1. ) Shanmugananthan A/L Ratnam v 1. ) Jt Aerotech Solutions Sdn Bhd (WA-28NCC-376-04/2023)

SHANMUGANANTHAN A/L RATNAM

SAYSU A/L S. MICHAEL (NRIC No.: 580821-10-6333)

ANTON ALEX SCHUBERT (NRIC NO.: 610421-08-5507) … PETITIONERS

JT AEROTECH SOLUTIONS SDN BHD (Company No.: 201901038373/1347703-K)

GUNASEKAR A/L MARIAPPAN (NRIC No.: 681030-10-5425)

PHILIP PHANG KIN MING (NRIC No.: 650623-10-6747) … RESPONDENTS GROUNDS OF JUDGMENT INTRODUCTION [1] The Petitioners filed a petition to wind up the First Respondent (“the Company”) pursuant to section 465(1)(f) and (h) of the Companies Act 2016 (“CA”) on the grounds that:

the Second and Third Respondents (“R2” and “R3”) collectively referred to as “the Respondents”) had acted in their own interests in the affairs of the Company, and;

(ii) on just and equitable grounds [2] The Petitioners then filed Enclosure 8 (“Encl 8”) seeking to restrain the Respondents from:

convening and conducting an Extraordinary General Meeting (“EGM”) of the Company scheduled on 26.05.2023, pending the disposal of Encl 8, the petition;

moving the proposed resolutions to appoint three (3) additional directors, pending the disposal of the petition; and

implementing any of the resolutions that may be passed at the EGM scheduled on 26.05.2023, pending the disposal of the petition. BACKGROUNDS FACTS [3] The backgrounds facts below, which are largely undisputed, are as given below. [4] After this petition was filed, the Respondents called for an EGM of the company scheduled on 26.05.2023 for the purpose of appointing three (3) additional directors, by giving a Notice of EGM (“EGM Notice”) on 05.05.2023. One day before the scheduled EGM, the Petitioners filed an ex parte application for an injunction in terms of the prayers in Encl 8. However, this Court allowed an ad interim injunction only in terms of prayer (c) of Encl 8. [5] On 26.05.2023, the EGM was convened as scheduled. The Petitioners voted against the proposed resolutions to appoint three

additional directors but the resolutions were passed with the Respondents voting in favour of the same. [6] After the inter-parties hearing of Encl 8 on 18.09.2023, this Court granted an interim injunction in terms of prayer (c) with costs of RM3,000.00. GENESIS OF THE DISPUTE [7] On 06.10.2020, the Petitioners and the Respondents entered into a Joint Venture Agreement (“JVA”) to acquire a company known as M Jets International Sdn Bhd (“M Jets”). [8]

Shortly after incorporation;

the Company had five (5) shareholders, namely the three (3) Petitioners (10% equity each) and the two (2) Respondents (35% equity each); and

the Company had five (5) directors, namely the three (3) Petitioners who held the majority board seats and the two (2) Respondents.

(ii) Subsequently;

on 16.11.2020, the Company together with another public listed company known as MMAG Holdings Berhad (MMAG) jointly acquired M Jets with the Company owning 20% equity and MMAG owning 80% equity. The relationship between the Company and MMAG was governed by a Shareholders’ Agreement dated 22.07.2021 (“Shareholders’ Agreement”);

the Respondents were appointed as directors of M Jets to represent the interest of the Company;

R2 was also appointed as the Managing Director and

R3 was appointed as the Executive Director and Chief

the three (3) Petitioners held the positions of Director of Flight Operations, Director of Technical and Procurement and Director of Airline Operations of M Jets, respectively. [9] Soon after the acquisition of M Jets, disputes arose between the Respondents and MMAG concerning the management of M Jets. [10] The parties herein were at odds on how to handle the dispute with MMAG. Both the Petitioners and the Respondents began writing directly to MMAG in response to MMAG’s allegation that the Company via the Respondents’ had breached the Shareholders’ Agreement between the Company and MMAG. [11] Following the above dispute, the Petitioners filed legal proceedings against the Respondents vide case WA-22NCC-147-03/2023 (“Suit 147”) at the Kuala Lumpur High Court for certain declaratory and consequential orders. Suit 147 was filed on 22.03.2023. [12] The Petitioners then discovered that they had been removed as directors of the Company. On 27.03.2023, the Petitioners commenced proceedings via Originating Summons No. WA- 24NCC-178-03/2023 (“OS 178”) to challenge the removal of the Petitioners as directors of the Company by the Respondents. [13] On 11.04.2023, an interim injunction was granted in OS 178 restraining the Company and the Respondents from giving any effect to the Petitioners’ removal on 21.03.2023 and also from interfering with the Petitioners’ rights, obligations and functions as directors of the Company pending the disposal of OS 178 (the Injunction Order). [14] On 20.04.2023, the Petitioners received a “Notice of Seventh (7th) Annual General Meeting” (“AGM”) from the former company secretary where a meeting was scheduled on 05.05.2023 with an agenda, inter-alia, to appoint three (3) new directors of the Company. [15] On 02.05.2023, the Petitioners’ solicitors wrote to the solicitors for the Respondents in OS 178 and demanded for a written undertaking that the Respondents would not proceed with the meeting scheduled on 05.05.2023. [16] On 03.05.2023, the Respondents’ solicitors replied to the Petitioners’ solicitors stating, among others, that the Respondents would not proceed with the meeting on 05.05.2023. [17] On 05.05.2023, the Petitioners received the EGM Notice to convene an EGM on 26.05.2023 to appoint three (3) new directors. The Petitioners immediately filed Encl 8 herein to injunct the Respondents from proceeding with the meeting and/or enforcing any resolutions to appoint additional directors of the Company. THE LAW [18] The principles governing the granting of an injunction are well settled. In the seminal case of American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, the Court laid out the guiding principles to be considered before granting any interim injunction. The issues are:

whether on the facts, there are serious questions to be tried. It is no part of the Court’s function at this stage of the litigation to try and resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend;

The balance of convenience between the parties; and

Whether damages would be adequate remedy to the other party who is injuncted. [19] In Re a Company [1985] BCLC 80, a case involving winding up on just and equitable grounds, Harman J held at 82i and 83a-b as follows: “I would add that, as it seems to me, in cases of litigation under s.75 it is most desirable that the position of the company be not altered or disturbed more than is absolutely essential, between the presentation and the hearing of the petition. The existing share structure, the existing contractual rights, the present service contracts and so forth, should in my judgment be maintained as they are pending the determination of the litigation. There might be circumstances where change was essential, but if possible the existing position should be preserved. In my judgment, that is a factor which is these matters arising under contributories petitions is particularly powerful and has more than the normal ‘Cyanamid’ (American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, force in favour of preserving the status quo, since it is the very nature of this matter that the status quo must affect the remedy which may be available.” [20] The Respondents submit that the resolutions passed at the EGM cannot be challenged. This is because it is within the rights of R2 and R3 (as shareholders of the Company) to determine the composition of the Board of Directors. [21] The Respondents cited the case of Tuan Haji Ishak Ismail bin Ismail & Ors v Leong Hup Holdings Bhd and Other Appeals [1996] 1 MLJ 661, where the Court of Appeal held that a court will not interfere with the shareholders’s right to vote on the composition of the Board because such votes are proprietary rights, even if exercised in the shareholders’ own interests. This was further adopted in Teh Wei Kian v Golden Plus Holdings Berhad & Ors [2020] MLJU 1050 where the High Court held that a shareholder has unrestricted voting rights at the meeting for the appointment of any director: “[79] The Requisitionists are entitled to exercise their statutory and contractual rights (by virtue of the constitution) as members to remove and appoint any director. The said poser is not a fiduciary power. A shareholder owes no duty to anybody including he company as to how he exercises his vote as outlined by the Court of Appeal in Tuan Haji Ishak Ismail (supra).” [22] For these reasons, the Respondents submits that it is clear that the balance of convenience lies in favour of refusing Encl 8. [23] The Respondents also submit that the Petitioners’ undertaking of damages is worthless as they have not demonstrated any financial ability to pay any damages which may be ordered by this Honourable Court. [24] Having read the affidavits of the parties and heard submissions, I allowed prayer (c) of Encl 8. My findings are as follows:

The resolutions passed at the EGM to appoint three (3) additional directors are an attempt by the Respondents to gain control over the board of Directors of the Company when upon incorporation, it was agreed that the Petitioners would have majority on the board i.e. three (3) seats out of five (5).

(ii) This resolution is a back-door attempt by the Respondents to circumvent the injunction granted by the High Court in OS 178, which stopped the Respondents from removing the Petitioners from the Board of the Company. Having failed to remove the Petitioners from the Board, the Respondents now wants to wrest control of the Board by appointing three (3) additional directors, thus, giving them majority seats, sidelining the Petitioners.

(iii) I find that the Petitioners have established that there are serious questions to be tried since the acts of the Respondents could seriously jeopardise the position of the Company as a minority shareholder in M Jets. If MMAG were to terminate the Shareholders’ Agreement, the whole substratum on which the Company was established could be destroyed.

(iv) I find that the balance of convenience lies with the Petitioners in keeping the status quo since the hearing of the petition has been fixed and can be disposed in the next few months (see Re a Company supra).

If a winding-up order is made, it is imperative that the affairs of the Company be well managed in order to maintain its value pending any liquidation. It may not be easy to assess what the adverse financial consequences may have been of the Respondents taking over management of the Company with a majority representation on the Board. In this regard, it is of note that the allegations in the petition are that the Respondents have acted in the affairs of the Company in their own interests rather than in the interests of the Company’s members as a whole.

(vi) I also find that damages will not be adequate remedy to the Petitioners. If control of the Board changes hands to the Respondents before the hearing of the petition and the status quo of the Board of Directors were to be changed, the actions of the Respondents in the Company may affect the relationship with MMAG in handling the affairs and business of M Jets, which is the only reason for forming the Company. Additionally, the remedy sought by the Petitioners is a winding-up of the Company and not for liquidated damages. [25] For the reasons aforesaid, I allow prayer (c) in Encl 8. Dated 11 December 2023 ……………t.t……………… Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE APPLICANT: MR ALEX TAN WITH CHEAH KHA MUN SOLICITORS FOR THE APPLICANT: TETUAN WONG KIAN KHEONG COUNSEL FOR THE RESPONDENT: MR ALEX DE SILVA WITH ANGELINE TAY SOLICITORS FOR THE RESPONDENT: TETUAN BODIPALAR PONNUDURAI DE SILVA Cases Referred to: ➢ Re a Company [1985] BCLC 80 ➢ American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 ➢ Tuan Haji Ishak Ismail bin Ismail & Ors v Leong Hup Holdings Bhd ➢ Teh Wei Kian v Golden Plus Holdings Berhad & Ors [2020] MLJU 1050 Legislation Referred to: ➢ Section 465(1)(f) and (h) of the Companies Act 2016 ➢ Companies (Winding-Up) Rules 1972 ➢ Rules of Court 2012 Decision date: 13.03.2023