Lee Kai Wuen v Lee Yee Wuen (J-02(IM)(NCC)-1315-09/2020)

LEE KAI WUEN

LOW NANG HIANG (SINGAPORE NRIC NO.: 480604-71-5302) …APPELLANTS AND LEE YEE WUEN (NRIC NO.: 750220-01-5494) …RESPONDENT (In the matter of High Court of Malaya at Johor Bahru Originating Summons No.: JA-24NCC-6-02/2019 30/05/2022 12:39:16 J-02(IM)(NCC)-1315-09/2020 Kand. 102 In the matter of Kien Yiap Trading Sdn Bhd (Company No.: 240078-A) And In the matter of Sections 345, 346 and 351 of the Companies Act 2016 And In the matter of Order 88 Rule 2 of the Rules of Court 2012 Between Lee Yee Wuen (NRIC No.: 750220-01-5494) …Plaintiff And

Lee Kai Wuen (NRIC No.: 811224-01-5367)

Low Nang Hiang (Singapore NRIC No.: 480604-71-5302)

Kien Yiap Trading Sdn Bhd (Company No.: 240078-A) …Defendants CORAM MOHAMAD ZABIDIN BIN MOHD. DIAH, JCA S. NANTHA BALAN, JCA DARRYL GOON SIEW CHYE, JCA JUDGMENT Introduction [1] This was a case that concerned disputing family members in a corporate setting. The central issue in this appeal was whether an interlocutory Mareva form of injunction should have been granted against the Appellants by the High Court. [2] The originating process in this appeal was an Originating Summons taken out by the Respondent, as Plaintiff, against the Appellants, who were the 1st and 2nd Defendants. [3] By this Originating Summons, the Respondent invoked sections 345, 346 and 351 of the Companies Act 2016 and Order 88 Rule 2 of the Rules of Court 2012. Thus, the Originating Summons was one founded upon the provisions of the Companies Act of 2016 for remedies in respect of oppression. The company central to the case was Kien Yiap Trading Sdn Bhd (‘Company’), which was cited as the 3rd Defendant in the Originating Summons. The injunctions [4] On 21st February 2019, the Respondent secured an ex parte interim Mareva injunction against the Appellants. On 6th March 2019, an ad interim Mareva injunction appeared to have been granted against the Appellants upon the terms of the earlier granted ex parte injunction, effective from 13th March 2019. That this appears so is because this order, dated 6th March 2019 was, unfortunately, unhappily worded thus, ‘IT IS HEREBY ORDERED that the ad interim is extended from 13.03.2019 until the disposal of the inter-partes application’. As worded, the order suggests that there was a prior ad interim order granted and which was being extended. However, be that as it may, it would have been clear enough, certainly to the parties involved, that the order of 6th March 2019 was actually the grant of an ad interim order pending the inter partes hearing of the application for an interlocutory Mareva injunction until the disposal of the Originating Summons. [5] In addition, and also on 6th March 2019, the ad interim Mareva injunction granted contained a variation that allowed for certain payments to be made by the Appellants. The material part of this variation order of 6th March 2019 states as follows: ‘1. The Order dated 21 February 2019 be varied to allow the following payments to be made by the 1st and 2nd Defendants’ (“4 Payments”):

1.1 RM4,767.00 to Public Bank Bhd being instalment for shop house Lot No. 32, Kimanis Centro, Kimanis Papar, Sabah;

1.2 RM25,000.00 for CP204 Company Income Tax Instalment 2019;

1.3 RM6,021.00 to Public Bank Bhd being instalment for Kobelco S200XDL-10 with registration no. JSM 762; and 1.4 RM7,995.00 to Public Bank Bhd being instalment for Mercedes Benz S400 with registration no. JDL 8.

The 1st and 2nd Defendants shall make the 4 Payments directly to the said creditors.’ [6] Why this variation was required is unclear. There was no outright restriction against the Appellants from disposing any of their assets as such. Whether the variation was meant to permit the Appellants to utilise their monies and assets, including those from the identified accounts, for the specified payments even if it would deplete their assets and monies below the limit stipulated in the order of 21st February 2019 i.e. RM3,412,829.41, is unclear. [7] On 15th September 2020, the inter partes application for the Mareva injunction was finally heard and an interlocutory Mareva injunction in terms of the ad interim Mareva injunction was granted by the High Court against the Appellants. [8] The material parts of the Mareva injunction granted were the following: ‘1. The 1st and 2nd Defendants be prohibited from removing from Malaysia in any way, dispose of or deal with or diminish the value of any of their assets which are in Malaysia whether in their own name(s) or not and whether solely or jointly owned up to the value of RM3,412,829.41 (“Mareva Sum”)

1.1 This prohibition includes any real properties and any credit balance or monies as may or may thereafter be held at any financial institutions, including but not limited to the following bank accounts: i. OCBC Account No. 7152544566; and ii. UOB Account No. 1493000867.

1.2 If the total unencumbered value of the 1st and/or 2nd Defendants’ assets in Malaysia exceeds the Mareva Sum, the 1st and/or 2nd Defendants may remove any of those assets from Malaysia or may dispose of or deal with them so long as the total unencumbered value of the assets still in Malaysia remains not less than the Mareva Sum.’ [9] The interlocutory Mareva injunction granted against the Appellants on 15th September 2019 was thus targeted against dissipation of the Appellants’ assets generally and, specifically, dissipation of monies in the two identified bank accounts. This was thus an appeal by the Appellants against the grant of the interlocutory Mareva injunction. [10] Upon hearing the parties, the Appellants’ appeal was unanimously allowed and this is the judgment of the Court with the reasons therefor. The background [11] The Appellants and the Respondent are immediate family members. The 1st Appellant and the Respondent are brother and sister respectively. The 2nd Appellant is their mother and a Singaporean citizen. [12] The Company is a family company. It has been a successful company dealing with timber and is said to have assets in excess of RM150 million, with revenue in excess of RM30 million. It was a company founded by one Lee Poh Sin (deceased), and the 2nd Appellant, sometime in 1992. He, Lee Poh Sin (‘Deceased’) was the father of the 1st Appellant and the Respondent. [13] Thus, the Originating Summons was brought by the Respondent, against her brother and mother in respect of the affairs of the Company. [14] Prior to the demise of the Deceased, the shareholding in the Company was as follows:

(i) the Deceased had 51% of the issued share capital amounting to 255,002 units of shares;

(i) the Respondent with 54.5% of the issued share capital of the Company and

(a) Ladang Merlipan (Sabah) Sdn Bhd now known as Ladang Sri Harapan (Sabah) Sdn Bhd (‘Ladang Sri Harapan’);

(b) Perfect Oil Resources (Sabah) Sdn Bhd (‘Perfect Oil’);

(c) Maju Jaya Quarry Sdn Bhd (‘Maju Jaya’);

(d) Sri Harapan FFB Collecting Centre Sdn Bhd;

(e) Tern Tat Red Bricks Manufacturer Sdn Bhd;

(f) Soon Huat Timber Trading Co; and

(g) Syarikat Kilang Papan Wira Sdn Bhd. [41] It was contended that some of these companies enjoyed banking facilities and it appeared that from their facilities, loans were in turn granted to the Company in respect of which there were repayments to be made by the Company, by way of instalments. The Company was also a guarantor for the loans to some of these related companies. Among them were Ladang Sri Harapan and Maju Jaya. Letters of offer from the banks were exhibited to corroborate. In fact, it was pointed out that the Respondent herself is also one of three guarantors for borrowings by Ladang Sri Harapan (Sabah) Sdn Bhd from RHB Bank Berhad and RHB Islamic Bank Berhad. [42] It was the Appellants’ case that when the Deceased was still in a coma and there was no other authorised signatory to operate the Company’s bank accounts, the 2nd Appellant explained to the 1st Appellant and the Respondent that there was a need to maintain cash flow in the Company. In order to do so, it was agreed by the Appellants and the Respondent that monies due from the customers of the Company would be directed to the OCBC Joint Account. The OCBC Joint Account, being an account in the joint name of the Deceased and the 2nd Appellant, either the Deceased or the 1st Appellant could operate that joint account. In this way, the monies due to the Company when paid into the OCBC Joint Account, could be used by the 2nd Appellant to defray the expenses and meet the financial commitments of the Company. [43] It was further contended that when the Deceased passed away on 10th September 2018, the OCBC Joint Account was suspended or ‘frozen’. No further payments could be made out of the OCBC Joint Account. An alternative account was therefore required to facilitate receiving monies due to the Company in order to enable payments therefrom to be made, to the account and on behalf of the Company. The 1st Appellant averred that it was then agreed that monies due to the Company from its customers would be paid into the OUB Joint Account. [44] The 1st Appellant also made clear that the OUB Joint Account was an existing joint account in the joint names of the Appellants. It was not an especial account opened in the name of the Appellants for receiving monies of the Company. [45] The 1st Appellant states that he was aware of the Respondent’s agreement to the arrangement to use the UOB Joint Account as he was present when the discussion took place between the 2nd Appellant and the Respondent. This was on the occasion of the reading of the Deceased’s will, on 21st September 2018 at Rockwills, Johor Bahru. The email from Rockwills Trustee Berhad to the Respondent and the 1st Appellant dated 18th September 2018 setting out the date, time and venue for the meeting was exhibited by the 1st Appellant. [46] The reason the 1st Appellant gave as to why his joint account with the 2nd Appellant was used was that the Respondent was no longer residing in Kluang and in addition, she was not involved in the management of the Company. [47] According to the Appellants, the monies paid into the Joint Accounts were also utilised in the repayment of the loans from Ladang Sri Harapan and Maju Jaya. Records were kept and produced in respect of these payments in the form of payment vouchers with invoices. [48] Also exhibited by the 1st Appellant in his affidavit was the Company’s General Ledger. The General Ledger records monies received from the Company’s customers and payments out to payees who are claimed to be the Company’s creditors/suppliers. [49] It was therefore the Appellants’ case that the Joint Accounts were used to receive monies due to the Company, on behalf of the Company, so that the monies received could in turn be used to meet the Company’s financial requirements and commitments. The alleged misappropriation by the Appellants was thus categorically denied. This arrangement, the Appellants maintained, was to the knowledge and with the agreement of the Respondent. [50] The Appellants also stated that the Mareva injunction against them had put both their personal finances and those of the Company, including its related companies, in jeopardy particularly those with loans and had repayments to make. [51] The Appellants also provided what was described as a cash summary pertaining to the Company. Details with date, amounts paid, payees, etc were set out in this summary. Its tabulations demonstrated a total amount of RM2,827,882.68 being paid out to the account of the Company, out of the RM3,438,704.71 received, with a balance of RM610,822.03 remaining of the Company’s money. [52] Suffice it to say that the Respondent, in her affidavit in reply, denies her alleged agreement with the arrangement to utilise the Joint Accounts in the manner described by the Appellants. [53] In paragraph 11 of her affidavit in reply, affirmed on 23rd April 2018, although the Respondent seems to deny knowledge of the arrangement to use the Joint Accounts, the subparagraphs to paragraph 11 and paragraph 12 seem to suggest the contrary. In the subparagraphs to paragraph 11, the Respondent denied that she agreed with the arrangement and goes on to state that, ‘My position had always been that monies due to D3 must be paid to its accounts’ (emphasis added). In paragraph 12, the Respondent speaks of ‘concealment of my objection to their misappropriations’. These statements by the Respondent seem to indicate that she was aware, or was informed, of the arrangement but had objected to it and had made her position clear. [54] The Respondent, in response, also asserted that the payments out of the Joint Accounts have not been accounted for. The Respondent stated that the Company’s monthly payment in 2018 was only around RM115,790.75 per month and this was in stark contrast to the amount that was paid into the Joint Accounts. [55] As for his failure to attend the extraordinary general meeting that was scheduled for 15th January 2019, the 1st Appellant’s response was that it was premature and unnecessary as the transfer of the Deceased shares had not, as yet, taken place. The 1st Appellant also alleged that he did not have the time to attend the meeting as he was struggling to keep the Company operational and afloat. Mareva type injunctions [56] It is well settled that in order to be able to secure a Mareva type injunction, three vital ingredients must be established, namely (i) that the applicant has a good arguable case (ii) that the respondent/s has assets within the jurisdiction and (iii) that there is a real risk that the assets would be dissipated or placed beyond reach of the applicant, before judgment (See S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62; Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft m.b.H. & Co KG [1984] 1 All ER 398; Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153). [57] As succinctly put by Parker LJ in Derby & Co Ltd v Weldon [1990] Ch 48 at p 57: ‘There are in essence only three issues; (i) has the plaintiff a good arguable case; (ii) has the plaintiff satisfied the court that there are assets within and, where an extraterritorial order is sought, without the jurisdiction; and (iii) is there a real risk of dissipation or secretion of assets so as to render any judgment which the plaintiff may obtain nugatory.’ [58] Counsel for the parties did not have any dispute as to these ingredients necessary for the issue of a Mareva injunction. However, there was disagreement as to what it might take to establish one of these essential ingredients. [59] There has also been a suggestion, and often an assumption, in some reported decisions of our Courts, that there is a fourth criteria for the grant of a Mareva injunction. That fourth criterion is the need to demonstrate or establish that the balance of convenience must lie in favour of granting the Mareva injunction sought. This point was not pursued by the parties in this appeal and it will thus only be dealt with in passing as to whether there in fact exists this criterion. [60] That the Appellants have assets within the jurisdiction was not a fact in dispute. The main ingredients that gave rise to serious contentions were whether there exists a good arguable case in favour of the Respondent and whether there was a real risk that the Appellants would dissipate or dispose of their assets to defeat any judgment that may be entered in the Respondent’s favour. In addition, for the purposes of the appeal, there were also several other arguments of a procedural nature raised by the Appellants. A good arguable case [61] As the learned Judge quite rightly pointed out, in order to establish a good arguable case, it was not necessary that the applicant’s case has to have a better than 50% chance of success, although it has to be more than barely capable of serious argument. In the words of Mustill J in Ninemia Maritime Corporation at p 404 of the report above-cited, which was reiterated by the Federal Court in S & F International Limited at p 64,: ‘…, I consider the right course is to adopt the tests of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success’. [62] In the decision of this Court in Biasamas Sdn Bhd & 3 Ors v Kan Yan Heng [1998] 4 MLJ 1 at p 5, Haidar JCA delivering the judgment of the Court used the phrase, ‘a fair chance’ of success. This was how Haidar JCA put it: ‘What is a good arguable case is difficult to define. The respondents need not show that they have a case so strong as to warrant summary judgment nor even a strong prima facie case. It would generally be sufficient if the respondents can show on the evidence available, there is a fair chance that they will obtain judgment against the appellants (see Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG; The Niedersachsen [1984] 1 All ER 398, on appeal to CA [1984] 1 All ER 413; [1983] 1 WLR 1412).’ (Emphasis added) [63] In our view, it is firstly quite significant that the payments into the Joint Accounts were never denied by the Appellants. In fact, it was the Appellants who pointed out that the total amount paid into the Joint Accounts were more than the amount stated by the Respondent. [64] It was also not disputed that the Deceased was the sole signatory to the banking account of the Company and there were only two directors at the material time, namely the Deceased and the 1st Appellant. [65] Based on the details provided by the Respondent, payments were made by the Company’s customers into the OCBC Joint Account on the 4th and 5th of September 2018. It is not disputed that the Deceased fell into a coma on the 27th of August 2018. Thus, these payments were made about a week after the Deceased went into a coma. The sole signatory for the Company’s bank accounts being incapacitated, clearly, there could be no payments made out of the Company’s bank accounts. All things being equal, this would obviously be a financially perilous state for the Company to be in. [66] The OCBC Joint Account was an existing joint account in the names of both the Deceased and the 2nd Appellant. They were the parents of the Respondent and the 1st Appellant in a company whose shares were owned by the Deceased, the 1st Appellant and the Respondent. It thus does not seem extraordinary that this joint account was used in order to facilitate the receipt of the Company’s monies and to make payments therefrom, to the account of the Company to meet its financial obligations. [67] Therefore, it would seem consistent with the Appellants’ case that by the use of the OCBC Joint Account, the 2nd Appellant was thus in a position to make payments on behalf of the Company and hence monies from the Company’s customers were directed to be paid into this OCBC Joint Account. This arrangement would enable the Company to meet its financial obligations. [68] Also based on the Respondent’s affidavit, payments into the UOB Joint Account began subsequently on 19th September 2018 onwards to the 8th of December 2018. This was after the Deceased had passed away on 10th September 2018. As the 1st Appellant explained, it was necessary to use the UOB Joint Account as the OCBC Joint Account with the Deceased was suspended or ‘frozen’ by the Bank upon the demise of the Deceased. [69] That the Company had periodical financial obligations to meet was clearly demonstrated by the Appellants. Although the amount of the Company’s financial commitments was disputed, there was nevertheless no claim by the Respondent that she herself, or anyone else, had paid or had met any of the Company’s financial commitments. It would therefore seem more likely than not, that the financial commitments of the Company, at least some of them, were met by the Appellants with monies from the Joint Accounts as contended by them. [70] Indeed, there were documentary evidence of payments in the form of statements and vouchers produced which demonstrated that there were payments made to the account of the Company, out of the Joint Accounts. [71] There does not appear to have been any attempt by the Appellants to conceal the payments of the allegedly misappropriated monies into the Joint Accounts. In fact, the payments were documented. Again, reference may be made to the statements, banking in slips, cheques and the General Ledger of the Company that were produced in evidence. These were records kept of the payments. In this regard, there were also obviously records of the payments made into the Joint Accounts from the Company’s customers from which details thereof could have been obtained by the Respondent and provided in her affidavit in support of the Originating Summons. [72] As for the resolution of 15th September 2018, regard perhaps should have been given to the fact that there was only one director at that material time and that was the 1st Appellant. [73] In addition, and as the Respondent herself acknowledged, documents were prepared for her to be appointed as a director but she declined. There was also an attempt to appoint the 2nd Appellant as a director, but this was objected to by the Respondent. Thus, at the board level, by reason of the Respondent’s objections, the Company was locked in an unprecedented state of having only one director. It was only subsequently on 11th December 2018, that the Respondent, in a volte- face, issued a notice seeking an extraordinary general meeting with a proposal to be appointed onto the board. [74] In the meantime, it is not inconceivable that all the 1st Appellant could do, as the sole director in September of 2018, was to pass a board resolution with him as the sole director executing the same. For the avoidance of any doubt, this is not a determination by this Court as to the validity of the resolution of 15th September 2018 as this is a matter that would have to be determined by the High Court after a hearing on the merits of the application. It is however a factor to be considered as to whether there was any attempt to conceal any wrongful act of misappropriation or whether the arrangement was with a bona fide intention to facilitate and enable payments to be made on behalf of the Company and to protect the Company’s interests. [75] The learned Judge concluded that the Respondent had, in this case, established the requirement of a good arguable case. [76] The learned Judge doubted the contention that the arrangement for monies due to the Company to be paid into the Joint Accounts, was put in place in order to meet the financial requirements of the Company due to the illness and demise of the Deceased or that the arrangement had the agreement of the Respondent. It was queried that if such were the case, the arrangement should have been temporary and not continued until December 2018. The learned Judge also formed the view that the assertion that the Respondent had agreed to the arrangement was merely a bare allegation. [77] In addition, the learned Judge was also of the view that the resolution of 15th September 2018 was in breach of the Company’s articles and even so, the resolution was only for the UOB Joint Account and not the OCBC account. [78] The learned Judge concluded that the Company’s monthly commitments were only around RM115,790.75 and this amount was in stark contrast to the amount of monies diverted into the Joint Accounts. Although the Appellants contended that they had paid out to the account of the Company a total sum of RM4,048,383.27, which was RM635,553.86 in excess of the total sum of RM3,412,829.41, the learned Judge held that that was a matter in dispute that ought to be dealt with in another suit, namely Suit JA-22NCC-30-06/2020 (‘Suit 30’). [79] Suit 30 is a suit brought by the Company against the 1st Appellant for breaches of directors’ duties and against the 2nd Appellant for dishonest receipt and knowing receipt. Having considered the Respondent’s contentions, and a table produced, the learned Judge concluded that the disputed payments amounted to a sum of RM818,779.75. In the grounds of judgment, it was stated thus: ‘Secondly, from what the Plaintiff has been able to review, it was able to dispute the payments which it set out in its paragraph 7.1 to 7.11, enclosure

These were reduced into a table as shown in its supplemental submission dated 17-8-2020. The disputed payments came up to RM818,779.75. It cannot therefore be said that the payment of the RM4 million plus can negate the Plaintiff’s good arguable case.’ (Emphasis added) However, we note that if this be the case, ought not the Mareva injunction granted be only for this amount of RM818,779.75 that was disputed? [80] We are however reminded of the caution by Abdoolcader FJ in S & F International Limited, at p 64 of the report: ‘ We should perhaps also reiterate and stress the point that the discretion whether or not to grant an interlocutory injunction is vested in the High Court Judge and not the appellate court whose function initially is one of review only, and it will not overrule the decision of the judge at first instance unless, broadly speaking, he has made an error of law or misconceived the facts, and except in those circumstances it must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently: Duport Steels Ltd. v. Sirs (6); Hadmor Productions Ltd. v. Hamilton (7); Garden Cottage Foods Ltd. v. Milk Marketing Board (8) . These decisions of the House of Lords were referred to and applied by the English Court of Appeal in Ninemia Maritime Corporation [1983] 1 W.L.R. at p. 1421; [1984) 1 All E.R. at p. 418) where Kerr, L.J., in delivering the judgment of the court stated that recent decisions of the House have emphasised the importance of appellate courts resisting the temptation to interfere with the exercise of judicial discretions other than in limited circumstances.’ (Emphasis added) [81] Whatever the intention might be, unless lawfully authorised, directors cannot divert the company’s funds to their personal account. That the learned Judge had, in the circumstances of the case, serious doubts that all monies due to the Company that were caused to be paid into the Joint Accounts were used for the benefit of the Company, entitled the learned Judge to hold that the Respondent had a good arguable case. The Respondent’s case was ‘more than barely capable of serious argument.’ [82] The conclusion of the learned Judge was, in addition, further supported by the decision of the Court of Appeal in Lee Yee Wuen v Lee Kai Wuen & Ors [2020] MLJU 1902, that the Court’s discretion and power under section 346(2) of the Companies Act 2016 is wide enough to encompass an order for restitution of monies misappropriated from a company. The appeal arose out of this very same Originating Summons before us. The Appellants had applied to strike out certain prayers in the Originating Summons. The application was allowed by the learned Judge in the High Court. However, on appeal, this Court set aside the learned Judge’s decision and reinstated the reliefs sought that were struck out. Suffice to say, that this Court had found that the reliefs in the instant Originating Summons sought to be struck out were not plainly unsustainable. [83] In addition, in respect of misappropriation vis a vis oppression in a company, S Nantha Balan JCA, in delivering the decision of this Court in Lee Yee Wuen observed that: ‘[66] It is trite that misappropriation of monies can constitute an act of oppression. This is demonstrated by the case of Chiew Sze Sun v Cast Iron Products Sdn Bhd [1994] 1 CLJ 157; [1993] MLJU 115; [1993] 2 AMR 3174 HC (“Cast Iron Products”) where Zakaria Yatim J allowed an oppression claim premised on inter alia misappropriation of company funds by the directors.’ Also cited by way of an example by his Lordship was the decision in Dato’ Oon Ah Baa @ Boon Pak Leong v Eagle & Pagoda Brand Teck Aun Medical Factory Sdn bhd (1) [2004] 2 MLJ 340; [2003] 1 LNS 262; [2004] 5 AMR 485 HC. [84] Clearly however, whether misappropriation of company funds may be tantamount to oppression within the ambit of section 346 of the Companies Act 2016 is necessarily fact sensitive and subject to the circumstances in each case. We do not think that the decision in Lee Yee Wuen was intended to establish a proposition that mere misappropriation per se and without more, is tantamount to oppression. Real risk of dissipation of assets [85] There was, however, no direct evidence led of any risk that the Appellants might dispose or dissipate their assets or put their assets beyond the reach of the Respondent, should she succeed in securing the reliefs sought. [86] By direct evidence we mean no evidence of any actual attempt by either or both of the Appellants to dissipate any of their assets or any instance of any actual dissipation of either Appellant’s assets. [87] The learned Judge was no doubt cognisant of this fact when in the learned Judge’s grounds of judgment, after referring to authorities to the effect that there must be evidence of risk of dissipation of assets, it was stated thus: ‘[30] As against the above, there are also cases of high authority where if there is misappropriation, dishonesty or lack of probity, the risk of dissipation of assets can be presumed.’ (Emphasis) [88] Reference was then made to a passage in the judgment of Abdul Malik Ishak J in Pharmmalaysia Bhd v Dinesh Kumar Jashbhai Nagjibha Patel & Ors [2004] 7 CLJ 465 at 550 in which his Lordship stated: ‘That it was not necessary for the plaintiff to show actual evidence of risk of dissipation of the assets. The risk of dissipation would be something that must necessarily be inferred from the circumstances of the case including the circumstances wherein the funds in question were received by the parties concerned.’ (Emphasis added) [89] The above passage cited from the judgment in Pharmmalaysia Bhd in fact pointed to risk of dissipation of assets, ‘…that must necessarily be inferred from the circumstances of the case…’ – rather than presumed. [90] Also referred to were passages in the judgment of Kang Hwee Gee J in Multi-Code Electronics Industries (M) Bhd & Anor v Gordon Toh Chun Toh & Ors [2009] 9 CLJ 659 at p 685. They were as follows: ‘ … where a prima facie case of dishonesty involving diversion of money from its proper channels" is made out, "this would justify the conclusion that there was a danger that the appellant would dispose of the assets in order to defeat the judgment.’ ‘There could be no question that the monies were withdrawn dishonestly for they were withdrawn without the authority of the Board. The risk of dissipation must be presumed under the circumstances.’ [91] Also referred to by the learned Judge were the following passages in the judgment of Vazeer Alam Mydin J in Dopag Dosiertechnik und Pneumatik AG (suing as the majority shareholder of Dopag Far East Sdn Bhd and acting in the interest of Dopag Far East Sdn Bhd) v Gamel Nasir Taib & Ors [2017] 10 MLJ 31: ‘In any event, the risk of dissipation of assets can clearly be presumed from the first and second defendants lack of probity and dishonest conduct in dealing with the assets of the company …’ ‘The law is clear that where there is a lack of probity on the part of the defendants, the court may assume that there is such risk of dissipation. Such lack of probity may arise when monies are withdrawn or paid out without proper authority, …’ ‘The conduct of the first and second defendants in bringing about large losses to the fifth defendant, which arose from their blatant disregard and breach of statutory and fiduciary duties owed to the fifth defendant. Large sums of monies belonging to the fifth defendant were paid out unlawfully to both the first and second defendants. These unlawful conduct of the first and second defendants fortifies the plaintiff’s contention that there is apparent risk of assets being dissipated.’ [92] As to what it takes to demonstrate a real risk of dissipation of assets, Mustill J in Ninemia Maritime Corporation stated as follows: ‘Nevertheless, certain themes can be seen to run through the cases. It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He must demonstrate this by solid evidence. This evidence may take a number of different forms. It may consist of direct evidence that the defendant has previously acted in a way which shows that his probity is not to be relied on. Or the plaintiff may show what type of company the defendant is (where it is incorporated, what are its corporate structure and assets, and so on) so as to raise an inference that the company is not to be relied on. Or, again, the plaintiff may be able to found his case on the fact that inquiries about the characteristics of the defendant have led to a blank wall. Precisely what form the evidence may take will depend on the particular circumstances of the case. But the evidence must always be there.’ (Emphasis added) These observations by Mustill J in were reiterated by Abdoolcader FJ in S & F International Limited and clearly adopted by the Federal Court in that case. [93] Thus, there must either be direct evidence of a real risk of dissipation of assets or circumstances in evidence that warrants an inference of such a risk. As Mustill J stated, and it bears repeating, ‘Precisely what form the evidence may take will depend on the particular circumstances of the case. But the evidence must always be there’ (emphasis added). It must also be emphasised that the ingredient in question is not merely the risk of dissipation of assets, but a ‘real risk’. The adjective used is in our view, not without significance. It lends to emphasise that a mere risk would not do. If it were otherwise, based merely on arguable allegations, at an interlocutory stage, a great majority of cases would qualify for a Mareva injunction. In the face of unproven allegations, such a consequence would clearly be oppressive. It merits noting that the Mareva injunction, together with the Anton Piller type injunction, were described by Donaldson LJ in Bank Mellat v Nikpour [1985] 2 FSR 87 at p 92, as nuclear weapons of the law. The effect of these types of injunctions can be very harsh and oppressive and it is not inconceivable that in certain cases, they may have ruinous consequences. [94] The need for evidence of a real risk of dissipation of assets was also central to the decision of the Federal Court in Zainal Abidin Bin Haji Abdul Rahman v Century Hotel Sdn Bhd [1982] 1 MLJ 260, where his Royal Highness, Raja Azlan Shah CJ (Malaya) stated in respect of a Mareva injunction at p 264: ‘The appellant still has to establish the second requirement, that is in order to gain the particular form of protection sought by the injunction he must show that there is a danger that the company’s available assets will be dissipated to prejudice the appellant’s claim. That is a matter of evidence.’ (Emphasis added) The decision of the Federal Court in that case was ultimately to dismiss the appeal against the decision of the High Court in refusing to grant a Mareva injunction sought. It was held that although the appellant had raised a serious question to be tried, there was no evidence to demonstrate that there was a danger that the available assets of the respondent would be dissipated, to the prejudice of the appellant’s claim. [95] The Federal Court also stressed, of the Court’s jurisdiction to grant a Mareva injunction, in the following terms: ‘It must not be debased into something invoked to obtain security for a judgment in advance, or pressuring a defendant into a settlement. “The courts must be vigilant to ensure that a Mareva defendant is not treated like a judgment debtor” (see A.J. Bekhor & Co. Ltd. V. Bilton (supra — [1981] 2 All ER 577)). It is consequently not accurate to refer to a Mareva injunction as a pre-trial attachment (see Cretanor Maritime Co Ltd v Irish Maritime Management Ltd [1978] 1 Lloyd’s Rep 425).’ (Emphasis added) [96] In a Mareva type of injunction, the injunction is directed at the assets of the defendant and which assets are not necessarily the subject matter, in specie, of the plaintiff’s claim. The assets precluded from disposal are often the personal assets of the defendants. As Mustill J pointed out in Ninemia Maritime Corporation, at p 403: ‘The relief granted on a Mareva application is of a quite different character. It bears no relation to the relief granted at trial. The plaintiff, however successful at the trial, will not obtain a perpetual injunction in terms of the interlocutory Mareva injunction. The latter bears on assets which in the great majority of cases have no connection at all with the cause of action on which the injunction is founded.’ [97] The need for evidence of a real risk of dissipation in fact lies at the very heart of the jurisdiction and its raison d’etre. The sole purpose of a Mareva injunction, as Abdoolcader pointed out in S & F International Limited, referring to the decision in PCW (Underwriting Agencies) Ltd v Dixon & Anor [1983] 2 All ER 158 was: ‘… the sole purpose of a Mareva injunction was to prevent a plaintiff being cheated out of the proceeds of an action, should he be successful, by a defendant transferring his assets abroad or dissipating his assets within the jurisdiction, and that the remedy was not intended to give a plaintiff priority over those assets, or to prevent a defendant from paying his debts as they fell due, or to punish him for his alleged misdeeds, or to enable a plaintiff to exert pressure on him to settle an action.’ (Emphasis added) [98] To hold that a real risk of dissipation of assets may be presumed is effectively to negate the need to actually establish that such a risk exists. This, in our view, would be inconsistent with all the settled authorities that a real risk of dissipation is an essential ingredient. This requirement necessarily means it is an issue that has to be established and in legal proceedings, that can only be achieved by means of evidence. The binding authorities of our Courts do not in fact establish that there exists any exception to the rule, such that this ingredient may be presumed in any identified circumstance. [99] What the authorities do establish, and none so clearly as in the decision in Ninemia Maritime Corporation which was expressly quoted by the Federal Court in S & F International Limited, and thus a decision binding on this Court, is that there must be evidence of a real risk of dissipation of assets – whether direct evidence or an inference that may properly be drawn from evidence that is led and provided. It may not be presumed, particularly at an interlocutory stage, when allegations made of impropriety have yet to be proved. If, however, want of probity or misconduct is so clearly established, even at the interlocutory stage, then, depending on the nature of the lack of probity or misconduct, a real risk of dissipation of assets may be inferred – not presumed. [100] As for allegations of misappropriation, dishonesty or lack of probity, it is a matter of common sense that even if there exists evidence of these allegations, they must also be of a nature that has a real and material bearing on, or of a nature that can justify an inference of, a real risk of dissipation of assets (see Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and another and another appeal [2015] SGCA 45; [2015] 5 SLR 558). Mere allegations of these nature, even with some evidence in support of these allegations, would not per se warrant a presumption or inference that there exists a real risk of dissipation of assets. [101] As mentioned, there was no direct evidence of any such risk of dissipation by either Appellants of their assets. How the learned Judge came to a conclusion on this issue is set out in the grounds of judgment thus: ‘[31] Given that the Court had earlier found a good and arguable case for misappropriation, appointment of the 2nd Defendant as not being in the best interest and that the 1st Defendant had breached his director’s duty in not convening an EGM, these were acts which the Court could take into account in presuming a real risk of dissipation.’ (Emphasis) [102] The reasoning disclosed in this paragraph of the grounds of judgment in fact suggests a process in which the learned Judge had inferred from the ‘acts’ referred to, rather than presumed, that there exists a real risk of dissipation. [103] However, we are of the view that to infer a real risk of dissipation merely because a good arguable case has been made out is a step too far. This would be tantamount to conflating the two separate required ingredients into one. As can be seen in the case of Century Hotel Sdn Bhd, even though a good arguable case was established, the Federal Court still required that there be evidence of the danger of dissipation of assets. In Bouvier, even though a good arguable case of dishonesty was established, the Court of Appeal of Singapore held that the allegations of dishonesty in that case did not have a real and material bearing upon the risk of dissipation. [104] Significantly, in the circumstances of this case, there was no apparent attempt at concealment by the Appellants of the payments into the Joint Accounts or their utilisation. The fact that the Company had financial obligations and that there was evidence of payments made out of the Joint Accounts to the account of the Company were not evidence of lack of probity or impropriety or misappropriation. The board resolution of 15th September 2018, the validity of which is being challenged, was nevertheless an unconcealed disclosure of the intention to fund the Company’s financial requirements and commitments by the use of an alternative bank account. [105] That there was a need to use the Joint Accounts was corroborated by the fact that the Deceased was the only signatory for the Company and the arrangement was only put in place after the Deceased had fell into a coma, leading to his subsequent demise. This was when the 1st Appellant had found himself to be the only director, without any means to effect payments to meet the Company’s financial obligations. This too was compounded by the fact that it was the Respondent who, at that material time, refused to be appointed director and objected to the 2nd Appellant’s appointment as a director. [106] It needs also be noted that these events took place in respect of a company whose members were immediate family members. The Deceased, as the father, was running the Company with his son the 1st Appellant. They were the only two directors. Also involved was the 2nd Appellant, mother to the 1st Appellant and the Respondent. It is hardly disputable that both the Appellants were confronted with an unprecedented event, upon the collapse of the Deceased, followed by his subsequent demise. [107] That the Appellants were trying to facilitate meeting the Company’s financial obligations rather than to misappropriate its funds for the Appellants’ own use is not, in the circumstances of the case, and in our view, obviously unsustainable. How else was the Company to meet its financial commitments? Equally too, the Appellants’ assertion that the Respondent had agreed to the arrangement. At this stage of the proceedings, this may appear to be a bare assertion, but so too the Respondent’s denial. [108] To an extent, the variation order of 6th March 2019 could be viewed as an implied acknowledgement that there were payments that had to be made by the Company and if the bank accounts of the Company are suspended, surely these payments would have had to be made out of some other operable bank account. In fact, no alternative suggestion had been made by the Respondent as to how the financial commitments of the Company could have been met, without the deployment of the arrangement by the Appellants. The complaint seems to be that this arrangement should have been put to the shareholders of the Company for their approval, in a general meeting. [109] While it is no excuse to ignore principles of company law, and while there may be a good arguable case that there were breaches of the law, they were not of a nature that warranted any necessary inference that the Appellants would dissipate their assets to avoid honouring any judgment for restitution of the monies paid into the Joint Account, if ultimately granted by the Court. [110] Equally important is the fact that there was no evidence that the Appellants or either of them had misappropriated the monies transferred into the Joint Accounts, for their own benefit. While there were repetitive assertions of misappropriation, no evidence or particulars were ever provided of the allegation, how much was misappropriated by the Appellants to their own use rather than paid out to the account of the Company in the discharge of its financial obligations. In this regard the learned Judge’s Grounds of Judgment clearly demonstrated a finding that monies were in fact paid out of the Joint Accounts to the account of the Company leaving a portion that was disputed. In paragraph [19] of the Grounds of Judgment, the learned Judge stated thus: ‘[19] The Defendant’s further affidavit in enclosure 114 was to show that out of the RM3,412,829.41 from the Company’s funds, the 1st and 2nd Defendant had paid RM4,048,383.27 in the Company’s favour. This was an over payment of RM635,048.86. These have been challenged by the Plaintiff as firstly there is now a suit JA-22NCC-30-06/2020 … . Secondly, from what the Plaintiff has been able to review, it was able to dispute the payments which it set out in its paragraph 7.1 to 7.11, enclosure 126. These were reduced into a table as shown in its supplemental submission dated 17-8-2020. The disputed payments came up to RM818,779.75. It cannot therefore be said that the payment of the RM4 million plus can negate the Plaintiff’s good arguable case.’ (Emphasis added) [111] We would therefore conclude that in our view, the learned Judge had erred in presuming or in inferring that there was a real risk of dissipation of assets by the Appellants or either of them, upon the evidence adduced and in the circumstances of this case. This vital ingredient that needs to be established before a Mareva type injunction may issue, was not, in our view, established. Balance of Convenience [112] There have been continuing reports of cases that have made reference to the issue of balance of convenience, both by counsel and also in some cases by the Court, in regard to applications for a Mareva injunction see e.g. Bumi Armada Navigation Sdn Bhd v Mirza Marine Sdn Bhd [2015] 5 CLJ 652, Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad B Hj Hassan & Ors [2005] 1 MLJ 654; Ananda Kumar Krishnan v LS Fishery Sdn Bhd & Ors [2021] 1 LNS 641; EHQ Projects Sdn Bhd & Ors v Equipro Sdn Bhd & Ors [2008] 7 CLJ 343; Bright Rims Manufacturing Sdn Bhd v Victor Taichung Machinery Works Co Ltd & Anor [2007] 4 CLJ; Dynasty rangers (M) Sdn bhd v SBSK Plantations Sdn Bhd [2001] 1 MLJU 439. [113] In Tsoi Ping Kwan v Loh Lai Ngoh & Anor [1997] 3 CLJ at pp 554 and 556, Gopal Sri Ram JCA delivering the judgment of this Court stated as follows: “There are several issues upon which the disputants before us stand in disagreement. However, we find it necessary to deal with only two of them. … The second relates to the question where the balance of convenience or, more appropriately, the balance of justice lies. In other words, whether justice favours the grant of a Mareva or its refusal. … Turning to the second issue, it is to be noted that the learned Judge, after weighting all relevant factors came to the conclusion that the balance of convenience lay in favour of refusing a Mareva. He said: Damages are an adequate remedy to the plaintiff as he will be in a position to quantify his claim in money terms if it is found at trial that the 1st defendant was a constructive trustee of his shares. However, the 2nd defendant will be immobilised by the injunction and the damages suffered will not be readily quantifiable. As such damages will not be an adequate remedy to the 2nd defendant and the balance of convenience lies in favour of refusing the injunction.’ (Emphasis added) [114] The appeal before the Court in Tsoi Ping Kwan was one against the refusal by the High Court to grant a Mareva injunction. Although the appeal was dismissed, it was dismissed on the ground that the learned Judge had rightly exercised his discretion in refusing to grant the Mareva injunction sought, having concluded that the balance of convenience was against the grant of the Mareva injunction. However, from the passage quoted from the decision of the High Court, it would appear that the decision of the High Court was based not only upon a balance of convenience but also on a conclusion that damages was an adequate remedy; in other words, the plaintiff would not suffer any irreparable damage should the Mareva injunction be refused. The requirement of irreparable damage is yet another factor that would in our view, and with respect, be regarded as being alien to the grant of a Mareva type of injunction for the reasons addressed above. [115] It would seem to us that in all these cases where the balance of convenience vis a vis the grant of a Mareva injunction was considered, arose from, with respect, an error in conflating the requirements for the grant of non Mareva type interlocutory injunctions, with Mareva injunctions properly so called. [116] The balance of convenience is a legal consideration of some antiquity. In Mitchell v Henry (1880) 15 Ch D 181, at pp 191 and 192, a case involving an allegation of a trade mark infringement, James LJ had regard to the balance of convenience and dealt with it as follows in an application for an interlocutory injunction: ‘Then with regard to the balance of convenience and inconvenience, it seems to me by far the most convenient course that no injunction should be granted, and that the motion should stand over to the hearing, the Defendants undertaking to keep an account. The Plaintiffs can protect themselves, as they have to a great extent already done, by circular. Moreover, the pendency of these proceedings will be perfectly well known. Every large purchaser in Bradford or elsewhere will know of them, and will know that he will incur liability if he makes himself a party to any continued infringement of the Plaintiffs' rights, should those rights be established at the hearing. If that should be the result of the action the Defendants who undertake to keep an account will be liable to pay to the Plaintiffs every farthing of the profits they make by the sale of goods by which the Plaintiffs' mark is infringed, and will find themselves in this position, that they will have been using a trade-mark which they will be prevented from using afterwards, and so will lose all the reputation they have been acquiring in the meantime. Then again the Plaintiffs will be relieved from the necessity of giving an undertaking to abide by any order as to damages if the Defendants should prove successful at the hearing. Therefore on the balance of convenience and inconvenience, and having regard to the fact that the decision of the Master of the Rolls was in favour of the Defendants, which ought not to be overlooked on an interlocutory application, I am of opinion that the better way will be to let the motion stand till the hearing, the Defendants keeping an account. We must discharge the order of the Master of the Rolls, and make the costs of both parties costs in the action.’ (Emphasis added) [117] In American Cyanamid Co v Ethicon [1975] 396, Lord Diplock’s employment of this consideration was predicated on the following, as his Lordship explained in page 406 of the report: ‘My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where " the balance of convenience " lies.’ (Emphasis added) [118] However, the interlocutory injunctions that Lord Diplock was dealing with was not of a Mareva type of injunction (See also the decision of this Court in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193). The interlocutory injunction that Lord Diplock was concerned with in American Cyanamid was, in interlocutory form, an injunction that a plaintiff was entitled to as a relief based on a pleaded cause of action. As Lord Diplock stated in Siskina (Owners of Cargo Lately Laden on Board) and Others v Distos Compania Naviera SA [1979] AC 210 at p 249, ‘The distinction drawn by the appellants between an interlocutory and final injunction is merely a matter of form. There must be some underlying cause of action to enable the court to grant an injunction. If no such right is established then neither type of injunction can be ordered’. [119] As has already been pointed out, a Mareva injunction is an injunction of quite a different character. It is not the final remedy sought in a cause. Although relevant to, it bears no dependence on, the final relief that is sought in an action (see statement by Mustill J in Ninemia Maritime Corporation, supra). In none of the authoritative cases in which the Mareva injunction was introduced was it ever stated or required that the balance of convenience is a criterion to be met (see Zainal Abidin Bin Haji Abdul Rahman v Century Hotel Sdn Bhd [1982] 1 MLJ 260; Nippon Yusen kaisha v. Karageorgis [1975] 1 W.L.R. 1093; Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd's Rep. and Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak dan Gas Bumi Negara [1977] 3 W.L.R. 518.) [120] The jurisdiction exercised by Courts in the grant of Mareva injunctions is one to prevent an abuse of the legal process in cases where there is a real risk that a litigant facing potential liability may seek to render any judgment that may finally be entered against him impotent by dissipating or disposing his assets. [121] Where it is demonstrated that such a risk exists, we do not see any room for a consideration of the balance of convenience. Seeking to defeat a judgment of the Court in such a fashion cannot be countenanced by any inconvenience that may be proffered. It is therefore important to distinguish between the basis and criteria for the grant of a non Mareva injunction from that of a Mareva injunction (see the analysis in Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor [2021] 7 MLJ 178). In a roundabout way, this distinction also brings home the point, again, that vital to the grant of a Mareva injunction is evidence, direct or indirect, of a real risk of dissipation or disposal of assets to defeat a judgment of the Court. It is only where such a risk is properly established that a Court would impose what can potentially be a burdensome and harsh order; even before the merits of the claim have yet to be finally determined. [122] We therefore doubt that the balance of convenience is, or was ever, a criterion that needs be considered by a Court when considering the grant of a Mareva injunction. This is perhaps significant enough a point for the Federal Court, should an opportunity present, to address and to settle any doubt that may exist. Conclusion [123] In conclusion we are of the view that the learned Judge had erred in law when it was held that the existence of a real risk of dissipation of assets may be presumed. [124] In the circumstance of this case, we do not see that there was any evidence adduced that warrants any inference that there was a real risk that the Appellants or either of them would dissipate their assets to the prejudice of the Respondent, should she succeed in securing the reliefs she has sought from the Court. [125] Having regard to the conclusion that we have arrived at in this case, we do not regard the procedural issues raised by the Appellants to be of any particular significance and do not find any necessity to deal with them. [126] Suffice to say that that the assertions that the Respondent had failed to make full and frank disclosures, failed to provide any adequate undertaking as to damages and non compliance with Order 29 Rule 1(2A) and (2B), are more in the nature that pertains to procedural improprieties on the part of the Respondent rather than the strength of the Appellants’ defence to the substance of the Respondent’s allegations. This is not, however, to suggest that conformity with procedural requirements may be dispensed with willy-nilly. [127] My brothers Mohamad Zabidin bin Mohd Diah and S.Nantha Balan JJCA have each had the opportunity to consider this judgment in draft and they have both registered their concurrence with it. [128] By reason of the foregoing, the Appellants’ appeal was allowed with costs and the order of the learned High Court Judge of 15th September 2020 was set aside. However, given that learned counsel for the Respondent had informed the Court of his instructions to seek leave to appeal to the Federal Court against this decision of the Court, we found it appropriate to grant an order, which we did, that the setting aside of the order of the High Court dated 15th September 2020 be stayed for three weeks until the 20th of June 2021. Dated this 26th day of May 2022 - sgd - (DARRYL GOON SIEW CHYE) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA CASES CITED American Cyanamid Co v Ethicon [1975] 396 Ananda Kumar Krishnan v LS Fishery Sdn Bhd & Ors [2021] 1 LNS 641 Biasamas Sdn Bhd & 3 Ors v Kan Yan Heng [1998] 4 MLJ 1 Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and another and another appeal [2015] SGCA 45; [2015] 5 SLR 558 Bright Rims Manufacturing Sdn Bhd v Victor Taichung Machinery Works Co Ltd & Anor [2007] 4 CLJ Bumi Armada Navigation Sdn Bhd v Mirza Marine Sdn Bhd [2015] 5 CLJ 652 Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153 Dato’ Oon Ah Baa @ Boon Pak Leong v Eagle & Pagoda Brand Teck Aun Medical Factory Sdn bhd (1) [2004] 2 MLJ 340; [2003] 1 LNS 262; [2004] 5 AMR 485 HC Derby & Co Ltd v Weldon [1990] Ch 48 Dopag Dosiertechnik und Pneumatik AG (suing as the majority shareholder of Dopag Far East Sdn Bhd and acting in the interest of Dopag Far East Sdn Bhd) v Gamel Nasir Taib & Ors [2017] 10 MLJ 31 Dynasty rangers (M) Sdn bhd v SBSK Plantations Sdn Bhd [2001] 1 MLJU 439 EHQ Projects Sdn Bhd & Ors v Equipro Sdn Bhd & Ors [2008] 7 CLJ 343 Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 Lee Yee Wuen v Lee Kai Wuen & Ors [2020] MLJU 1902 Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd's Rep. Mellat v Nikpour [1985] 2 FSR 87 Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad B Hj Hassan & Ors [2005] 1 MLJ 654 Mitchell v Henry (1880) 15 Ch D 181 Multi-Code Electronics Industries (M) Bhd & Anor v Gordon Toh Chun Toh & Ors [2009] 9 CLJ 659 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft m.b.H. & Co KG [1984] 1 All ER 398 Nippon Yusen kaisha v. Karageorgis [1975] 1 W.L.R. 1093 Pharmmalaysia Bhd v Dinesh Kumar Jashbhai Nagjibha Patel & Ors [2004] 7 CLJ 465 Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak dan Gas Bumi Negara [1977] 3 W.L.R. S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 Siskina (Owners of Cargo Lately Laden on Board) and Others v Distos Compania Naviera SA [1979] AC 210 Tsoi Ping Kwan v Loh Lai Ngoh & Anor [1997] 3 CLJ Zainal Abidin Bin Haji Abdul Rahman v Century Hotel Sdn Bhd [1982] 1 MLJ 260 Zschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor [2021] 7 MLJ 178 LEGISLATION AND LEGAL TEXT CITED Acts  Order 29 Rule 1(2A) and (2B), Order 88 Rule 2 of the Rules of Court 2012  Sections 345, 346, 346(2) and 351 of the Companies Act 2016 Counsel/Solicitor For the Appellants: Chua Kim Hong Rudeen (Wong Kum Heng with him) Messrs Rudeen Chua & Co 15-3, Jalan USJ 1/1A, USJ 1 47620 Subang Jaya, Selangor Tel. No. 03-5879 7627 & 03-5879 7629 Fax No. 03-5879 7624 For the Respondent: Foo Joon Liang (Lee Xin Div with her) Messrs Gan Partnership D-32-02, Menara Suezcap 1 KL Gateway, 2 Jalan Kerinchi Gerbang Kerinchi Lestari 59200 Kuala Lumpur Tel. No. 03-7931 7060 Fax No. 03-7931 8063