1. ) Poh Kee Lock v 1. ) Ivan Goh-Lee En Tatt (WA-24NCC-526-09/2023)

POH KEE LOCK …PLAINTIFFS (IC No.: 641030-04-5243)

FENG YU HOLDINGS SDN BHD (Company No.: 201801032030 (1294055-P))

IVAN GOH-LEE EN TATT …DEFENDANTS (IC No.: 720521-07-5573)

MOHD FAIZ BIN SAZALI (IC No.: 930314-07-5621)

[Originating Summons and section 351 Companies Act 2016] Three applications filed and issues that arose

I heard three applications together. The applications [Enclosures 1,16 and 34] and the issues that arose are-i. Whether the OS [Enclosure 1] should be allowed or dismissed; Whether the plaintiffs have locus standi to seek the remedies sought under section 351 of the Companies Act 2016 [“CA 2016”] and whether there are disputes of facts which require the OS to dismissed with liberty to file a writ action; ii. Whether the defendants’ application [Enclosure 16] to set aside an ex parte Anton Pillar order [“APO”] [Enclosure 11], granted on 29-09-2023 and subsequently executed on 06- 10-2023, should be allowed; and iii. Whether the plaintiffs’ ex parte application [converted to opposed ex parte] for leave to issue contempt against the defendants and one more person should be allowed [Enclosure 34].

The issues arose as the plaintiffs had filed the OS pursuant to section 351 of the CA 2016 [replacing section 368A of the Companies Act 1965] against the defendants, inter alia, for: i. Declarations that the 1st defendant contravened sections 213, 218, 220 and/or 248 of the CA 2016; ii. Injunction be granted to restrain the defendants from dealing with and misusing assets and information belonging to Parkspots; iii. Injunction be granted to compel the 1st and 2nd defendants and/or their officers, agents, servants or employees to provide all financial information and documents with regard to Parkspots, and discovery of the same. Section 351 of the CA 2016

Section 351 of the CA 2016 reads as follows-Section 351. Injunction

Where a person has engaged, is engaging or intends to engage in conduct that constituted, constitutes or would constitute—

a contravention of this Act;

an attempt to contravene this Act;

an attempt that aids, abets, advises or procures a person to contravene this Act;

an attempt to induce, whether by threats, promises or otherwise, a person to contravene this Act;

an attempt by which any person would be in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

an attempt of conspiracy with others to contravene this Act, The Court may, on the application of the Registrar, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing. …

In granting an injunction to restrain a person from engaging in particular conduct, or to require a person to do a particular act or thing, the Court may order that person to pay damages to any other person, either in addition to or in substitution of the grant of the injunction. [Emphasis added]

On the same day as the filing of the OS, i.e. on 22-09-2023, the plaintiffs filed an ex-parte Anton Piller Application against the defendants [Enclosure 3]. On 29-09-2023, Madam Justice Adlin Binti Abdul Majid granted the Ex-Parte Anton Piller order [“APO”] [Enclosure 11], which was subsequently executed on 06-10-2023.

On 10-11-2023, the plaintiffs further filed for leave to issue committal proceedings against the defendants and one Lee Hooi Min for alleged breach of the Ex-Parte APO. [Enclosure 34].

These Grounds of Decision will deal with the issues in enclosure 1, i.e., Whether the OS should be allowed or dismissed; Whether the plaintiffs have locus standi to seek the remedies sought under s 351 of CA 2016 and whether there are disputes of facts which require the OS to dismissed with liberty to file a writ action.

The other two enclosures 16 and 34 will be dealt with in separate Grounds of Decision if there are appeals for ease of reference and to facilitate appeals on any of these three enclosures, if any.

At the outset of the hearing and even during the midst of oral submissions I had asked counsel for the plaintiffs Ms. Cindy Goh Joo Seong whether she is agreeable to convert the OS to a writ. She declined. Background Facts Parties

The 1st plaintiff is Poh Kee Lock [“Edward Poh”]. The 2nd plaintiff is Feng Yu Holdings Sdn Bhd [“Feng Yu”].

Edward Poh is the director and sole shareholder of Feng Yu.

The 1st defendant is Ivan Goh-Lee En Tatt [“Ivan Goh”]. The 2nd defendant is Mohd Faiz Bin Sazali [“Faiz”]. Personalities and entities related to this OS proceedings Datuk Choy, Edward Poh and Parkspots

The dispute arose from the parties’ involvement in a company called Parkspots Sdn Bhd [“Parkspots”].

In 2018, Parkspots was set up as a joint venture by Datuk Choy Wai Seong [“Datuk Choy”] together with Edward Poh. Both used nominees as shareholders. Edward Poh used Feng Yu the 2nd plaintiff as his nominee. Datuk Choy’s nominees are Liew Soon Hin and Mohd Nurazamuddin Bin Hamzah.

The 1st defendant Ivan Goh is also an indirect 10% shareholder in Parkspots through his nominee IG Management Resources Sdn Bhd (“IG Management”). Ivan Goh is the Chief Executive Officer of Parkspots.

The 2nd defendant Faiz is a Sales & Operations Executive of Parkspots. Directors of Parkspots

The directors of Parkspots are Edward Poh and four others. Datuk Choy is an alternate director. [See CCM search of Parkspots dated 28-07-2023 in Enclosure 2 plaintiffs’ supporting affidavit dated 22-09-2023 at pages 69 - 70]. Historical Background to setting up of Parkspots

From the affidavits and the written submissions that are filed it is clear this is a fight between Edward Poh and Datuk Choy. The two defendants are but mere pawns caught in the cross fire. They are collateral damage to use a modern military parlance. As the Malay peribahasa says "Gajah sama gajah berjuang, pelanduk mati di tengah-tengah".

The historical background to the setting up of Parkspots as averred by Datuk Choy in his affidavit [Enclosure 38/ PDF copyable 170 at page 78] is as follows-

I am a property developer … I have no prior experience in the carpark operating industry.

I had come to know the 1st Plaintiff (“Edward Poh”) sometime on or around 1997 whilst he was the Managing Director of Secure Parking Corporation Sdn Bhd (“Secure Parking”). At that time, Secure Parking was providing carpark management services in properties owned by companies in which I had an interest.

Sometime on or around 2018, Edward Poh informed me of his resignation from Secure Parking, and his intention of forming another company to provide carpark management services. Edward Poh represented to me that …, he required the necessary capital and carpark sites to realise such a venture.

I had agreed to team up with Edward Poh with a view of establishing a carpark management company.

During follow-up discussions, Edward Poh informed me that he owned a company by the name of ParkAide Sdn Bhd (“ParkAide”) which had intellectual property rights to software which would be helpful in the provision of carpark operation and management services.

Edward Poh proposed a business model where we would acquire a carpark management company whilst contracting ParkAide to deliver the software and equipment necessary in the provision of carpark operation services.

Given Edward Poh’s background carpark operations industry and his representations, I gained confidence in participating in the proposed venture.

Sometime in 2018, Edward Poh introduced me to the 1st Defendant (“Ivan Goh”). I was made to understand that Ivan Goh previously held a senior management role in Secure Parking, and possessed the necessary expertise to manage carpark operations.

Edward Poh had offered Ivan Goh the position of CEO with a 10% shareholding of ParkSpots, to which he accepted. …

Sometime on or around the end of 2018, I acquired an interest ParkSpots through Liew Soon Hin and Mohd Nurazamuddin Bin Hamzah …

I was made to understand that Edward Poh’s interest in ParkSpots was through the 2nd Plaintiff (“Feng Yu”).

On 30-01-2019, a license agreement (“LA”) was executed between ParkSpots and ParkAide, whereby ParkAide granted ParkSpots a license to use its trademark and intellectual property rights for an agreed fee.

On the same day, a shareholder’s agreement (“SA”) was executed between all shareholders of ParkSpots and ParkSpots, wherein it was agreed, amongst others that: -

16.1 Mohd Nurazamuddin bin Hamzah, through me, would procure the necessary capital expenditure of the first five carpark sites for ParkSpots’ business venture;

16.2 The license fee payable to ParkAide for the use of its intellectual property rights shall be 10% of ParkSpots operating revenue; and

16.3 ParkSpots was to only use the software and related services offered by ParkAide in its business, unless such software and related services were not offered by ParkAide.

…

Edward Poh represented to me that ParkSpots was to only pay ParkAide a licensing fee for the software and related services which were developed, owned, and offered by ParkAide. As Edward Poh also had an interest in ParkSpots, I trusted his representations and did not believe that he would do anything to undermine ParkSpots’ interest.

I also noticed a discrepancy in both the LA and SA concerning the license fee payable by ParkSpots to ParkAide, whereby the SA provides for a payment of 10% of ParkSpots’ operating revenue (gross sales minus tax, rent or performance rent) whilst the LA provides for payment of 10% of ParkSpots’ gross sales.

Edward Poh once again assured me that the license fee payable to ParkAide would be 10% of ParkSpots’ operating revenue, as per the SA. Now shown to me and annexed hereto is a copy of Edward Poh’s email dated 16-11-2018, marked as Exhibit “CYC-1”.

Sometime on or around August 2019, Edward Poh informed me that ParkAide was to go through a restricting exercise to raise further capital, which necessitated a novation agreement being executed to transfer ParkAide’s rights and obligations under the LA to Snatch Park Bizsolutions Sdn Bhd (“Snatch”). Shareholders agreement and license agreement

On 30-01-2019, a Shareholders Agreement (“SHA”) was executed between all shareholders of Park Spots. [See Enclosure 18/170 Exhibit 3].

On 30-01-2019, a license agreement (“LA”) was executed between ParkSpots and ParkAide. [See Enclosure 18/170 Exhibit 2]. Disputes arose between Edward Poh and Datuk Choy Edward Poh’s version of the disputes

The plaintiffs contend they discovered several acts under Ivan Goh's management that contravened the CA 2016, which not only caused harm to ParkSpots but also to the plaintiffs’ interests as a director and shareholder. [See Enclosure 157 plaintiffs’ WS paragraphs 8 and 13 - 49]. ParkPlus Sdn Bhd

The plaintiffs further contend that in or around early 2023, they discovered that Ivan Goh and Faiz were involved in a company known as ParkPlus (“ParkPlus”). They contend ParkPlus is in a competing business against ParkSpots. [See Enclosure 157 plaintiffs’ WS paragraphs 14 - 20].

The plaintiffs further submit that Ivan Goh has also wrongfully induced ParkSpots to commit a breach of the SHA by not using ParkAide’s software and/or its services contrary to clause 3.3 of the SHA. Instead, Ivan Goh engaged another company, Sonicboom Solutions Sdn Bhd (“Sonicboom”), and installed their poles and system at ParkSpots’ parking sites. [See Enclosure 157 plaintiffs’ WS paragraphs 21 - 30].

The plaintiffs also submit that Ivan Goh has committed various breaches concerning ParkSpots’ financial statements and audited accounts. [See Enclosure 157 plaintiffs’ WS paragraphs 31 - 49].

In summary, the plaintiffs thus say the defendants contravened the CA 2016 by – i. Engaging in a competing business against ParkSpots; ii. Inducing breach of the SHA by ParkSpots; iii. Failing to permit inspection of ParkSpots’ financial statements; iv. Under-declaring ParkSpots’ income in the accounts; v. Failing to prepare, keep, and audit ParkSpots’ accounts; and vi. Failing to circulate and lodge ParkSpots’ financial statements. The defendants’ and Dato Choy’s version of the disputes Allegation that Ivan Goh and Dato Choy set up ParkPlus to engage in a competing business against ParkSpots

Ivan Goh and Dato Choy both dispute Edward Poh’s version of the disputes that he was not aware of the setting up of ParkPlus. Both swore affidavits to refer to a settlement meeting of December 2022 attended by Ivan Goh, Dato Choy and Edward Poh.

Edward Poh in his reply affidavit dated 06-12-2023 [See Enclosure 48 paragraph 7e] denies there was a meeting. However, in an earlier reply affidavit dated 14-11-2023 [See Enclosure 37 paragraph 45(b)(i)], Edward Poh admitted there was a meeting on 17-12-2022. There is thus a changing of stance by Edward Poh as to whether there was a meeting in December 2022 or not.

The facts sworn by Ivan Goh and Dato Choy are as follows. Agreement reached in meeting in December 2022

Ivan Goh and Dato Choy contend due to discovery by Ivan Goh and Dato Choy of certain misconduct by Edward Poh, there was a meeting in December 2022 whereby an arrangement was reached between Edward Poh, Datuk Choy and Ivan Goh to go their separate ways and explore alternative opportunities in the carpark operations industry through different entities whilst in the interim carrying out the existing business of ParkSpots. Parkplus was thus set up by Datuk Choy and Ivan Goh.

The reason for the agreement reached in the meeting of December 2022, Dato Choy and Ivan Goh contend are [See Enclosure 164 defendants’ Reply WS] and I quote –

Whilst the Plaintiffs have alleged that the Defendants have breached Sections 213(1) and 218 of the CA, the Plaintiffs Affidavits No. 1 and No. 2 are completely silent of Edward Poh s own initial conduct of acting in competition with the business and interest of ParkSpots through Parkaide/Snatch.

It was only upon Edward Poh s misconduct becoming clear to Ivan Goh and David Choy, was the meeting held between parties on or around the end of 2022, where it was agreed that parties will explore alternative opportunities in the carpark operations industry through separate entities.

Through Edward Poh s interest in ParkSpots and by him being privy to its business development strategies, Edward Poh used his direct knowledge of ParkSpots intended and existing projects to submit similar tenders through ParkAide/Snatch by offering more competitive rates at the detriment of ParkSpots interest. [enclosure 18/170 Ivan Goh’s affidavit pg. 15, paras. 69 70/ 18]

Examples of such misconduct are: - a. Edward Poh through ParkAide/Snatch submitted a proposal to G-Village for the provision of carpark management services and equipment at a better rate than what was initially proposed by ParkSpots [pgs. 15 16, paras. 71 76/ 18]; b. Edward Poh would cause the margins of ParkSpots profits to be reduced. By causing ParkAide/Snatch to submit proposals to Kinta Riverfront Service Suits JMB with more competitive rates than that which was offered by ParkSpots, ParkSpots was compelled to submit a revised proposal thus obtaining lesser profits from the said project [pg. 17, paras. 78 81/18]; c. Edward Poh would suppress ParkSpots financial position by charging a higher rate for equipment rental than ParkAide/Snatch charged to third parties [pg. 18, para. 84/ 18]; d. Edward Poh caused ParkAide/Snatch to also submit a proposal to Permata Alasan Sdn Bhd, an intended customer of ParkSpots [pgs. 18 19, para. 87/ 18]

Curiously, upon being confronted by the 2nd Defendant of ParkAide/Snatch submitted its proposal to ParkSpots intended customers despite being aware of the same, Edward Poh’s only response was to merely suggest that he would have considered sub-contracting portions of the services to ParkSpots.

This, My Lord, points to the fact of Edward Poh having prioritised his personal interest through ParkAide/Snatch to the detriment of ParkSpots.

In response to the above, Edward Poh averred that: - a. He was rarely involved in the day-to-day management of ParkSpots ; b. His knowledge of and access to the business development of ParkSpots is rather limited; and c. There was never any restriction for ParkAide/Snatch to have its own clientele. [pg. 49, para. 38/ 37]

Such contentions of Edward Poh allegedly not being privy to ParkSpots business development strategies can be easily dispelled, and are simply untrue.

Edward Poh was always privy to information relating to ParkSpots business development strategies, with such reports being furnished to Edward Poh by email. [pgs. 52 58/ 41]

Edward Poh s insistence on having regular meetings with a view to having access to ParkSpots business plans even up till after the filing of these proceedings is also telling. [pgs. 60 64/ 41]

In pg. 13, para. 16(f) of the Plaintiffs Submissions, it was alleged that the Defendants diverted or attempted to divert certain of ParkSpots contract to ParkPlus.

15.Whilst Edward Poh contends that there was no restriction for ParkAide/Snatch to have its own clientele given that its nature of business is different from that of ParkSpots , the evidence tendered in the Defendants AIS [Encl. 18 20] is compelling as it clearly shows Edward Poh having submitted proposals to the exact same intended client s of ParkSpots.

My Lord, a perusal of pgs. 48 51, paras. 37 41 of the Plaintiffs Affidavit No. 5 [Encl. 37] shows that whilst Edward Poh had made certain attempts to explain his misconduct, what cannot be disputed is the fact of Edward Poh having engaged in competitive business and benefiting from his knowledge of ParkSpots business development plans.

Notwithstanding there being no contractual obligation by Edward Poh to not compete with ParkSpots, noteworthy is that Edward Poh’s conduct was calculated to enrich himself at the detriment of ParkSpots.

Datuk Choy avers in his affidavit dated 28-11-2023 [Enclosure 38/170 PDF copyable page 83] as follows-MEETING WITH EDWARD POH

Edward Poh’s conduct as described above was of great concern to me as it involved my investment into ParkSpots, which I believe Edward Poh was jeopardising.

As such, sometime on or around the end of December 2022, I met with Edward Poh and Ivan Goh at a café in Bukit Tunku where I confronted Edward Poh with the various issues that was plaguing ParkSpots as a result his conduct. I had also confronted him about ParkAide/Snatch bidding for sites in competition with ParkSpots, which was directly causing loss and damage to ParkSpots. Now shown to me and annexed hereto is a picture of the meeting invitation, marked as Exhibit “CWC-3”.

Edward Poh’s response was flippant and he was not able to give any proper explanation. I then informed him that the business development of ParkSpots will no longer be viable if he continues with such conduct. He merely responded by asking me to buy out his shares in ParkSpots.

I declined his offer and informed him that I will pursue my interest in the carpark industry with Ivan Goh through a different entity and explore alternative opportunities in the industry while in the interim period continuing with ParkSpots. Edward Poh did not express any disagreement to my suggestion.

It was in the spirit of this agreement, that I and ParkSpots decided against taking any action against Edward Poh for his conduct in prejudicing and jeopardising the business and financial viability of ParkSpots. Edward Poh was always aware of our arrangement to go our separate ways through different entities.

ParkPlus Sdn Bhd (“ParkPlus”) was later established for Ivan Goh and I to explore other opportunities within the carpark operations industry.

I verily believe that Edward Poh has become concerned at the potential success of ParkPlus and it competing with ParkAide/Snatch. I am left to rue the fact that my investment in ParkSpots has been greatly diminished by Edward Poh/ParkAide/Snatch’s conduct.

Compounding matters is ParkSpots’ inability to pay rent due to several sites belonging to companies in which I have interests. [Emphasis added]

Ivan Goh corroborated the testimony of Dato Choy. He avers in his affidavit dated 20-10-2023 [Enclosure 18/170 PDF copyable page 50] as follows- Edward poh’s conduct of acting in competition with the business and interest of parkspots through parkaide/snatch

Sometime on or around early 2022 onwards, I became aware of Edward Poh acting in competition with ParkSpots through ParkAide/Snatch, by tendering for the same projects as ParkSpots.

As Edward Poh was always aware of the details of ParkSpots’ project tenders, he was able to submit similar tenders through ParkAide/Snatch by offering more competitive rate, thus at the detriment of ParkSpots’ business and interest.

… Now shown to me and annexed hereto is an email from ParkSpots’ to Edward Poh dated 11-09-2020 and the relevant attachments, collectively marked as Exhibit “15”. Now shown to me and annexed hereto are ParkSpots’ Board Meeting Agenda dated 21-01-2022 and ParkSpots’ Budget Presentation of 2022, collectively marked as Exhibit “16” G Village @ Desa Pandan (“G-Village”)

On 31-05-2021, ParkSpots’ proposal was submitted to G-Village for the provision of carpark services and equipment which included amongst others, … Now shown to me and annexed hereto is ParkSpots’ proposal to G-Village 31-05- 2021, marked as Exhibit “17”.

Discussions pertaining to the intended proposal was also held with Edward Poh’s representative in ParkAide/Snatch, Sky Chin. Now shown to me and annexed hereto are the email correspondence between ParkSpots and Sky Chin dated October 2021, marked as Exhibit “18”.

Sometime on or about October 2021, Edward Poh approached me with an offer to sub-contract certain services to ParkSpots for a project that ParkAide/Snatch had secured. Upon receipt of ParkAide/Snatch’s service agreement letter of award, I realised they concerned G-Village. Now shown to me and annexed hereto is ParkAide/Snatch’s Letter of Award dated 21-10-2021, marked as Exhibit “19”.

At that time, Edward Poh also falsely represented to me that he had managed to persuade G-Village to outsource some parts of the carpark operation services consisting of human resource and support services, whilst purchasing the necessary carpark software and equipment directly from ParkAide/Snatch.

I had initially trusted Edward Poh’s representations. ParkSpots accepted ParkAide/Snatch’s offer for the provision of human resource and support services to G-Village.

However, I was later informed by Sky Chin that Edward Poh had through ParkAide/Snatch submitted a proposal to G-Village for the provision of carpark management services and equipment at a better rate than what was proposed by ParkSpots. I was able to retrieve a redacted copy of the ParkAide/Snatch’s proposal from a party who has requested remain anonymous for fear of repercussion. Now shown to me and annexed hereto is a redacted copy of ParkAide/Snatch’s proposal to G-Village, marked as Exhibit “20”. Kinta Riverfront Service Suits JMB (“KRJMB”)

On 1-02-2022, ParkSpots submitted a proposal to KRJMB for the provision of carpark services and equipment. …

On 16-03-2022, a meeting was held between KRJMB, Faiz and myself where I was informed that they had received another proposal with similar rates to that of ParkSpots’. ParkSpots was requested to offer more competitive rates should we be interested in securing the project.

I was then informed by KRJMB that the other proposal was in fact submitted by ParkAide/Snatch. …

As a result, ParkSpots was compelled to submit a revised proposal to Kinta Riverfront on 21-03-2022 by agreeing to pay KRJMB an additional sum as contribution cost for labour services. …

I verily believe that Edward Poh’s conduct through ParkAide/Snatch had resulted in ParkSpots obtaining lesser profits from its project with Kinta Riverfront.

…

I had very recently requested and received the KRJMB ParkAide/Snatch proposal dated 2-03-2022. I had discovered that Edward Poh had through ParkAide/Snatch quoted a lesser amount for equipment cost to KRJMB than they had to ParkSpots.

It would appear that Edward Poh would cause the margins of ParkSpots to be reduced by competing with ParkSpots … Now shown to me and annexed hereto is ParkAide/Snatch’s quotation dated 27- 10-2022 marked as Exhibit “23”. Now shown to me and annexed hereto is ParkAide/Snatch’s proposal to Kinta Riverfront dated 2-03-2022 marked as Exhibit “24”.

I am advised by Faiz and verily believe that sometime on or around June or July 2022, Faiz confronted Edward Poh on ParkAide/Snatch submitting its proposal to KRJMB despite being aware that ParkSpots had also done so. Edward Poh’s response was to merely suggest that he would have considered sub-contracting portions of the services to ParkSpots.

I verily believe that G-Village and KRJMB are two examples for which ParkSpots is able to produce documents, while there are other proposals that had been submitted by ParkAide/Snatch in competition with ParkSpots.

I was also able to obtain the carpark management proposal submitted by ParkAide/Snatch to Permata Alasan Sdn Bhd in respect of the Amp Walk site on Jalan Ampang. Now shown to me and annexed hereto is ParkAide/Snatch’s proposal to Permata Alasan Sdn Bhd dated 6-05-2022 marked as Exhibit “25”.

… Edward Poh and ParkAide/Snatch’s conduct as alluded to in the paragraphs above became a big source of concern for Datuk Choy.

It was clear to us that his conduct through ParkAide/Snatch was designed to prejudice ParkSpots, its business, and jeopardise the long-term business viability of ParkSpots.

In such circumstance, particularly with Edward Poh competing with ParkSpots after having had the benefit of knowledge of ParkSpots’ clients and business strategy, Datuk Choy decided to explore the possibility of carrying out the carpark operations business in partnership with third parties.

… it is in that regard that ParkPlus Sdn Bhd (“ParkPlus”) was established. The establishment of ParkPlus and its intended business operations were well within Edward Poh’s knowledge.

The decision was taken as there clearly was a breakdown in relationship between Edward Poh and Datuk Choy in light of Edward Poh’s own conduct.

During a conversation between Edward Poh, Datuk Choy and I sometime on or around the end of 2022, it was agreed that Datuk Choy will himself explore alternative opportunities in the carpark operations industry through separate entities whilst in the interim period carrying out the business of ParkSpots.

The understanding was that Edward Poh would further ParkAide/Snatch’s business operations, whilst Faiz and I would also assist Datuk Choy with the business operations of another company which he intended on forming. I state that Edward Poh was always aware of this arrangement.

I am advised by Datuk Choy and verily believe that it is in the spirit of this agreement that he and/or ParkSpots decided against taking any action against Edward Poh or ParkAide/Snatch for their conduct in jeopardising the business and financial viability of ParkSpots.

ParkSpots’ existence in the carpark operations industry was only made possible by Datuk Choy facilitating the provision of carpark operation contract and various sites belonging companies in which he was director or shareholder.

I state that any allegations of me or Faiz attempting to conceal ParkPlus from Edward Poh is simply untrue.

No attempts whatsoever were made by either Faiz or myself to conceal the existence of ParkPlus from Edward Poh. In fact, Exhibit PKL-20 of the Plaintiffs’ Affidavit No. 1 shows that Faiz kept ParkPlus documents openly on his workstation table, which Edward Poh had access to.

I have been advised by Faiz and verily believe that he had in fact had a conversation with Edward Poh regarding the business dealings of ParkAide/Snatch as well as ParkPlus. No objections were raised by Edward Poh.

I verily believe that the originating summons proceedings and the Anton Pillar Application were deliberately premised on facts that are materially untrue and designed to bear pressure on Faiz and I.

I am advised by Datuk Choy and verily believe that he and Edward Poh have discussed their ongoing disputes particularly concerning Edward Poh’s conduct. I am informed by Datuk Choy that Edward Poh had demanded that Datuk Choy buy out Feng Yu’s interest in ParkSpots, which Datuk Choy had declined to do. Allegation that Ivan Goh has wrongfully induced ParkSpots to commit a breach of the SHA

The plaintiffs further submit that Ivan Goh has also wrongfully induced ParkSpots to commit a breach of the SHA by not using ParkAide’s software and/or its services contrary to clause 3.3 of the SHA. Instead, Ivan Goh engaged another company, Sonicboom Solutions Sdn Bhd (“Sonicboom”), and installed their poles and system at ParkSpots’ parking sites. [See Enclosure 157 plaintiffs’ WS paragraphs 21 - 30].

This allegation is denied by Ivan Goh. He avers in his affidavit dated 20-10-2023 [Enclosure 18/170 PDF copyable page 42] as follows-

… ParkAide and Snatch will be referred to collectively “ParkAide/Snatch” because of their direct link to Edward Poh. All of ParkAide and Snatch’s conduct must necessarily be attributed to Edward Poh, given his dominant position, directly or indirectly in ParkAide and Snatch. PARKAIDE/SNATCH’S SOFTWARE, SYSTEM & FACILITIES WERE

… I discovered that Edward Poh had misrepresented the nature of ParkAide/Snatch’s software systems, intellectual property rights, and its ability to assist ParkSpots in the execution of its carpark operating services.

ParkAide/Snatch in fact did not possess the necessary software to accommodate contactless terminal transactions by contactless card access through facilities provided by third parties such as Touch ‘n Go, MasterCard and Visa (“Contactless Card Access”). At that time, ParkAide/Snatch was only able to support QR codes transactions via mobile phone applications.

As such, ParkSpots had to secure the necessary Contactless Card Access services from third-party vendors, such as Sonicboom Solutions Sdn Bhd (“Sonicboom”), … (“Third-Party Vendors”) in order to ensure that ParkSpots’ business operations were not delayed, …

The provision of Contactless Card Access service was vital …for ParkSpots as most customers prefer accessing parking sites by way of Touch n’ Go or EMV cards, …

Edward Poh was at all times aware of the need for ParkSpots to procure the software services from Third-Party Vendors due to ParkAide/Snatch’s inability to provide the same.

In fact, I had engaged with Edward Poh in the process of vetting the letter of award received from Sonicboom. He had also given his input on the terms of the agreement between ParkSpots and Sonicboom. As such, any allegations of Edward Poh being unaware of ParkAide/Snatch’s use of Sonicboom’s system is patently untrue. Now shown to me and annexed hereto is an email correspondence between ParkSpots and Edward Poh dated 25-06-2020 marked as Exhibit “4”

Edward Poh had not objected to ParkAide/Snatch securing the services of Third-Party Vendors, given ParkAide/Snatch’s inability to provide those services.

Hence, I deny paragraphs 18 – 28 of the Plaintiffs’ Affidavit No. 1 and No.

2.

Besides being unable to provide Contactless Card Access services, the use of ParkAide/Snatch’s system had also resulted in ParkSpots facing numerous operational challenges.

ParkSpots had at all material times conveyed such operational challenges to ParkAide/Snatch, nevertheless such issues were never rectified … Now shown to me and annexed hereto is an email correspondence between ParkSpots and ParkAide/Snatch dated 10-10-2019 and 6-02-2020 respectively, collectively marked as Exhibit “5”.

Further, ParkSpots had also received complaints from its client, Bay Avenue Management Corporation (“Bay Avenue”) with regard to the terminal scanner of ParkAide/Snatch’s system, concerning inability to access the carpark. ... Now shown to me and annexed hereto is an email correspondence between Bay Avenue and ParkSpots dated 5-03-2021 and 14-06-2021, and Customer Complaint Report of Feburary 2021, collectively marked as Exhibit “6”

In fact, even after Edward Poh had represented to ParkSpots that ParkAide/Snatch’s system had been integrated with Contactless Card Access, ParkSpots continued to face operational challenges as a result of ParkAide/Snatch’s provision of services. Now shown to me and annexed hereto is a letter dated 23-06-2022 from Lambang Prima Sdn Bhd and email correspondence between ParkSpots and ParkAide/Snatch dated July and August 2022, marked as Exhibit “7” [Emphasis added]

The allegation has also been rebutted by counsel for the defendants in his Reply WS Enclosure 164 at paragraphs 20 to

Counsel submits that –

With reference to pg. 23, para. 25 of the Plaintiff s Submissions, Edward Poh feigning ignorance on the need for ParkSpots to secure the Contactless Card Access services from SonicBoom is misleading.

Edward Poh was at all time aware of such a need, due to ParkAide/Snatch s inability to provide the same at the time.

In fact, Edward Poh was engaged by Ivan Goh to vet the letter of award received from Sonicboom. In doing so, Edward Poh had also given his input on the terms of the agreement between ParkSpots and

SonicBoom [pgs. 75 76/ 19] Edward Poh had not objected to ParkAide/Snatch securing the services of SonicBoom or other third-party vendors, given ParkAide/Snatch s inability to provide those services.

As such, any suggestion of Ivan Goh having allegedly breached the SHA, and Edward Poh not having knowledge of the need to secure Contactless Card Access services from third parties is an afterthought and simply untrue. [Emphasis added] Allegation that Ivan Goh breached sections 245, 248, 251, 257 and 259 of the CA 2016 concerning ParkSpots’ financial statements and audited accounts

The plaintiffs also submit that Ivan Goh has committed various breaches concerning ParkSpots’ financial statements and audited accounts. [See Enclosure 157 plaintiffs’ WS paragraphs 31 - 49].

These allegations are denied by Ivan Goh in his affidavit dated 20- 10-2023 [Enclosure 18/170 PDF copyable page 48] and rebutted in the defendants’ Reply WS Enclosure 164 at paragraphs 43 - 52.

Ivan Goh in his affidavit dated 20-10-2023 [Enclosure 18/170 PDF Copyable page 48] avers as follows-INABILITY TO PREPARE AUDITED FINANCIAL STATEMENTS

…Edward Poh alleges that ParkSpots had failed audit its financial statements in breach of the Companies Act 2016, and by failing to lodge the statutory accounts.

Edward Poh in making those allegations had not disclosed reasons that were well within his knowledge of ParkSpots’ inability to audit its financial statements.

Edward Poh also falsely alleges that ParkSpots financial documents were neither presented nor delivered to him.

On 15-06-2023, Annie had emailed Edward Poh a copy of ParkSpots’ management accounts for the years of 2020, 2021, and 2022. Now shown to me and annexed hereto is Annie’s email dated 15-06-2023, marked as Exhibit “11”.

I also state that ParkSpots inability and delay in auditing and presenting itsfinancial statements were also directly attributable to Edward Poh’s and/or ParkAide/Snatch’s conduct.

Due to ParkSpots’ business relationship with ParkAide/Snatch, its ability to properly prepare and audit its financial accounts were tied to the receipt of relevant statement of accounts and invoices issued by ParkAide/Snatch.

The statement of account furnished by ParkAide/Snatch to ParkSpots contained discrepancies which could not be reconciled with ParkSpots’ records.

On 12-04-2022, Annie had requested for ParkAide/Snatch’s complete statement of account with all invoices and credit notes as ParkAide/Snatch had only furnished ParkSpots with an incomplete statement of account which contained discrepancies with ParkSpots’ records. Now shown to me and annexed hereto is the email correspondence between Annie and Sim of Snatch dated March 2022 and April 2022, marked as Exhibit “12”.

Despite ParkSpots’ request of ParkAide/Snatch’s statement of account and invoices in 2022, ParkAide/Snatch had failed to provide the same for more than a year. Repeated requests were made by Annie, for the provision of numerous specific invoices from ParkAide/Snatch. Now shown to me and annexed hereto is the email correspondence between Annie and Sim of Snatch dated March 2023 to April 2023, marked as Exhibit “13”.

… the discrepancy was due to Snatch’s statement of account for 2022 containing numerous descriptions of ‘sales returns’, despite the fact that all goods referred to were in fact delivered and not returned. Now shown to me and annexed hereto is Snatch’s Statement of Account as at 31- 12-2022, marked as Exhibit “14”.

Such discrepancies in ParkAide/Snatch’s statement of account, and its delay in furnishing ParkSpots with the necessary supporting invoices and credits notes were directly attributable to ParkSpots’ inability to audit its financial statement and lodge its audited financial reports in time. This was within Edward Poh’s knowledge. … [Emphasis added]

The defendants also submits in their Reply WS Enclosure 164 as follows-

First, Edward Poh falsely alleged that ParkSpots financial document were neither presented not delivered to him, when in actual fact ParkSpots management accounts for the years 2020, 2021 and 2022 were furnished to him [enclosure 19 pg. 102]. …

Evidence of ParkSpots repeated requests to ParkAide/Snatch for the same were either ignored or met with the provision of further unreconcilable documents. [ enclosure 19 pgs. 104- 114] …

However, even the latest emails from ParkAide/Snatch contain numerous missing invoices and credit notes, and unreconcilable items. Credit notes that were attached in those emails has been backdated, and were not delivered earlier. [ enclosure 41 pg. 14]

In this regard My Lord, we submit: - a. It is indisputable that there has always been a delay in ParkAide/Snatch furnishing ParkSpots with the necessary account and supporting documents to allow ParkSpots to effectively prepare and audit its financial statements; b. Such delay is evident from ParkAide/Snatch s conduct of to this date being unable to furnish the necessary accounts and supporting documents; c. It is unfair for Edward Poh to allege that ParkSpots had failed to prepare and audit its financial statements, when he has always been aware of ParkAide/Snatch s failure in furnishing ParkSpots with its financial statements adequately and effectively; and d. Despite the above being within Edward Poh s knowledge, he had deliberately concealed the same and failed to disclose these material facts in the Plaintiffs Affidavits No. 1 and No. 2. Court’s analysis

I now proceed to consider the issues in Enclosure 1, i.e., Whether the OS should be allowed or dismissed; Whether the plaintiffs have locus standi to seek the remedies sought under section 351 of the CA 2016 and whether there are disputes of facts which require the OS to dismissed with liberty to file a writ action. OS filed

On 22-09-2023, the plaintiffs filed the OS under sections 213, 218, 220, 248, 257, 259, 350 and 351 of the CA 2016 for the following orders:

a declaration that the 1st defendant had contravened sections 213, 218 and/or 220 of the CA 2016 for using information acquired by virtue of his position as a director or officer of ParkSpots Sdn Bhd (“ParkSpots”) to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company;

a declaration that the 1st defendant had contravened sections 213 and 248 of the CA 2016 for failure to ensure that the financial statements of ParkSpots are prepared and audited within six (6) months of its financial year end;

alternatively, if the financial statements of ParkSpots have been audited, a declaration that the 1st defendant had contravened sections 213, 257 and/or 259 of the CA 2016 for failure to circulate and lodge copies of the audited financial statements and report for the financial years 2020, 2021, and 2022 with the Companies Commission of Malaysia;

an injunction be granted to restrain the 1st defendant from utilising, disposing, distributing and/or transfer any assets of ParkSpots without the unanimous approval of the Board of Directors of ParkSpots;

an injunction be granted to restrain the 1st defendant, and/or their officers, agents, servants or employees from disclosing and/or using or otherwise misusing in any way, information acquired by virtue of the 1st defendant’s position as a director or officer of ParkSpots Sdn Bhd (“ParkSpots”) to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company.

an injunction be granted to restrain the 1st defendant, 2nd defendant and/or their officers, agents, servants or employees from aiding, abetting, advising and/or procuring any others to do any or all of the offending acts referred to in prayers (4) and (5) above;

an injunction be granted to compel the 1st and 2nd defendants and/or their officers, agents, servants or employees to provide all financial information and documents and/or supporting documents including but not limited to invoices, contracts, agreements, customer records, sales records, delivery records to the Board of Directors of ParkSpots and/or and independent financial consultant to be determined by the Plaintiffs for the purpose of preparing and auditing the financial statements of ParkSpots financial years 2020, 2021, and 2022 and to ensure compliance with sections 248 of the CA 2016 within fourteen (14) days from the date of this order and subsequently file an affidavit(s) affirming his compliance with this term;

an order for full discovery of all relevant documents and/or information, particularly yearly audited accounts, invoices, contracts, agreements, customer records, sales records, delivery records relating to the diversion of business of ParkSpots to third parties and for the full discovery to be carried out and performed by the defendants within fourteen (14) days from the date of service of the Judgment of the Honourable Court upon the Defendants or their solicitors;

that the 1st and 2nd defendants, whether jointly and/or severally, pay to the Plaintiffs damages to be assessed by this Honourable Court together with interest at the rate of 5% per annum accruing thereon;

exemplary, punitive and/or aggravated damages to be assessed;

interest on the judgment sum and all other sums ordered payable by the defendants under section 11 of the Civil Law Act 1956 at the rate of 5% per annum from the date of this Originating Summons until full and final settlement or at such rate and for such period as this Honourable Court deems fit;

that the costs of this application be paid by the 1st and 2nd defendants, whether jointly and/or severally;

that the plaintiffs be given liberty to apply for further orders and/or directions from this Honourable Court; and

any further and other reliefs as may be deemed fit and proper by this Honourable Court. Grounds in support of the OS

The alleged grounds in support of the OS as set out by the plaintiffs in its OS are-

The 1st plaintiff is a director and indirect shareholder of ParkSpots;

The 2nd plaintiff, of which the 1st plaintiff is the 100% shareholder of, is a 45% shareholder of ParkSpots;

The 1st defendant is the Chief Executive Officer of ParkSpots since around 2010 and is responsible for the day-to-day operations of the company including preparation of the financial statements;

The 2nd defendant is the Sales & Operations Executive of ParkSpots and is responsible for the sales and operations of different projects of ParkSpots under the instructions of the 1st defendant;

The plaintiffs have discovered that under the management of the 1st defendant, several issues have arisen in relation to ParkSpots which would constitute a contravention, or an attempt to contravene, the CA 2016. In particular: -

The 1st defendant who was assisted by the 2nd defendant had used information acquired by virtue of his position as a director or officer of ParkSpots to gain directly or indirectly a benefit for himself of any other person, or cause detriment to the company in violation of section 213 and 218 of the CA 2016;

(ii) The defendants have caused ParkSpots business to be diverted to other parties including a company known as ParkPlus Sdn Bhd (“ParkPlus”) and this is supported by evidence where projects meant for ParkSpots have now been taken over by ParkPlus;

(iii) The first defendant has contravened sections 213 and 248 of the CA 2016 for failing to ensure that the financial statements of ParkSpots are prepared and audited within six (6) months of its financial year end;

(iv) Alternatively, if the financial statements of ParkSpots have been audited, Ivan had contravened sections 213, 257 and/or 259 of the CA 2016 for failure to circulate and lodge copies of the audited financial statements and report for the financial years 2020, 2021, and 2022 with the Companies Commission of Malaysia;

the 1st defendant’s failure to ensure that ParkSpots provided its management accounts and documents to the 1st plaintiff as the director of ParkSpots without reason, has amounted to a denial and infringement of the 1st plaintiff’s rights as the company’s director;

(vi) The first defendant has caused and/or exposed ParkSpots to breach its contractual obligations under the Shareholder Agreement and License Agreement dated 30-01-2019 which is a breach of section 213 of the CA 2016;

(vii) The 1st defendant has caused and/or exposed ParkSpots to litigation and/or potential litigation by engaging the company in actions that breach its contractual agreements and under-declaring the company’s income, all of which are in clear contravention of section 213 of the CA 2016;

As a result of the issues identified above, the interests of the Plaintiffs, being the director and shareholder of ParkSpots, are affected or would be affected by the conduct of the defendants; and

An injunction ought to be granted against the defendants to prevent further contravention of the Act. Whether the plaintiffs have locus standi to seek the remedies sought under section 351 of the CA 2016 Origin of section 351 CA 2016 [replacing section 368A of the Companies Act 1965]

The origin of section 351 of the CA 2016 can be traced back to Australia in 1974 in the form of section 80 of the Australian Trade Practices Act 1974 and section 149 of the Australian Securities Industry Act 1980 (Cth) [now section 1324 of the Corporations Act 2001] which was introduced into Malaysia through section 368A of the Companies Act 1965 (“CA 1965”) via the Companies (Amendment) Act 2007, now section 351 of the CA 2016.

The purpose was to introduce a statutory injunctive relief for shareholders and members of the public to prevent breaches of the CA 2016 and to overcome the technicalities associated with the Foss and Harbottle rule. [See Allen v Atalay and others (1993) 11 ACSR 753 and Pop Investments Ltd v Icapital.Biz Bhd [2025] 9 MLJ 331, HC].

The Companies (Amendment) Act 2007 was enacted following Parliament’s adoption of the findings from the “Report on Corporate Governance” by the High-Level Finance Committee in February 1999 (“Corporate Governance Report”). In the Malaysian House of Representatives’ Hansard dated 08-05-2007 (“the 2007 Hansard”), it was said that-Tuan Yang di-Pertua, pindaan kepada Akta 125 yang dicadangkan adalah untuk melaksanakan cadangan Jawatankuasa Tertinggi Kewangan Berkenaan Tadbir Urus Korporat ataupun Jawatankuasa Kewangan High Level Finance Committee on Corporate Governance seperti mana terkandung dalam laporannya bertarikh Februari 1999 bagi meningkatkan tahap tadbir urus korporat di Malaysia…. Section 351 CA 2016 interpreted broadly

The Courts have interpreted the statutory injunctive relief provision broadly and have allowed a plaintiff to obtain relief to prevent actual or proposed conduct in contravention of the company’s code. [See Broken Hill Proprietary Co Ltd v Bell Resources Ltd

8 ACLR 609, Supreme Court of Victoria [“Broken Hill”] cited and followed in Pop Investments Ltd v Icapital.Biz Bhd [2025] 9 MLJ 331, HC, at [48 - 52]].

In Broken Hill, the Supreme Court of Victoria said at page 613- The Companies Code, in my view, is legislation which is clearly concerned in the broadest sense with the protection of the public in respect of commercial activities of corporations. The whole legislative scheme is designed to ensure that the greatest possible protection is afforded in many instances by the provision to the public of information relevant to those commercial activities. Severe penalties are imposed by many sections of the Code for non-compliance with it and s 574, in my view, is intended to enable interested persons to obtain relief in the form of injunctive relief to prevent actual or proposed conduct in contravention of the Code. It follows that in interpreting s 574(1)(b) a broad interpretation consistent with the objectives of the Act [sc Code] should be adopted and not the more restricted interpretation of the kind adopted by Gillard J before the enactment of this much more far-reaching and comprehensive Companies Code. [Emphasis added]

In Pop Investments Ltd v Icapital.Biz Bhd [2025] 9 MLJ 331, HC, Atan Mustaffa J said at [48 - 52] – [48] This broad interpretation of ‘interest’ under s 351 finds strong support in the Australian case law, given that s 351 of the CA 2016 was modelled after s 1324 of the Australian Corporations Act 2001. [49] In the case of Broken Hill Proprietary Co Ltd v Bell Resources Ltd [1984] 8 ACLR 609, the Supreme Court of Victoria interpreted the term ‘interest’ in a provision similar to s 351 of the CA 2016. The court held that the interests referred to in the provision are ‘interest of any person (which includes a corporation) which go beyond the mere interest of a member of the public’. This holding clearly indicates that the term ‘interest’ should not be narrowly construed and extends beyond a mere general interest that any member of the public may have. [50] The court in Broken Hill Proprietary further clarified that it is not necessary for the applicant to show personal rights of a proprietary nature or any special injury arising from a breach of the statute. This clarification is significant as it establishes that the applicant need not have a strict legal or proprietary interest, nor suffer any special injury, to have standing under the provision. It is sufficient for the applicant to demonstrate an interest that goes beyond that of a mere member of the public. [51] The principles enunciated in Broken Hill Proprietary have been consistently applied and followed in subsequent Australian cases, such as Waterhouse v Waterhouse and Ors [1998] 148 FLR 312, thereby reinforcing the broad interpretation of the term ‘interest’ in the context of statutory provisions similar to s 351 of the CA 2016. [52] Given the persuasive value of the Australian case law and the similarity in the statutory language, the court agrees that that the broad interpretation of ‘interest’ adopted in Broken Hill Proprietary and its progeny should be applied to s 351 of the CA 2016. This approach ensures consistency in the interpretation of the provision and gives effect to the legislative intent of providing a wide statutory remedy to protect the interests of persons affected by a company’s contravening conduct. [Emphasis added]

Pop Investments Ltd v Icapital.Biz Bhd [2025] 9 MLJ 331, HC, was approved by the Court of Appeal in Dato’ Chang Jong Yu & Ors v Kuala Ibai Property Sdn Bhd & Ors [2025] MLJU 1158, CA.

In Wong Kien Ching v Seng Kim Huat & Anor [2019] 7 CLJ 356, CA, the Court of Appeal discussed the requirements for invoking section 351 (previously section 368A of the Companies Act 1965) as follows- [21] What is important is that s. 368A(1) may only be invoked by the Registrar or by a person whose interests is either affected or would be affected by such conduct. It is therefore imperative that the applicants who are the respondents in this appeal, state how the conduct of the respondent to the application, that is, the appellant, affect their interests. Where and when that element has been established, the court is then in the position to impose such terms as are appropriate when granting the relevant injunction. … [25] Further, the respondents are required to identify what or which specific provisions of the Companies Act 1965 that the appellant is said to have contravened, for it is where there is contravention of this Act, that is, the Companies Act 1965 and not some other legislation, that the reliefs under s. 368A are available. See Puan Sri Datin Seri Grace Choong Foong Meng v. Michael Chia Hock Meng & Ors [2009] 1 LNS 163. We do not see the Companies Act 1965 as a piece of composite or umbrella legislation under which all wrongs, offences or breaches are addressed and determined. It is apparent that the terms of s. 368A do not make that claim, and we cannot accede to any submission along those lines. [Emphasis added] Remedies available under section 351 CA 2016

Under section 351 CA 2016, an injunction order and damages can be granted as these are expressly provided. An order for the disclosure of documents can also be granted. [See Lina Yap Ai Lin (f) v Giant Rewards Sdn Bhd & Ors [2023] 1 MLJ 113, CA, at [26]]. Declaratory reliefs can also be granted. [See Australian Securities and Investments Commission v Munro [2016] QSC 9 Supreme Court of Queensland and ASIC v Sweeney [2001] NSWSC 114, New South Wales Supreme Court].

In conclusion, on the issue locus standi and the reliefs sought by the plaintiffs, it is my view the plaintiffs have the locus standi under section 351 CA 2016 to seek the reliefs prayed for.

I now move to the next issue whether there are disputes of facts which require the OS to dismissed with liberty to file a writ action. Whether there are disputes of facts which require the OS to be dismissed with liberty to file a writ action. The contentions of the plaintiffs

The plaintiff’s case is that their OS can be decided based solely on the affidavits filed. The contentions of the defendants

The defendants contend they have rebutted the allegations and the OS should be dismissed. Alternatively, they submit the plaintiffs were wrong to have commenced this action by way of OS when there are substantial disputes of facts, and this ought to have been clear to the plaintiffs (particularly, Edward Poh) from the beginning. Analysis of the court Action Not Suitable To Be Commenced By Originating Summons Law

It is trite law that proceedings may only be begun by Originating Summons where there is unlikely to be any substantial dispute of facts. [See Order. 5 rule. 4(1)(b) of the Rules of Court 2012].

The Supreme Court in Ting Ling Kew & Anor. v Tan Eng Ironworks Co. Ltd. [1992] 2 MLJ 217, SC, held at page 227, paragraph C, as follows - Unquestionably, these conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and witnesses cross-examined on their evidence which, however, is not possible in proceedings begun by originating summons. … [Emphasis added]

The Court of Appeal in Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569, CA, cautioned that a party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realize that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it. This is what the Court of Appeal said-Even though this is allowed by the rules, we would not encourage such practice. A solicitor should know from the very beginning or, at the very least, after the defendant has filed his affidavit in reply, whether the action is one that should be begun by a writ action or by way of an originating summons. Secondly, contents of affidavits and pleadings are different in nature. Pleadings contain statement of facts while affidavits contain statement of facts and also evidence, including documentary exhibits. Thirdly, it causes confusion in the statistics kept by the Registry. Fourthly, it also causes confusion in the preparation of the record of appeal, subsequently. A party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realize that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it. [Emphasis added] Application to facts

In my view, there are substantial disputes of facts in this case.

The first substantial dispute of fact is whether Edward Poh acted in competition with ParkSpots through ParkAide/Snatch, by tendering for the same projects as ParkSpots.

The other substantial dispute of facts is was there a meeting in December 2022? When confronted with the alleged evidence of misconduct at a settlement agreement in December 2022, what was agreed between Edward Poh with Ivan Goh and Dato Choy? Was ParkPlus formed pursuant to that settlement agreement with Edward Poh’s knowledge and consent? Ivan Goh and Dato Choy gave one version. Edward Poh gave a different version.

Ivan Goh and Dato Choy both dispute Edward Poh’s version of the disputes that he was not aware of the setting up of ParkPlus. Both swore affidavits to refer to a settlement meeting of December 2022 attended by Ivan Goh, Dato Choy and Edward Poh.

Edward Poh in his reply affidavit dated 6-12-23 [See Enclosure 48 paragraph 7e] denies there was a meeting. However, in an earlier reply affidavit dated 14-11-2023 [See Enclosure 37 paragraph 45 [b] [i] Edward Poh admitted there was a meeting on 17-12-2022. This is what he swore in his affidavit-

The Defendants’ have alleged that I knew about ParkPlus. This is untrue.

I state that: -

I was never consulted and informed about the establishment of ParkPlus at all material times;

It was never impressed upon me that my relationship with Datuk Choy had soured to the extent that he felt the need to establish a competing business without me. If anything, my relationship with Datuk Choy was divided due to Ivan. In this regard: -

Ivan had expressed his interest to acquire 30% shareholding in ParkSpots in around late 2022. This matter was brought up for discussion between me and Datuk Choy during our meeting on 17.12.2022;

(ii) I then proposed to Datuk Choy a share acquisition plan for Ivan which involves setting a key performance index (KPI) target for him to satisfy; [Emphasis added]

There is thus a changing of stance by Edward Poh as to whether or not there was a meeting in December 2022.

The allegation that Ivan Goh has wrongfully induced ParkSpots to commit a breach of the SHA is also a disputed issue of fact. So are the allegations that Ivan Goh breached sections 245, 248, 251, 257 and 259 of the CA 2016 concerning ParkSpots’ financial statements and audited accounts. In this respect, Edward Poh is also a director of ParkSpots and bears equal responsibility with Ivan Goh for any breaches in respect of ParkSpots’ financial statements and audited accounts.

I have set out the parties’ contrasting versions of fact above and do not propose to set them out again save to say that what was agreed at the meeting in December 2022, whether Ivan Goh has wrongfully induced ParkSpots to commit a breach of the SHA and whether Ivan Goh breached sections 245, 248, 251, 257 and 259 of the CA 2016 concerning ParkSpots’ financial statements and audited accounts are contentious issues of facts that require a trial.

I also note that no letter of demand was ever sent by the plaintiffs to the defendants or Dato Choy seeking an explanation. Why was no letter of demand sent? This again raises questions that need a trial. What order I should make?

I am conscious that proceedings under section 351 CA 2016 shall be commenced by way of originating summons as this is mandated by Order 88 Rule 2 of the Rules of Courts 2012. [See Datuk Kasi a/l KL Palaniappan v Menara Embun Sdn Bhd & Ors and another appeal [2018] MLJU 1651, HC].

It is time that Order 88 Rule 2 of the Rules of Courts 2012 be reviewed to see if it should be amended to allow a writ or OS to be filed for actions filed under section 351 CA 2016 or for oppression petitions. Until this is done, the order I can make is for this OS to be dismissed with liberty to file afresh as a writ action and parties at the earliest instance to apply to convert it to a writ action and for directions to be given to file pleadings. This is the order I shall make.

I am not inclined to order a conversion to a writ now for reasons articulated by the Court of Appeal in Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569, CA. Further, at the outset of the hearing and even during the midst of oral submissions I had asked counsel for the plaintiffs whether she is agreeable to convert the OS to a writ. She had declined.

I order this OS to be dismissed with liberty to file afresh as a writ action. At the earliest instance parties to apply to convert it to a writ action and for directions to be given to file pleadings. The plaintiffs shall pay costs of RM 30,000 to the defendants subject to allocatur.

Lastly, I thank both counsel and their teams for their helpful submissions. Dated: 09th September 2025 ………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiffs: Cindy Goh Joo Seong and Jessye Ng Ann Jerl Cheang & Ariff (Kuala Lumpur) Counsel for defendants: Mishand Pathmanathan and Celinne Teh Haris Ibrahim Kandiah Partnership (Petaling Jaya) CASES REFERRED TO: 1) Australian Securities and Investments Commission v Munro [2016] QSC 9. 2) ASIC v Sweeney [2001] NSWSC 114. 3) Broken Hill Proprietary Co Ltd v Bell Resources Ltd (1984) 8 ACLR 609. 4) Dato’ Chang Jong Yu & Ors v Kuala Ibai Property Sdn Bhd & Ors [2025] MLJU 1158, CA. 5) Lina Yap Ai Lin (f) v Giant Rewards Sdn Bhd & Ors [2023] 1 MLJ 113, CA. 6) Pop Investments Ltd v Icapital.Biz Bhd [2025] 9 MLJ 331, HC. 7) Puan Sri Datin Seri Grace Choong Foong Meng v. Michael Chia Hock Meng & Ors [2009] 1 LNS 163. 8) Ting Ling Kew & Anor. v Tan Eng Ironworks Co. Ltd. [1992] 2 MLJ 217, SC. 9) Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569, CA 10) Waterhouse v Waterhouse and Ors [1998] 148 FLR 312. 11) Wong Kien Ching v Seng Kim Huat & Anor [2019] 7 CLJ 356, CA. LEGISLATION REFERRED TO: 1) Companies Act 2016, section 213, section 218, section 220, section 245, section 248, section 257, section 259, section 350 and section 351. 2) Civil Law Act 1956, section 11. 3) Rules of Court 2012, Order. 5 rule. 4(1)(b) and Order 88 Rule 2.