All Kurma Sdn Bhd v 1. ) Teo Heng Tatt (PA-22NCC-30-09/2021)

TEO HENG TATT (No. K/P: 781212-07-5333)

LIM KIN HOOU (No. K/P: 560111-02-5004)

TAN KIM CUN (No. K/P: 810829-07-5587)

YEAP SU CHENG (No. K/P: 800525-07-5474)

NAJIEB ARIFF BIN NAZIR ARIFF (No. K/P: 780503-07-5283)

FOO SOO KIM (No. K/P: 801112-07-5438)

LEADER FOOD SDN BHD (No. Syarikat: 202001020412 (1376732-W)

TAHA FOOD (M) SDN BHD (No. Syarikat: 201601012466 (1183397-W)

YEAP GIN KHOON (No. K/P: 830308-07-5483)

KHOR SYI KIAT (No. K/P: 840223-07-5053) …DEFENDAN-DEFENDAN (melalui tindakan asal) Page 2 of 22 ANTARA TEO HENG TATT (No. K/P: 781212-07-5333)

ALL KURMA SDN BHD (No. Syarikat: 200801031533 (832866-U)

PAMELLA CHIANG (No. Pasport Singapura: K0913640G)

YURISA CHIANG (No. Pasport Singapura: K2506102E) …DEFENDAN-DEFENDAN (melalui tuntutan balas) JUDGMENT (SECTION 10 ARBITRATION ACT STAY) PRELUSION [1] The Plaintiff: All Kurma Sdn Bhd (Company) sues the 1st Defendant (Teo) for torts, including breach of fiduciary duty and conspiracy to injure. At the material time, Teo was a shareholder and director of the Company. [2] Teo, in turn, launches a Counterclaim against the Company and two of the other three shareholders of the Company: Pamella Chiang (Pamella) and Yurisa Chiang (Yurisa). Page 3 of 22 [3] Pamella and Yurisa respectively file their applications to stay this court proceeding, because Teo’s Counterclaim is the subject of an arbitration agreement. The arbitration agreement here takes the form of the Shareholders’ Agreement dated 21.2.2019 (SHA) made among the Company’s shareholders, namely Teo, Pamella, Yurisa, and another shareholder: Rudy Halim (who is not a party to this suit). [4] The four shareholders of the Company entered into the SHA to contractually govern the relationships, the rights and the obligations that the shareholders have toward one another, to “regulate the affairs of the Company and the respective rights of the shareholders” (quoting Recital

(B) of the SHA). [5] An arbitration agreement (or an arbitration clause in an agreement), essentially provides that where the parties to the agreement have a dispute with one another, they are to refer the dispute to arbitration to resolve the dispute, rather than to file a suit in Court. [6] But if a party to the agreement proceeds anyway to file a Court action, the other parties who are being sued can apply to the Court to stay the court proceeding, so that the dispute can be referred to arbitration, to adhere to the agreement among the parties in the first place—to refer any dispute among them to arbitration. [7] Hence the main question to determine in both Pamella’s and Yurisa’s applications is—should Teo’s Counterclaim against them in this court proceeding be stayed and referred to arbitration instead? Page 4 of 22 PRELIMINARIES [8] This Judgment determines both Pamella's and Yurisa’s applications, as the issues to be determined in both applications are the same. Both applications relate to the SHA. Teo, Pamella and Yurisa are parties to the SHA. And there is now a dispute among them under the SHA. SECTION 10 OF THE ARBITRATION ACT 2005 [9] Pamella’s and Yurisa’s applications are what is known as section 10 Arbitration Act stay applications. Section 10 of the Arbitration Act 2005 (AA 2005) provides that—

where the parties to an agreement agree that if there is any dispute among them about the subject matter of the agreement, the parties will resolve their dispute by referring it to arbitration;

but if a party files a suit in a court proceeding instead, the parties being sued can apply to stay the court proceeding;

and the court will stay the court proceeding. [10] The presiding Court must grant the section 10 stay, unless—

the party applying for the stay has taken a step in the court proceeding, such as filed pleadings or cause papers in the court proceeding—Airbus Helicopters Malaysia Sdn Bhd (formerly known as Eurocopter Malaysia Sdn Bhd) v Aerial Power Lines Sdn Bhd [2024] 2 MLJ 471 (CA); [2024] 3 AMR 125; [2024] 4 CLJ 243; [2024] 3 MLRA 152; at paragraph [9]; or Page 5 of 22

the Court finds that the agreement between the parties is “null and void”, “inoperative”, or “incapable of being performed”— section 10(1) of the AA 2005. [11] The words of section 10 of the AA 2005 are set out here for reference (with my emphases added)— Section 10. Arbitration agreement and substantive claim before court

A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed;

The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. THE ARBITRATION CLAUSE IN THE SHA [12] The arbitration clause in the SHA is Clause 25, which I summarise as follows—

The heading or description of the whole of Clause 25 is “Governing Law and Arbitration”;

Clause 25.1 provides that the SHA is governed by the laws of Singapore;

Clause 25.2 provides that if there is any dispute arising out of or relating to the SHA, the parties agree to attempt, for 30 days Page 6 of 22 after the receipt of a Notice of the dispute, to settle the dispute amicably;

Clause 25.3 provides that if the parties cannot settle in the prescribed 30 days, the dispute must be referred to the three listed mediation centres for mediation. Parties agree to participate in mediation in good faith. If parties cannot resolve the dispute within 8 weeks, the dispute must be resolved under Clause 25.4;

Clause 25.4 provides that “any dispute arising out of or in connection with” the SHA “shall be referred to and finally resolved by arbitration” in Singapore following the Singapore International Arbitration Centre (SIAC) Rules. There is to be one arbitrator. The language is English. And the seat of arbitration is Singapore;

Clause 25.5 provides that nothing in this Clause 25 shall limit the right of a party to “take proceedings in any other court of competent jurisdiction”, and the taking of proceedings in one or more jurisdictions will not preclude a party from taking proceedings in any other jurisdiction. TEO’s ARGUMENTS AGAINST A SECTION 10 STAY First argument: Pamella and Yurisa have taken a step in this court proceeding [13] Teo argues that Pamella and Yurisa have taken a step in this court proceeding by causing the Company to file this suit against Teo (the original suit). Teo asserts that Pamella and Yurisa are the alter ego of the Page 7 of 22 Company; they have absolute control of the Company; they make all the major decisions of the Company; they are the “archetypal puppet master[s]”—citing the Court Of Appeal case law authority of Maybank Trustees Berhad v AmTrustee Bhd & Ors [2020] 4 MLJ 405 (CA); [2019] CLJU 1454; [2019] MLRAU 310; at paragraph [637]; [14] Teo argues that Pamella and Yurisa are “the directing mind and the will” of the Company—referring to the Court Of Appeal case law authority of CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1 (CA); [2006] 2 AMR 641; [2006] 2 CLJ 409; [2006] 1 MLRA

[15] I must, however, immediately note that this Court Of Appeal Judgment in CGU Insurance (supra) was, on further appeal, overturned by the Federal Court in Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 (FC); [2007] 2 AMR 329; [2007] 2 CLJ 1; [2007] 1 MLRA 12. [16] Coming back to Teo’s argument: Teo argues that when the Company filed this suit against him, it was truly his fellow shareholders: Pamella and Yurisa who filed this suit. Teo submits that by doing this, Pamella and Yurisa have unequivocally (positively) subjected themselves to the jurisdiction of the courts, and hence cannot now—when Teo launches a Counterclaim against them—divert the dispute in the Counterclaim to arbitration. [17] I find this argument untenable. First—the Company’s suit (the original suit) against Teo and the other defendants is not for breaching the SHA. The Company sues Teo as a director of the Company, for Page 8 of 22 allegedly breaching his statutory and fiduciary duties, and for conspiring with the other defendants to injure the Company, but not for breaching his duties and obligations as a shareholder under the SHA. [18] Put differently, the Company’s causes of action against Teo are for alleged breaches of his statutory and fiduciary duties (to the Company), and for conspiracy to injure the Company. The original suit is not a dispute arising from or relating to the SHA. [19] Second—analysing the terms of the SHA, Teo’s duties and obligations under the SHA are not so much to the Company, but rather to the other shareholders of the Company, who include Pamella and Yurisa. [20] Third—Teo rights under the SHA are against the other shareholders, namely Pamella, Yurisa and Rudy Halim, and not against the Company directly. [21] Fourth—Teo’s alter ego argument is, in my view, misplaced. The alter ego argument is relevant for circumstances where a company is used for fraudulent or unlawful purposes, and the shareholders are hiding behind the corporate veil to avoid or escape liability from the wrongful acts of the company—Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622 (FC); [2021] 4 CLJ 821; [2021] 4 MLRA 211; [2021] AMEJ 0415. [22] (The corporate veil is the veil that separates or distinguishes the company from its shareholders, for purposes such as liability for wrongs committed by the company. Put simply, the shareholders are not normally liable for the wrongs committed by the company.) Page 9 of 22 [23] Ours is not a factual circumstance that resembles that scenario at all. Our factual circumstances are that the Company sues Teo for certain torts. But in his Counterclaim, Teo counterclaims against his co-shareholders: Pamella and Yurisa for breaching the SHA. I do not see how the alter ago argument—to lift the corporate veil to hold Pamella and Yurisa liable for the acts of the Company—is pertinent or even relevant to the determination of Pamella’s and Yurisa’s applications for a section 10 AA 2005 stay. [24] I therefore do not find that the Company, taking the step to sue Teo for alleged tortious acts, constitutes Pamella and Yurisa taking a step in Teo’s Counterclaim proceeding. I also do not find that the Company, taking the step to sue Teo for the alleged tortious acts (which is not a dispute premised on the SHA), constitutes Pamella and Yurisa unequivocally subjecting themselves to the jurisdiction of the courts in Malaysia (in a dispute that is premised on the SHA). Second argument: the arbitration clause is inoperative because the issues in Teo’s Counterclaim do not fall within the ambit of the arbitration clause [25] Teo argues that his Counterclaim is not related to the SHA and hence the arbitration clause in the SHA does not apply to his Counterclaim. [26] First—an analysis of Teo’s “2nd Amended Defence And 2nd Amended Counterclaim” (Teo’s DACC) discloses that this argument is also insupportable. In paragraphs 91C to 91E of Teo’s DACC, he pleads that Pamella and Yurisa breached Clause 7 of the SHA. Clause 7 provides Page 10 of 22 that the shareholders of the Company will not engage in any business which is “similar to or competing with” the Company’s business. Teo asserts that Pamella and Yurisa breached Clause 7 because they are shareholders and directors of other companies that directly compete with the Company. Teo’s Counterclaim indeed arises from, or relates to, the SHA. [27] Second—in Teo’s DACC, he prays for the relief of a declaration that Pamella and Yurisa are in breach of the SHA. And he claims the remedy of damages for their breach. [28] Third—case law authorities guide me that when I am considering whether a dispute (here: the Counterclaim) falls under the arbitration clause (Clause 25.4 of the SHA), such that the parties are to refer it to arbitration instead of litigating it through court proceedings—I am to interpret the arbitration clause “widely”. I am to consider “the intention of the parties”. I am to consider the “commercial reality and the purpose for which” the SHA was made. And the “proper approach” is to give effect to the “commercial purpose of the arbitration clause”—Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (FC); [2016] 5 AMR 635; [2016] 9 CLJ 1; [2016] 5 MLRA 529; at paragraphs [91] to [93]. [29] Further, Clause 25.4 contains mandatory language. It provides that any dispute “arising out of or in connection with” the SHA “shall be referred to and finally resolved by arbitration in Singapore following the SIAC Rules”. Mandatory language such as this demonstrates that “arbitration is the exclusive dispute resolution of choice of the parties”. And where mandatory language such as this is used and agreed upon by the parties, this Court is duty-bound to hold that all the disputes under the Page 11 of 22 SHA are to be referred to arbitration (unless the SHA is null, void, inoperable or incapable of being performed—which Teo has failed to satisfy)—Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd and another appeal [2020] 3 MLJ 545 (FC); [2020] 2 AMR 387; [2020] 4 CLJ 301; [2020] 2 MLRA 264; at paragraphs [42] to [46]. [30] Applying these principles, I find that the arbitration clause: Clause 25.4, expressly provides that the Company’s shareholders have contracted among themselves, and intended to bring about the commercial reality that any dispute among them is to be referred to arbitration in Singapore; applying Singapore law; presided over by a single arbitrator; with Singapore as the seat of arbitration. Correspondingly, the dispute pleaded in Teo’s Counterclaim is a dispute under the SHA, hence indeed falling under the ambit of the arbitration clause in the SHA. Third argument: Clause 25.5 of the SHA allows for court proceedings concurrent to arbitration [31] Teo argues that Clause 25.5 means that the parties to the SHA can choose to pursue disputes in arbitration proceedings, or by court proceedings, or both. In other words, the arbitration clause as reflected by Clause 25.4 (which followed from Clauses 25.1 to 25.3)—despite its mandatory language—is not exclusive nor binding. [32] I also find this submission unfavourable. First—I am compelled to find that if the ultimate intention of the parties is captured only by Clause 25.5, there would have been no need to have Clauses 25.1 to 25.4, especially Clause 25.4 (the arbitration clause). In other words, if the effect of Clause 25.5 is meant to override the obligation under Clause 25.4 to refer any dispute to arbitration, it would have made no legal nor Page 12 of 22 commercial sense to provide for the intention and effect of Clause 25.4 (which is to refer any dispute relating to the SHA to arbitration, and not to the courts). [33] Second—I find that Clause 25.5 does not negate the effect of Clause 25.4. Clause 25.4 is primary. Clause 25.5 must be secondary. Put differently, I find that the paramount and overriding purpose of Clause 25 as a whole is to refer any dispute between the parties (the Company’s shareholders) to be determined by arbitration. [34] Put in yet another way, I find that whether or not Clause 25.5 provides for the parties to take concurrent court proceedings to an arbitration proceeding—the primary intention, and therefore the primary objective, of Clause 25 as a whole, is for the parties to refer any dispute relating to the SHA to arbitration. [35] And then section 10 of the AA 2005 applies to empower the courts to stay the court proceeding so that the dispute is referred to arbitration, to give effect to i.e. to honour what was agreed upon among the parties. [36] Third—the case law authorities on the construction of contracts guide and bind me. From the Federal Court case of Lucy Wong Nyuk King & Anor v Hwang Mee Hiong [2016] 3 MLJ 689 (FC); [2016] 3 AMR 101; [2016] 4 CLJ 813; [2016] 3 MLRA 367—I gleaned that—

a contract (here: the SHA) must be construed as a whole; Page 13 of 22

the construction of the terms of a contract (the SHA) must be done with an endeavour to bring the terms into harmony, each term with the other terms. [37] In Lucy Wong (supra), the Federal Court expounded as follows— [34] …as submitted by learned counsel for the plaintiff, the dispute between the two parties in substance revolved around the construction of a written contract and its clauses…the point which has a strong bearing on the matter is that it is an established principle of construing a contract that, among others, a contract must be construed as a whole, in order to ascertain the true meaning of its several clauses, and also, so far as practicable, to give effect to every part of it. Each clause in an ordinary commercial contract should be so interpreted as to bring them into harmony with the other clauses of the contract (see National Coal Board v Wm Neill & Son (St Helens) Ltd [1984] 1 All ER 555 which was cited in Royal Selangor Golf Club v Anglo-Oriental (M) Sdn Bhd [1990] 2 MLJ 163; [1990] 3 CLJ Rep 37 and Mulpha Pacific Sdn Bhd v Paramount Corp Bhd [2003] 4 MLJ 357). In Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99, it was held that the whole of the contract has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. [emphasis mine] [38] I note that Clause 14 of the SHA—the “Entire Agreement” clause— provides that the SHA, together with any documents referred to in the SHA or executed by the parties concerning the SHA, “embodies all the terms and conditions agreed upon” among the shareholders (Teo, Pamella, Yurisa and Rudy Halim), “as to the subject matter” of the SHA. Page 14 of 22 [39] One of the appendices to the SHA—Appendix C—is the Deed of Ratification and Accession (DORAA), which provides for the circumstances whenever a new shareholder is registered as a shareholder of the Company. As the DORAA (Appendix C) is part of the SHA, the terms in the DORAA also bind Teo, Pamella and Yurisa. [40] Paragraph 2 of the DORAA—with the heading “Ratification by New Shareholder”—provides that a new shareholder “accedes to and ratifies” the terms of the SHA, and agrees to be bound to the SHA as if she or he or it is a party to the SHA. [41] Paragraph 8.1 of the DORAA—with the heading “Governing Law and Jurisdiction” and the Note: “Applicable where any Party is not a Singapore party” (which makes it appropriately applicable, as Teo, who is Malaysian, is not a Singapore party)—provides that—

the DORAA “shall be governed by the laws of Singapore”;

“any dispute arising out of or in connection with [the DORAA], including any questions about its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore to the exclusion of the ordinary courts”, following the SIAC Rules; and

the “place of arbitration” is Singapore. [42] It is pertinent that this dispute resolution paragraph of the DORAA discloses the intention of the parties to the SHA (the shareholders)—that whenever a new shareholder is registered as a shareholder of the Page 15 of 22 Company, any dispute that may arise among them must be referred to arbitration in Singapore, and not to be litigated through court proceedings. [43] As such, construing Clause 25 as a whole, together with paragraph 8.1 in the DORAA (which also binds Teo, Pamella and Yurisa)—the interpretation of Clause 25.4 in a manner that makes it harmonious with the other clauses of the SHA, as well as harmonious with the spirit of the SHA, is that when there is a dispute among the shareholders of the Company relating to the SHA, the parties must go to arbitration to resolve the dispute. [44] Fourth—another Federal Court case—the case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 (FC); [2016] 1 CLJ 177; [2016] 1 MLRA 1; [2015] AMEJ 1795; particularly at paragraphs [51] to [54]—instructs me and binds me with the following principles—

In interpreting the terms of a contract, the courts “must approach it holistically”; no term is to be interpreted “in isolation”; the contract is to be “read as a whole, in order to ascertain the true meaning” of the terms; the interpretation of the terms should be done so as to “bring them into harmony with the other provisions”; and

In “complex documents”, there are “bound to be ambiguities, infelicities and inconsistencies”, and the courts must be careful not to perform “an overliteral interpretation” of a term, “without regard to the whole” contract; the court must avoid an Page 16 of 22 interpretation that “may distort or frustrate the commercial purpose”. [45] Applying these principles of holistic and harmonious interpretation to Clause 25 as a whole, I am of the view that Clause 25.4 is the arbitration clause, and Clause 25.5 is the court’s jurisdiction clause. Clause 25.4 is the arbitration clause which binds the parties to the SHA to refer any dispute that arises from the SHA to refer the dispute to arbitration instead of litigating it through court proceedings. Clause 25.5, on the other hand, is the court’s jurisdiction clause which sets out that even though a dispute under the SHA has to be referred to arbitration, the court retains its jurisdiction over the dispute under certain circumstances. These circumstances include the instances when the parties need to resort to obtaining a Court Order to complement or supplement the arbitration proceeding, or to enforce, or conversely, to challenge (to set aside), the arbitration award. [46] In this context, the perfect example of the need for the court to retain its jurisdiction over a dispute which must be referred to arbitration, such that a Court Order can be made to complement or supplement the arbitration proceeding—is the need for a party to apply for a section 10 AA 2005 stay of the court proceeding so that the dispute can be referred to arbitration—which are the very applications Pamella and Yurisa are now making before me. [47] The point is this—the arbitration clause and the court’s jurisdiction clause can be interpreted to exist harmoniously. The court’s jurisdiction clause complements or supplements the arbitration clause. The court’s jurisdiction clause does not diminish nor derogate the arbitration clause. Page 17 of 22 In other words, the court’s jurisdiction is not ousted, nor extinguished, by the arbitration clause—CLLS Power System Sdn Bhd v Sara Timur Sdn Bhd [2015] 11 MLJ 485 (HC); [2015] AMEJ 560; [2015] CLJU 149; [2015] MLRHU 25; at paragraph [9]. [48] This view also finds support in—

the Court Of Appeal case law authority of R. Kathiravelu a/l Ramasamy v American Home Assurance Co Malaysia [2009] 1 MLJ 572 (CA); [2009] 4 AMR 719; [2009] 1 CLJ 708; [2008] 2 MLRA 758; particularly at paragraphs [3], [4], [7] and [8]; and

the High Court case law authority of Hamidah Fazilah Sdn Bhd v Universiti Tun Hussein Onn Malaysia (UTHM) [2017] 7 MLJ 274 (HC); [2016] AMEJ 2208; [2016] CLJU 1170; [2016] MLRHU 1244; particularly at paragraphs [35], [50], [53] and [54]. Fourth argument: it is not mandatory to refer the dispute to arbitration when the pre-arbitration steps are not complied with [49] Teo argues that there are two pre-arbitration steps that the parties must first take before a dispute under the SHA can be referred to arbitration. The two pre-arbitration steps are negotiation to amicably settle the dispute (Clause 25.2), and mediation (Clause 25.3). Teo argues that these two pre-arbitration steps are prerequisites that must first be adhered to, before arbitration can take place. Page 18 of 22 [50] I am of the view, however, that this argument is not cogent. There is case law authority that propounded that “the non-fulfilment” of the conditions precedent before the commencement of arbitration “is not an impediment” to the grant of a section 10 AA 2005 stay—Tenaga Nasional Berhad v Sinohydro Corporation Limited and Anor [2020] AMEJ 1931 (HC); [2020] CLJU 2014; [2020] MLRHU 1738; at paragraphs [26] to [29]. [51] In other words, it may be mandatory to grant a section 10 AA 2005 stay and refer any dispute under the SHA to arbitration. But it is not mandatory for the prescribed pre-arbitration steps to be fulfilled before a section 10 AA 2005 stay is granted. Fifth argument: the Company is a party to the Counterclaim, but it is not a party to the SHA, and as such the arbitration clause is inoperative [52] Teo named the Company as the 1st Defendant in the Counterclaim. Teo made the Company a party to his Counterclaim. Teo argues, however, that the Company is not a party to the SHA, and therefore did not agree to the arbitration clause: Clause 25.4. Teo argues that this court should not allow the section 10 stay: to refer Teo’s Counterclaim against Pamella and Yurisa to arbitration, while retaining Teo’s Counterclaim against the Company to be determined through court proceedings. In other words, this Court should not allow what Teo calls a “split litigation”. [53] I find this argument untenable as well. First—I note that the SHA is made between the shareholders (which includes Teo) and the Company. The Company is therefore a party to the SHA. The Company too agreed to the arbitration clause. This fact alone puts paid to Teo’s argument. Page 19 of 22 [54] Second—Teo’s argument relies on the High Court case law authority of Khong Yoon Loong & Ors v Asia Plantation Capital Pte Ltd & Ors [2023] MLJU 2564 (HC); [2023] AMEJ 2336; [2023] CLJU 2322; [2023] MLRHU 1863. [55] In Khong Yoon Loong (supra), the 162 plaintiffs there sued the 25 defendants for fraud, breach of trust, conspiracy to injure by unlawful means, and unjust enrichment. Several defendants applied, under section 10 of the AA 2005, to stay the court proceeding on the ground that there are arbitration clauses in the relevant agreements between them and some of the plaintiffs. The High Court dismissed the stay applications i.e. refused a stay of the court proceeding, because a stay of the court proceeding against some of the plaintiffs, but not all the plaintiffs, would cause a split litigation between the parties. [56] I appreciate the reasoning of the High Court in Khong Yoon Loong (supra), but I am of the view that Khong Yoon Loong (supra) does not assist Teo in opposing Pamella’s and Yurisa’s stay applications here. Firstly, in Khong Yoon Loong (supra), not all the plaintiffs were parties to an arbitration agreement (an arbitration clause in the relevant agreements) between them and the relevant defendants who made the stay applications. If a stay of the court proceeding were to be granted against only some of the plaintiffs, it would indeed cause the circumstance where the court proceeding will still proceed on the remaining plaintiffs’ claims, thus causing a split litigation on the same overall dispute. CONCLUSION [57] For these reasons, I am compelled to find that the shareholders, namely Teo, Pamella, Yurisa and Rudy Halim, had agreed that if there is Page 20 of 22 a dispute among them that relates to the SHA, they are bound to refer the dispute to arbitration. If one of the parties files a suit in court on a dispute that arises from or relates to the SHA—just as Teo has done here by his Counterclaim in this suit—section 10 of the AA 2005 should be mandatorily applied to stay the court proceeding, so that the dispute can be referred to arbitration. [58] I therefore allow Pamella’s (2nd Defendant in the Counterclaim) and Yurisa’s (3rd Defendant in the Counterclaim) applications to stay Teo’s (Plaintiff in the Counterclaim) Counterclaim against them, and order that these parties, and the dispute under the Counterclaim, be referred to arbitration in Singapore according to the SIAC Rules. I further order costs of RM7K each to be paid by Teo (Plaintiff in the Counterclaim) to Pamella (2nd Defendant in the Counterclaim) and Yurisa (3rd Defendant in the Counterclaim) by 26.7.2024. Costs are subject to the allocatur. Dated: 9 September 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Plaintiff (and 1st Defendant in the Counterclaim) – Hazel Siau and Evelyn Ng [Messrs. Elizabeth Lau (Kuala Lumpur)] Page 21 of 22 For the 1st & 6th Defendants (and Plaintiff in the Counterclaim) – Nicholas Tan, Lee Fei Wen, Phoebe Ooi [Messrs. Lim Huck Aik & Co. (Pulau Pinang)] For the 2nd - 5th Defendants, and 7th – 10th Defendants – David Tan [Messrs. Presgrave & Matthews (Pulau Pinang)] For the 2nd Defendant in the Counterclaim – Conrad Young, Owee Chia Ming, Lee Shoue Jie [Messrs. Owee & Co (Kuala Lumpur)] For the 3rd Defendant in the Counterclaim – Anita Sockalingam, Raneesha Thayalan, Pang Yi Qing [Messrs. Zain & Co (Kuala Lumpur)] Legislation referred to:

Section 10 of the Arbitration Act 2005. Cases referred to:

Airbus Helicopters Malaysia Sdn Bhd (formerly known as Eurocopter Malaysia Sdn Bhd) v Aerial Power Lines Sdn Bhd [2024] 2 MLJ 471 (CA); [2024] 3 AMR 125; [2024] 4 CLJ 243; [2024] 3 MLRA 152.

Maybank Trustees Berhad v AmTrustee Bhd & Ors [2020] 4 MLJ 405 (CA); [2019] CLJU 1454; [2019] MLRAU 310.

CGU Insurance v Asean Security Paper Mills [2006] 3 MLJ 1 (CA); [2006] 2 AMR 641; [2006] 2 CLJ 409; [2006] 1 MLRA 420.

Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 (FC); [2007] 2 AMR 329; [2007] 2 CLJ 1; [2007] 1 MLRA

12.

Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622 (FC); [2021] 4 CLJ 821; [2021] 4 MLRA 211; [2021] AMEJ 0415.

Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 (FC); [2016] 5 AMR 635; [2016] 9 CLJ 1; [2016] 5 MLRA 529.

Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd and another appeal [2020] 3 MLJ 545 (FC); [2020] 2 AMR 387; [2020] 4 CLJ 301; [2020]

Lucy Wong Nyuk King & Anor v Hwang Mee Hiong [2016] 3 MLJ 689 (FC); [2016] 3 AMR 101; [2016] 4 CLJ 813; [2016] 3 MLRA 367.

SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 (FC); [2016] 1 CLJ 177; [2016] 1 MLRA 1; [2015] AMEJ

1795.

CLLS Power System Sdn Bhd v Sara Timur Sdn Bhd [2015] 11 MLJ 485 (HC); [2015] AMEJ 560; [2015] CLJU 149; [2015] MLRHU 25.

R. Kathiravelu a/l Ramasamy v American Home Assurance Co Malaysia [2009] 1 MLJ 572 (CA); [2009] 4 AMR 719; [2009] 1 CLJ 708; [2008] 2 MLRA 758.

Hamidah Fazilah Sdn Bhd v Universiti Tun Hussein Onn Malaysia (UTHM) [2017] 7 MLJ 274 (HC); [2016] AMEJ 2208; [2016] CLJU 1170; [2016] MLRHU 1244.

Tenaga Nasional Berhad v Sinohydro Corporation Limited and Anor [2020] AMEJ 1931 (HC); [2020] CLJU 2014; [2020] MLRHU 1738.

Khong Yoon Loong & Ors v Asia Plantation Capital Pte Ltd & Ors [2023] MLJU 2564 (HC); [2023] AMEJ 2336; [2023] CLJU 2322; [2023] MLRHU 1863.