Chang Kian Chiang v Long Kee Piling Works Sdn Bhd (JA-24NCC-29-11/2023)

A declaration that the financial statement dated 31.12.2021 (and subsequent years) to be rectified to reflect a sum of RM 2,980, 649.00 being owing to P’s directors;

A declaration that the rectified financial statement dated 31.12.2021 to be handed by D to the Companies Commission of Malaysia with any fee or penalty where applicable to be borne by D;

A sum of RM 816,237.65 to be paid forthwith by D to P;

Interest on the judgment sum at 5% per annum from 26.10.2021 till the date of this court’s order;

Interest on RM 816,237.65 at 5% per annum from the date of this court’s order till full and final settlement;

Costs; and

Other reliefs deemed appropriate by this court. [2] For the sake of convenience, the followings are the relevant cause papers filed and referred to before this Court: -

OS dated 14.11.2023 (Lampiran 1);

P’s Affidavit in support affirmed on 10.11.2023;

D’s Affidavit in reply affirmed by Tan Lee Ching on 28.12.2023;

D’s Affidavit in reply affirmed by Lim Muang Eng on 28.12.2023;

P’s Affidavit in reply affirmed on 19.01.2024; and

P’s Affidavit in reply affirmed on 19.01.2024. [3] D opposed the OS on various grounds which would be analyzed in detail in the course of this judgment. [4] Essentially, D contended that P had abused the court’s process in filing the OS and that a plea of Res Judicata ought to be applied as another ground to dismiss P’s OS. Other contentions were that the various reliefs claimed for are not only baseless but unsupported by evidence in any event. Salient facts [5] D was incorporated somewhere in 1981. [6] In or around December 1995, P was appointed as a director of D and was also allocated with some shares in D. [7] In the various affidavits filed by the parties before this Court, it is shown that during the early years of D’s existence, D was managed by one Tan Pek Chu (“TPC”). TPC also happened to be D’s founder and director who has since deceased on 27.06.2023. [8] When TPC started suffering from series of ill health, P was appointed as D’s managing director since 08.09.2006. [9] D has alleged and P has denied the allegations made concerning misuse of power by P contrary to D’s interest. D had also maintained that as a result of these mismanagement issues, D suffered from significant financial restrained which negatively impacted D’s operations as a business entity. [10] By way of an Extraordinary General Meeting dated 22.10.2021, P was removed as D’s managing director. [11] Subsequent to his removal, P demanded D to repay him a sum of RM816,237.65 (“the said sum”). Meanwhile, D’s board of directors had written off the said sum after having conducted a review assisted by auditors. D’s position in so far as the write off is concerned was that not only was the said sum is unusual but also bereft of any supporting documents for it to be justified. [12] P had then commenced an originating summons before the Johor Bahru High Court (JA-24NCC-21-10/2021) (“OS 21”) which upon this court’s perusal is a minority oppression suit which the High Court had dismissed on 09.08.2022. This significance of the OS 21 to the present OS will be further discussed below under Res Judicata. [13] P had then commenced the present OS on 14.11.2023. Whether the present OS is an abuse of court’s process [14] This is one of the core issues raised by D before this Court. It is premised on P’s misapprehension of the law or more specifically the provisions of the Companies Act 2016 (“CA 2016”). [15] According to Osborn's Concise Law Dictionary (7th edition) the words "abuse of process" means: “Abuse of legal procedure. A frivolous or vexatious action as eg, setting up a case which has already been decided by a competent court (see Stephenson v. Garnett [1891] 1 QB 677, and Hunter v. Chief Constable of W. Midlands [1981] 3 All ER 727, HL).” [16] It is to be noted that the categories of abuse of process may be varied and numerous. Refer to Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 (Court of Appeal) pages 645-646: - "Since the circumstances in which the court's process may be abused are varied and numerous, the categories of such cases are therefore not closed. Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances.". [17] A perusal of the intitulement of the present OS shows that P was moving this court under Sections 245 and 602 CA 2016. The OS was then predicated on Order 28 and Order 88 Rules of Court 2012 (“ROC 2012”). [18] Section 245 CA 2016 states: - “(1) A company, the directors and managers of a company shall-

cause to be kept the accounting and other records to sufficiently explain the transactions and financial position of the company and enable true and fair profit and loss accounts and balance sheets and any documents required to be attached thereto to be prepared; and

cause the accounting and other records to be kept in a manner as to enable the accounting and other records to be conveniently and properly audited.

A company, the directors and managers of a company shall cause appropriate entries to be made in the accounting and other records within sixty days of the completion of the transactions to which the entries relate.

The company shall retain the records referred to in subsection

for seven years after the completion of the transactions or operations to which the entries relate.

The records referred to in subsection (1) shall be kept at the registered office of the company or at such other place as the directors think fit, and shall at all times be open for inspection by the directors.

Notwithstanding subsection (4), the accounting and other records of operations outside Malaysia may be kept by the company at a place outside Malaysia provided that such accounting and other records shall be sent to and kept at a place in Malaysia and be made available for inspection by the directors at all times.

The accounting and other records referred to in subsection (5) shall include such statements and returns with respect to the business dealt with in the records so kept as to enable the preparation of true and fair financial statements and any documents required to be attached to the financial statements.

If any accounting and other records are kept at a place outside Malaysia under subsection (4) or (5), the Registrar may require the company to produce those records at a place in Malaysia or determine the type and manner of the records to be kept in Malaysia.

The Court may, in any particular case, order that the accounting and other records of a company be open to inspection by an approved company auditor acting for a director, subject to a written undertaking given to the Court that information acquired by the auditor during his inspection shall not be disclosed by him except to that director.

The company and every officer who contravene this section commit an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.”. [19] Section 602 CA 2016 meanwhile states: - “(1) A person may apply to the Registrar for the rectification of a register if an entry in the register-

contains any matter contrary to law;

contains any matter that, in a material particular, is false or misleading in the form or context in which the matter is included;

by reason of an omission or misdescription has not been duly completed; or

is incorrect or erroneous.

Upon receipt of the application under subsection (1), in order for the Registrar to decide whether to approve or refuse the application, the Registrar may-

require the applicant to produce any document or to furnish any information as the Registrar thinks necessary in order for the Registrar to rectify the entry; or

require the applicant to give notice of that application to such other person as the Registrar may specify, being a person who appears to the Registrar to be concerned or to have an interest in the business.

Notwithstanding subsection (1), the Registrar may refuse any application if the error, mistake or omission does not arise in the ordinary course of the discharge of the duties of the Registrar.

Any person aggrieved with the decision of the Registrar under this section may appeal to the Court.

Any order made by the Court shall be lodged with the Registrar and where the Court makes an order of rectification, the Registrar shall rectify the register accordingly on receipt of the order.

The Registrar may, without an application being made under subsection (1), rectify the register if, in his view, an entry-

contains any matter contrary to law;

contains any matter that, in a material particular, is false or misleading in the form or context in which the matter is included;

by reason of an omission or misdescription has not been duly completed; or

is incorrect or erroneous.”. [20] Order 28 ROC 2012 governs Originating Summons Procedure while Order 88 ROC 2012 governs proceedings under the Companies Act 1965 (and mutatis mutandis its successor act being the Companies Act 2016) whereby proceedings are again to be made by way of Originating Summons. [21] A perusal of Section 602 CA 2016 would mean that a person like P may apply to the Registrar (being the Companies Commission of Malaysia) for a rectification of D’s register on any of the grounds mentioned under the said provision (4 altogether). [22] Ultimately, the discretion lies with the Registrar whether to allow or disallow P’s application and should the Registrar refuse to accede to P’s application, P may appeal to the Court against the said refusal under s.602(4). [23] The above is the simple language of Section 602 CA 2016. Hence, this Court must give effect to it in that the power to rectify the register is with the Registrar and this Court will only exercise its appellate jurisdiction if the registrar refuses to accede to P’s application. Refer to Sadananda Pyne v Harinam Sha AIR 1950 179 (Calcutta High Court): - “Courts must resist the temptation to change the law under cover of interpretation of law. If they use their power to interpret law, to alter laws which they may not like, and to make new laws which they think should be made, that would be a corrupt use of their power.”. [24] Thus, it is readily apparent that Section 602 CA 2016 does not confer jurisdiction to this Court to hear P and allow P’s application as per the present OS. Refer to Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 1 CLJ 511 (Supreme Court): - “... The court is not at liberty to treat words in a statute as mere tautology or surplusage unless they are wholly meaningless. On the presumption that Parliament does nothing in vain, the court must endeavor to give significance to every word of an enactment, and it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded...”. [25] In light of the above, this Court finds that Section 602 CA 2016 is not applicable to support P’s present OS. Accordingly, any reliance by P on Order 88 ROC 2012 to commence the present is also a wrongful one. Refer to Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] 28 CLR 129: - “The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense it is our duty to obey that meaning even if we think the result to be inconvenient, impolite or improbable.”. [26] Further, if one is to look at the meaning of jurisdiction which often relate to power, KJ Aiyer’s Judicial Dictionary (13th edition) stated that: - “(i) The authority or power of a court to entertain and decide on any judicial proceeding;

(ii) The area over which the power of the court extends. Authority which a court has to decide a matter litigated before it or to take cognisance of a matter presented in a formal way for its decision. (Panthalakhmammal v. Puthalath AIR [1967] Ker 97). Before a court can be held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has come within jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. (Official Trustee, WB v. SachindraAIR [1969] SC 823 at 828, [1969] 2 SCJ 123, [1969] 1 SCA 691, [1969] 2 SCWR 182).”. [27] Refer also to Garthwaite v Garthwaite [1964] 2 WLR 1108 (Court of Appeal) pages 1120-1121: - “The High Court is the creation of statute, and its jurisdiction is statutory. As was pointed out by Pickford LJ in Guaranty Trust Company of New York v. Hannay & Co ([1915] 2 KB 536, 562), the expression 'jurisdiction' of a court may be used in two different senses, a strict sense (which he regarded as the only correct one) and a wider sense.... In its narrow and strict sense, the 'jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its 'jurisdiction' (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has 'jurisdiction' (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances. This distinction between the strict and the wider meaning of the expression 'jurisdiction' was of little importance in the case of the superior courts so long as they did not owe their origin to statute, for there was no need to distinguish between non-existence of a power and settled practice not to exercise an existing power. In the case, however, of courts created by statute, as the Supreme Court of Judicature, comprising the High Court and the Court of Appeal, has been since 1873, the court has no power to enlarge its jurisdiction in the strict sense but has power to alter its practice proprio motuwithin the limits which it imposes on itself by the doctrine of precedent, subject, however, to any statutory rules regulating and prescribing its practice and procedure made pursuant to any rule-making power contained in the statute [28] It is trite that a wrong intitulement in the OS is bad in law. Refer to Malayan Banking Berhad v Chairman Sarawak Housing Developer’s Association [2014] 6 CLJ 409 (Federal Court): - “[29] Generally speaking, the issue before us, which is a point of practice and procedure and no stranger to courts, and have been consistently affirmed by courts that an intitulement that is wrong at the outset or there is uncertainty as to the type of suit, entitles the court to strike it out (see Abdul Rahim Aki v. Krubong Industrial Park (Melaka) Sdn Bhd & Ors [1995] 4 CLJ 551; [1995] 3 MLJ 417; Score Option Sdn Bhd & Anor v. Duar Tuan Kiat & Ors [2012] CLJU 812; [2012] 1 LNS 812; [2013] 5 MLJ 716; Cheow Chew Khoon v. Abdul Johari Abdul Rahman [1995] 4 CLJ 127; [1995] 1 MLJ 457)." (emphasis added) [29] On this, reference may be made to Order 7 Rule 2 (1) (A) ROC 2012 which states: - “2. Forms of originating summons (O. 7 r. 2)

Every originating summons shall be in Form 5 or 6 whichever is appropriate.

Every originating summons shall state in its intitulement any provision of these Rules and any provision of any written law under which the Court is being moved.

The party taking out an originating summons, other than an ex parteoriginating summons, shall be described as a plaintiff, and the other parties shall be described as defendants.

The party taking out an ex parte originating summons shall be described as the applicant.”. [30] Since the operating words in Order 7 Rule 2 (1)(A) ROC 2012 being “shall”, it is mandatory for P in the present OS to describe the correct provision of the law on which he is moving this Court to act. Refer to Malayan Banking Bhd v Koay Kang Chuwan & Anor [2010] 6 CLJ 172 (Court of Appeal): - "[24] Simply put, a failure to comply with the requirement of the rules would be treated as an irregularity and is curable. But the court has no power to remedy an irregularity which is fundamentally defective. Thus, the failure to include an intitulement of the rule of court or statute under which the court is moved cannot be remedied (Kanciltek (M) Sdn Bhd v. Mayban Finance Bhd (No 1) [2001] 6 CLJ 254; [2000] 4 AMR 4960, at p. 4969)". [31] Jurisdiction also being statutory in nature, in the absence of statutory provisions to that effect, this Court is unable to accede to P’s prayers for relief as in the present OS. [32] Next, there is also a need to consider whether P’s wrong intitulement in the present OS could be cured by relying on Order 92 Rule 4 ROC 2012 which reads as follows: - “For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”. [33] Upon reading the aforesaid provision, this Court is unable to invoke Order 92 Rule 4 ROC 2012 since there is a clear contravention of written law on P’s part. Refer to Cotton Corporation of India Ltd v United Industrial Bank Ltd AIR [1983] SC 1272 (Indian Supreme Court) page 1281: - "... it must be conceded that the court can in appropriate cases grant temporary injunction in exercise of its inherent power in cases not covered by Order 39 [Code of Civil Procedure]. But while exercising this inherent power, the court should not overlook the statutory provision which clearly indicates that injunction to restrain initiation of proceeding cannot be granted. Section 41(b) is one such provision. And it must be remembered that inherent power of the court cannot be invoked to nullify or stultify a statutory provision.”. [34] Refer also to Seema Development Sdn Bhd v Mah Kim Chye & Anor [1998] 1 CLJ 174 (High Court): - “As I see it, the relief available to the plaintiff, is provided for under O. 45 RHC. Suffice to say that these applications would be superfluous if the plaintiff had resorted to and succeeded in enforcing its judgment under the said Order. It has not been shown that the plaintiff had attempted to enforce its judgment via any of the modes provided in that Order. In the circumstances, it is my finding that this court is precluded from granting this injunction. The court cannot exercise its inherent power to nullify or stulify a statutory provision.”. [35] Finally, whether Order 1A ROC 2012 could come to the assistance of P? Order 1A ROC 2012 reads: - “In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.”. [36] The answer must be in the negative. In this regard, reference is made to DYMM Tunku Ibrahim Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah b Mohd Noor (And Another Appeal) [2009] 4 CLJ 329 (Federal Court): - "As I had mentioned in court, if Order 1A is sought to be invoked whenever a party fails to comply with any provision of the rules, then the whole of the Rules of the High Court 1980 would be rendered useless. For example, can failure to enter appearance or file defence within the specified period be considered as an irregularity? Of course it cannot be. A party who is late in filing the relevant papers must obtain an order from the court to extend the time, if such extension is required and is permitted by the Rules". [37] Further, it is also not the duty of this Court to find and discover the provision benefiting P in the first place. Bearing in mind that this issue was raised by D as its defence since the beginning. It is not a new issue altogether. [38] At this juncture, this Court pauses to note that P could have taken the option of withdrawing the present OS with an option to file afresh but choose not to do so for reasons best known to him. Any such withdrawal could not have been caught by limitation period. [39] This indolence on P’s part could also be construed as P choosing to sit and sleep on his rights. Based on the equitable maxim that the court does not assist the indolent, this Court finds that such indolence is another form of an abuse of court process on the part of P. Refer to Eagaivallinayagi Ammal v Chin Min Hua & Ors [2020] 4 CLJ 64 (Court of Appeal): - "[21] Again, the doctrine of laches is relevant here. The doctrine acts to deny a claimant who sits on his right. A delay in itself may not necessarily be fatal. It is an unexplained delay that the court shuns upon. It causes prejudice against the defendant, especially in the preparation of his plausible defence. Indeed in this case, the solicitor for the defendant was not able to show documentary proof of a certain document because under the Bar Council Rules 18.01 a solicitor is required only to keep records of transaction for a period of up to 12 years from the date of the said transaction. The delay had caused prejudice to the defendant's cause. He had been disadvantaged by the plaintiffs' undue delay initiating their purported claim against him for specific performance. The rationale behind this principle is that it recognises that an adversary can lose evidence, witnesses, and a fair chance to defend himself after the inevitable passage of time from the date that the alleged wrong or breach was committed. Equity does not lend her hand to assist an indolent litigant. While equity assists the vigilant, definitely she does not assist those who slumber on their rights. [22] We were in agreement with the defendant that the plaintiffs were such litigants. Hence the maxim, 'equity will not grant relief from a self-created hardship' applies against the plaintiffs. Whether P is entitled to the declaratory reliefs prayed for in the OS [40] Paragraph (a) of the present OS seeks for the financial statement of D to include a sum of RM 2,980,649.00 as being owing to directors. Hence, it should be noted that the sums owing not only concern P but also TPC, Tang Cheah Wee and Tan Boon Keong who all happen to be former directors of D. [41] To begin with, reference may be made to Section 41 Specific Relief Act 1950 which states: - “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.” [42] Section 42 Specific Relief Act 1950 states: - “A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, those parties would be trustees.” [43] The above provisions were once again not cited in the intitulement of the present OS. For similar reasons mentioned above, this is bad in law and fatal to P’s application before this Court. [44] Bearing the said fatality in mind and the attempt by P to relitigate matters already disposed in the OS 21 had placed this Court in a very awkward position more so when it involved declaratory order. Refer to Diesel S.p.A v Bontton Sdn Bhd [2021] 2 CLJ 65 (Court of Appeal): - “Another crucial factor to bear in mind when considering whether to exercise discretion is not to confuse the absence of express provision for a declaratory relief in any particular terms as amounting to no power or worse, no jurisdiction to grant such relief. Unless there is clear express provision that certain recourse or even remedies are not available, or there is evidence of abuse of court process, the courts should always be slow to deny a particular remedy simply on the basis that there is another alternative course of action or procedure available; or there is no express remedy provided. And, it was in the readiness to exclude the court's jurisdiction and power under the TMA 1976 that we find ourselves unable to agree with the High Court.” (emphasis added) [45] Refer also to Sakapp Commodities (M) Sdn Bhd v Cecil Abraham [1998] 4 CLJ 812 (Court of Appeal): - "It is beyond dispute that the remedy of declaration is discretionary in nature. Section 41 of the Specific Relief Act 1950 reads as follows: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein adeclaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief:.....Although s. 41 is not a complete code upon the subject of declaratory decrees (A-G of Hong Kong v. Zauyah Wan Chik [1995] 3 CLJ 35 (refd) [1995] 2 MLJ 620)... yet, the remedy of declaration may be refused upon settled principles. Thus, generally speaking, the court will not grant a declaratory judgment where an adequate alternative remedy is available (Manggai v. Government of Sarawak [1970] 1 LNS 80 [1970] 2 MLJ 41)... where a plaintiff is guilty of laches (Faber Merlin (M) Sdn Bhd v. Lye Thai Sang [1985] 2 CLJ 423 (refd) [1985] 2 MLJ 380) or other inequitable conduct (City of London v Horner [1914] 111 LT 512)... We merely seek to demonstrate the wide variety of circumstances in which declaratory relief may be denied in the exercise of discretion." [46] Furthermore, it has also been decided above that the court has no jurisdiction to confer the remedy of rectification as sought by P in prayer (a) in the OS. Refer Mark Sia Eng Joo v Ong Wei Wei & Anor; Sia Say Yee & Ors (Intervener) [2020] 1 LNS 122 (High Court): - “I agree with the arguments of the interveners that this court does not have the jurisdiction under the LRA in the circumstances of the present case to grant the interveners the declarations they seek pursuant to section 41 of the Specific Relief Act 1950 as firstly, it is a civil matter that do not pertain to the matrimonial proceeding before the court and it is intended to establish a third party ownership right over assets not yet determined as matrimonial assets in this court, and secondly, in such circumstances, it is a civil proceeding within the domain of the Civil Court as opposed to a matrimonial matter before the Family Court.”. [47] Another pertinent issue is that section 42 of the Specific Reliefs Act 1950 only binds parties to the present OS which means either P or D. Apart from P, other former directors as identified earlier were neither parties in the present OS. Refer to Majumder v Attorney General of Sarawak [1967] 1 MLJ 101 (Privy Council): - “A declaration in the terms sought would therefore not advance the appellant's case. There is a further objection to the granting of this declaration that, in the terms of cl 1, a "designated officer" means an officer designated as such by the Secretary of State. The Secretary of State is not a party to these proceedings and moreover it is entirely within his discretion as to whether he designates an officer as such or not. He would not be compelled to do so. Their Lordships therefore conclude that the Federal Court were right in dismissing the appellant's appeal on this declaration.”. [48] Refer also to K Ramalingam Krishnamoorthy & Ors v Subramaniam Sathasivam & Ors [2017] 8 MLJ 36 (High Court): - “As provided in s. 42 of the Specific Relief Act 1950, a declaration made under that Chapter is binding only on the parties to the suit. In my opinion, the process of this Court should not be abused by the Plaintiffs to obtain declarations on the MIC when the Plaintiffs now have nothing to do with the said party.”. [49] Thus, should such declaratory relief be granted, not only would it be in contravention of Section 42 Specific Reliefs Act 1950 but it would also be against the rules of natural justice where the former directors not named in the present OS or their legally appointed representatives (in the case of TPC who has since deceased) will be denied of their right to be heard before this Court. Refer to Macfoy v United Africa Co. Ltd [1961] ALL ER 1169 (Privy Council) page 1172: - "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.". [50] Refer also to Toh Seow Ngan & Ors v Toh Seak Eng & Ors [1990] 1 CLJ REP 286 (Supreme Court): - “It should be emphasised that the principle stated by Lord Penzance in Wytcherley v. Andrews and applied in Abuakwa v. Adanse, relating to estoppel by conduct as a special exception to the cardinal rule of natural justice that a party must be given an opportunity to be heard before he is adversely affected, is founded on justice and common sense. It should therefore never be applied except in the cause of justice and in a clear situation where a person in the same interest had the opportunity to be a party or to intervene but failed to do so. It is certainly inapplicable where an aggrieved party is entitled to a remedy ex debito justitiae. In our view the defects in the present consent order are such that the appellants are entitled to have it set aside ex debito justitiae as far as it affected them. There is no denial that in breach of the rules of natural justice, the High Court had no jurisdiction to make the consent order affecting the rights of the appellants. In our view, if the learned Judge had directed his mind on the proper exercise of the inherent jurisdiction of the Court he would have exercised it in favour of the appellants and he would have ordered the consent order as far as it affected their shares in the company to be discharged.”. [51] Thus, on the above basis, this court dismiss the declaratory reliefs prayed for in paragraph (a) and (b) of the present OS. Whether Res Judicata applies against P [52] On the issue of Res Judicata, refer to Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] 2 MLJ 133 (Federal Court): - “[43] So, even if res judicata is not applicable to bar Encl 1, it still cannot stand if it is found to be an abuse of the process. The question is it an abuse of the process? [44] This brings into focus again the approach on the determination of an abuse of the process distilled from the speech by Lord Bingham in Johnson, which we apply. The approach should be:

broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. [45] The 'merits' in the phrase 'broad merits-based judgment' were not the substantive merits or otherwise of the actual claim, but those relevant to the question whether the claimant could or should have brought his claim as part of the earlier proceeding (see Stuart v. Goldberg Linde (a firm) and others[2008] 1 WLR 823 at p 840, per Lloyd LJ). [46] We should also bear in mind that: one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”. [53] As could be seen above, this court while narrating the facts of the present OS also had highlighted OS 21. The reason for doing so is because the prayer for the sum of RM 816,237.65-prayer (c) was also raised in OS 21. [54] On this issue, it is noted that the High Court had dismissed P’s claim for the said sum in OS 21 for two reasons. Firstly, the said sum is a claim falling outside the scope of minority oppression under Section 346 CA 2016 and secondly there was an absence of supporting evidence to fortify the claim. According to the High Court in OS 21: - “[27] On the allegation that Defendants failed to pay the Plaintiff's outstanding debts of RM816,237.65 as a director, I find that this prayer is outside the scope of s. 346 of the CA as it relates to the Plaintiff's monetary claim as a director and not in his capacity as a shareholder. [28] The issue of invoking s. 181 of the Companies Act 1965 (which is similar to s. 346 of the CA ) as to force the company to pay the director's debt was ventilated in Soh Jiun Jen (supra) where the Court of Appeal held that - [34] Section 181 does not provide any assistance to the appellant to exert pressure on the 1strespondent company to pay him the director's fees. Section 181 is not meant to be used as 'debt collection facility' by a director against the company. If at all the said amount is due to the appellant as director's fees, the appellant may file a civil claim against the 1st respondent, but surely not by way of a petition under s. 181. [29] Furthermore, I find that the debt certificate produced was signed by the Plaintiff himself without any supporting evidence.”. [55] It is also to be noted that the OS 21 is now a subject matter of appeal before the Court of Appeal [J-02(NCC)(A)-1065-06/2022]. [56] Hence, prayer (c) in the present OS is caught by the doctrine of Res Judicata since it has been decided already in the OS 21 by the High Court. To allow it to be re-litigated in the present OS would be in essence permitting P to have a second bite of the cherry. [57] Refer to Normah Bt Awang Had (Suing as the administrators/ executors of the estate of Tan Sri Dato’ Dr. Awang Had bin Salleh, deceased) & Ors v Dato’ Dr Hj Mohamed Haniffa Bin Hj Abdullah [2016] 5 MLJ 754 (Court of Appeal): - "[23] The rule relating to an abuse of process is thus two fold. The first relates to those points wh'ch were actually decided by the court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second sense is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions; it being in the public interest that there should be an end to litigation; the court will stay or strike out the subsequent action as an abuse of process (per Lord Wilberforce in Brisbane City Council vA-G for Queensland [1979] AC 411).". [58] This court is mindful that it must achieve a balance between P’s right to have access to the courts and D’s right to avoid a party to a litigation seeking to escape from any ruling or previous findings made. Refer to McCauley v McDermott 1 ILRM 486 (High Court) page 498:- “In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgment to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled again by a law suit which has already been decided.". [59] However, this Court is of the firm view that there would be no finality to litigation should P be allowed to ventilate his claim for the said sum in the present OS. Further, it would also appear that P is prosecuting his claim on installments, hence duplicity of proceedings here between OS 21 and the present OS. The sum claimed in the present OS should have been properly ventilated and canvassed in OS 21. Refer to Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (House of Lords): - "... where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.". [60] Finally, there is also merit in D’s claim that allowing P to claim the said sum under prayer (c) of the present OS would be akin to a collateral attack on the decision of the High Court in disposing the OS 21 relating to the said sum and thus must be disallowed by this court. Refer to Tractors Malaysia Bhd v Charles Au Yong [1982] 1 MLJ 320 (Federal Court): - “In our judgment the Malacca action is tantamount to a collateral attack upon a final decision of a Court of competent jurisdiction. Since writing this judgment we have come across a decision of the House of Lords on this very point in Hunter v. Chief Constable of the West Midlands Police[1981] 3 WLR 906 where a civil case was started obviously to try to overrule a decision of a criminal court. There Lord Diplock said at page 914: My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the present case. He then cited with approval the following passages as expressing the principle to be followed by the Courts: ... the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court. (per AL Smith LJ in Stepbenson v. Garnett [1898]

QB 677, 680-681). ... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ". (per Lord Halsbury LC in Reichel v. Macgrath [1889] 14 App. Cas. 665, 668).”. [61] Thus, on the basis of res judicata and duplicity of proceedings, this court dismiss the claim for the said amount as in paragraph (c) of the present OS. Refer to Section 25 (2) Court of Judicature Act 1964: - "Power to dismiss or stay proceedings where the matter in question is res judicata between the parties or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued”. Whether P has proven his claims [62] This Court in the interest of justice and for the sake of completeness would also determine whether P has actually succeeded in proving his claims against D. Refer to Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2016] 8 CLJ 211 (Federal Court): - “As to damages, it is settled law that in order for SCCSB to succeed in its claim SCCSB must show that the loss and damages is due to the breach of contract by PKNS. Once that is established, SCCSB has the additional burden of proving the damages. The law on the recovery of damages has been succinctly enunciated by Ramly Ali J (now FCJ) in PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2008] 1 LNS 679; [2009] 7 MLJ 681 at 697. It may be summarised into two main principles:

The burden of proof is on the party seeking the claim to prove the facts and the amount of damages (Hock Huat Iron Foundry v. Naga Tembaga Sdn Bhd [1999] 1 CLJ 89; [1999] 1 MLJ 65; Bonham-Carter v. Hyde Park Hotel Limited (1948) 64 TLR 177; Popular Industries Ltd v. The Eastern Garment Manufacturing Co Sdn Bhd [1990] 1 CLJ 133; [1990] 2 CLJ (Rep) 635; [1989] 3 MLJ 360 and Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 1 CLJ 611; [2007] 2 MLJ 229).

(ii) the damages must be proved with real or factual evidence. Mere particulars, summaries, estimations or general conclusions will not suffice (Lee Sau Kong v. Leow Cheng Chiang [1960] 1 LNS 56; [1961] MLJ 17).”. [63] On an examination of the cause papers filed before this Court, there are actually only two (2) pieces of purported evidence relied upon by P to pursue his claim against D. Firstly, D’s audit reports from 1995 until 2021. Secondly, a disclosure of Director’s Remuneration, Shareholdings and Balances for the year 2020 executed by P himself. [64] This Court finds that P’s claim as per the present OS is without merit for the following reasons: - [65] Firstly, D had conducted an audit exercise or review through which D discovered that there were many transactions which were not only numerous in volume but inexplicable and without supporting documents being recorded as P’s advances as a director to D. Reference here may be made to Exhibit LKP-1 at pages 25-127 in Enclosure 6. [66] In total, D’s audit when conducted revealed that the alleged amounts said to be owing by D to P and other former directors are in fact untrue and fabrications that could not withstand scrutiny. This Court does not wish to list all of these anomalies discovered during the audit review save as to state the following: -

(I) Despite no money being deposited into D’s accounts, there were adjustments done at the end of each year to reflect the alleged amount owing based on the shareholding of each individual director;

P had utilized D’s funds to repay his personal property loan with an instruction to D’s staff to write off the said loan as though D’s directors have paid for the loan;

Purported advances were made by P to an agent who it was discovered was not even an employee of D and;

Purported advances were done to pay for non-existent expenditures and costs in order to evade tax payment. [67] Secondly, it is also worth noting that P alleged that D owes the most to TPC namely RM 1,476,516.71 from a sum total of RM 2,980,649.00 said to be owing to all directors. However, D has obtained TPC’s confirmation which debunked P’s claim as TPC has stated that he is unaware of any sum due owing to him, that TPC’s account has been misused without his knowledge and that he had inserted his signature to the auditor’s report without any explanation provided to him. [68] Thirdly, the audited reports relied on by P is also of little evidential value since they being a mere summary and general conclusion with no added corroboration to support the findings made. Refer to Lee Sau Kong v Leow Cheng Chiang (1961) MLJ 17 Court of Appeal):- “Again, the evidence is completely silent as to what damage the respondent has suffered by reason of the loss of his bargain. The measure of his damage is not the profit he would have made if he had obtained delivery of 4,000 tons or whatever amount there was of scrap at the agreed price of $40 a ton and sold it for the current market price in Singapore. It is the difference, if any, between that profit and the profit which he would have made if he had had to buy other scrap iron at a higher price. In other words, if there was an available market in which he could buy scrap iron the measure of his damage would be the difference between the contract price and the market or current price of the goods at the time when they ought to have been delivered. If there was no such available market the measure of damage would have been the difference, if any, between the contract price and the estimated cost of obtaining substituted goods. Again, had there been no possibility of obtaining substituted goods the measure of damages would have been the full estimated loss of profit resulting from the appellant's repudiation of the contract. On all these points, however, the evidence is completely silent and unless the respondent could produce some evidence to shew that he had suffered some damage he was not entitled to any relief under this head.”. [69] Refer also to Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611 (Court of Appeal): - “In the light of the evidence before us, we find that it is irrefutable that the respondent in seeking the damages as set out in the statement of claim, has the burden of proving both the fact and the amount of damages before he can recover. [84] In this case, apart from the fact that the said audited statements of account, Ramlan's oral evidence on the said statements and his evidence in relation to documents are all not formally proved are inadmissible evidence, the said evidence in themselves do not in any event establish that the respondent has suffered any damage nor shown the nature and extent of the loss allegedly suffered as a result of the appellant's breach of contract.”. [70] In short, P’s evidence has fallen short of proving a successful claim for damages. Refer to Bonham-Carter v Hyde Park Hotel, Ltd [1948] 64 TLR 177 (Court of Appeal) page 178: - “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it.”. Conclusion [71] Based on the above reasons, this Court dismissed the present OS (Lampiran 1) with costs RM15,000.00 payable by P to D subject to allocator fees. Dated: 22nd January 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Solicitors for the Plaintiff: Gun Huei Shin & Tang Mei Ay Messrs Gun Chambers No 5A, Jalan Indah 15/2 Taman Bukit Indah, 79100 Nusa Jaya, Johor Bahru, Johor Solicitors for the Defendant Vivian Kong Mei Yi & Sek Chia Yin Messrs Tay Chambers No 28, Jalan Ponderosa 2/1 Taman Ponderosa, 81100 Johor Bahru, Johor Cases referred to: 1 Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 2 Sadananda Pyne v Harinam Sha AIR 1950 179 (Calcutta High Court) 3 Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 1 CLJ 511 4 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] 28 CLR 129 5 Garthwaite v Garthwaite [1964] 2 WLR 1108 6 Malayan Banking Berhad v Chairman Sarawak Housing Developer’s Association [2014] 6 CLJ 409 7 Malayan Banking Bhd v Koay Kang Chuwan & Anor [2010] 6 CLJ 172 8 Cotton Corporation of India Ltd v United Industrial Bank Ltd AIR [1983] SC 1272 9 Seema Development Sdn Bhd v Mah Kim Chye & Anor [1998] 1 CLJ 174 10 DYMM Tunku Ibrahim Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah b Mohd Noor (And Another Appeal) [2009] 4 CLJ 329 11 Eagaivallinayagi Ammal v Chin Min Hua & Ors [2020] 4 CLJ 64 12 Diesel S.p.A v Bontton Sdn Bhd [2021] 2 CLJ 65 13 Sakapp Commodities (M) Sdn Bhd v Cecil Abraham [1998] 4 CLJ 812 14 Mark Sia Eng Joo v Ong Wei Wei & Anor; Sia Say Yee & Ors (Intervener) [2020] 1 LNS 122 15 Majumder v Attorney General of Sarawak [1967] 1 MLJ 101 (Privy Council) 16 K Ramalingam Krishnamoorthy & Ors v Subramaniam Sathasivam & Ors [2017] 8 MLJ 36 17 Macfoy v United Africa Co. Ltd [1961] ALL ER 1169 18 Toh Seow Ngan & Ors v Toh Seak Eng & Ors [1990] 1 CLJ REP 286 19 Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] 2 MLJ 133 20 Normah Bt Awang Had (Suing as the administrators/ executors of the estate of Tan Sri Dato’ Dr. Awang Had bin Salleh, deceased) & Ors v Dato’ Dr Hj Mohamed Haniffa Bin Hj Abdullah [2016] 5 MLJ 754 21 McCauley v McDermott 1 ILRM 486 22 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 23 Tractors Malaysia Bhd v Charles Au Yong [1982] 1 MLJ 320 24 Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2016] 8 CLJ 211 25 Lee Sau Kong v Leow Cheng Chiang (1961) MLJ 17 Court of Appeal) 26 Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611 27 Bonham-Carter v Hyde Park Hotel, Ltd [1948] 64 TLR 177 Legislation Referred to 1 Companies Act 2016- Section 245, 346, 602 2 Rules of Court 2012- Order 1A, 7,28, 88,92 3 Specific Relief Act 1950-Section 41, 42 Other Sources Referred to 1 Osborn's Concise Law Dictionary (7th edition) 2 KJ Aiyer’s Judicial Dictionary (13th edition)