1. LIM Yon Pin v Glx Auto Mart Sdn. Bhd. (KA-28NCC-49-12/2020)

LIM YON PIN (NRIC NO.: 870902-02-5581) .... PETITIONERS

LIM YON JIAN (NRIC NO.: 941011-07-5097) AND GLX AUTO MART SDN. BHD. (706384-M) .... RESPONDENT In the matter of GLX Auto Mart Sdn. Bhd (706384- M) And In the matter of Section 465(1)(f) and (h) Companies Act 2016 And In the matter of Companies (Winding Up) RuIes 1972 And In the matter of Companies Act 2016 2 JUDGMENT INTRODUCTION [1] The Petitioners had appealed against the decision of this Court in not allowing the Winding Up Petition against the Respondent with costs of RM5,000.00. BACKGROUND FACTS [2] GLX Auto Mart Sdn. Bhd. is a private company incorporated under Companies Act 1965 on 15/8/2005 and has the registration address at 8B, Lorong 24 Taman Patani Jaya, 08000 Sungai Petani, Kedah. [3] The Respondent is a family company. Its paid-up capital is RM100,000.00, comprising of 100,000 shares of RM1.00 each paid up as cash. The 1st Petitioner (Lim Yon Pin) is the registered holder of 30,000 shares, the 2nd Petitioner (Lim Yon Jian) of 10,000 shares and Madam Teh Soo Kuan (the Contributory) of 60,000 shares. Hence, the ratio of shares between the Petitioners and the Contributory in the Respondent Company is 40:60. 3 [4] It is not disputed that the Petitioners are siblings and the sons of Madam Teh Soo Kuan. They are the directors qua shareholders of the Respondent Company and jointly managed the Respondent Company. [5] The Respondent Company has been incorporated based on mutual trust and confidence between the family members who are the shareholders of the Company. Thus, the relationship among the shareholders is premised on mutual trust, confidence and good faith. [6] The Respondent Company was established with the objects of, inter alia, trading of used and/or second-hand cars dealer and insurance. Its business address is at PT 4402, Jalan Gangsa, Mergong, Alor Setar, 05150 Kedah, properties owned by the Petitioners and Madam Teh Soo Kuan. [7] However, somewhere in 2016, the Petitioners alleged that the family relationship had begun to deteriorate. This had led to breakdowns of mutual trust and confidence among the family members and had seriously affected the family business. In this respect, one family’s company Gangsa Auto Mart Sdn Bhd had been wound-up by the Alor Setar High Court on 17/8/2020, which is now pending appeal in the Court of Appeal, whilst another company Vios Motor Trading had been dissolved through the agreement of the 4 partners, that are Madam Teh Soo Kuan, the 1st Petitioner, Lim Fer Lynn and Lim June Wynn (the Petitioners’ sisters) on or about 25/11/2020. [8] Following the alleged breakdowns of mutual trust and confidence among the family members, the Petitioners had filed this Winding Up Petition (Enclosure 1) and pray for the followings:

that the Respondent Company, GLX Auto Sdn. Bhd. (Company No. 706384-M) be wound up by this Honourable Court pursuant to section 465(1)(f) and (h) Companies Act, 2016;

that such persons or persons to be nominated by Your Petitioners as appointed liquidators;

that costs of and incidental to this Petition be paid out of the assets of the Respondent Company, GLX Auto Sdn. Bhd. (Company No. 706384-M); and

such further and/or other relief(s) and/or directions be made or given as this Honourable Court deems just and fit. 5 [9] The Cause Papers filed by the parties in this suit are as follows:

Petition dated 7/12/2020 (Enclosure 1);

Affidavit Verifying Petition affirmed by Lim Yon Pin dated 9/12/2020 (Enclosure 2);

Affidavit in Reply (To oppose the Petition dated 7/12/2020) affirmed by Teh Soo Kuan dated 24/1/2021 (Enclosure 9);

Petitioners’ Affidavit in Reply (In Reply to Affidavit Teh Soo Kuan affirmed on 24/1/2021) affirmed by Lim Yon Pin dated 8/2/2021 (Enclosure 15);

Petitioners’ Additional Affidavit in Reply affirmed by Lim Yon Pin dated 8/2/2021 (Enclosure 16);

Further Affidavit in Reply (To oppose the Petition dated 7/12/2020) affirmed by Teh Soo Kuan dated 25/2/2021 (Enclosure 19); 6

Petitioners’ Affidavit in Reply (2) (In Reply to Further Affidavit in Reply Teh Soo Kuan affirmed on 25/2/2021) affirmed by Lim Yon Pin dated 3/3/2021 (Enclosure 20);

Petitioners’ Additional Affidavit in Reply (2) affirmed by Lim Book Kooi dated 3/3/2021 (Enclosure 21);

Further Affidavit in Reply (2) (To oppose the Petition dated 7/12/2020) affirmed by Teh Soo Kuan dated 17/3/2021 (Enclosure 25);

Petitioners’ Affidavit in Reply (3) (In Reply to Teh Soo Kuan’s Further Affidavit in Reply (2) affirmed on 17/3/2021) affirmed by Lim Yon Pin dated 7/4/2021 (Enclosure 27); and

Further Affidavit in Reply (3) (To oppose the Petition dated 7/12/2020) affirmed by Teh Soo Kuan dated 9/5/2021 (Enclosure 35). 7 The Petitioners’ Submission [10] The Petitioners had filed the Winding Up Petition pursuant to section 465(1)(f) and (h) of Companies Act 2016 [Act 777]. It was mainly grounded on the facts that there were irretrievable breakdowns of relationship and breakdowns of mutual trust and confidence among the shareholders, i.e. the Petitioners and Madam Teh Soo Kuan. Hence, based on a just and equitable principle, the aforesaid grounds were sufficient to wind up the Respondent Company. See Tang Choon Keng Realty (Pte) Ltd & Ors v Tan Wee Cheng [1992] 2 SLR 1114. [11] The acts of irretrievable breakdown of relationship and mutual trust and confidence among the parties as alleged by the Petitioners can be seen in the following instances –

despite being the majority shareholders of the Respondent Company, Madam Teh Soo Kuan had filed an Originating Summons No.: KA-24NCC-9-07/2018 and sought to obtain an Anton Pillar order against the Respondent Company. See Varusay Mohamed Shaik Abdul Rahman v SVK Patchee Bros

(M) Sdn Bhd [2002] 3 MLJ 674 and Tai Hean Leng @ Tek Hean Leng v. New Future Capital Sdn Bhd [2018] 1 LNS 1647; 8

there were multiple police reports lodged by Madam Teh Soo Kuan against the Petitioners and vice versa in relation to the Company affairs;

Madam Teh Soo Kuan had filed a company Winding Up Petition No.: KA-28NCC-71-12/2019 against Gangsa Auto Mart Sdn. Bhd. (1201220-X), a company running in conjunction with the

Madam Teh Soo Kuan had forged the 2nd Petitioner’s signature on the Company’s resolution dated 9/10/2016 in appointing herself as the managing director and chairman of the

Madam Teh Soo Kuan had proceeded to pass multiple circular resolutions by forging the 2nd Petitioner’s signature and without convening a board meeting, for example, the change and/or substitution of authorised signatory for the company accounts;

Madam Teh Soo Kuan had vide an extra ordinary meeting on 4/10/2018 unlawfully and/or wrongfully appointed her brother, namely Teh Kong Siew (who had been adjudged a bankrupt at 9 that material time) as a Company Director of the Respondent

on or about 29/7/2019, Madam Teh Soo Kuan had convened a board of directors meeting to pass a circular resolution to appoint two new company directors. The Petitioners contended that the appointment of which was illegal and in contravention of the Respondent Company’s memorandum of association because it was done without the involvement and/or consent of the

on or about 17/10/2019, Madam Teh Soo Kuan and few individuals had locked up the family business office by changing a new pad lock on the pretext that an inspection on company stocks was to be carried out. The keys of the new pad locks were never given to the Petitioners in order to eliminate the Petitioners from the management of the Respondent Company;

on 21/11/2020, Madam Teh Soo Kuan had issued a notice for a board of directors meeting to be convened on 30/11/2020, the agendas in which, amongst others, are in relation to drawing on company funds and dealings with the company assets. The 10 Notice dated 21/11/2020 was a short notice and was a non-compliance of the Companies Act 1965 and the Petitioners had requested for an adjournment of the meeting; and

based on the abovementioned circumstances, the Petitioners had alleged that Madam Teh Soo Kuan had acted in the affairs of the Respondent Company in her own interest, whether through lawful and/or unlawful means, rather than in the interest of the members as a whole. [12] Thus, based on the above instances and legal principles cited in the abovementioned authorities, the Petitioners submitted that when the relationship and mutual trust and confidence among the Petitioners and the Contributory had irretrievably broken down and the Respondent Company can no longer operate as a family company, it is just and equittable for the Respondent Company to be wound up. See Leung Cheung Yuk Ying v Leung Kwok Fun & Ors [2007] HKCU 695. The Respondent’s Submission [13] The Respondent and the Contributory has raised only one issue to oppose the Petitioners’ Winding Up Petition, that the Petitioners did not come 11 to Court with clean hands, having among others, misappropriated the funds of the Respondent and destroyed the accounting records of the Respondent and due to that this Petition is doomed to fail. See Ebrahimi v Westbourne Galleries Ltd [1973] AC 360. [14] Therefore, it is the submissions of the Respondent and the Contributory that based on this ground alone, the Petitioners’ Petition must fail and be dismissed. ISSUES TO BE DECIDED BY THE COURT [15] The issues to be decided by this Court are as follows:

whether the Petitioners have successfully proved that based on the irretrievable breakdowns of relationship and mutual trust and confidence among the shareholders, it is just and equittable to wind up the Respondent Company; and

whether the Respondent has successfully established that the Petitioners did not come with clean hands in filing the Petition against the Respondent. 12 ANALYSIS, FINDING AND DECISION OF THE COURT [16] To answer the arising issues, this Court will answer to the Second Issue first. This is because, this Court is of the view that the Second Issue will determine the fate of the First Issue. If the answer of the Second Issue is in the affirmative, then the Petitioners’ Petition shall fail. Second Issue [17] The Winding Up Petition was filed by the Petitioners based on section 465(1)(f) and (h) of Companies Act 2016. For ease of reference, section 465 of Companies Act 2016 reads as follows: “Section 465. Circumstances in which company may be wound up by Court

The Court may order the winding up if—

the company has by special resolution resolved that the company is to be wound up by the Court;

the company defaults in lodging the statutory declaration under subsection 190(3);

the company does not commence business within a year from its incorporation or suspends its business for a whole year; 13

the company has no member;

the company is unable to pay its debts;

the directors have acted in the affairs of the company in the directors’ own interests rather than in the interests of the members as a whole or acted in any other manner which appears to be unfair or unjust to members;

when the period, if any, fixed for the duration of the company by the constitution expires or the event, if any, occurs on the occurrence of which the constitution provide that the company is to be dissolved;

the Court is of the opinion that it is just and equitable that the company be wound up;

the company has held a licence under the Financial Services Act 2013 or the Islamic Financial Services Act 2013, and that the licence has been revoked or surrendered;

the company has carried on a licensed business without being duly licensed or the company has accepted, received or taken deposits in Malaysia, in contravention of the Financial Services Act 2013 or the Islamic Financial Services Act 2013, as the case may be;

the company is being used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare, security, public interest, public order, good order or morality in Malaysia; or

the Minister has made a declaration under section 590.

…”. [Emphasis added] 14 [18] Based on the above paragraphs (f) and (h) that the Petitioners had relied upon, for the Respondent Company to be wound up, the Petitioners must satisfy this Court that Madam Teh Soo Kuan, the director of the Respondent Company has acted in the affairs of the company in her own interests rather than in the interests of the members as a whole and the Court is of the opinion that it is just and equitable that the Respondent Company be wound up. [19] However, based on a landmark decision of the House of Lords in Ebrahimi v Westbourne Galleries Ltd (supra), this Court cannot allow the Petitioners’ Petition to wind up the Respondent Company if the Respondent can prove that the Petitioners did not come with clean hands. In Ebrahimi’s case, Lord Cross held that – “A petitioner who relies on the ‘just and equitable’ clause must come to Court with clean hands, and if the breakdown in confidence between him and the other parties to the dispute appears to have been due to his misconduct he cannot insist on the company being wound up if they wish it to continue.”. [Emphasis added] [20] The principle enunciated in Ebrahimi’s case has been followed and applied in Malaysia in Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433, Woodsville Sdn Bhd v Tien Ik Enterprises Sdn Bhd & Ors And 15 Other Applications [1994] 3 MLJ 89, Tuan Haji Ishak Bin Ismail & Ors v Leong Hup Holdings Bhd And Other Appeals [1996] 1 MLJ 661, Eng Man Hin @ Ng Mun Heng & Anor v King’s Confectionery Sdn Bhd & Ors [2006] 4 MLJ 421, Kumagai Gumi Co Ltd v Zenecon-Kumagai Sdn Bhd & Ors And Another Application [1994] 2 MLJ 789 and Michael Yeang Tze Loong v FF Wire Sdn Bhd & Ors [2019] MLJU 186. [21] In proving that the Petitioners did not come with clean hands in filing the Winding Up Petition against the Respondent, Madam Teh Soo Kuan had affirmed an Affidavit in Reply (To oppose the Petition dated 7/12/2020) (Enclosure 9) on 24/1/2021 which contained material facts and evidence pertaining to the acts and conducts of the Petitioners towards the Respondent Company and Madam Teh Soo Kuan. [22] In view of the importance of the evidence in the said affidavit, which is the crux of the Respondent’s contention in opposing the Petitioners’ Petition, this Court can do no better but to reproduce the relevant parts of the affidavit evidence which stated as the followings: 16 “UNCLEAN HANDS

At the outset, I state that the Petition is doomed to fail as the Petitioners have not come with clean hands due to the unlawful conduct of the Petitioners including the misappropriation of funds of the Company as summarised below:-

sometime in 2017, about RM406,153.51 of the directors’ funds of the Company was misappropriated by the Petitioners. There is now produced and shown to me a copy of the recording transcript and the funds statement marked as Exhibit “TSK-1”;

on 12.3.2018, the Petitioners have again misappropriated the amount of RM268,247.73 by transferring the said sum from the Company’s account into the 1st Petitioner joint account with one Lim Book Kooi. There is now produced and shown to me a copy of the CIMB bank statement dated 31.3.2018 marked as Exhibit “TSK-2”;

I then requested for an audit inspection but this was denied by the Petitioners. The Petitioners have also denied my 17 access from the relevant accounting records. I was therefore constrained to file an application to obtain the relevant accounting records to conduct an audit inspection. There is now produced and shown to me a copy of the application for ex parte anton piller order dated 16.7.2018 and the relevant affidavits in support marked as Exhibit “TSK-3”;

on 24.7.2018, the High Court granted the Anton Piller Order. There is now produced and shown to me a copy of the Anton Piller Order dated 24.7.2018 marked as Exhibit “TSK-4”;

the Anton Piller Order was executed on 26.7.2018. However, it was discovered that the Petitioners have breached of the said Anton Piller Order, by among others, having caused the removal of accounting records and deletion of accounting files from the computers before and when the raiding party arrived the Company’s premises. I have therefore applied for leave to commence committal proceedings against among others, the Petitioners. There is now produced and shown to me a copy of my application 18 for leave to commence committal proceedings and a copy of my affidavit in support marked as Exhibit “TSK-5”;

on 19.2.2019, the High Court granted the leave to commence committal proceedings against the Petitioners. There is now produced and shown to me a copy of the Leave Order dated 19.2.2019 marked as Exhibit “TSK-6”;

the Petitioners have applied to set aside the Anton Piller Order and the Leave Order. The Petitioners’ applications were however dismissed by the High Court and the matter is currently pending appeal to the Court of Appeal. There is now produced and shown to me a copy of High Court grounds of judgment marked as Exhibit “TSK-7”; and

notably, the learned High Court Judge made findings of facts at paragraph 37 of the grounds of judgment on the contemptuous conduct of the Petitioners:- “Mahkamah ini berpendapat tindakan Penghina Ke- 1 hingga Ke-4 secara terang-terangan perbuatan yang melanggari Perintah Anton Piller. Sebaik 19 pasukan serbuan sampai di premis untuk melaksanakan Perintah Anton Piller, beberapa fail dalam komputer telahpun dipadamkan dan perbuatan ini bercanggah dengan Perintah Anton Piller.”.

Further, the High Court Judge in KA-24NCC-14-12/2018 (“Suit 14”) has also made findings (paragraph 11) that the Petitioners are acting in bad faith by obstructing me from carry out my duties as director to inspect the accounting records of the Company given clear evidence of misappropriation of funds, which are reproduced as follows:- “Secara dasarnya saya bersetuju dengan hujah-hujah pihak Defendan-Defendan di atas terutamanya atas alasan wujudnya mala fide di pihak Plaintif-Plaintif, khususnya Plaintif Pertama yang menjalankan tugas-tugasnya sebagai pengarah Defendan 4, maka atas sebab itulah mereka menghalang pihak audit menjalankan pemeriksaan ke atas rekod-rekod syarikat.”. There is now produced and shown to me a copy of High Court grounds of judgment marked as Exhibit “TSK-8”. 20

In addition to the above, the unlawful conduct of the Petitioners, including further acts of misappropriation of the funds of the Company, can also be seen below:-

by a tenancy agreement dated 1.9.2019, the Company has agreed to let its premises to one YNL Jaya Trading for a duration of 2 years for a sum of RM850.00. The Petitioners collected the rent due but have never remitted the same into the Company’s account. There is now produced and shown to me a copy of the tenancy agreement dated 1.9.2019 marked as Exhibit “TSK-9”;

similarly, by a tenancy agreement dated 15.6.2019, the Company has agreed to let its premises to one Teo Kim Ken for a duration of 2 years for a sum of RM600.00. The Petitioners collected the rent due but have never remitted the same into the Company’s account. There is now produced and shown to me a copy of the tenancy agreement dated 15.9.20019 marked as Exhibit “TSK-10”; 21

the 1st Petitioner has misappropriated at least RM77,482.00 of the funds of the Company to pay for his personal income tax (CP 500) on at least 13 occasions from year 2016 until at least year 2019. This is shown in the Petitioners’ own affidavit in Annexure P. There is now produced and shown to me a copy of the notice from LHDN on individual taxation (CP 500) marked as Exhibit “TSK- 11”;

the 1st Petitioner has misappropriated at least RM54,500.00 in November 2017 and March 2018 by issuing cheques to his personal account without the Board’s consent. There is now produced and shown to me copies of the 2 cheque images dated 22.3.2018 and a cheque image dated 13.11.2017 marked as Exhibit “TSK- 12”;

the Petitioners have been the premises and facilities of the Company to conduct business of trading used cars for Kean Huat Global Enterprise. There is now produced and shown to me copies of the photos and the business search 22 of Kean Huat Global Enterprise marked as Exhibit “TSK- 13”;

the Petitioners have also misappropriated the monies received from the inventories (used-cars) sold, without remitting the same into the Company’s account, even though the said inventories were purchased using the Company’s funds. This can be shown in the records from e-auto, which is a system implement by the Road Transport Department of Malaysia (“JPJ”) where all used-cars business entities/companies must register the inventories (used-cars) purchased in this system. The records show that many inventories were purchased by the Company, but not only that most of the inventories purchased were no longer at the Company’s premises, the monies received from the sale of these vehicles were not remitted into the Company’s account. There is now produced and shown to me a copy of the e-auto records from year 2015 to 2019 and a copy of the business search of VRX Auto Trading marked as Exhibit “TSK-14”; 23

further, Exhibit “TSK-14” also shows that some of the monies from the sale of the inventories (used-cars) were received by the 1st Petitioner, 2nd Petitioner or one Lim Annie, who is the wife of the 1st Petitioner. These monies were similarly not remitted to the Company’s account; and

worse still, the Petitioners have also misappropriated the Company’s funds by transferring some of the inventories purchased by the Company to other business entities, including one VRX Auto Trading, a partnership owned by Lim Book Kooi and the 1st Petitioner, without making any payment to the Company. This can also be seen in Exhibit “TSK-14”.

As a result of the Petitioners’ unlawful conduct, the Company’s account at the material time was in big deficit and the Inland Revenue has begun its inspection on the Company:-

as at 2.1.2018, there was RM130,453.53 left in the Company’s Public Bank account. The Petitioners then applied for an ex parte injunction via Alor Setar High Court which effectively prohibited me from having access to 24 those accounts. Upon the setting aside of the ex parte injunction order on 7.7.2019, the said account was only left with a balance of RM5,357.06 as at 8.7.2019. There is now produced and shown to me a copy of the Injunction Order dated 20.12.2018, High Court order dated 7.7.2019 and the account statements dated 31.1.2018 and 31.7.2019 collectively marked as Exhibit “TSK-15”;

similarly, the Company’s account held with CIMB Bank was only left with RM0.38 (38 sens) as at 8.8.2019 instead of RM268,458.04 as at 12.3.2018. There is now produced and shown to me a copy of the banks statements dated 31.8.2018 and 8.8.2019 marked as Exhibit “TSK-16”; and

there is also produced and shown to me a copy of the letter dated 20.5.2019 from LHDN requesting for inspection of the Company’s accounting records marked as Exhibit “TSK-17”.

I have engaged an auditor to conduct an audit inspection on the Company. At this preliminary stage, there are already clear findings of misappropriation of funds of the Company by the Petitioner. Upon 25 completing the said audit inspection, the Company intends to commence action against the Petitioners on behalf of the Company to claim back the funds misappropriated. It is clear that this Petition is to frustrate such a claim. Any negative position of the Company, whether financial or otherwise, has been caused by the Petitioners themselves.

I am therefore advised by my solicitors and verily believe that this Petition must be dismissed given that the Petitioners have not come to Court with clean hands.”. [23] Madam Teh Soo Kuan’s affidavit evidence in the abovementioned Enclosure 9 was further supported by her Further Affidavit in Reply dated 25/2/2021 (Enclosure 19), Further Affidavit in Reply (2) dated 17/3/2021 (Enclosure 25) and Further Affidavit in Reply (3) dated 9/5/2021 (Enclosure 35). [24] The Petitioners however had objected Madam Teh Soo Kuan’s Further Affidavit in Reply (3) in Enclosure 35 on the ground that it was filed after the parties had exhausted their rights to file affidavits and without the leave of the Court. Hence, the said Enclosure 35 should be discarded and expunged by this Court. 26 [25] The Petitioners’ objection was upheld by this Court. [26] Eventhough Madam Teh Soo Kuan’s Further Affidavit in Reply (3) in Enclosure 35 was expunged by this Court, this Court is not agreeable with Petitioners’ submission that the issue of unclean hands as been raised by Madam Teh Soo Kuan in Enclosure 35 is an afterthought. [27] This is because the issue of unclean hands has been specifically pleaded by Madam Teh Soo Kuan under the heading of “UNCLEAN HANDS” in her first affidavit evidence in Enclosure 9, that is Affidavit in Reply (To oppose the Petition dated 7/12/2020) as at 24/1/2021, as mentioned in the above paragraph 22. [28] The Petitioners had replied Madam Teh Soo Kuan’s affidavit in Enclosure 9 through the Petitioners’ Affidavit in Reply (In Reply to Affidavit Teh Soo Kuan affirmed on 24/1/2021) dated 8/2/2021 (Enclosure 15), Petitioners’ Additional Affidavit in Reply dated 8/2/2021 (Enclosure 16); Petitioners’ Affidavit in Reply (2) (In Reply to Further Affidavit in Reply Teh Soo Kuan affirmed on 25/2/2021) dated 3/3/2021 (Enclosure 20), Petitioners’ Additional Affidavit in Reply (2) dated 3/3/2021 (Enclosure 21) and Petitioners’ Affidavit in Reply (3) (In Reply to Teh Soo Kuan’s Further Affidavit in Reply (2) affirmed on 17/3/2021) dated 7/4/2021 (Enclosure 27). 27 [29] After considering and scrutinizing all the affidavits filed by both parties, it is the finding of this Court that there are merits and cogent evidence with regard to Madam Teh Soo Kuan’s contention that the Petitioners did not come with clean hands to wind up the Respondent Company. [30] From the affidavits evidence, especially the Respondent’s Affidavit in Reply in Enclosure 9, this Court is satisfied and found that –

the Respondent had proved that the Petitioners had misappropriated the rental proceeds, sales proceeds, the inventories and the funds of the Respondent Company, approximately more than RM10 million and had also misappropriated the Respondent’s funds to pay for their personal income tax. No satisfactory and credible evidence had been provided by the Petitioners to rebut the Respondent’s evidence except a repetition of bare denials and allegations, and putting the blame on Madam Teh Soo Kuan;

the Respondent had proved that the Petitioners had breached their fiduciary duties in using the facilities and the premises of the Respondent to trade used-cars for another business entity, namely Kean Huat Global Enterprise. Again there is no 28 satisfactory and credible evidence had been provided by the Petitioners to rebut the Respondent’s evidence except a repetition of bare denials and allegations, and putting the blame on Madam Teh Soo Kuan; and

the Respondent had proved that the Petitioners had denied Madam Teh Soo Kuan from accessing the accounting records of the Respondent Company in order to conceal their conduct in the misappropriation of the Respondent’s funds. Therefore, Madam Teh Soo Kuan had to file an Originating Summons No. KA- 24NCC-09-07/2018 in the Alor Setar High Court for an Anton Piller Order in obtaining the relevant accounting records for an audit inspection. The Anton Piller Order was granted by the Alor Setar High Court on 24/7/2018 and was executed on 26/7/2018. However, the Petitioners had breached the Anton Piller Order by causing the removal of the computers before and when the raiding party arrived at the Respondent’s premises. Madam Teh Soo Kuan then had applied for leave to commence committal proceedings against the Petitioners for breaching the 29 Anton Piller Order. The leave was granted by the Alor Setar High Court on 19/2/2019. The Petitioners then had applied to the Alor Setar High Court for the Anton Piller Order and the leave to commence the committal proceedings be set aside but were dismissed by the High Court. The extract of the High Court’s findings on this matter can be found in the above paragraph 22. The Petitioners then had appealed against the decision of the High Court. The appeal is now pending in the Court of Appeal. Further, in another suit No. KA-24NCC-14-12/2018, the Alor Setar High Court had made the findings that the Petitioners were acting in bad faith by obstructing Madam Teh Soo Kuan from carrying out her duties as director to inspect the accounting records of the Respondent, given clear evidence of misappropriation of funds. The extract of the High Court’s findings can also be found in the above paragraph 22. Once again, the Petitioners did not provide any satisfactory and credible evidence to rebut the Respondent’s evidence pertaining 30 to the High Court’s findings in the two previous suits which were favourable to Madam Teh Soo Kuan. [31] The Petitioners’ response with regard to the findings of the High Court in suit No. KA-24NCC-14-12/2018, as stated in their Affidavit in Reply dated 8/2/2021 (Enclosure15), is as follows – “8.1. At the outset, I verily state that the grounds of opposition advanced by TSK are unsubstantiated by cogent evidence and are purely self-serving statements.

8.2. The purported averment of “unclean hands” and/or misappropriation of companies fund by the Petitioners as averred by TSK have well been canvassed in Alor Setar High Court Companies Winding Up Petition No.: KA-28NCC-71- 12/2019 (“Petition 71”) and after considering the evidence adduced by the parties in Petition 71, the High Court did not make a positive finding as such. [See High Court Grounds of Judgment 18.10.2020 as annexed as Annexure “D” in the Petition.]”. 31 [32] However, upon perusing the Grounds of Judgment of the High Court dated 18/10/2020 in Annexure “D” in Enclosure 2, this Court finds that the High Court had accepted the evidence of TSK or Madam Teh Soo Kuan cum the Petitioner in that suit and had made adverse findings against the evidence and the credibility of the Respondents in that suit. One of the Respondents in that suit is the Petitioner in this suit, i.e. Lim Yon Pin (LYP). The decision of the said High Court Judge is as follows: “20. Berdasarkan kepada bukti-bukti yang dinyatakan di atas, saya berpendapat LYP ini cuba untuk mengelirukan Mahkamah ini dengan pengataan-pengataan itu. Jelas bahawa pengataan tersebut adalah tidak berasas dan semata-mata satu alegasi kosong untuk mengelirukan Mahkamah.

Pihak menentang LYP dan LAN telah memfallkan Afidavit Jawapan bagi menentang permohonan penggulungan oleh Pempetisyen ini tetapi mereka telah gagal untuk membuktikan keadaan sebaliknya iaitu bahawa dakwaan-dakwaan oleh Pempetisyen ini adalah tidak benar dan tidak berasas dan hanya dakwaan kosong semata-mata.”. 32 [33] Based on the abovementioned Grounds of Judgment, it is crystal clear that based on the available evidence the High Court Judge finds that LYP or Lim Yon Pin (i.e. the 1st Respondent in that suit and the 1st Petitioner in the present suit) is trying to mislead the Court with all his statements. Therefore the High Court Judge is of the view that the statements made by LYP against Madam Teh Soo Kuan as the Petitioner in that suit are baseless and a mere bare allegation, in order to mislead the Court. [34] Another important finding made by the High Court Judge in the abovementioned case is that LYP and LAN or Lim Annie (the wife of LYP cum the 2nd Respondent in that suit) have failed to prove that the allegations made by Madam Teh Soo Kuan (the Petitioner in that suit) in that suit were not true, baseless and a mere allegation. In other words, the High Court Judge has accepted that the evidence of Madam Teh Soo Kuan against LYP and LAN in that suit as true, well founded and proven. [35] Based on the facts and evidence as discussed above, it is the finding of this Court that, the allegations made by the Petitioners against Madam Teh Soo Kuan in this suit are baseless, unfounded and mere bare allegations. 33 [36] This Court is of the opinion that the Petitioners’ action against the Respondent is actually motivated by the Petitioners’ long time ill feeling, unhappiness and unsatisfaction towards their own mother, Madam Teh Soo Kuan and the Respondent Company and it is not based on just and equitable principle or that Madam Teh Soo Kuan has acted in the affairs of the company in her own interests as provided for under section 465(1)(f) and (h) of Companies Act 2016. [37] Therefore, in answering the Second Issue, based on Ebrahimi’s case, this Court finds that on the balance of probabilities, the Respondent has successfully proved and established that the Petitioners did not come to this Court with clean hands to wind up the Respondent Company. Hence, the Petitioners’ Winding Up Petition must fail. First Issue [38] Since the Respondent has successfully proved the equitable defence of unclean hands against the Petitioners, this Court is of the view that on this ground alone the Petitioners’ Petition should not be allowed and dismissed. [39] Therefore, the First Issue is answered in the negative. 34 CONCLUSION [40] Based on the reasons adumbrated above, this Court has ordered the Petitioner’s Winding Up Petition be dismissed with costs of RM5,000.00. Dated : 31 December 2021 (DR. ARIK SANUSI BIN YEOP JOHARI) Judicial Commissioner High Court of Malaya in Alor Setar Kedah Darul Aman 35 Counsels – Counsels for the Petitioners: Mr. Joshua Kevin (together with Mr. Damien Chan and Mr. Jeff Ng) Messrs. Kevin & Co. Advocates and Solicitors No. 1030-A, GF, Jalan PSK 3 Kompleks Simpang Kuala Pekan Simpang Kuala 05400 Alor Setar Kedah Darul Aman Counsels for the Respondent: Mr. Wong Zhi Khung Messrs. Michael Chow Advocates and Solicitors No. 58A, Jalan Bukit Raja