Conweld Engineering & 2 Lg v Goh Swee Boh & 1 Lg (WA-22NCC-197-05/2018)

CONWELD ENGINEERING SDN BHD (Company No.: 820598-W)

LOW TERK CHEN (NRIC No.: 760828-01-7059)

LOW MAN FOOK (NRIC No.: 610506-01-5233) … PLAINTIFFS

GOH SWEE BOH @ GOH CHENG KIN (NRIC No.: 360904-07-5195)

GOH TZE CHIEN (Singapore Passport No.: E6273774A) … DEFENDANTS

The Plaintiffs sued the Defendants in the tort of abuse of court process. I have dismissed the claim. These are the full reasons for my decision. 2

The 1st Plaintiff is Conweld Engineering Sdn Bhd (“the Company”). The Company was incorporated in 2008. It is in the business of manufacturing, assembling and selling of light construction and agricultural equipment.

The 2nd Plaintiff and the 1st Defendant were the only shareholders in the Company until the 2nd Defendant also became a shareholder in or around 2009.

Since May 2009, the 2nd Plaintiff held only 18% shareholding in the Company. However, he ran and managed the Company’s day to day operations and management since its incorporation.

In or around October 2010, the 2nd Plaintiff subscribed and fully paid RM1, 230,000.00 for an additional 1,230,000 shares of the Company and became a 50% shareholder in the Company.

In 2012, the 3rd Plaintiff joined the Company. He became a shareholder and director of the Company. Since then the 2nd and 3rd Plaintiffs were managing the Company. 3

In December 2013, the 1st Defendant divested a total of 700,000 shares in the Company. He sold 450,000 shares to the 2nd and 3rd Plaintiff. The remaining 250,000 shares were transferred to the 2nd Defendant. The 2nd and 3rd Plaintiffs bought 300,000 and 150,000 shares at RM3.76 per share and RM4.104 per share (net price after discount) respectively from the 1st Defendant.

The 2nd and 3rd Plaintiffs thus hold a 65% shareholding in the Company collectively. The Defendants were directors but did not hold an executive position in the Company, unlike the 2nd and 3rd Plaintiffs.

On or about 12.12.2014, the 1st Defendant resigned as the chairman and director of the Company.

In the period between 2015 and 2016, there was an agreement between the 1st Defendant and the 2nd Plaintiff for the sale of the 1st Defendant’s remaining 300,000 shares in the Company to the 2nd Plaintiff for a total consideration of RM1,890,000.00.

At the same time, there was also an agreement between the 2nd Plaintiff and the 2nd Defendant for the sale of the 2nd Defendant’s entire shareholding in the Company for RM4.80 per share. 4

However, both agreements were not carried out. Subsequently, in or around October 2017, the 1st and 2nd Defendants offered to sell their shares at RM10.00 and RM7.68 respectively (exclusive of the newly issued rights shares at par value of RM1.00). An initial offer to purchase part of the 2nd and 3rd Plaintiffs’ shares was not accepted by the said Plaintiffs.

The 2nd and 3rd Plaintiffs rejected the Defendants’ proposal to sell their shares at RM10.00 and RM7.68 per share.

Following from this, the Defendants filed a petition to wind up the Company on or about 13.12.2017 (“the Petition”).

On or about 21.12.2017, the Defendants proceeded to file ex parte applications to obtain: a) An order for the appointment of Dato’ Narendrakumar Jasani A/L Chunilal Rugnath as the interim liquidator of the Company (“PL Order”); and 5 b) An order restraining the Company and/or its bankers from inter alia dealing with the Company’s money in its bank accounts (“Mareva Order”). (Collectively referred to as “the Orders”)

On 26.12.2017, the Defendants obtained the PL Order and the Mareva Order. The interim liquidator was appointed pursuant to the PL Order.

The Orders, though obtained on an urgent and ex parte basis, were only served on the Company two (2) weeks later on 9.1.2018.

The Company filed an application to set aside the Orders (“Setting Aside Application”) on 12.1.2018 and sought a hearing of the same on an urgent basis. The Defendants, through their counsel, objected to the hearing of the Setting Aside Application and sought adjournment on several occasions.

On 28.2.2018, after the Defendants’ solicitors discharged themselves, the Court allowed the Setting Aside Application and set aside the Orders. The Court also struck out the Petition with liberty to file afresh. 6

20.

The Defendants had not filed a fresh winding up petition against the Company.

The Company and the 2nd and 3rd Plaintiffs filed this action for abuse of court process against the Defendants in respect of the filing of the Petition and the subsequent PL Order and Mareva Order obtained.

It was submitted for the Plaintiffs that the Petition was presented for a collateral purpose which was to force the Plaintiffs to buy the Defendants’ shares in the Company at an exorbitant price and/or the 7 price that the Defendants wanted. In support of this proposition, the Plaintiffs relied on what was stated in the witness statement of the 2nd Defendant that the winding up petition was filed to resolve the deadlock between the parties and in order to obtain a fair price for the shares of the 1st Plaintiff.

As regards to the filing of the ex parte applications, the Plaintiffs relied on the fact that despite the apparent urgency with which the applications were filed, the PL Order and the Mareva Order were not served on the Company until two (2) weeks later. Furthermore, despite the allegation that there is a risk of the assets of the Company being dissipated, the Defendants had taken no action after the Petition was struck out and the Orders were set aside. They had taken no action to reinstate the Petition nor restoring the Orders or filed any appeal against the Setting Aside Order and to-date, no petition had been re-filed. It was also submitted for the Plaintiffs that the Defendants secured the appointment of the interim liquidator in order to obtain further evidence to use against the Plaintiffs, as shown by the fact that the interim liquidator had deigned to sign affidavits in the proceedings after his appointment which had provided information for the Defendants to allege dissipation of assets against the Plaintiffs. 8

As for damages, it was submitted for the Plaintiffs that they had paid legal costs in the sum of RM228,430.00 and this is claimed by the Plaintiffs. Initially the said legal costs were purportedly paid by the Company but after it was made known to the 2nd and 3rd Plaintiffs that legal costs in such a situation should not be borne by the Company itself, the 2nd and 3rd Plaintiffs have repaid the costs to the Company. Thus, the legal costs were ultimately borne by the 2nd and 3rd Plaintiffs. No other losses had been adduced by the Plaintiffs but the Plaintiffs claim for general damages. It had been made known to the Plaintiffs that all losses must be brought before the Court.

It was submitted for the Defendants that the tort of abuse of court process should not be recognised as a separate and distinct tort for policy reasons. It was submitted that this court should follow the Singapore courts which had refused to recognise the tort of abuse of process of the Court as a distinct tort.

Furthermore, it was submitted for the Defendants that in any event, the Plaintiffs have not satisfied the elements required to prove the tort of 9 abuse of court process. It was not put to the 2nd Defendant as a witness that the winding up petition and the ex parte applications were filed for a collateral and improper purpose. The Defendants relied on the rule in Brown v Dunn.

The Defendants denied that the petition and the applications were filed for an improper purpose. It was also submitted for the Defendants that if the Plaintiffs are alleging an abuse of process, they ought to have applied to strike out the winding up petition pursuant to Order 18 rule 19 of the Rules of Court 2012 and not filed a separate action which is in itself an abuse of court process.

The Defendants also relied on a letter issued by the Company dated 6.2.2018 to its customers, suppliers and business associates stating that its operations were not affected by the Petition and/or the two (2) applications.

The Defendants also relied on the doctrine of res judicata and it was submitted that: a) The Plaintiffs’ claim for legal fees were previously sought before Justice Noorin in the Petition proceedings and she 10 had declined to award costs on an indemnity basis; there is no appeal against that decision; b) The Company was entitled to claim damages and/or losses as a result of the PL Order and the Mareva Order in the assessment of damages proceedings. In this respect, all the evidence that the Plaintiffs relied on before this Court was before Justice Noorin in the assessment of damages proceedings and/or should have been adduced before Justice Noorin in the assessment of damages proceedings. The Plaintiffs had failed in their case before Justice Noorin and should not be allowed to have a second bite of the proverbial cherry. There was no appeal against the decision in respect of the assessment of damages.

The Defendants cited Browne v Dunn [1893] 6 R 67 to argue that the Plaintiffs’ failure to put their case to the 2nd Defendant is fatal. The Plaintiffs’ response is that: 11 a) The rule in Browne v Dunn is not absolute and it certainly did not lay down any rigid rules as to the manner of cross-examination; and b) The Plaintiffs’ case was manifest from the outset and it challenged the Defendants’ defence of legitimate use of process and the 2nd Defendant was well aware of the Plaintiffs’ case when he was testifying.

In Browne v Dunn Lord Herschell LC at p. 70 of the report said: “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of 12 making any explanation which is open to him; and , as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

However, his Lordship continued, at p. 71, to make it clear that there is no necessity to put questions to the witness if the point upon which he is to be impeached is so manifest: “ Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached, and is to be impeached, is so manifest, thus it is not necessary to waste time in putting questions to him upon it.”

Jeffrey Pinsler SC summed up the application of the rule in Browne v Dunn in his book, Evidence and the Litigation Process (3rd Ed, 2010, LexisNexis) at pp. 828-829 as follows: “Nevertheless, the rule is not absolute and will only apply in the appropriate circumstances. Hence the ruling has been made that the failure of the prosecution to put its case to a witness ‘does not create any element of surprise which the rule in Browne v Dunn so clearly deprecates.’ In the circumstances, the prosecution’s case was ‘manifest from the outset’ and therefore the omission did not constitute an acceptance by the prosecution of 13 the witness’s evidence. ‘The rule in Browne v Dunn is a flexible rule of practice intended to ensure procedural fairness in litigation.’”

In the present case, the 2nd Defendant was well aware of the Plaintiffs’ case at the outset. For instance, in his witness statement DW- 1, at p. 9 he was asked: Q5: One of the allegations made is that you and your father did not file the Petition and or the two (2) applications with the genuine intention of obtaining legal redress. What do you have to say to this?

In response to the question, the 2nd Defendant answered, inter alia, at DW-1 p. 10 as follows: “We have been left with no alternative but to seek redress by filing the Petition. My father and I were merely exercising our rights as provided under the law.”

Further, during cross examination, the 2nd Defendant also testified that he knew exactly what the Plaintiffs’ case was about: DW1 GOH This matter is hearing about an abuse of process. 14

I agree with the submission advanced for the Plaintiffs that notice has been so distinctly and unmistakeably given and the point upon which the witness is impeached and is to be impeached, is so manifest that the 2nd Defendant can at no point be said to be caught by surprise as to the Plaintiffs’ case. I do not agree that the Plaintiffs have abandoned their case simply because they had purportedly failed to put their case when the Defendants knew exactly where the Plaintiffs were coming from.

In any event, looking at the totality of the evidence before the Court, I am of the view that the Plaintiffs had duly challenged the Defendants’ evidence in respect of the purpose with which they filed the Petition and the Applications.

Next is as to whether the tort of abuse of process of the Court has been recognised by our Courts as a distinct tort. The answer to this is a resounding yes.

The tort of abuse of process was recognised by the Court of Appeal in Malaysia Building Society Bhd v Tan Sri General Ungku 15 Nazaruddin Bin Ungku Mohamed [1988] 5 MLJ 425 and in Lim Chee Kuo v The Pacific Bank Bhd [2011] 5 MLJ 230.

The tort of abuse of process was also recognised as a separate and distinct tort in the following High Court cases: a) In Civil Suit No. WA-22NCC-326-09/2016 between Malpac Capital Sdn Bhd and Yong Toi Mee & Ors; b) In Civil Suit No. 23 NCVC-56-2011 between Noor Haslina Binti Abdullan v Celcom Axiata Berhad; and c) In Learnergy Sdn Bhd & Anor v Abdul Jalil bin Othman [2019] 7 MLJ 348.

I agree with the submission advanced for the Plaintiffs that it is inaccurate to say that the Court of Appeal’s decision on the tort of abuse of process in Malaysian Building Society Bhd was merely obiter dicta. In that case, the appellant initiated bankruptcy proceedings against the respondent which resulted in the making of receiving and adjudicating orders. The respondent took out a motion to set aside these orders. He also asked for other relief including an order that damages be paid by the petitioning creditor to the debtor. The said relief for damages was granted by the High Court. Hence, the appeal to the Court of Appeal. 16

The Court of Appeal allowed the appeal. It had been held that the proper process for the respondent to obtain relief for damages was to initiate an action for abuse of process. This is what the Court of Appeal had held: “It is only upon proof of the elements that go to make up the tort of collateral abuse of process, that a plaintiff is entitled to an award of damages. What has happened here is that the respondent short-circuited the methodology for obtaining relief. He has without proving a single element of the tort, obtained damages of more than RM2 m. I am unaware of any such authorities, indeed none have been cited before us that enables such a result to be intended by the law. To all this, Mr Thangaraj argues that his client would be put to great hardship and will suffer severe prejudice. He says that his client is 75 years old and has already given evidence once and subjected to rigorous cross-examination. He should not be exposed to the hazards of another litigation. My respectful response to that argument is that the respondent is the author of his own misfortune. Had he followed the correct steps available to him he would not find himself in this position.”

Thus it is clear that the Court of Appeal recognised the distinct tort of collateral abuse of process. 17

As against this, the Defendants relied on the reasons given by the Singapore Court of Appeal in Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title Plan No. 301 [2018] SGCA 50 for refusing to recognise the tort of abuse of process as a distinct cause of action under Singapore law. This is what the Singapore Court of Appeal said: “Reasons of policy Finality and floodgates [151] As mentioned (see [104]–[108] above), extending the tort of malicious prosecution to the civil context generally would undermine the principle of finality in the law, in that this would encourage unnecessary satellite litigation and drag out disputes. In our view, the same consideration weighs against the recognition of the tort of abuse of process, which, like malicious prosecution, would largely be pleaded in the context of “fresh litigation about prior litigation”. … [153] In our view, the danger remains that recognising the tort of abuse of process would encourage satellite litigation and prolong disputes, particularly among parties who have animosity between them. In this regard, we reiterate our earlier observations concerning litigation and its capacity to bring out the unpleasant side of human nature (see [116] above). In light of this, it is almost 18 certain that many claims in abuse of process, if the tort were recognised, would take the form of unmeritorious, vindictive attempts, and this would ultimately result in the wastage of the court’s time and resources. [154] We have also noted (at [110]–[112] above) that there is the closely related danger of opening the floodgates of litigation. Recognising the tort of abuse of process would also open the courts to the same variety of claims that would arise in respect of malicious prosecution in the civil sphere. Once the abusive institution of legal proceedings is recognised as capable of giving rise to tortious liability, why would the boundaries of the tort end there? Logically, a claim for abuse of process might be founded not only on the institution of civil proceedings, but also any step taken within civil proceedings for a predominant purpose other than that for which that step was designed (Crawford Adjusters ([5] supra) at [149]). … Chilling effect [156] Further, as noted above in relation to the extension of the tort of malicious prosecution, recognising the tort of abuse of process may create a chilling effect on regular litigation. Litigants considering commencing civil proceedings would need to be mindful of the risk that they may be sued or found liable for abuse of process. Of course, to some extent, the potential chilling effect is addressed and limited by the fact that a claim in abuse of process is rather difficult to establish, even in jurisdictions where the tort is recognised. That is clear from the survey we have undertaken at [140]–[147] above. Yet, like malice, abuse of process may be “far more often alleged than 19 proved” (per Lord Sumption’s remarks on the tort of malicious prosecution in Crawford Adjusters at [148]) and in such cases, “[t]he vice of secondary litigation is in the attempt” (Crawford Adjusters at [148]). In other words, despite the difficulty of successfully claiming in abuse of process, recognising the tort may still carry a chilling or deterrent effect because litigants may be deterred by the threat or possibility of being sued for abuse of process. Availability of a remedy [157] Finally, as we have demonstrated with respect to malicious prosecution at [120]–[122] above, one policy reason weighing against the recognition of the tort of abuse of process is that there are other remedies available to address the problem of abusive litigation. There exists – for the vast majority of cases – a system of various rules of civil procedure which deal precisely with various aspects of abuse of process of the court. Such rules permit a defendant to apply to the court to prevent such abuse − often well before the claim concerned has progressed significantly within the court’s system. Where the facts support a suggestion that the plaintiff is abusing court processes for an ulterior purpose, the defendant may apply to the court to strike out the plaintiff’s statement of claim as disclosing no reasonable cause of action or as being frivolous or vexatious or as otherwise constituting an abuse of process. Conversely, where the defendant’s conduct of his case constitutes an abuse of process, the plaintiff can, for example, apply for summary judgment against the defendant pursuant to O 14 of the Rules”. 20

Persuasive as those reasons stated above are, I am not prepared to hold, considering the present state of the authorities in Malaysia, that Malaysia does not recognise the tort of abuse of process as a distinct cause of action. Especially in cases where it is not open or feasible to the Defendant to apply for striking out of the proceedings against it pursuant to Order 18 rule 19 of the Rules of Court 2012, the tort of abuse of process still has a role to play.

It can also be noted that despite the disapproval of the Singapore Court of Appeal (contrary to other jurisdictions) to extend the tort of malicious prosecution and abuse of process generally to civil proceedings, the Court nevertheless recognised that such tort is available for specific types of civil proceedings [ at [84] of the report] such as: a) Improper procuring in the first instance of ex parte interlocutory orders by the party initiating the proceedings, the effect of which is to inflict immediate and perhaps even irreversible damage to the reputation of the party (at [77] of the report); 21 b) Bankruptcy and winding up proceedings because the legal requirement of advertisement places the petitioner in the position to inflict irreversible damage on the other party by unilaterally and publicly impugning his credit and reputation before the petition was heard on the merits (at [78] of the report).

In the present case, it was further submitted for the Defendants that there was no valid reason given by the Plaintiffs as to why they did not apply to strike out the Petition under Order 18 rule 19 of the Rules of Court 2012.

Although the courts are slow to entertain striking out applications in respect of winding up petitions, there are exceptions to this general rule, namely, where the petition is obviously unsustainable for want of cause of action or that it is plainly vexatious or frivolous or an abuse of process.

The Federal Court in Blue Valley Plantations Berhad v Periasamy [2011] 5 MLJ 521 held, at p 530: 22 “[18] As regards applying to strike out a petition to wind up a company, I would like to reaffirm the sentiments expressed by Abdul Hamid Mohamed J (as he then was) regarding invoking O 18 r 19 to strike out a petition to wind up a company. In Filotek Trading Sdn Bhd v Buildcon-Cinaco Concrete Sdn Bhd [1999] 4 MLJ 268, when discussing the subject said: The scheme under the Companies (Winding up) Rules 1972 is different when the petition is issued out of court, a hearing date is given straight away. Whatever has to be done, eg service, advertisement, compliance with r 32, will have to be done before the hearing date. The court is supposed to hear the petition straight away on the date fixed for hearing, the very first time it comes up before it. If everything is done as scheduled, the petition is heard on the date first fixed for hearing. That is what the rules envisage, in the circumstances, there is no necessity for provision for judgment in default, summary judgment or striking out the pleading or trial on issues. I am of the view that that is the reason why the Company (Winding up) Rules 1972 do not provide for such procedures. They are not necessary. Furthermore, more often than not, resort to O 18 r 19 of the RHC 1980 in a winding-up proceedings results in the delay in the hearing of the petition. The application is usually filed one or two weeks before the date fixed for the hearing of the petition. Application is made for it to be heard first, supposedly, to save the court's time. In reality, it delays the hearing of the petition. Whenever there is such an application, inevitably, the 23 hearing of the petition is delayed. Not only will the petition be adjourned for the application to be heard first, but if dismissed, there will be an appeal to the higher court(s). [19] These views were further reiterated by Richard Malanjum JCA (as he then was) in Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492 but he also considered that in appropriate cases that procedure may be applicable: We find the philosophy implicit in the above statements convincing and adopt it in affirming the view that an application made pursuant to O 18 r 19 of the RHC to strike out a petition presented under s 218 of the Act is undesirable and should be discouraged. In our view, the use of that procedure in such winding up proceeding produces only delay in the adjudication of the matter. Of course, we are not saying that it is totally inapplicable. There may be an instance where such a petition is obviously unsustainable for want of cause of action or that it is plainly vexatious or frivolous or even an abuse of process. In such a case, O 18 r 19 could be resorted to. Accordingly, we cannot therefore fully accede to the request of learned counsel for the petitioners. In our view, the background facts of each case are relevant to determine whether a striking out application is appropriate. For instance in the present case, we find that there are matters that cannot be disposed of summarily yet the learned judge in the court below found them as facts. … 24 [22] In my opinion the respondents before us had acted in a vexatious manner and abused the process of the court by continuing to seek for the appellant to be wound up even after the appellant had in good faith paid the money into court. Although there may not have been such reason when originally filing the petition to wind up the appellant, once the respondents insisted on persisting with the petition, they can be deemed to have acted in a vexatious manner. This is a ground for striking out the petition to wind up the appellant. In other words, although at the filing of any action, the petitioner may have acted in good faith, subsequent conduct or action by him may provide grounds for the other party to seek to strike out the action. The application to strike out the petition was filed soon after the tender for payment of respondents' claim was deposited in court. Therefore, there was no undue delay on the part of the appellant”.

In the Statement of Claim, the Plaintiffs pleaded the following: a) the Defendants did not file the Petition with the genuine intention of obtaining legal redress; b) the Petition was filed and continued in bad faith and maliciously with an ulterior motive to stop the 1st Plaintiff from continuing its business; and c) the Petition was not filed with any reasonable and proper cause. 25

The above pleaded allegations fall squarely within the exceptions outlined by the Federal Court in Blue Valley.

Surely if the Plaintiffs contend that the Petition was an abuse of the court process as alleged, the Plaintiffs ought to have applied to strike out the Petition, not file a separate action: see Mahadev Shankar J (as he then was) in Gasing Heights at p 275E. “As a general rule, I think it safe to state that a litigant who is a party to civil proceedings who claims that those proceedings are an abuse of process, must take that objection in those very proceedings under O 18 r 19(1)(d). The filing of a collateral action as was done in this case is itself an abuse of process which must result, as happened here in its being struck out”.

The above was echoed by the Court of Appeal in Lim Chee Kuo: “(d) As a general rule, a litigant who is a party to civil proceedings who claims that those proceedings are an abuse of process must take that objection in those very proceedings under O 18 r 19(1)(d). The filing of a collateral action is itself an abuse of process which must result in it being struck out. With particular reference to the facts in the instant appeal, we are of the view that the debtor’s filing of this collateral action against the bank is itself an abuse of 26 process which could have resulted in it being struck out in limine, had the bank taken the necessary steps for this purpose”.

I am of the view that the dicta in the abovesaid cases set out the general rule. It is settled law that the courts frown upon the practice of applying to strike out winding up petitions under Order 18 rule 19 of the Rules of Court 2012 because that will generally delay the hearing of the winding up petition. In this case, I note that the Plaintiffs were involved in applying to set aside the PL Order and the Mareva Order on an urgent basis. Furthermore, if the Company had suffered damages and losses as a consequence of the filing of the winding up petition, those losses and damages could not be claimed in a striking out application but the Company would have to file a separate action claiming such losses and damages. I would not therefore dismiss the Plaintiffs’ claim simply on the basis that they could have but did not file a striking out of the winding up petition.

In Gasing Heights (supra) at pp 270-276, Mahadev Shankar J (as His Lordship then was) held that: It seems to me that some of the passages quoted from the text books requires qualification. I therefore propose to analyse the cases cited. But before I do 27 that I want to say in the most emphatic terms that, if a litigant brings an action to protect his rights (as the defendants did in filing the motion), the use of all remedies afforded to them by the law cannot be an abuse of the court's process. Usually, the reasons why an action has been brought is only determined at the conclusion of the proceedings. Here the developer filed this action praying for relief which included an injunction, the effect of which was to prevent the defendants from proceeding with a motion they had filed for a relief by way of certiorari which is recognized by the law. To grant such an injunction would have been a denial of justice by the court. … These passages from the judgment bear repetition. Lord Scarman stated at p 583: Men go to law to redress a grievance. They may not know or understand the limits of the remedies provided by law-though no one suggests that the plaintiff's advisers could be said to suffer from ignorance of the law. But equally a man, while pursuing the remedies offered by law, may negotiate, to secure by agreement with the parties sued, terms more favourable than, or different from, what he would get in the absence of agreement. Such a negotiation, undertaken by properly advised parties, each of whom may have a legitimate interest in avoiding litigation and may be prepared to concede more than the law requires of them to achieve that end, does not necessarily mean 28 that the plaintiff by his litigation is reaching out to secure a collateral advantage. At pp 585-586, Lord Bridge stated: Counsel for the defendants relied, in support of the submissions which I have summarized in paras 1 and 2 above, on the dictum of Evershed MR in Re Majory [1955] 2 All ER 65 at p 78: 'The so-called 'rule' in bankruptcy is, in truth, no more than an application of a more general rule that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exists; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court, and, therefore, disqualified from invoking the powers of the court by proceedings he has abused.' For the purpose of Evershed MR's general rule, what is meant by 'collateral advantage'? The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose on an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, 29 an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land, these are a few obvious examples of such proper settlements. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursing an ulterior purpose unrelated to the subject-matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. These two cases are plain, but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by-product of the litigation. Can he on that ground be debarred from proceeding? I very much doubt it. But on the view I take of the facts in this case the question does not arise and it is neither necessary nor desirable to try to lay down a precise criterion in the abstract. (Emphasis mine) … In the light of my other findings, I do not think it is necessary for me to go into the developer’s motives for filing this action. Suffice to say in conclusion that I hope the award for costs against the developer in this case and a proper understanding of the law should persuade future litigants who wish to take up a plea of abuse of process that it would be in their best interests to avail themselves of the salutary provisions of O 18 r 19(1) of the RHC”. 30

The Court of Appeal referred to Gasing Heights in Lim Chee Kuo and summarized the principles in respect of abuse of process, at p 236: “In relation to the abuse of process, the relevant principles pronounced therein may be distilled and applied as follows:

If a litigant brings an action to protect his rights, the use of remedies afforded to him by the law cannot be an abuse of the court's process at p 270I. In applying this principle to the factual background set out above, we are unable to see how the debtor could have established abuse of process on the part of the bank when the bank had instituted the fresh bankruptcy proceedings against the debtor on the basis of the regular judgment obtained against him, and pursuant to established bankruptcy legislation, viz Bankruptcy Act 1967 and Bankruptcy Rules 1969.

Abuse of process may eg be constituted by the plaintiff knowing that he never had a cause of action in the first place, and yet proceeded with his action in order to extort a relief he was never entitled to: Grainger v Hill (1838) 4 Bing NC 212 at pp 271B–C. In the instant appeal, the regular judgment which the bank had obtained against the debtor and the institution of the fresh bankruptcy proceedings pursuant to established bankruptcy legislation is clearly an exercise of due process of law in order to procure a relief in accordance with established law and practice. 31

Although in Metall and Rohstoff AG v Donaldson & Lufkin Jenrette Inc and another [1989] 3 All ER 14 (CA), the tort of abuse of process is said to consist of an abuse of the legal process to effect an object not within the scope of the process and with the predominant purpose of using the process for a purpose other than that for which it was designed with the result that the person alleging the abuse had suffered damage nevertheless, the English Court of Appeal had great doubt whether the general tort of maliciously instituting civil proceedings exists.

As a general rule, a litigant who is a party to civil proceedings who claims that those proceedings are an abuse of process must take that objection in those very proceedings under O 18 r 19(1)(d). The filing of a collateral action is itself an abuse of process which must result in it being struck out at p 275E. With particular reference to the facts in the instant appeal, we are of the view that the debtor's filing of this collateral action against the bank is itself an abuse of process which could have resulted in it being struck out in limine, had the bank taken the necessary steps for this purpose.

Hopefully, the award of costs against the developer there and a proper understanding of the law should persuade future litigants who wish to take up a plea of abuse of process to act in their best interests and to avail themselves of the salutary provisions of O 18 r 19(1)”. 32

The first observation to be made is that the Petition was initiated by the Defendants against the Company only. The 2nd and 3rd Plaintiffs were not sued by the Defendants and so the winding up Petition was not commenced against them. Consequently, the Petition cannot be said to constitute an abuse of the court process as against the 2nd and 3rd Plaintiffs. The Plaintiffs disagree with this proposition and submitted that there is no authority to say that a claimant claiming on this tort must be named as a party in the process intiated. At the same time, there is no authority to support the Plaintiffs’ contention that the 2nd and 3rd Plaintiffs can sue for the tort of abuse of process even though they were not named as respondents in the winding up Petition. I am of the view that unless the proceedings were initiated against the defendant, the particular defendant cannot sue for the tort of abuse of process.

It was submitted for the Defendants that the Petition was filed to seek legal redress and there was no other collateral purpose. In this respect, the Defendants relied on the case of Westform Far East Sdn Bhd v Connaught Heights Sdn Bhd and other appeals [2010] 3 MLJ 459 where our Court of Appeal held at pp 487-488: 33 “[80] I shall now move on to deal with the remaining two appeals namely appeal Nos (a) and (d), that is to say, the defendant's appeals in respect of the two inter partes interlocutory injunction orders. As I have said earlier, I have dismissed these two appeals. I shall begin with the basic principles governing interlocutory applications to restrain the presentation of winding up petitions. It hardly needs saying that a court of law must respect and protect the defendant's right to file the winding up petitions — a right conferred by statute, namely, s 218 of the Companies Act — if the defendant honestly believes that they have the right to do so, so long as the exercise of such a right is not an abuse of process. This basic principle was laid down in Bryanston Finance Ltd v de Vries (No 2) [1976] 1 All ER 25, a decision of the English Court of Appeal, wherein Buckley LJ said: It has long been recognised that the jurisdiction of the court to stay an action in limine as an abuse of process is a jurisdiction to be exercised with great circumspection and exactly the same consideration must apply to a quia timet injunction to restrain commencement of proceedings. These principles are, in my opinion, just as applicable to a winding up petition as to an action. The right to petition the court for a winding up order in appropriate circumstances is a right conferred by statute. A would-be petitioner should not be restrained from exercising it except on clear and persuasive grounds. 34 [81] However, a would-be petitioner can be restrained by the court where the circumstances are such that he ought to be so restrained in the interest of justice. In Bryanston FinanceBuckley LJ explains the guiding principle in the following manner: In his speech in the American Cynamid case [1975] AC 396 Lord Diplock recognised that there might be special factors to be taken into consideration in the particular circumstances of individual cases. In my judgment, the fact that the second action is an action designed to prevent the commencement of proceedings in limine is such a special factor. In such a case the court should not, in my judgment, interfere with what would otherwise be a legitimate approach to the seat of justice unless the evidence is sufficient to establish prima facie that the plaintiffs will succeed in establishing that the proceedings sought to be restrained would constitute an abuse of process. In the present case, in my opinion, this has not been achieved. I would consequently allow the appeal in the second action and discharge the injunction of 15 May 1975. [82] In short, the above judgment enunciated the 'abuse of process' principle. But it is pertinent to note from the above passages that the party who alleges that prima facie there is an abuse of process (and in the context of the present case, it is the plaintiff) must satisfy this court with 'clear and persuasive grounds'.” 35

In the present case, the Defendants had stated that they filed the winding up Petition in order to resolve the deadlock and to obtain fair value for their shares. But there is no option for the court to order a share buy out in a winding up petition. Although it might not be oppressive for the Defendants to hope that perhaps by way of negotiations they can obtain a fair value for their shares, however, in this case, the Defendants did not try to enter into negotiations with the Company. Instead, the Defendants filed the two (2) ex parte applications and obtained the PL Order and the Mareva Order. I am of the view that if the Defendants were really interested in obtaining a fair value for their shares, they should have filed an oppression action instead and pray for a compulsory share purchase order instead of resorting to the drastic remedy of filing a winding up petition. Alternatively, the Defendants could have pursued a claim in contract for specific performance of the agreement for the sale of their shares (which agreement was alleged to exist by the Defendants).

This is what Ramly Ali J (as his Lordship then was, now FCJ) remarked in Eng Man Hin v King’s Confectionary Sdn Bhd & Ors [2006] 4 MLJ 421 at p. 449: 36 “In the present case, the Petition is brought under s 218(1)(i) of the Companies Act 1965, not under s 181 of the same Act. The Courts in England and Australia have drawn a distinction between the effect of the alternative remedies under the equivalent provisions of the just and equitable provisions of the two sections. The courts have held that the winding up order is like a death sentence of a company and is an order of last resort. On the other hand, the provisions of s 459 of the English Companies Act 1985 (which is equivalent to our s 181 of the Companies Act 1965) had been held to put the court more in the position of a medical practitioner presented with a patient who is alleged to be suffering from one or more ailment which can be treated by an appropriate remedy applied during the course of the continuing life of the company. In cases where the ailment can be treated then it is not appropriate for an order to wind up the company…”

It has been held that it would be an abuse of process if a person chose, instead of an originating summons for oppression under section 346 of the Companies Act 2016, a winding up petition. Lim Chong Fong J in Teoh Soo Beng v Golden Castle City Sdn Bhd & ors and another case [2017] MLJU 2041 held at [99]: “It was done notwithstanding there were alternative internal remedy as well as less drastic oppression petition in court available to Todd to address his grievances. He however chose the destructive mode of closing down the 37 company in attempt to gain maximum leverage against Gary because the filing of the Winding Up Petition effectively crippled GCC. Todd’s action was therefore made for a collateral purpose in abuse of process the Court and I so find and hold accordingly…”

And in respect of the Orders obtained by the Defendants, the unexplained delay of two (2) weeks in effecting service of the Orders on the Company was inexcusable. If the matter was so urgent and there was such a real risk of dissipation of assets that the Defendants had to proceed to obtain the Orders on an ex parte basis, there is simply no reason given as to why there was a delay of two (2) weeks in effecting service on the Company of the Orders. The 2nd Defendant’s evidence on this point does not explain the delay. This is what he said: “Goh I can start from the point when I was advised to take…to apply for the 2 Orders, the mareva injunction as well as the appointment of the interim liquidator. The advice I was given by my ex-solicitor is that we need to do a 2 pronged approach in case the Court decides not to grant one. So therefore if we only go with the mareva injunction, the court may not give that, at least you have the other prong which is the appointment of the interim liquidator, if you do the other way round vice-versa. I did not communicate or the interim liquidator’s team of people did not communicate directly with me. It’s all through the ex-solicitor. I was advised by the ex-solicitor that the interim liquidator took the view that 38 since they have been appointed Officers of the Court to manage the day-to-day business of the First Plaintiff pending winding up, there is no need…administrative, not a legal need. Administrative needs to serve the mareva injunction on the banks because that would totally freeze the assets of the company. In the case that this matter can be resolved by the parties amicably, it takes time for the mareva Order to be lifted and therefore they were of the view that they should not do that. It’s not because they did not serve it. It’s not because they did not have the legal right to do it. They were gracious to allow the Second and Third Plaintiff a chance to settle the dispute amicably. The Second and Third Plaintiff chose to ignore the presence of the interim Liquidator. They carried on dissipating the assets of the company by moving it into one of the company’s that the 2 of them have set up as a sole proprietorship of the son of Low Man Fook.”

Abuse of process can be shown by the very steps being taken in the courts. In Yong Toi Mee (supra) Mohd Nazlan JC held at p. 632: “Having reviewed the authorities on this issues, I am of the view that this contention of the defendants is misconceived. Instead, properly formulated, such overt act or threat serves only to constitute evidence of the improper purpose of pursuing the legal process. It cannot be a substantive or separate legal element for the tort because it is clear from MBSB v Ungku Nazaruddin and the Privy Council decision in Crawford Adjustor ad others v Sagicon General Insurance (Cayman) Ltd and another [2013] 83 WIR 257 as well as 39 the ruling of the High Court of Australia in Williams v Spautz [1992] 107 ALR 635, all of which held that the abuse may be the inevitable objective inference from the surrounding circumstances; and most fundamentally, the abuse can also be shown by the very steps being taken in the courts.”

The Defendants’ allegation of dissipation of assets was founded upon two (2) allegations: a) It was alleged that the 2nd Plaintiff had treated the Company’s account as his own private account; and b) It was alleged that the 2nd and 3rd Plaintiffs did not take any action when the Company received two (2) different invoices bearing the same invoice number from the same supplier.

However, these two (2) allegations were taken from and based upon a report prepared by the provisional liquidator after the Petition and the Applications were filed. They should not have been relied on as the basis for the filing of the Applications. Second, the merits of the process complained of are irrelevant for the tort of abuse of process. Lastly, the 2nd Plaintiff had explained that the private account he referred to was one where the Company owed him money and the two (2) invoices were 40 the same invoice and, in any event, the discrepancy in the amount of the invoice sum is only a sum of RM1.48 at the prevailing rate and this certainly did not objectively justify the so-called genuine fear of dissipation of assets.

I am of the view that the Defendants had abused the court process in obtaining the PL Order and the Mareva Order on an urgent, ex parte basis and thereafter refrained from effecting service of the Orders on the Company for 2 weeks. If the matter was so urgent and there was dissipation of assets, they should not have waited for two (2) weeks to effect service.

However, that is not the end of the matter because it is an essential element of the tort of abuse of process that the Plaintiffs must prove that the Company has suffered damage as a result of the abuse of process.

In this respect, it is relevant to have regard to the letter dated 6.2.2018 from the Company to its valued customers, suppliers and business associates wherein the Company had expressly stated as follows: 41 “We also reiterate that our business & operation of the Company is not affected & we will continue to provide you the same level of sales and after sales service. All our supplies from our suppliers both local & overseas are also not affected. We will continue to serve you & maintain our cordial trade relationship that exist all this while.”

The evidence of the 2nd Plaintiff regarding this letter is as follows: “RS My Lady, it’s dated 6th. My Lady, can I just take My Lady to a clearer copy? 2347. Do you have it Mr Low? 2347. I might as well read the entire letter to you. So Mr Low, ‘We refer to the recent court advertisement that stated that Mr Goh and Mr Goh had jointly filed a Petition to wind-up Conweld Engineering. We would like to state that these two petitioners are shareholders and together they have 35% shares. We further inform that as members of the Company’s Board of Directors, we are currently working with our lawyers to resolve the legal matter for the best interest of all shareholders. We shall keep you informed of the court decision in due course. We also reiterate that our business and operation of the Company is not affected and we will continue’. I’m sorry, My Lady. ‘We will continue to provide you the same level of sales and after sales service. All our supplies from our suppliers both local and overseas are also not affected. We will 42 continue to serve you and maintain our cordial trade relationship that exist all this while’. So you did write, ‘We also reiterate that our business and operation is not affected’, correct? LOW Yes, this letter is written by us. And it’s dated 6th February, yes? LOW Yes, correct. You understand the meaning of the word ‘reiterate’, Mr Low? LOW Yes, I understand. This means that you had iterated this previously i.e. you have said this previously. And now you are saying it perhaps for the second or more times, correct, Mr Low? LOW Yes, correct. So you reiterate which means you say for at least the second time that your business and operation of the Company is not affected by the winding up Petition. Yes, Mr Low? LOW Yes, correct”.

The 2nd Plaintiff had attempted to explain the context and circumstances in which that letter was issued: “PW-1 LHK Ok. Now please look at CBD8 again, Mr Low, at page 2132, the clearer page is 2348. The Defendant’s counsel referred you to these 2 pages. In fact, contain the same document. 2347 is clearer picture. It’s a clearer page. This is the letter written by Conweld Engineering to all 43 valued customers, suppliers and business associates. Ok. Basically, you were asked to refer specifically to paragraph 3 of this letter. It says that, ‘We also reiterate that our business and operation of the company is not affected. We will continue to provide you the same level of sales and after-sales service. All our supplies from our suppliers, both local and overseas are also not affected’. Basically, Defendant is saying that look, the winding-up petition did not affect your business and operation, and it is confirmed by you in this letter. Now can you explain to the Court, why did you write this letter? LOW At that time, there have some people making rumours about our company in the market. Ok. We issue this letter to maintain the confidence of the supplier and customer. At the same time our supplier is very worried and came after us for the owing money. And also some of the customer refuse to pay, to make payment because of this case. According to them, they have to, they want to wait until this case finish, later see how. If you need the customer name, I can name them, 2 of the customer. LHK Please name it. LOW Evergreen Binary Sdn Bhd. Second one is Thai Choon in Melaka. YA Second one is? LOW Thai Choon, T h a i C h o o n in Melaka”.

It was submitted for the Plaintiffs that the reason why there was a need to issue the 6.2.2018 letter was precisely because of the destructive effect the Petition and the Orders had brought upon the 44 Company at that material time. It only amplifies the serious consequences and the negative stigma associated with a winding-up petition. This is especially so to the Company whose trade is largely conducted based on credit terms extended by its suppliers. “PW-1 LOW At that time, we cannot deliver goods to the customer. We have received many order. Ok. Because we cannot deliver the good on time to the customer, and also the customer cannot deliver the goods to the final user, that’s why the customer has suffer losses. Some of them come to the company and ask for compensation. And some of them told us they will not doing business with us anymore. Ok. And also, and customer know about this case, they – LHK What case? LOW The winding-up petition. LHK Ok. LOW Ok. They refused to make payment to us. Ok. Because like the Judge said...ok. 90% of our company is based on debt. Ok. LHK Credit terms. LOW Credit terms. And because of this winding up petition, ok, like the 2 of the customer I mentioned before, they refused to make payment to us. And also affect the reputation of the company, because we unable to make payment to the supplier. And also our competitor went, because of the winding up petition, because of that case, went to the China and 45 try to get our supplier, because we are the sole dealer for the supplier in Malaysia, had the sole dealer in Malaysia.”

However, it is significant to point out that there was an assessment of damages to ascertain what loss and damage the Company had sustained as a result of the PL Order and the Mareva Order and the Plaintiffs or rather the Company had sought substantial damages from the Defendants during the assessment of damages exercise. However, Justice Noorin who heard the matter obviously found that the Company had not proved it had suffered substantial damages as she only awarded nominal damages of RM 5,000.00 with no order as to costs. I am of the view that, since the aim of the assessment of damages exercise was to ascertain what, if any, damages the Company had suffered as a consequence of the PL Order and the Mareva Order, the question of damages is res judicata and it is not open to the Plaintiffs to now allege that the Company had sustained any damages as a consequence of the Orders.

Consequently, the relief claimed in the present action attract the doctrine of res judicata. See: 46

Government of Malaysia v Dato’ Chong Kok Lim [1973] 2 MLJ 74, at p 76: “The subject of the ground of attack in Enclosure 9 fully covers the subject of attack in Enclosure 33 and, therefore, in my view, the defendant is barred from reagitating the same or a part of the same matter which has already been finally adjudicated upon by Mr. Justice Chang Min Tat. The defendant did not appeal against that decision and so far as Enclosure 9 is concerned the judgment of Mr. Justice Chang Min Tat, in my view, is final and conclusive at this stage of the proceedings. The rule is that a matter which might and ought to have been made a ground of attack or defence becomes a matter which was constructively in issue. A matter which might and ought to have been made a ground of attack or defence in the former application but which was not alleged as such a ground of attack or defence is for the purposes of the plea of res judicata deemed to have been a matter directly and substantially in issue in the former application, that is to say, though it may not have been actually directly and substantially in issue it is still regarded as, having been constructively, directly and substantially in issue. There can be no distinction between a claim that was actually made and a claim which might and ought to have been made. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and to pronounce its judgment thereupon but to every 47 point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time. It is only where the plea which is sought to be raised in the subsequent proceedings was not available to the party at the time of the previous proceedings that the decision cannot be constructively res judicata. The rule of constructive res judicata is really a rule of estoppel. The question now raised has already been heard and finally decided. It constitutes but a part of the prayer in the former application. It was not collaterally or incidentally but directly and substantially in issue when Enclosure 9 was heard and decided. The answer to the matter is simple. The defendant's only remedy was by way of an appeal against the decision of Mr. Justice Chang Min Tat. The matter was heard on merits and finally decided. It is not capable of readjudication by the same court in the same suit. The defendant could certainly reagitate the matter before the Federal Court if the plaintiff finally succeeds in obtaining judgment and an appeal is filed against that judgment. The law, as I understand it, is that the defendant is precluded from filing a second application in respect of a matter which was directly and substantially in issue in the earlier application (Enclosure 9) in this very court. If a decision has been given with respect to a matter or part of a matter in controversy between the parties by a court of competent jurisdiction it remains binding in the subsequent stages of the same proceedings in the same court and cannot be re-opened in that court. In my view an erroneous decision irrespective of whether it is on a question of law or fact operates as res 48 judicata between the parties to it. The correctness or otherwise of a judicial decision seems to have no bearing upon the question whether it operates as res judicata or not. Until that decision is reversed or set aside on appeal its finality and binding force remain operative on the parties”.

Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1, at paragraphs 44-45: “[44] We conclude by saying that once a regularly obtained order or judgment has been perfected, the court is functus officio. The matter as decided vide encl 6 is thus res judicata and cannot be re-litigated. It needs to be emphasised that the order made under encl 6 was appealed and affirmed right up to the Federal Court. It cannot now be revisited or reasserted under any guise in a subsequent proceeding. The issues raised by the respondent in encl 29 could have been brought up during the appeal process. The law does not allow the respondent to have a second bite of the cherry and in the manner as it did. This passage from Tenaga Berhad explains the rationale: There was no merit in the appellant's argument that the second application to set aside the default judgment was justified because it was based upon a different ground from that relied upon in the first application. The doctrine of res judicata in its wider sense was applicable in the present case. It was certainly 49 open to the appellant to ground its first application on the basis that the default judgment was irregular. It was therefore an issue which properly belonged to the first application. But it chose not to rely upon that ground. Once the first application was dismissed, it was not open to the appellant to make a second application to set aside the judgment on a different ground. It would amount to presenting one's case in installment which the law does not permit. [45] In our judgment too, the re-litigation of a regularly and properly concluded matter as determined by the court is prohibited by the wide doctrine of res judicata. The judicial process rests on the twin pillars of certainty and finality. A final order or a judgment must therefore be vigorously protected by this doctrine, a position taken by the common law courts ever since Henderson (1843)”.

Raphael Pura v Insas Bhd & Anor [2003] 1 MLJ 513 at p 543: “The first question that arises from this submission is whether, the leave having been granted by this court and now that this court (this panel) is constituted to hear the appeal, this court (this panel) should allow the respondents to re-open the issue whether the leave should have been granted or not. 50 Generally speaking, it should not. The issue has been decided by this court. It is res judicata. A party should not be given a second bite of the cherry. A new panel of this court should not be reversing the decision of the earlier panel of the same court. There should be consistency in the judgment of the court”.

As for the legal costs incurred by the 2nd and 3rd Plaintiffs, the first issue to note is that the Petition was only filed against the Company. The Company has to prove that it had incurred losses as a consequence of an abuse of process. It is not in dispute that ultimately the legal costs were not paid by the Company but by the other Plaintiffs who have no cause of action for abuse of process as the process was not initiated against them. In any event, there was no evidence adduced that the legal costs had in fact been paid to the solicitors. There was no receipt issued by the legal firm. In any event, as the Company had not shown that it had suffered any loss or damage as a consequence of any abuse of process, it has not satisfied all the requisite elements of the cause of action.

In the premises, although I am of the view that the Defendants had abused the court process in filing the winding up petition when their real intention was to obtain a fair value for their shares and in refraining from 51 effecting service of the PL Order and the Mareva Order on the Company for two (2) weeks without any valid explanation, the Company has not suffered any loss or damage as a result of the Petition. As for the damages sustained as a consequence of the two (2) ex parte applications, that had already been adjudicated upon by Justice Noorin and it is no longer open to the Plaintiffs to claim that they have suffered any damage as a consequence of those applications. In the premises, the Plaintiffs have not satisfied me on all the elements of the tort of abuse of process and this claim is dismissed with costs of RM50,000.00 subject to allocator.

As this issue has been addressed before me, I will say a little about it. It is the issue whether it is open to the Defendants to file a fresh winding up petition against the Company. In arriving at my decision in this matter, I have not delved into the merits or otherwise of the Defendants’ case to seek a winding up order against the Company. As long as the predominant purpose of the Defendants is not to force a buy out of their shares at the price stipulated by them, I am of the view that there should be nothing to stop the Defendants from filing a fresh winding up petition against the Company. It would not be an abuse of process simply based on my findings in this case. This judgment 52 accordingly does not affect the right of the Defendants should they wish to file a fresh winding up petition against the Company. Wong Chee Lin Judge Kuala Lumpur High Court Commercial Division Dated: 15th April 2019 53 Solicitors for the Plaintiffs Ling Hua Keong & Saw Wei Siang Messrs Ranjit Singh & Yeoh Advocates & Solicitors Unit D3-5-12, Block D3, Solaris Dutamas No. 1, Jalan Dutamas 1, Hartamas Heights 50480 Kuala Lumpur Tel : 03-6205 4126 / 6205 4128 Fax: 03-6205 4109 Solicitors for the Defendants Rishwant Singh A/L Amarjeet Singh, Shukran Bin Syafiq & Ban Qiad (PDK) Messrs Cecil Abraham & Partners Advocates & Solicitors Suite 12.01, Level 12, Menara 1MK No. 1 Jalan Kiara, Mont Kiara 50480 Kuala Lumpur