pursuant to Section 8(1)(b) of the Insolvency Act 1967 and therefore cannot exercise any independent right or control over the same without the Director General of Insolvency consent and/or approval? ANSWER: Yes. P2 cannot commence any claim premised on his pre-bankruptcy shareholding in ZZH without the permission of the Director General of Insolvency as property in the shares had vested in the Director General of Insolvency upon the Receiving Order made against P2. Question 5 Whether the 2nd Plaintiff, being an undischarged bankrupt, has failed to obtain the sanction from the Directors General of Insolvency prior to the filing of Enclosure 1 herein, as required under Section 38(1)(a) of the Insolvency Act 1967? ANSWER: Yes. P2 failed to obtain the prior sanction of the Director General of Insolvency before Enclosure 1 was filed herein, in contravention of section 38(1)(a) of the Insolvency Act 1967. In consequence Enclosure 1 herein and all applications filed thereunder, are incompetent as actions of P2 who had no locus standi to instruct solicitors and to file this action.

Accordingly, this Court allows prayer 1(a), (d) and (e) and having all heard all submissions, this Court makes no orders or determination with regards the remaining questions, it being sufficient to answer the questions framed in prayers 1(a), (d) and

[Questions 1, 4 and 5]. For the avoidance of doubt, this Court has considered all other arguments raised by P1 and P2 in arriving at this decision, and find them to be without merit.

Consequently, this entire action in Enclosure 1 stands struck out and dismissed against all Defendants and all interlocutory or interim orders made are discharged and set aside. All unresolved interlocutory applications stand as struck out and dismissed. In particular, the application to transfer this suit to the Court hearing Suit 523 is struck out and dismissed as there is no longer any cause to be transferred.

The following were other consequential orders sought to be recorded and so ordered for the avoidance of doubt: a) Assessment of damages are ordered pursuant to the undertaking given by P1 and P2 in support of the mareva injunction sought and allowed on an ad interim basis; b) The undertaking given by D2 to D4 in respect of Enclosure 4 are discharged and they are accordingly released from said undertaking; and c) Solicitors for D2 to D4 are entitled to release all company books in their custody to the Company Secretary of ZZH.

Lastly, counsel for the Defendants sought an order that costs be assessed separately in respect of P2 and that such costs be borne personally by P2’s solicitors. This Court declined to grant such relief, being satisfied that the conduct of counsel did not disclose any serious impropriety or misconduct warranting the exceptional exercise of the Court’s jurisdiction to order costs personally against solicitors.

An error of judgment, even if serious, does not, without more, constitute misconduct. Taking into account the collective manner in which P1 and P2 conducted the proceedings, and the absence of any substantive allegations advanced by P2 independent of those pursued by P1, this Court awarded costs of and incidental to Enclosure 144 to the Defendants to follow the event, and made a global costs order of RM150,000 in favour of D2 to D4 and RM20,000 in favour of D1, payable jointly and/or severally by P1 and P2. Tarikh: 10 Februari 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N WfHnZvtm6kCWveQyuxdL/w Peguam Untuk Plaintif: Renu Sudarshini Zechariah, Manmohan Singh Kang a/l Sukhbir Singh, Aneera Joshini Chowdhury, Cheryl Kwan Chui Yi dan Lu Yiing Suey Tetuan A.J. Chowdhury Untuk Defendan Pertama: Muhammad Firdaus bin Danial Tan Tetuan Fahri, Azzat & Co Untuk Defendan Kedua, Ketiga, Keempat dan Kelima: Celine Jeevamalar a/p Chelladurai dan Annette Ashwini Magimay