1. ) Goh Choon Kim v 1. ) Natural Transforms Sdn Bhd (PA-24NCvC-955-12/2020)

GOH CHOON KIM (NO. K/P: 610901-07-5201) 24/06/2024 22:59:46

ONG AH POH

GOH WAN PENG (NO. K/P: 851122-07-5322) … PLAINTIF-PLAINTIF

NATURAL TRANSFORMS SDN BHD

CHAN ENG LEONG

CHONG BEE CHOO (NO. K/P: 740309-07-5312) ... DEFENDAN-DEFENDAN JUDGMENT (DECLARATION THAT CONTRACT IS VOID AND UNENFORCEABLE) PRELUSION [1] The Plaintiffs and the Defendants entered into two sets of agreements. The first set of agreements is the Share Sale Agreement to sell and transfer a batch of existing shares in the subject company, and the corresponding Shareholders Agreement to contractually regulate the relationship between the existing shareholders and the new shareholders. [2] The second set of agreements is the Share Sale Agreement to sell and transfer another batch of existing shares in the same subject company, and the corresponding Shareholders’ Agreement to similarly Page 3 of 24 regulate the relationship between the existing shareholders and the new shareholders. [3] The issue in dispute between the parties is that both the Shareholders’ Agreements provide for the subscription for new shares, which is distinct from a sale and transfer of existing shares. The Plaintiffs filed this Originating Summons (and seven other Originating Summonses like it) to declare the Shareholders’ Agreements invalid and unenforceable for “want or failure of consideration or performance”, for the reason that there was no subscription exercise for the Defendants to acquire the subject shares. [4] Should the Shareholders’ Agreements be declared void and unenforceable? PRELIMINARY AND CONSEQUENTIAL MATTERS [5] I will use the following abbreviations for the parties—

this Originating Summons No. PA-24NCVC-957-12/2020 is “OS957”;

the 1st Plaintiff is “Goh”;

the 2nd Plaintiff is “Ong”. Ong is Goh’s wife;

the 3rd Plaintiff is “GCSeang”; GCSeang is Goh’s brother.

the 1st Defendant company is “Natural Transforms”;

the 2nd Defendant is “Chan”;

the 3rd Defendant is “Chong”. Page 4 of 24 [6] In this OS957, the Plaintiffs pray for these reliefs—

a declaration that the Shareholders’ Agreement dated 7.8.2019 between the Plaintiffs as existing shareholders, and Natural Transforms as new shareholder (SHA1), is “invalid or unenforceable for want or failure of consideration or performance”;

a declaration that the Shareholders’ Agreement dated 7.8.2019 between the Plaintiffs and Natural Transforms as existing shareholders, and Chan and Chong as new shareholders (SHA2), is “invalid or unenforceable for failure of consideration or performance”;

an Order that SHA1 and SHA2 be set aside. [7] The Plaintiffs (Goh and Ong) filed eight Originating Summonses (OSs) relating to eight sets of Shareholders’ Agreements. OS957 is one of the eight OSs. OS957 is used as the lead OS to determine the eight OSs because OS957 relates to the shares of the main company: Global Tobacco Manufacturers (International) Sdn Bhd (Global). [8] All the parties in the eight OSs agree that only one of the eight OSs needs to be heard and determined—OS957—and that the Judgment in OS957 will correspondingly and respectively bind all the parties in the other seven OSs. In other words, all the parties in the eight OSs (who are respectively represented by the same solicitors and counsel) agree that they will take one Judgment—the Judgment in OS957—to apply to the other seven OSs too. Page 5 of 24 [9] The parties agree to this because the terms of the Shareholders’ Agreements in all eight OSs are identical, mutatis mutandis. (Mutatis mutandis means: with the necessary changes in pertinent particulars.) The rights and obligations of the contracting parties in all the Shareholders' Agreements are the same. Thus the issues arising between the two competing sides are also the same. [10] As such, this Judgment also applies to the other seven OSs, which are—

OS No. PA-24NCVC-950-12/2020 (OS950);

OS No. PA-24NCVC-951-12/2020 (OS951);

OS No. PA-24NCVC-952-12/2020 (OS952);

OS No. PA-24NCVC-953-12/2020 (OS953);

OS No. PA-24NCVC-954-12/2020 (OS954);

OS No. PA-24NCVC-955-12/2020 (OS955);

OS No. PA-24NCVC-956-12/2020 (OS956). THE MAIN SUIT—SUIT 8 [11] There are multiple suits (I was told: more than 20 suits) between Goh and Ong (and their relatives and companies) on the one side—and Chan and Chong (and their company: Natural Transforms) on the other side. It is necessary to refer to the main suit between the parties. The main suit between the two sides, which captures the pivotal issues between the two litigating sides, is Suit PA-22NCVC-8-01/2020 (Suit 8). [12] In Suit 8, the plaintiffs are Chan and Chong. The defendants are Goh, Ong and Global. Chan and Chong’s claim is premised on the breach of the terms of the Share Sale Agreement also dated 7.8.2019 (SSA2). Chan and Chong rely on the very terms and effects of SSA2. I refer to this Page 6 of 24 Share Sale Agreement dated 7.8.2019 as “SSA2” and not “SSA1” because there is another Share Sale Agreement dated earlier (dated 24.4.2019) that is also relevant to this OS957. I will refer to this earlier Share Sale Agreement dated 24.4.2019 as “SSA1”. [13] The Share Sale Agreements in this series of suits govern the sale of various companies’ shares between the parties. On the other hand, the Shareholders’ Agreements in these suits govern the relationship i.e. the rights and obligations between and among the shareholders (the existing shareholders and the new shareholders). [14] As all the agreements between the parties are in dispute i.e. the agreements require the Court’s interpretation, the Shareholders’ Agreements must be considered together with the corresponding Share Sale Agreements. As such, SHA1 and SHA2 in this OS957 must therefore be analysed and considered with the corresponding SSA1 and SSA2. [15] SSA1 (dated 24.4.2019) concerns the sale of Goh Kim Heong’s (GKHeong) 225,000 shares in Global to Natural Transforms. GKHeong is Goh’s nephew. He was, at the time of the sale, an existing shareholder in Global. SHA1 corresponds with SSA1. [16] SSA2, the subject matter of Suit 8, concerns the sale of Goh’s 450,000 shares in Global to Chan and Chong. SHA2 corresponds with SSA2. [17] In Suit 8, among the terms of SSA2 that Chan and Chong rely on (and which are in dispute), are terms to the effect that— Page 7 of 24

any appointment of new directors to Global’s board of directors requires Chan and Chong’s approval;

Chan and Chong will not be removed as directors “under whatsoever circumstances”, except for the reasons expressly stated, which are not pertinent to this dispute, such as if they are prohibited by law to be a director; if they are made bankrupt; if they voluntarily resign from office; or if they cease to be a shareholder of Global;

any matters relating to the appointment or dismissal of a director, or any material change in the authority of a director— can only be “decided absolutely” by Chan and Chong “at their full discretion”;

Chan and Chong are fully in charge of Global’s management. [18] Chan and Chong assert that Goh and Ong breached SSA2 by doing the following acts—

Ong, as a shareholder, requisitioned an Extraordinary General Meeting (EGM) to remove Chan and Chong as directors and to appoint Goh and GKHeong as directors to replace them; and

Goh, by a letter dated 16.12.2019 to Global’s board of directors, issued a special notice under section 206 of the Companies Act 2016 about his intention to propose the two resolutions that Ong requisitioned the EGM for. [19] Chan and Chong assert that not only do the acts of requisitioning the EGM and issuing the special notice constitute a breach of SSA2, but Page 8 of 24 Goh and Ong had also acted in bad faith, and acted for an improper purpose. Chan and Chong also assert that Goh and Ong breached the understanding, spirit and intent of SSA2. RELIEFS SOUGHT IN SUIT 8 [20] The reliefs that Chan and Chong seek in Suit 8 include (with my emphases in bold)—

a Declaration that Ong’s requisition for an EGM to remove Chan and Chong as directors was wrong in law, invalid and null and void;

a Declaration that Goh and Ong acted contrary to the understanding under SHA2, and in bad faith, by requisitioning the EGM to remove Chan and Chong as Global’s directors, and to appoint Goh and GKHeong in their place;

an Injunction against Goh and Ong—

from holding the EGM or any other General Meeting, to vote on, pass, or implement any resolution, that has the effect of removing Chan and Chong as Global’s directors; and

(ii) from taking any action concerning Chan and Chong as directors, which would pre-empt the proper disposal of Suit 8; and

damages against Goh and Ong. Page 9 of 24 THE ISSUE TO BE DETERMINED IN OS957 [21] Back to OS957. The sole issue to be determined in OS957 is whether SHA1 and SHA2 are void and unenforceable for want or failure of consideration, or for want or failure of performance. THE PLAINTIFFS’ CASE [22] SHA1 concerns Natural Transforms acquiring 225,000 shares in Global from GKHeong. SHA2 concerns Chan and Chong acquiring 450,000 shares in Global from Goh. Although SHA1 and SHA2 are for different batches of shares, they have identical terms that are pertinent to the issues at hand. [23] The Plaintiffs (Goh and Ong) submit that in SHA1 and SHA2—

recital (2) provides that the new shareholders are to subscribe for the subject shares;

clause 3.2 provides that the new shareholders are to subscribe for the number of shares at the agreed percentages of Global’s total issued and paid-up capital (which is 1.5 million shares of RM1.00 each), as set out in the First Schedule;

clause 3.3 provides that the existing shareholders are to have the necessary company meetings and resolutions passed to complete the subscription exercise. [24] Goh and Ong argue that SHA1 and SHA2 provide for a subscription-for-new-shares exercise and not a direct sale of the existing shareholders’ existing shares. Page 10 of 24 [25] The crux of Goh and Ong’s case is that recital (2) and clauses 3.2 and 3.3 of SHA1 and SHA2 have the meaning and effect of requiring—

the new shareholders, namely Natural Transforms, Chan and Chong, to subscribe for the number of shares in the agreed percentages as set out in the First Schedule; and

the existing shareholders, namely Goh, Ong and GCSeang (and Natural Transforms as well in SHA2) to hold shareholders’ and directors’ meetings, pass the necessary resolutions and ensure that that manner of shares’ subscription by the new shareholders takes place. [26] Goh and Ong argue that as there was no subscription of shares, and no directors’ meeting was held to pass the necessary resolution to enable the subscription of shares in the agreed manner—Chan and Chong have breached SHA1 and SHA2. The breach renders SHA1 and SHA2 invalid and unenforceable. [27] Goh and Ong argue that the words in the terms of SHA1 and SHA2 must be interpreted in their natural and ordinary meaning. SHA1 and SHA2 say what they say i.e. there must be a subscription for new shares and not a mere outright purchase of existing shares. There cannot be a subjective interpretation of the terms. [28] Goh and Ong argue that case law authorities propound the principle that the construction of contracts must be done objectively i.e. to ascertain “what were the mutual intentions of the parties as to the legal obligations each assumed by the contractual words” expressed in the contract—Sim Ah Hee @ Lim Ah Hee & Anor v Affin Bank Bhd [2010] 5 Page 11 of 24 MLJ 1 (CA) at paragraph [13]; [2010] 5 MLRA 729; [2010] AMEJ 0659; [2010] CLJU 1913; citing Lord Diplock in Pioneer Shipping Ltd & Ors v BTP Tioxide Ltd [1982] AC 724 (HL) at page 736. THE LAW ON CONSTRUCTION OF CONTRACTS [29] My starting point is to review the pertinent principles for the construction of contracts which were propounded in the landmark House Of Lords case of Investor Compensation Scheme Ltd v West Bromwich Building Society [1998] WLR 896 (HL), per the Judgment of Lord Hoffman, particularly at WLR pages 912 - 913. The Federal Court accepted these principles as part of our law in the case law authority of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 (FC); [2016] 1 CLJ 177; [2016] 1 MLRA 1; [2015] AMEJ 1795. [30] From SPM Membrane Switch (supra), I gleaned principles on the interpretation of contracts that include these principles—

The interpretation of the meaning of the terms of a contract depends on what a “reasonable man” understands them to be, and this reasonable man is given the “background knowledge” of the circumstances of the contracting parties at the time of the contract. This background knowledge is also called the “matrix of fact” of the case at hand.

The “matrix of fact” is to be given a wide meaning. It includes any fact or factor that is “reasonably available” to the parties, and it includes “absolutely anything” that would affect the way that the reasonable man would understand the terms of the contract. In the context of the dispute at hand, the matrix of fact can include the other corresponding contracts that relate to the same transaction or series of transactions, or Page 12 of 24 documents that relate to the same transaction or series of transactions.

(But note—the Courts must exclude the fact of any previous negotiations between the parties and what was said, or positions taken, in the previous negotiations—which is not relevant to my consideration here.)

The “rule” (not principle) that the words of a contract should be given their “natural and ordinary meaning” should not be the be-all-and-end-all in the construction of contracts. That rule is just the “common sense proposition” that it is not usually acceptable that the parties would make language errors in a formal contract.

That rule is therefore subject to this principle—that when the matrix of fact discloses that “something must have gone wrong with the language” used in the terms of a contract, then the Courts are not bound to find that the parties actually had the intention that they “plainly could not have had”.

If a natural-and-ordinary-meaning interpretation of the terms of a contract leads to a conclusion that flouts (goes against) “business common sense”, then that interpretation must “yield to business common sense”. [31] It is trite that a term of a contract should not be interpreted on its own (in isolation). Instead, a contract should be interpreted as a whole. [32] In this OS957 (as in the other seven OSs), Goh and Ong argue that SHA1 and SHA2 call for a subscription for new shares. Chan and Chong argue that SHA1 and SHA2 provide for the sale and transfer of existing shares. The matrix of fact that I must consider, in the eyes of the Page 13 of 24 reasonable man, includes the purpose of SHA1 and SHA2 as well as the purpose of the corresponding SSA1 and SSA2, as well as the conduct of the parties concerning the transaction, including the pleaded position previously taken in Suit 8, filed earlier. [33] In summary, I find Goh and Ong’s argument that there must be a subscription for new shares, and as there was no subscription for new shares, SHA1 and SHA2 are rendered invalid and unenforceable for want of consideration and performance—to be untenable. GOH AND ONG DID NOT DO THEIR PART IN THE ALLEGED SUBSCRIPTION EXERCISE [34] First—Goh and Ong’s argument is not tenable because it was the existing shareholders’ (Goh, Ong and GCSeang’s) obligation to hold the meetings, pass the resolutions and ensure the subscription exercise is done. But Goh, Ong and GCSeang did not carry out these obligations. These omissions by them demonstrate, and I do find, on the balance of probabilities i.e. it was more likely than not—that the SHA1 and SHA2 were not to subscribe for new shares but to sell and transfer existing shares. [35] They assert that SHA1 and SHA2 provide for a subscription exercise, but they did not fulfil their own obligations to effect the subscription exercise. They assert it, but they do not carry it out. NATURAL TRANSFORMS DID NOT SUBSCRIBE FOR SHARES AND YET IT BECAME AN EXISTING SHAREHOLDER [36] Second—under SHA1, Natural Transforms (Chan and Chong’s company) acquired 225,000 shares in Global. It became the new Page 14 of 24 shareholder. But it did not have to subscribe for these shares. And, Goh and Ong did not insist that Natural Transforms subscribe for the shares. Natural Transforms somehow acquired these shares and became one of the existing shareholders for the purposes of SHA2. [37] Under SHA2, Goh and Ong acknowledged Natural Transforms as an existing shareholder. SHA2 was premised on Chan and Chong acquiring 450,000 shares in Global. If SHA1 and SHA2 truly provide for the subscription of new shares, then Natural Transforms must first have to subscribe for the shares before it can be one of the contracting parties (existing shareholders) in SHA2. But Natural Transforms never had to subscribe for shares to be an existing shareholder. [38] In my view, this is another reason to find that SHA1 and SHA2 were not for the subscription of new shares, but for an outright sale and transfer of existing shares. JUDICIAL ESTOPPEL [39] Third—I am of the view that judicial estoppel applies against Goh and Ong to prevent them from relying on the literal terms of SHA1 and SHA2 for the subscription of new shares. [40] In Suit 8, which was filed earlier (in January 2020), Goh and Ong (who are defendants in Suit 8) did not plead, in their Defence And Counterclaim (DACC), that there was supposed to be a subscription for new shares; and as there was no subscription for new shares, SHA1 and SHA2 between the parties are invalid and unenforceable (as they are now asserting in OS957). Page 15 of 24 [41] To the contrary, Goh and Ong pleaded that—

there was a collateral contract between the parties;

the collateral contract came into being because Global (and therefore Goh and Ong) had a customs debt problem, which Chan was tasked to resolve;

Chan asked for more shares to be transferred to him and his wife: Chong, to give him the authority and the credence to deal with the Customs Department;

to effect the collateral contract, two sets of transfer forms were prepared and meant to be signed. One set was to transfer Goh’s subject shares to Chan and Chong. The other set was to transfer the shares back to Goh, when the customs debt problem was resolved;

Goh signed the transfer forms (to transfer 450,000 of his existing shares to Chan and Chong);

SSA2 (and necessarily SHA1 and SHA2) were subject to the collateral contract;

Chan and Chong held the subject shares on trust for them;

there existed a collateral contract and a trust because—

the shares were given to Chan and Chong merely for Chan to solve the customs debt problem; and

(ii) Chan and Chong never paid for the shares. [42] Further, in their DACC, Goh and Ong even pleaded (acknowledged) Goh’s reduced share percentage and reduced number of shares held, after he transferred his existing shares to Chan and Chong. Page 16 of 24 [43] Furthermore, Goh and Ong pleaded (at paragraph 43 of their DACC) that “the only purpose of the Shareholders’ Agreement dated 7.8.2019 [SHA2] is to enable Chan [to] help solve the Customs Debt”. [44] It is glaring that nothing was pleaded about Chan and Chong having to subscribe for new shares in Global, or about the obligation to undergo a subscription exercise. [45] As for prayers for relief in his DACC in Suit 8, Goh prays for a declaration that Chan and Chong hold the subject shares as trustees for him. And for an Order that Chan and Chong transfer the shares back to him. [46] Again, in the earlier and main Suit 8, there was no pleading or prayer for relief that SHA1 and SHA2 between the parties be declared invalid and unenforceable for want of consideration or performance—as Goh and Ong presently assert in this OS957 (and the other seven OSs), which were all filed in December 2020 (after Suit 8). [47] Goh and Ong’s position in OS957—that there must be a subscription exercise under SHA1 and SHA2 (which corresponds with SSA1 and SSA2)—is contrary to and inconsistent with Goh and Ong’s position in Suit 8 that SSA2 was subject to a collateral contract for Chan and Chong to hold the subject shares on trust for Goh until the customs debt problem is resolved. [48] The purpose of judicial estoppel is “to prevent a party who assumes a particular position in litigation to take an inconsistent position in later litigation—Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu Page 17 of 24 (formerly known as Dai-ichi Shokai) & Ors [2017] 5 MLJ 63 (CA) at page 74, paragraph [16]; [2017] 6 MLRA 334; [2017] CLJU 499. GLOBAL’S TOTAL CAPITAL REMAINED UNCHANGED [49] Fourth—it is important to note that before SHA1 and SHA2, Global already had a total issued and paid-up capital of 1.5 million shares of RM1.00 each. But both the First Schedules in SHA1 and SHA2 provide that post-subscription for the new shares—Global will still only have 1.5 million shares of RM1.00 each. Additionally, clause 3.1 also provides that post-subscription, Global “shall” have 1.5 million shares of RM1.00 each. This is a discrepancy. [50] If SHA1 and SHA2 are about subscribing for new shares, then post-subscription, Global must necessarily have more than 1.5 million shares of RM1.00 each. However, both the First Schedules provide that the total capital remains at 1.5 million shares of RM1.00 each, even after the supposed subscription exercise. This is not plausible. [51] It appears to me, and I so find, that the First Schedules in SHA1 and SHA2 lend support to the fact that the agreement between the parties was for the outright purchase and transfer of existing shares, as opposed to a subscription for new shares. This is the only plausible way for Global’s total share capital to remain at 1.5 million shares of RM1.00 each, even after the completion of SSA1, SSA2, SHA1 and SHA2. THERE WAS A SHARE SALE AGREEMENT FOR THE SHARES [52] Fifth—contrary to Goh and Ong’s assertion that SHA1 and SHA2 require a subscription-for-share exercise, there are corresponding Share Sale Agreements for both SHA1 and SHA2. SSA1 (GKHeong selling his Page 18 of 24 shares to Natural Transforms) corresponds with SHA1. SSA2 (Goh selling his shares to Chan and Ong) corresponds with SHA2. [53] Goh is a party to SSA2. SSA2 was between Goh, as seller, and Chan and Chong, as buyers. Yet, Goh and Ong take the position that SHA1 and SHA2 require a subscription for Global’s shares. I find Goh and Ong’s position insupportable. [54] Further, clause 6.2 of SSA2 provides that Goh (as the seller of the shares) is obligated to get the corresponding SHA2 signed, to regulate the relationship among the shareholders. [55] As there are Share Sale Agreements (providing for the sale and transfer of existing shares, rather than the subscription for new shares) corresponding to both SHA1 and SHA2, and analysing these contracts together, I am compelled to find that the transaction (the contract) between the parties was for an outright sale and transfer of existing shares. I find that the parties could not have intended for the transaction to be to subscribe for new shares. GOH AND ONG’S CONDUCT SHOW THAT THERE WAS NO INTENTION FOR A SUBSCRIPTION FOR SHARES [56] Sixth—this is the documentary evidence that discloses Goh and Ong’s conduct under SSA1 and SSA2, which, to my mind, compels me to find that the transaction under SSA1, which corresponds with SHA1, and SSA2, which corresponds with SHA2, was not about subscribing for new shares, but rather, it was to sell and transfer existing shares—

a letter of indemnity dated 15.1.2019 issued by Goh to Natural Transforms for its purchase of the shares in nine companies, Page 19 of 24 including shares in Global, from GKHeong. Goh indemnified Natural Transforms against any liabilities and expenses that may result from the share sale transaction;

a letter dated 4.11.2019 from Chan and Chong’s solicitors to Goh’s solicitors enclosing a RM405K cheque as payment for the subject shares under SSA2. There was an acknowledgement of receipt by Goh’s solicitors. This evidence discloses that Chan and Chong appeared to have paid, and Goh received, RM405K for the subject shares;

Ong’s letter dated 16.12.2019 to Global’s board of directors requisitioning an EGM be held to remove Chan and Chong as directors and to appoint Goh and GKHeong to replace them as directors. Also, Goh’s letter dated the same date to Global’s board of directors as a special notice that he intended to propose a resolution to remove Chan and Chong as directors and to replace them with himself and GKHeong. These documents disclose that Goh and Ong acknowledged, and treated, Chan and Chong as Global’s shareholders, without the exercise of a subscription for new shares;

the Notice of EGM dated 8.1.2020 given to Chan and Chong, as shareholders. This further discloses that Goh accepted and recognised Chan and Chong as Global’s shareholders, even without them subscribing for new shares;

an SSM search dated 16.7.2020, showed that Chan and Chong were registered as Global’s shareholders. By the time of this SSM search in July 2020, Suit 8 was already filed (in January 2020), where Goh and Ong took the position that SSA2 was subject to a collateral contract and the shares were Page 20 of 24 held on trust for Goh, and not that there was a requirement for a subscription exercise. In other words—

the shares transaction under SSA2, SHA1 and SHA2 was done in August 2019;

(ii) Suit 8 was filed by Chan and Chong in January 2020, where, in Goh and Ong’s DACC, they pleaded the defence of a collateral contract and a trust over the shares;

(iii) by July 2020, the shares were already transferred to Chan and Chong;

(iv) in December 2020, the eight OSs were filed by Goh and Ong, alleging that the transaction was by a subscription of shares—which was inconsistent with their pleadings in Suit 8. [57] This evidence behoves me to again find that SHA1 and SHA2 should not be invalidated simply because the subscription exercise was not carried out. SSA1, SSA2, SHA1 AND SHA2 DISCLOSE THAT THE TRANSACTION WAS FOR A SALE OF SHARES AND NOT FOR A SUBSCRIPTION FOR SHARES [58] I am of the view that, between the parties, there was one transaction for shares, but it was made up of two parts. The first part was the earlier SSA1 (dated 24.4.2019) between GKHeong (as seller), and Natural Transforms (as buyer). By SSA1, GKHeong sold his 225,000 shares to Natural Transforms. At the time of SSA1, Global already had an issued and paid-up share capital of 1.5 million shares of RM1.00 each. Page 21 of 24 After SSA1, Global continued to have a share capital of 1.5 million shares of RM1.00 each. [59] SSA1 led to SHA1. SHA1 was signed to contractualise the relationship among the shareholders, which at the time included Natural Transforms. It was averred that although SHA1 was dated 7.8.2019, it was actually signed earlier, in April 2019, which coincided with SSA1 (dated 24.4.2019). [60] The second part was the later SSA2 (dated 7.8.2019) between Goh (as seller), and Chan and Chong (as buyers). By SSA2, Goh sold his 450,000 shares to Chan and Chong. But even with this transaction, Global’s issued and paid-up share capital remained unchanged i.e. 1.5 million shares of RM1.00 each. [61] SSA2 led to SHA2. SHA2 was to contractualise the relationship among the shareholders, which by this time included Chan and Chong. [62] Case law authorities guide me that I am to consider SSA1, SSA2, SHA1 and SHA2 as the transaction between the two competing sides. When contracts are executed contemporaneously, between or among the same parties, about the same transaction or sets of transactions, the Courts must refer to all the contracts to interpret the contracts and to ascertain the intention of the parties—Damansara Realty Bhd v Bangsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464 (FC); [2011] 9 CLJ 257; [2012] 1 AMCR 193; [2012] 1 MLRA 311. Page 22 of 24 CONCLUSION [63] Applying the principles for the construction of contracts, and from the “matrix of fact” formed from the compelling evidence, the gist of my findings is this: it cannot be the case that firstly GKHeong, and later Goh, sold their existing shares to Natural Transforms, Chan and Chong, under SSA1 and SSA2, and then contradictorily and inconsistently, they enter into SHA1 and SHA2 with Chan and Chong (to govern the relationship between them as shareholders) for the yet-to-be-subscribed new shares. [64] Put differently, a reasonable man, with the background knowledge of the “ matrix of fact” in this dispute, will find that it cannot be the case that SHA1 and SHA2 are only about the rights and obligations between the parties concerning operating and managing Global when and if new shares are subscribed for, issued and registered in their respective names; and there are no Shareholders’ Agreements executed between the parties to regulate the rights and obligations between them concerning operating and managing Global as a result of the sale and transfer of shares from GKHeong and Goh to Chan and Chong, as transacted through SSA1 and SSA2. [65] On the balance of probabilities, I am compelled to find that SHA1 and SHA2 are to set out the rights and obligations of the parties concerning the operating and managing of Global as a result of SSA1 and SSA2 i.e. as a result of the sale and transfer of the existing shares, and not as a result of a subscription-for-new-shares exercise. I find that there was no intention for Chan and Chong to subscribe for new shares. [66] For these reasons, I will not grant the Declaration that SHA1 and SHA2 are invalid and unenforceable. Page 23 of 24 [67] I therefore dismiss OS957 with costs of RM20K to be paid by the Plaintiffs to the Defendants by 27.5.2024. Costs are subject to the allocatur. [68] As agreed between and among all the parties in the other seven OSs, I make the same Order, mutatis mutandis, respectively for each of OS950 to OS956. Dated: 24 June 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Plaintiffs: Wong Chong Wah with M. Thayalan, Wong Chun-Keat, Chong Jun Min and Lim Khai Sin. [Messrs. J A Yeoh (Pulau Pinang)] For the Defendants: Karin Lim Ai Ching with A. Suppiah, Nicholas Lim Wei Jian, Khoo Ching Chiat and David Tan Hong Kai [Messrs. Presgrave & Matthews) (Pulau Pinang)] Page 24 of 24 Legislation referred to:

Section 206 of the Companies Act 2016 Cases referred to:

Sim Ah Hee @ Lim Ah Hee & Anor v Affin Bank Bhd [2010] 5 MLJ 1 (CA) at paragraph [13]; [2010] 5 MLRA 729; [2010] AMEJ 0659; [2010] CLJU 1913.

Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-ichi Shokai) & Ors [2017] 5 MLJ 63 (CA); [2017] 6 MLRA 334; [2017] CLJU 499.

Damansara Realty Bhd v Bangsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464 (FC); [2011] 9 CLJ 257; [2012] 1 AMCR 193; [2012]