1. ) LIM Swee Chong, Robert v 1. ) XXXX (JA-24NCC-5-01/2019)

LIM SWEE CHONG, ROBERT (Singapore NRIC No.: S1691135F)

LIM SWEE JOO, RICHARD (Singapore NRIC No.: S1310204Z)

HO SANG BIN (Singapore Passport No.: E5624455E)

PUAH KOT CHOON (Singapore Passport No.: E5184611E) …PLAINTIFFS

TAN TAT WEI, VICTOR (Singapore Passport No.: E4758551N)

CHONG KOK MING (NRIC No.: 710911-06-5435)

CHONG KOK PENG (NRIC No.: 800428-14-5215)

CKM METAL TECHNOLOGIES SDN BHD (Company No.: 1101573-K) …DEFENDANTS GROUNDS OF JUDGMENT [1] This appeal arose from a final order made by the Court of Appeal arising from a series of interlocutory applications and a determination made prior by this High Court in the main suit that centers on section 346 of the Companies Act. The final order by the Court of Appeal in dismissing the appeal against the finding of oppression by this High Court in the year 2021 with an order given amongst others that damages be assessed by the Senior Assistant Registrar. [2] For this purpose, enclosure 107 Notice for Directions was filed and an order was given assessment to be by way of affidavits. The background history and orders made are pertinent to be highlighted. They are as follows:

2.1. On 27.10.2021, this Court found oppression against the Defendants and recognized that the Plaintiffs at all material times were 62% majority shareholders of CKM Metal.

2.2. This Court further found as can gleaned from paragraph 54 of the GOJ that “prior to the dilution by D1 and D2, the Plaintiffs’ shares at the material time were 62% or equivalent to 155,000 of the 250,000 shares issued and subscribed”.

2.3 The table of the shares issued prior, as reflected in the said GOJ are as follows: No. Shareholder Number of Shares Percentage of Issued Shares (%) 1 Robert Lim Swee Chong (1st Plaintiff) 71,250 28.50% 2 Richard Lim Swee Joo (2nd Plaintiff) 71,250 28.50% 3 Ho Sang Bin (3rd Plaintiff) 6,250 2.50% 4 Puah Kot Choon (4th Plaintiff) 6,250 2.50% 5 Chong Kok Ming (2nd Defendant) 40,375 16.15% 6 Victor Tan Tat Wei (1st Defendant) 54,625 21.85%

2.4 The earlier High Court Judge agreed that the authorized share capital of CKM was surreptitiously increased from RM400,000.00 to RM850,000.00 divided into 850,000 shares of RM1.00 each (Par Value). This increase is as per the table below: Page 4 of 12 Name Shares Shareholding Lim Swee Chong, Robert 242,250 28.52 Lim Swee Joo, Richard 242,250 28.5 Ho Sang Bin 21,2502 2.5 Puah Kot Choon 21,250 2.5 Chong Kok Ming 137,274 16,1492 Tan Tat Wei, Victor 185,725 21.85 Chong Kok Peng 1 0.001 Total 850,000 100

2.5 The increase of 372,000 shares were subscribed and allotted to D1 and D2 on 29.6.2018 at Par Value without any notice to the Plaintiffs and without offering the same to the Plaintiffs.

2.6 This increase resulted in the dilution of Plaintiffs’ shareholding from 62% majority to 18.23% minority and this moved this Court to find oppression of the Plaintiffs’ interests as shareholders of CKM Metal.

2.7 Applying section 346(2) of the Companies Act 2016, and having perused the Court order dated 26.9.2021, the remedy as noted by this Court is not a “buy-out” order where the Plaintiffs were asked to buy out the entire shares of D1 and D2 at a premium but with an objective to put the Plaintiffs back to their original position as the 62% majority of CKM Metal.

2.8 Having determined above, the 372,000 shares were decided by this Court to be valued at Par Value at the price paid by D1 and D2 in 2018 being the start of the 2nd grievance complained being the ‘Dilution of Plaintiffs’ Shareholding and not as at the date of the order, having found that the Plaintiffs made an immediate offer to subscribe to the increased shares at the said Par Value. [3] In addition, the order number (9) of this Court dated 26.9.2021 also carry the following pronouncement that “damages to be assessed by the Senior Assistant Registrar and/or Deputy Registrar against the 1st, 2nd and 3rd Defendant jointly and severally”. [4] It is part of the said judgment by this Court that the sum RM212,806.70, the sum of RM300,000.00 and RM212,500.00 being dividend sums were owing to be paid to the Plaintiffs but was discriminately refused by the Defendants. On this basis, the Plaintiffs sought as part of the reliefs in the Originating Summon enclosure 1 for damages. [5] As it transpired from that judgment (enclosure 111 before this Court), series of exchanges of emails and minutes were perused by the learned Judicial Commissioner before the finding that led to the order in paragraph (9). [6] To begin with, section 346 of the Companies Act 2016 or the corresponding section 181 in the Companies Act 1965 provides as follows: Page 6 of 12 “Section 346. Remedy in cases of an oppression

Any member or debenture holder of a company may apply to the Court for an order under this section on the ground—

that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders including himself or in disregard of his or their interests as members, shareholders or debenture holders of the company; or

that some act of the company has been done or is threatened or that some resolution of the members, debenture holders or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or debenture holders, including himself.

If on such application the Court is of the opinion that either of those grounds is established, the Court may make such order as the Court thinks fit with the view to bringing to an end or remedying the matters complained of, and without prejudice to the generality of subsection (1), the order may—

direct or prohibit any act or cancel or vary any transaction or resolution;

regulate the conduct of the affairs of the company in the future;

provide for the purchase of the shares or debentures of the company by other members or debenture holders of the company or by the company itself;

in the case of a purchase of shares by the company, provide for a reduction accordingly of capital of the company; or

provide that the company be wound up.

If an order that the company be wound up is made under paragraph

(2)(e), the provisions of this Act relating to winding up of a company shall apply as if the order had been made upon a petition duly presented to the Court by the company, with such adaptations as are necessary.

If an order under this section makes any alteration in or addition to any constitution, then, notwithstanding anything in any other provision of this Act, but subject to the order, the company concerned shall not have power without the leave of the Court to make any further alteration in or addition to the constitution inconsistent with the order, but subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company.

An office copy of any order made under this section shall be lodged by the applicant with the Registrar within fourteen days from the making of the order.

The applicant who contravenes subsection (5) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit and, in the case of a continuing offence, to a further fine of five hundred ringgit for each day during which the offence continues after conviction.” Page 8 of 12 [7] This Court in ordering for damages to be assessed, based its finding on section 346(2) of the Act when the learned predecessor of this Court (as highlighted in paragraph 2.7 above but reproduced once more below) said as follows: “2.7 Applying section 346(2) of the Companies Act 2016, and having perused the Court order dated 26.9.2021, the remedy as noted by this Court is not a “buy-out” order where the Plaintiffs were asked to buy out the entire shares of D1 and D2 at a premium but with an objective to put the Plaintiffs back to their original position as the 62% majority of CKM Metal”. [8] For this purpose, the valuation of shares exercise by this Court was followed up with a subsequent order by this Court dated 15.3.2022 for the 372,000 shares to be valued at Par Value of RM1.00 each. [9] These cumulative proceedings which began with a suit by the Plaintiffs seeking for a declaration of oppression operating against them by the Defendants and accompanied by the respective necessary process of shares valuation, are part and parcel of the remedy under section 346 with an order for damages to be assessed as being a sine qua non towards achieving the aim of restoring the Plaintiffs back to their original position. [10] The Plaintiffs’ claim for damages comprises of: a. Dividends of the Company for the Year 2018 and Year 2019; Page 9 of 12 b. Legal fees and disbursements incurred by the Plaintiffs as a result of the oppression by the 1st, 2nd and 3rd Defendants. [11] This Court agrees that the damages sought by the Plaintiffs for the dividends of the Company for the year 2018 and 2019, could be reasonably comprehend as stipulated by section 346(1) and (2). On this basis, the claim as put forth by the Plaintiffs for the sum of RM263,500.00 is allowed by this Court, the Defendants having agreed to this figure in the cause of the hearing of this assessment exercise. [12] How this sum was derived by the Plaintiffs is in the said table as follows: Distribution of Dividends Amount Supporting Documents For the financial year ended 31 December 2018 212,500.00 See the Company’s Audited Report for the financial year ended 31 December 2018 (as annexed to affidavit encl. 174 page 43) For the financial year ended 31 December 2019 212,500.00 See the Company’s Audited Report for the financial year ended 31 December 2018 (as annexed to affidavit encl. 174 page 78) Total RM425,000.00 x 62% RM263,500.00 Page 10 of 12 [13] The said dividends sum paid for the respective year can be found in exhibit “P-2” at page 72 (bold number at the bottom) under the heading “Events After the End of the Reporting Period” for 2018 which reads “Total dividend payable is RM212,500, and the net dividend per share is 25 sen” and at exhibit “P-3” at page 102 under the heading ‘Dividend’ for 2019. This Court agrees that these dividends RM263,500.00 would have been entitled to be paid to the Plaintiffs if not for the oppression by the 1st, 2nd and 3rd Defendants. [14] The second claim for damages is for the legal fees incurred by the Plaintiffs arising from the main cause of action filed by way of Originating Summon seeking for the remedy against the oppression. Consequentially, intertwined is the multiple interlocutory applications by the Defendants to resist the said application. These consequential interlocutory applications filed by the Defendants being stay applications were dismissed but more importantly the 2 appeals proceeded with by the Defendants as against the finding of oppression and the valuation of the shares at Par Value were without merits, the appeals having been dismissed by the Court of Appeal. [15] This Court is of the view that such claim for legal fees is permitted by virtue of the principle set in Goo Sing Kar v Dato’ Lim Ah Chap & Ors [2013] 3 MLJ 374 (COA), Lua & Mansor v Tan Ah Kim [2017] 2 CLJ 175 (COA), Ng Kim Hoong & Anor v Tetuan YH Teh & Quek [2015] 10 CLJ 561. [16] With this in mind, the sum claimed totaling RM1,010,720.00 based on the proforma and official receipts, which the Defendants did not dispute the amount contained in these documents. As such, the said amount is deemed taken as accurate and to be correctly stated. Page 11 of 12 [17] With this finding, this Court ruled that the Plaintiffs are entitled to this award to be paid by the 1st, 2nd and 3rd Defendants jointly and/or severally the total sum of both damages to be RM1,274,220.00. In addition, this Court agreed that the total costs awarded amounting to RM62,400.00 in all those multiple applications including the appeals ought to be deducted from the total sum of RM1,010,720.00 the Plaintiffs are entitled to as legal fees (See: Sonic Finance Inc & Anor v Halim bin Mohammad & Ors [2019] MLJU 1887 (HC)). [18] Having done so and cross-referred to the affidavit enclosure 174, the final amount awarded is the sum of RM948,320.00 to be paid jointly and/or severally by the 1st, 2nd and 3rd Defendants. This final sum is based on the table produced in the submission by counsel for the Plaintiffs as per enclosure 180 that the amount of cost be deducted from the big sum of fees incurred being RM1,010,720.00 that brought to the said sum of RM948,320.00. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 31.10.2023 Page 12 of 12 COUNSEL For the Plaintiffs: Goik Kenwayne (Fong Kar Yee) Messrs. Dennis Nik & Wong Advocates & Solicitors 68-1 Jln Telawi, Bangsar Baru 59100 Kuala Lumpur For the Defendants: Elizabeth Lau (Gerald Samuel, Jessica Chew, Hazel Siau) Messrs. Gerald Samuel Advocates & Solicitors Unit 7, Level 20, Tower A, Menara UOA Bangsar 5 Jln Bangsar Utama 1, Taman Bangsar 59000 Kuala Lumpur ap-mtjb-ja-24ncc-5-01/2019/ttw/lsc/nnmn/r78-2310