Danny Tan Yew Chong v Skyboard Media Sdn Bhd & 5 Yang Lain (24NCC-255-07/2017)

DANNY TAN YEW CHONG (NRIC NO.: 960527-01-6155) ... PLAINTIFF 2

SKYBOARD MEDIA SDN BHD

TANG CHEE HUI

LOW CHEE HAUR

VINCENT TEH TONG KIET

AZRIZAL BIN SAMURI

SITI NOOR IZZATI BINTI NOOR AKMAL (NRIC NO.: 940720-07-5298) …DEFENDANTS BEFORE YA KHADIJAH BINTI IDRIS JUDICIAL COMMISSIONER 3 GROUNDS OF JUDGMENT (Enclosures 10 and 14) Introduction [1] This Originating Summons No. 24NCC-255-07/2017 (OS) is filed by the Plaintiff pursuant to s. 346 of the Companies Act 2016 (CA 2016) alleging oppressive conduct on the part of the First to the Fifth Defendants. By court order dated 28 August 2017 the OS was amended where the Sixth Defendant was added (Amended OS). [2] The Fifth Defendant filed an application (Enclosure 10) to strike out the Amended OS under Order 18 rule 19(1)(b) or (c) or (d) of the Rules of Court 2012 (RoC 2012). [3] This is followed by the First to the Fourth Defendants’ application (Enclosure 14) to strike out the Amended OS under Order 18 rule 19(1)(a) and/or alternatively Order 18 rule 19(1)(b), (c) or (d) of the RoC

4 [4] On the Plaintiff’s part, an application for injunction (Enclosure 31) was filed, seeking among others, for an order to restrain the First to the Sixth Defendants from dealing with or disposing the 50,000 shares registered in the 6th Defendant’s name, which the Plaintiff alleged are beneficially owned by the Plaintiff. [5] Besides the striking out applications, the First to the Fourth Defendant and the Fifth Defendant had also filed applications (Enclosures 15 and 24 respectively) for an order that the undertaking given by the Plaintiff in his application for injunction be fortified in the sum to be determined by the court. [6] I allowed both Enclosures 10 and 14 for the Amended OS to be strike out against the First to the Fifth Defendants. I also ordered the 50,000 shares in the 1st Defendant which is held by the Sixth Defendant to be transferred to the Director General of Insolvency. Consequential to the striking out of the Amended OS, I accordingly strike out Enclosures 31, 15 and 24. [7] Dissatisfied with the striking out of the Amended OS and the consequential orders, the Plaintiff appealed. 5 The OS [8] Via the Amended OS the Plaintiff seeks, inter alia, for the following reliefs –

a declaration that the Second to the Fifth Defendants:

are conducting the affairs of the First Defendant and/or exercising their powers as directors of the First Defendant in a manner oppressive, discriminatory and/or prejudicial to the Plaintiff, and/or in disregard of the interests of the Plaintiff; or

(ii) have procured and/or caused to be done and/or are threatening to procure and/or cause to be done acts of the First Defendant which have and/or will unfairly discriminate against or which is and/or will be otherwise prejudicial to the Plaintiff;

an order that the Defendants, whether by themselves, their servants, agents, representatives, or otherwise, be restrained from conducting the affairs of the First Defendant in a manner that is oppressive, discriminatory and/or 6 prejudicial to the Plaintiff, and/or in disregard to the interest of the Plaintiff;

an order that the Defendants, whether by themselves, their servants, agents, representatives, or otherwise, do provide access to the Plaintiff to the financial documents and business records and information of the First Defendant requested by the Plaintiff;

an order that the First Defendant (provide for the reduction of capital of the company accordingly) or Second Defendant and/or Third Defendant and/or Fourth Defendant and/or Fifth Defendant and/or the Sixth Defendant do purchase all shares held by the Plaintiff for the total sum of RM1,400,000.00;

alternative to prayer (d) above, the First Defendant be wound up pursuant to section 432 of the Companies Act 2016;

a declaration that the appointment of the Third and Fourth Defendants as directors of the First Defendant and removal of the Fifth Defendant, if any, is unlawful; 7

an injunction restraining the Second to the Fifth Defendants from exercising powers as directors or managing directors of the First Defendant save to fulfil their statutory obligations;

a declaration that the issuance of 87,500 new shares in the First Defendant is unlawful and is thereby cancelled;

an injunction restraining the Second to the Sixth Defendants from in any way altering the shareholding and directorships in the First Defendant;

a declaration that the transfers of 20,000 beneficial shares from the 5th Defendant to the 2nd and 3rd Defendants in equal shares, if any, is unlawful;

a declaration that by virtue of trust, the Plaintiff is the beneficial owner of the 50,000 shares held by the Fifth

a declaration that the transfers of the Plaintiff’s 50,000 beneficial shares from the Fifth Defendant to the Sixth Defendant, is unlawful; 8

as a consequence, that the First Defendant registers the Plaintiff as a shareholder of 50,000 shares in the First

an injunction restraining the Second to the Fifth Defendants, whether by themselves, their servants and/or agents or otherwise from howsoever dealing with or disposing of the assets of the First Defendant;

an order that the Second to the Sixth Defendants be restrained from using any of the assets of the First Defendant to defend this suit brought against them and to reimburse the First Defendant for the assets already used to defend this suit, if any;

costs of the proceedings be borne by the 2nd – 6th Defendants on a full indemnity basis; and

any further or other relief as this Honourable Court deems fit. [9] Based on the Plaintiff’s affidavit, the acts of oppression as alleged by the Plaintiff are as follows – 9

disagreement between the 2nd Defendant, TCK and the Plaintiff arose in relation to the way the 2nd Defendant manages the affairs of the 1st Defendant. The 2nd Defendant had attempted to exclude the Plaintiff from discharging his duty as a director and shareholder of the 1st Defendant and that the 2nd Defendant’s lack of transparency in managing the 1st Defendant including its financial and commercial matters;

around March 2016 the Plaintiff and the 2nd Defendant commenced negotiations for the 2nd Defendant to buy the Plaintiff out of the 1st Defendant for a total consideration of RM1,400,000.00. However there were no agreement finalised because the 2nd Defendant constantly changes his position in respect of the purchase consideration of the Plaintiff’s shares, namely from RM1,400,000.00 to RM250,000.00 and finally to RM8,000.00 with the assignments of advertisement boards belonging to the 1st Defendant. The changes in the 2nd Defendant’s position is due to the 2nd Defendant’s lack of fund and/or ill intention to kick the Plaintiff out of the 1st Defendant by putting pressure on the Plaintiff to accept a low purchase consideration; 10

the 2nd Defendant called for a meeting of the Board of Directors of the 1st Defendant to be held on 21 October 2016 without notice or proper notice to the Plaintiff, contrary to Article 79 of the Articles of Association of the 1st Defendant;

the 2nd Defendant held Board of Directors’ meeting on 21 October 2016 without the presence of the Plaintiff. At the said meeting the 3rd And 4th Defendants were appointed as director of the 1st Defendant without the Plaintiff’s knowledge;

the 2nd Defendant transferred his 20,000 shares held in trust by the 5th Defendant to himself and the 3rd Defendant in equal shares, without notice or proper notice to the Plaintiff;

as at 20 June 2017, the 5th Defendant is no longer a director of the 1st Defendant. The capital of the 1st Defendant has been altered by the issuance of 87,500 new shares in favour of the 2nd Defendant with the intention to diminish the Plaintiff’s 50% beneficial shareholding in the 1st Defendant. It is the Plaintiff’s contentions that all the acts above were done by the 2nd Defendant with the assistance of the 3rd to 11 the 5th Defendants to ensure continuity of his control of the Company and to effectively push me out of the Company;

the Plaintiff’s request for information (such as the 1st Defendant Management and/or Financial Accounts of the 1st Defendant) from the 2nd Defendant and the 1st Defendant secretaries has been met with resistance and/or silence on the part of the Defendants;

the 2nd Defendant refused to pay to the suppliers of the 1st Defendant in Johor (managed by the Plaintiff) for services rendered for the maintenance of the billboards. This according to the Plaintiff is to apply pressure to remove the Plaintiff from the 1st Defendant;

the Plaintiff’s effort to transfer the 50,000 beneficial shares to himself was met with resistance from the 5th Defendant. The 5th Defendant has changed his position to state that the Plaintiff’s 50,000 beneficial shares were never held by the 5th Defendant as trustee for the Plaintiff. According to the Plaintiff this is a blatant lie as the 5th Defendant had 12 previously acknowledged that the 5th Defendant was indeed holding the 50,000 shares for the Plaintiff’s benefit;

The Plaintiff has not been paid his salaries as director for the month July and August 2016 and also the Plaintiff’s claim for the month May to August 2016 for a total sum of RM21,913.30. This is another attempt on the part of the Defendant to oust the Plaintiff out of the 1st Defendant;

the Plaintiff was unlawfully removed as director of the 1st Defendant at the Extraordinary General Meeting (EGM) held on 28 March 2017 where the 2nd to the 5th Defendants removed the Plaintiff as director. The Plaintiff was not notified of the (EGM); and

the Plaintiff was given an option either to purchase the 1st Defendant’s car or return it. 13 Background Facts [10] The Plaintiff, Danny Tan Yew Chong, was appointed director of the 1st the First Defendant company, Skyboard Media Sdn Bhd (1st Defendant) on 29 October 2014. [11] The 1st Defendant was incorporated on or about 3 May 2010 as a private limited company. The principal business of the 1st Defendant is outdoor billboard advertising. It owns several/numerous advertising billboards all over Malaysia and rents advertising space therein to other entities. The 1st Defendant had an issued and paid up capital of RM2.00 which was divided into two shares. One Tan Chee Kuang (TCK) and the 2nd Defendant each held one share. [12] Based on the information from the Companies Commission of Malaysia (Exhibit DT-1 of the Plaintiff’s affidavit Enclosure 2), as at 7 April 2017 the total authorised share capital of the 1st Defendant is 500,000.00 and the total issued share capital is 100,000.00 ordinary shares of RM1.00 each. The shareholders and shareholding structure of the 1st Defendant as at 7 April 2017 is as follows – 14

the 2nd Defendant holds 30,000.00 shares; and

the 5th Defendant holds 70,000.00. [13] The members of the Board of Directors of the 1st Defendant as at 7 April 2017 consists of the 2nd to the 5th Defendants. [14] The facts stated below are gathered from the various affidavits filed by the parties. [15] In his affidavits, the Plaintiff states as follows –

the 1st Defendant was founded by his father Tan Chee Kuang (TCK) and the 2nd Defendant. TCK and the 2nd Defendant were the original subscriber of the 1st Defendant. Both TCK and the 2nd Defendant held 50,000 shares each;

The 2nd Defendant was the General Manager/Director of the 1st Defendant and ran and managed the day-to-day affairs of the 1st Defendant; 15

TCK was adjudged a bankrupt on 22 May 2012. As a result of the adjudication, the Plaintiff was appointed as director of the 1st Defendant with effect from 29 October 2014 and acted as TCK’s nominee in managing the business of the 1st

to include the participation of Bumiputra in the 1st Defendant, the 2nd Defendant and TCK transferred 70,000 of their collective shares to the 5th Defendant where the 5th Defendant held in trust 20,000 shares for the benefit of the 2nd Defendant and 50,000 shares for the benefit of TCK; and

when TCK was adjudged a bankrupt on 22 May 2012, the Plaintiff became the beneficial owner of the 50,000 shares which was held by the 5th Defendant on trust for the benefit of the Plaintiff. This is evident from the documents executed between the Plaintiff and the 5th Defendant, namely, the Irrevocable Power of Attorney, the Declaration of Trust and the Deed of Trust all dated 4 September 2016 executed (Exhibit DT-5 Enclosure 2). These documents are hereinafter collectively referred to as the “Trust Documents”. 16 [16] The facts as related by the 1st to the 4th Defendants are as follows –

The 1st Defendant was incorporated on 3 May 2010 with an issued and paid up capital of RM2.00. The 2nd Defendant and TCK each held one (1) share in the 1st Defendant and they were the first directors of the 1st Defendant.

On or around 2009, TCK was faced with legal proceedings in respect of non-payment of a sum amounting to RM367,853.02 (Suit Against TCK). Subsequently judgment was entered against TCK on 10 May 2011 (Judgment Against TCK). Eventually TCK was adjudged a bankrupt on 15 August 2012.

However before TCK was adjudged bankrupt but after the Suit Against TCK was filed and before Judgment Against TCK, on 26 January 2011 TCK had transferred his one (1) share in the 1st Defendant to one Mohd Sunawan bin Hj. Md. Som (Mohd Sunawan) who is to hold the shares on trust for TCK. On the same day TCK resigned as director and Mohd Sunawan was appointed as director of the 1st Defendant. 17

For purpose of increasing Bumiputra participation in the 1st Defendant, the authorised share capital of the 1st Defendant was increased from 100,000 to 500,000 on 3 May 2011. Out of the 500,000 shares, 98,998 shares of RM1.00 each were issued where 49,999 ordinary shares of RM1.00 each were issued each to the 2nd Defendant and Mohd Sunawan. Mohd Sunawan holds the 50,000 shares (TCK’s Shares) on trust for TCK. Thus both the 2nd Defendant and Mohd Sunawan held 50,000 shares each in the 1st Defendant company.

On 10 May 2011, Judgment Against TCK was entered in relation to the Suit Against TCK.

On 1 November 2011 the 2nd Defendant transferred 20,000 of his ordinary shares in the 1st Defendant to Mohd Sunawan to be held on trust for the 2nd Defendant. For such purpose a Trust Deed and Nominee Agreement were executed by the 2nd Defendant and Mohd Sunawan on 23 February 2012.

As such on 1 November 2011 the 1st Defendant had issued share capital of 100,000 ordinary shares where the 2nd 18 Defendant held 30,000 shares and the 5th Defendant held 70,000 shares. The 70,000 ordinary shares held by the 5th Defendant consists of –

50,000 ordinary shares held on trust for the benefit of

(ii) 20,000 ordinary shares held on trust for the benefit of the 2nd Defendant.

TCK was adjudged bankrupt on 15 August 2012 by the High Court of Malaya in Johor Bharu.

On 15 April 2013 Mohd Sunawan as a trustee of TCK and the 5th Defendant –

transferred the TCK’s Shares he held on trust for TCK to the 5th Defendant who holds the TCK’s Shares for the benefit of TCK;

(ii) transferred the 20,000 ordinary shares held on trust for the 2nd Defendant to the 5th Defendant. On even date Mohd Sunawan resigned as director of the 1st Defendant and was replaced with the 5th Defendant. 19

On 29 October 2014 the Plaintiff was appointed as director of the 1st Defendant.

On 4 September 2016 a Deed of Trust, Declaration of Trust and a Power of Attorney were executed between the Plaintiff and the 5th Defendant where the 5th Defendant purportedly declared a trust of the TCK’s Shares for the benefit of the Plaintiff.

On 21 October 2016 –

the 5th Defendant transferred 20,000 ordinary shares of RM1.00 each held in trust for the 2nd Defendant to the 3rd and the 4th Defendants for a consideration of RM20,000; and

(ii) the 3rd and 4th Defendants were appointed as directors of the 1st Defendant at an Extraordinary General Meeting held on 21 October 2016.

On 28 March 2017 the Plaintiff was removed as a director of the 1st Defendant pursuant to an EGM held on 28 March 2017. 20

On 23 May 2017 the 5th Defendant resigned as director of the 1st Defendant. Subsequently the 5th Defendant transferred the TCK’s Shares to the 6th Defendant on 1 June 2016. [17] A summary of the 5th Defendant’s facts is as follows –

the founders of the 1st Defendant were TCK and the 2nd Defendant. The issued and paid up share capital of the 1st Defendant were then RM2 and TCK and the 2nd Defendant each held RM1.00 ordinary share;

in 2011 TCK was facing bankruptcy and to avoid the consequences of bankruptcy TCK transferred, on 26 January 2011, his one (1) ordinary shares of RM1.00 each in the 1st Defendant to Mohd Sunawan. The shares was to be held by the Mohd Sunawan for the benefit of TCK. On the same date Mohd Sunawan was appointed director of the 1st Defendant. TCK resigned as director of the 1st Defendant on the same date; 21

in order to increase Bumiputera participation in the 1st Defendant, pursuant to a members resolution in writing on 3 May 2011, the issue and paid up share capital of the 1st Defendant was increased from RM2 to RM100,000 by the allotment and issue of 98,999 ordinary shares of RM1.00 each. Pursuant to the increase, Mohd Sunawan held 49,999 ordinary shares on behalf of TCK and the 2nd Defendant held 49,999 ordinary shares;

then to further strengthen the participation of Bumiputera, on 1 November 2011, it was agreed between TCK and the 2nd Defendant that the 2nd Defendant transfer his 20,000 ordinary share of RM1.00 each to Mohd Sunawan for a consideration of RM20,000.00. This is for the purpose of enhancing the 1st Defendant competitive edge in bidding for specific projects;

accordingly as at 1 November 2011 the shareholding of Mohd Sunawan was as follows –

50,000 ordinary shares of RM1.00 each were held on trust for TCK; 22

(ii) 20,000 ordinary shares of RM1.00 each were held on trust for the 2nd Defendant;

Mohd Sunawan resigned as director of the 1st Defendant on 15 April 2013 and on the same day the 5th Defendant was appointed as director of the 1st Defendant;

subsequently on 22 April 2013, at the request of TCK (after he was adjudged bankrupt on 15 August 2012) and the 2nd Defendant, Mohd Sunawan transferred his 70,000 ordinary shares of RM1.00 each to the 5th Defendant who is to hold 50,000 ordinary shares on trust for TCK and 20,000 ordinary shares on trust for the 2nd Defendant;

at the request of TCK, the Plaintiff was appointed director of the 1st Defendant on 29 October 2014;

around 21 October 2016 the 5th Defendant transferred 20,000 ordinary shares of RM1.00 each (which the 5th Defendant was holding on trust for the 2nd Defendant) to the 2nd Defendant and the 3rd Defendant for a total consideration 23 of RM20,000.00. The 5th Defendant resigned as director of the 1st Defendant on 25 May 2017; and

the 5th Defendant subsequently transferred the 50,000 ordinary shares (which the 5th Defendant held on behalf of the 5th Defendant) to the 6th Defendant on 1 June 2017. The 50,000 shares is to be held by the 6th Defendant on behalf of the 5th Defendant. Enclosure 10 – the 5th Defendant to strike out the Amended OS [18] The 5th Defendant contends the Plaintiff’s originating summons is scandalous, frivolous and vexatious or may prejudice, embarrass or delay the fair trial of the action and an abuse of the process of the court on the following grounds –

the Plaintiff was never a registered shareholder of the 1st Defendant and nor was the Plaintiff the beneficial owner of the TCK’s shares. As such the Plaintiff lack the necessary locus to commence this proceedings against the 5th Defendant; 24

The Plaintiff cannot assert ownership over the TCK’s shares which purportedly belongs to his father TCK who was adjudged a bankrupt since 15 August 2012; and

The Plaintiff’s claim is founded on a transaction which on the face of it may be seen as lawful but entered into for an unlawful purpose or to achieve an unlawful end. The true intention of the agreements executed by the 5th Defendant in favour of the Plaintiff, namely, the Power of Attorney, the Deed of Trust and Declaration of Trusts was to create an “Ali Baba” type of company where control of the 1st Defendant company was still vested in the hands on non-bumiputera are illegal as it is against public policy and this violate s. 24(e) of the Contracts Act and therefore unlawful. Enclosure 14 – the 1st to the 4th Defendants’ application to strike out the Amended OS [19] The 1st to the 4th Defendants submits the Plaintiff was not and is still not at any material time the beneficial owner of TCK’s Shares. This is due to the fact the TCK was adjudged a bankrupt on 15 August 2012. 25 [20] It is the 1st to the 4th Defendants’ contentions that pursuant to the adjudication order against TCK –

TCK and his trustee Mohd Sunawan had lost title over TCK’s Shares and therefore neither TCK nor Sunawan had the right to transfer TCK’s shares to the 5th Defendant to purportedly hold the shares on trust for the benefit of TCK. Accordingly the 5th Defendant did not have the right to declare a trust of TCK’s Shares for the benefit of Plaintiff;

as the 5th Defendant has no right to hold TCK’s Shares for the benefit of the Plaintiff, the 5th Defendant did not have the right to execute the Trust Documents, namely, Deed of Trust, the Declaration of Trust and the Power of Attorney; and

the 5th Defendant has no capacity to transfer TCK’s Shares to the 6th Defendant. Plaintiff’s contentions [21] At the outset, the Plaintiff challenges the 2nd Defendant’s legal capacity to affirm affidavits on behalf of the 1st, 3rd and 4th Defendants. This is because there is no proof of the 1st Defendant’s resolution authorising the 2nd Defendant to affirm affidavits on behalf of the 1st 26 Defendant. Neither was there any affidavit filed by the 3rd and 4th Defendant affirming that they have authorised the 2nd Defendant to affirm affidavits on their behalf. [22] It would be extremely prejudicial to the Plaintiff if the Amended OS is strike out without hearing the 6th Defendant in respect of the transfer and ownership of the TCK’s Shares to her from the 5th Defendant who holds the shares for the benefit of the Plaintiff. [23] The Plaintiff contends there are material issues of conflicting affidavit evidence amongst the parties. As such the court ought to invoke its jurisdiction under Order 28 rule 8 of the RoC 2012 directing this proceedings to be begun by writ. The law [24] The Amended OS is premised on s. 346 of the Companies Act 2016 which provides as follows – 346 Remedy in cases of an oppression

Any member or debenture holder of a company may apply to the Court for an order under this section on the ground- 27

that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders including himself or in disregard of his or their interests as members, shareholders or debenture holders of the company; or

that some act of the company has been done or is threatened or that some resolution of the members, debenture holders or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or debenture holders, including himself.

If on such application the Court is of the opinion that either of those grounds is established, the Court may make such order as the Court thinks fit with the view to bringing to an end or remedying the matters complained of, and without prejudice to the generality of subsection (1), the order may-

direct or prohibit any act or cancel or vary any transaction or resolution;

regulate the conduct of the affairs of the company in the future;

provide for the purchase of the shares or debentures of the company by other members or debenture holders of the company or by the company itself;

in the case of a purchase of shares by the company, provide for a reduction accordingly of capital of the company; or

provide that the company be wound up.

If an order that the company be wound up is made under paragraph (2)(e), the provisions of this Act relating to winding up of a company shall apply as if the order had been made upon a petition duly 28 presented to the Court by the company, with such adaptations as are necessary.

If an order under this section makes any alteration in or addition to any constitution, then, notwithstanding anything in any other provision of this Act, but subject to the order, the company concerned shall not have power without the leave of the Court to make any further alteration in or addition to the constitution inconsistent with the order, but subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company.

An office copy of any order made under this section shall be lodged by the applicant with the Registrar within fourteen days from the making of the order.

The applicant who contravenes subsection (5) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit and, in the case of a continuing offence, to a further fine of five hundred ringgit for each day during which the offence continues after conviction. [25] The term “member” is defined under s. 2 of the CA 2016 and it reads – 2 Interpretation

In this Act, unless the context otherwise requires- "member" means-

in the case of a company limited by shares, a person whose name is entered in the register of members as the 29 holder for the time being of one or more shares in the company; or

in the case of a company limited by guarantee, a person whose name is entered in the register of members [26] Enclosures 10 and 14 are made pursuant to Order 18 rule 19 of the Rules of Court 2012 which states –

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. [27] It is trite law that only in plain and obvious cases can the court exercise its power to strike out a case under any of the four limbs of 30 Order 18 rule 19 and therefore such power should be exercised sparingly (Bandar Builders Sdn Bhd 2 Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; Solai Realty Sdn Bhd v United Pverseas Bank (M) Bhd [2013] 4 MLJ 545). [28] It is for the 1st to the 5th Defendants to prove that their application comes within any of the four limbs of Order 18 rule 19 of the RoC 2012 (Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192). Findings of the court Preliminary objection [29] In respect of the preliminary objection raised by the Plaintiff as to the 2nd Defendant’s authority to affirm the affidavits on behalf of the 1st, 3rd and 4th Defendants, I have perused the affidavits affirmed by the 2nd Defendant on behalf of the 1st, 3rd and 4th Defendants and I am satisfied that the 2nd Defendant is fully and duly authorised to affirm the affidavits for and on behalf of the 1st, 3rd and 4th Defendants. 31 [30] There are five affidavits affirmed by the 2nd Defendant on behalf of the 1st, 3rd and 4th Defendants and used for the purpose of Enclosure 14, namely, -

the 1st to the 4th Defendants’ Affidavit No. 1 – Enclosure 16;

the 1st to the 4th Defendants’ Affidavit No. 2 – Enclosure 17,

the 1st to the 4th Defendants’ Affidavit No. 3 – Enclosure 18;

the 1st to the 4th Defendants’ Affidavit No. 4 – Enclosure 20; and

the 1st to the 4th Defendants’ Affidavit No. 5 – Enclosure 45. The above affidavits are collectively referred to as “the 1st to the 4th Defendants’ Affidavits” [31] Close scrutiny of the 1st to the 4th Defendants’ Affidavits shows that the 2nd Defendant has averred that he was duly authorised by the 1st, 3rd and 4th Defendants to affirm the affidavits on their behalves. This can be seen at paragraphs 1 of the 1st to the 4th Defendants’ Affidavits. The 2nd Defendant also averred that the facts deposed in the affidavit are within his personal knowledge derived from the records of the 1st to the 4th Defendants to which he has access. 32 [32] Besides that, the 2nd Defendant has specifically identified the Plaintiff’s affidavits which he was duly authorised by the 1st, 3rd and 4th Defendants to reply. This can be seen at paragraph 3 of Enclosure 16, paragraph 3 of Enclosure 17 and paragraph 3 of Enclosure 45. In the 1st to the 4th Defendants’ Affidavit Enclosure 16, besides general authorisation given to him, the 2nd Defendant has specifically stated the authorisation given by the 1st, 3rd and 4th Defendants to him to affirm the affidavit to oppose the OS and to reply to the Plaintiff’s affidavit in support of the OS. In the 1st to the 4th Defendants’ Affidavit Enclosure 20, besides averring the general authorisation given to him, the 2nd Defendant has also specifically stated the authorisation given by the 1st, 3rd and 4th Defendants to him to affirm the affidavit to support the 1st to the 4th Defendants’ application for fortification in Enclosure 5. [33] To my mind the fact that the 2nd Defendant was one of the two first directors of the 1st Defendant from its inception in 2010 and is still one of the present director of the 1st Defendant explain the justification for the 1st, 3rd and 4th Defendants’ decision to authorise the 2nd Defendant to affirm the affidavits for and on behalf of them in this proceedings. Under the circumstances, it would be for the 1st, 3rd and 4th Defendant to question the 2nd Defendant’s authority or lack of it and not the Plaintiff 33 (Molop Corp Sdn Bhd v Uniperkasa (M) Sdn Bhd [2003] 6 MLJ 311 (HC) ). Merits of Enclosures 10 and 14 [34] It is apparent from the facts stated in the parties’ various affidavits, that the Plaintiff’s action against the 1st to the 5th Defendants under s. 346 of the CA 2016 is premised on the allegation that the Plaintiff is the beneficial owner of the TCK’s Shares which was held by the 5th Defendant on trust for the Plaintiff’s benefit. [35] It is not a disputed fact that the Plaintiff was never ever a registered shareholder of the 1st Defendant. As such, going by the definition of the term “member” in the CA 2016, the Plaintiff’s Amended OS is clearly unsustainable. [36] However the Plaintiff claims all is not lost as the Plaintiff’s case comes within the exception established in the case of Owen Sim Liang Khui v Piasau Jaya Sdn Bhd & Anor [1996] 1 MLJ 113; [1996] 4 CLJ 716 (FC). It is the Plaintiff’s case that the case of Owen Sim Liang Khui recognised the rights of a beneficial shareholder to initiate an oppression action against the wrongdoers. 34 [37] The Plaintiff also contends based on the principle of estoppel as stated in the case of Owen Sim Liang Khui, it is therefore unjust or inequitable to permit the Defendants to an oppression action to assert or to contend that the Plaintiff has no locus standi to move the court. [38] The Plaintiff relies on the following passages extracted from the judgment of the Federal Court – A reading of s. 181 reveals that in the latter part of para. (a) of sub-s. (1) to that section the Legislature has used the expression "members, shareholders... of the company". However, it does not require much intellectual exercise to realise that the sub-section, read as a whole, when using the terms "member" and "shareholder", refers to the same category of persons within the company. The result, therefore, is that, as a general rule, only one who comes within the terms of s. 16(6) of the Act may present a petition under s.

Put another way, in general, a petitioner who applies under the section must be able to demonstrate that his name appears on a company's register of members at the date of presentation of the petition: if he is unable to do so, then he has no standing to invoke the jurisdiction conferred upon the Court by the section. In this respect, the section differs materially from s. 459 of the Companies Act 1985 of the United Kingdom, for under the latter provision past members have been expressly given locus standi to apply for relief under it. 35 We have, in stating the applicable rule as to standing under s. 181 taken great care in emphasising that what has been expressed is the general rule and not a universal rule. We have done so to bring home the point that there may be cases where an application of the general rule would be unfair or unjust. Take, for instance, the case of a person who has agreed to become a member, but whose name has been omitted from the register of members. If it transpires that prior to the dispute leading to the presentation of the petition, a company or its board had always treated the complainant as a member, it would not be open to them to assert that the petitioner lacked locus standi. Examples may be multiplied without any principle emerging from them. Take the facts of this very case. Here we have a fact pattern where the appellant's membership of the company had been terminated in circumstances which are being challenged by him on substantial grounds. The substantial ground he complains of is the deprivation of his membership in the Company. He says that the circumstances attending this deprivation of membership falls within the framework of s. 181(1)(a) and (b). It is the company, acting through its board, that had deprived the appellant of the status of a member. Can the company be now heard to say that the appellant is no longer a member and is therefore disentitled from moving the Court under s. of the Act and from questioning that very deprivation in proceedings brought under the section? We think not. 36 For it does not lie in the mouth of the alleged wrongdoers to say that the appellant has no ground to stand on after having cut the very ground from under his feet. The true principle which governs such cases as the present is housed in the doctrine of estoppel. The doctrine has reached a stage where it may be applied to prevent or preclude a litigant from raising the provisions of a statute in answer to a claim made against him in circumstances where it would be unjust or inequitable to permit him so to do. The leading authority on the application of the doctrine to prevent reliance upon a statute is Templeton & Ors. V. Low Yat Holdings Sdn. Bhd. & Anor [1992] 1 LNS 7, at pp. 244-5. There, Edgar Joseph Jr. J (as he then was), in an illuminating judgment, held a defendant who had been guilty of unconscionable and inequitable conduct to be debarred from relying upon the provisions of the Limitation Act 1953. The doctrine has been held to be capable of conferring rights upon a litigant by precluding his opponent from challenging title. See West v. Pollack & Freemantle [1937] T.P.D. (S.A.) 64. Additionally, the wide variety of circumstances in which the doctrine of estoppel operates in the field of private law was recently considered in a judgment of this Court in Boustead Trading [1985] Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd. [1995] 4 CLJ 283; [1995] 3 MLJ 331. The equitable jurisdiction by which a personal bar is placed upon a litigant from raising or relying upon the provisions of a statute is also contained in the maxim "equity will not permit statute to be used as an engine of fraud." In Rasiah Munusamy V. Lim Tan & Sons Sdn. Bhd [1985] CLJ 266 (Rep), at p. 296, Mohamed Azmi SCJ described the 37 nature and scope of the maxim in clarity of language that merits recollection: It is not a (sic) fraud in the common law sense, but an unmeritorious and unconscionable conduct which is known as constructive or equitable fraud (see Spry on Equitable Remedies, Second Edn., p. 236). In its early history, the maxim was used to prevent litigants from raising or relying upon the Statute of Uses, the Statute of Wills and the Statute of Frauds. In modern times it has been used to prevent a litigant from relying upon a provision in the United Kingdom Law of Property Act 1925 (see, Bannister v. Bannister [1948] 2 All ER 133) and more recently in the context of defeating title under the Torrens System (see, Bahr & Anor. v. Nicolay & Ors. (No. 2) [1987] 164 CLR 604). The category or class of statutes to which the maxim may be applied are not closed and its development, like much of equity jurisprudence, falls to be dealt with on a case by case basis, taking into account policy considerations that may govern a particular statutory provision. It may therefore be quite safely stated that if facts emerge from which it may be determined that it is unjust or inequitable to permit a respondent to a petition under s. 181 to assert or to contend that a petitioner has no locus standi to move the Court, then, he will be estopped from so asserting. Stated in another fashion, a respondent who is guilty of unconscionable or inequitable conduct will not be permitted to raise or rely upon the requirement of membership in order to defeat a petitioner's standing as this would amount to his using statute as an engine of fraud. 38 It does not matter how the proposition is formulated so long it has the effect adverted to. We have earlier made our observations upon the conduct of the Company which by its own action had deprived the petitioner of membership and had then asserted his lack of standing to move a petition under s. 181. This conduct does not, in our judgment, entitle the company (for it was the one who raised the issue) from asserting that the appellant lacks standing to present the petition. It matters not that it is the petitioner who relies upon the estoppel. For the true nature of the doctrine is not that it may not be used to found a cause of action, but that it may be invoked to prevent the respondents from asserting the existence or non-existence of facts, the existence or non-existence of which would destroy a cause of action. Unfortunately, the learned Judge in the present case did not address his mind to the wider concepts that were applicable to the facts before him. Instead, he approached the case along narrow lines, causing him to fall into error and to misstate the relevant law. His finding, the effect of which was that the appellant lacked standing, was based upon a misunderstanding of s. 181 of the Act. To summarise, the learned Judge was wrong in his approach to the procedural point; he was wrong in his interpretation of the term "oppression" appearing in para. (a) to sub-section (1) of section 181 and in its application to the facts of the instant case; he was wrong in requiring an express plea of mismanagement or unfairness, and he was wrong in denying the appellant standing to present the petition. 39 [39] Having considered the case of Owen Sim Liang Khui, I am of the view it is not open for the Plaintiff to rely on that case to support his action against the Defendants. My reasons are stated below. [40] The complainant/appellant in the Owen Sim Liang Khui case was at all material time a registered shareholder of the company. The complainant/appellant’s shares was forfeited by the majority members in control of the company and the value of the shares forfeited was utilised to set off the loan which is alleged to be owing by the complainant/appellant to the company. In the instant case the Plaintiff admitted that he was never registered as a shareholder of the 1st Defendant. [41] The oppressive conduct which forms the basis of the complaint in the case of Owen Sim Liang Khui is the conduct of the majority shareholders who has adversely deprived the complainant of the ownership of the shares which was once registered in his name. Since it was the respondent who deprived the complainant/appellant of the status of a member the court therefore ruled it is unjust or inequitable to allow the respondent to assert or to contend that the complainant/appellant has no locus standi to move the Court. In the instant case, since the Plaintiff was never registered as a shareholder of 40 the 1st Defendant company, there is simply no issue of the 1st to the 5th Defendants depriving the Plaintiff of his status as a member of the 1st Defendant. [42] Based on the facts of the case of Owen Sim Liang Khui, there was never any issue raised in respect of the ownership of the complainant/appellant over the 1,500 shares he holds in the company. The issue between the complainant/appellant and the majority shareholders is the sum of RM111,734.60 allegedly owed by the complainant/appellant to the company and the oppressive conduct of the majority members of the company in dealing with the matter including forfeiting the shares of the complainant/appellant’s despite the objection by the complainant/appellant. In the instant case, the Plaintiff’s ownership over the TCK’s Shares is vigorously challenged and this inevitably brings about the issue of locus standi of the Plaintiff. Transfer of the TCK’s shares in the 1st Defendant [43] By the Plaintiff’s own averment, the TCK’s Shares were transferred by TCK in 2013 to the 5th Defendant and the said shares is intended to be held by the 5th Defendant for the benefit of TCK. Based on Exhibit TCH-9 Enclosure 16 and Exhibit ABS-1 Enclosure 13, when the 50,000 41 shares were transferred by TCK to the 5th Defendant, adjudication and receiving order had already been made against TCK. As a result of the said orders, the Plaintiff claim he is the beneficial owner of the 50,000 shares held by the 5th Defendant on trust for the benefit of TCK. This is evident from the Trust Documents (Exhibit DT-5 Enclosure 2 and Exhibit TCH-11 Enclosure 18) executed between the Plaintiff and the 5th Defendant. [44] However based on the affidavit evidence of the 1st to the 4th Defendants and the 5th Defendant, it would appear the transfer of TCK’s shares had taken place much earlier, that is, in 2011. Based on Exhibit TCH-3 Enclosure 18 and Exhibit ABS-1 Enclosure 13, TCK had transferred his one (1) share in the 1st Defendant to Mohd Sunawan (to be held on trust for the benefit of TCK) on 26 January 2011. [45] It is abundantly clear when TCK disposed of his one (1) share in the 1st Defendant to Mohd Sunawan on 26 January 2011, the Suit Against TCK is hanging over his head. Summary judgment was entered against him on 10 May 2011 and eventually he was adjudged bankrupt on 15 August 2012. This facts are all supported by contemporaneous evidence produced and exhibited in the affidavits of the 1st to the 5th 42 Defendants. Simply put, a bankruptcy proceedings was imminent when TCK transferred his one (1) share to Mohd Sunawan. [46] To my mind the transfer of TCK’s one (1) shares in so far as it took place within 2 years prior to TCK being adjudged bankrupt certainly trigger s. 52 of the BA 1965 which states as follows – 52 Avoidance of voluntary settlement

Any settlement of property, not being a settlement made before and in consideration of marriage or a settlement made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be absolutely void against the Director General of Insolvency , and shall, if the settlor becomes bankrupt at any subsequent time within five years after the date of the settlement, be void against the Director General of Insolvency , unless the parties claiming under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof.

Any covenant or contract made in consideration of marriage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property of or in right of his wife, shall, on his 43 becoming bankrupt, before the property or money has been actually transferred or paid pursuant to the contract or covenant, be void against the Director General of Insolvency.

For the purposes of this section "settlement" includes any conveyance or transfer of property, bill, bond, note, security for money or covenant for the payment of money and any gift of money.

For the purposes of this section a settlor who dies insolvent shall be deemed to have become bankrupt at the date of his death. [47] The Federal Court in Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd [2016] 7 CLJ 823; [2016] 5 MLJ 3 dealt with the operation of s. 52 of the BA 1967 in light of s. 293 of the CA 1965 (undue preference). The apex court made the following observations - [31] Section 52 of the BA talks about a settlement (which includes conveyance or transfer) of property, inter alia, to "a purchaser… good faith"… In order to constitute a purchaser in good faith within the meaning of the Bankruptcy Act 1967, it is sufficient if the purchaser acts in good faith and it is not necessary that both parties to the transaction should so act. (see also: Official Assignee v. Ngu Ung Yong [1987] 1 LNS 56; [1988] 2 MLJ 264; Hauce v. Harding [1888] 20 QBD 732; and Mackintosh v. Pogose [1895] 1 Ch 505). [32] The words "undue preference" as appeared in the title of the section in the context of s. 293 of the CA read together with s. 52 of the BA, as far as relevant to the facts of the present case, refer to an act of preference by a company which is in the run up to be wound up during the twilight period of two years, in disposing or transferring its properties 44 to any person or entity (though not bona fide purchaser) and without valuable consideration, the effect of which be detrimental to the interest of the general creditors (particularly unsecured creditors) in the process of liquidation in the event of it being wound up by court. [33] A transfer or conveyance made during the twilight period either not in good faith or without valuable consideration is absolutely void as against the liquidator. If the liquidator is able to show that either valuable consideration or good faith on the part of the purchaser (in this case is the defendant) is lacking, he has discharged the onus of proving that the transfer or conveyance is void (see: Re Anson Cycle & Motor Works; Ex parte the Official Assignee [1960] 1 LNS 104; [1960] MLJ 171; Official Assignee of the Estate of Cheah Soo Tuan v. Khoo Saw Cheow [1931] 2 MC 126 (PC); [1931] AC 67)… [34] The primary purpose of s. 52 of the BA is that it was framed to prevent properties belonging to the person (in bankruptcy) or company (in winding up) from being put into the hands of relatives or preferred parties during the twilight period to the disadvantage of creditors, in the event the person is declared bankrupt or the company is wound up later. (see: Re A Debtor; Ex parte Official Receiver v. Morrison [1965] 1 WLR 1498; and Barton v. Official Receiver [1986] & AC LC 533). However as clearly stated by Chong Siew Fai J, in Official Assignee v. Ngu Ung Yong (supra): That may well be so. But each case must be considered in its own facts and circumstances, and whether a settlement of property in a case falls foul of the statutory provisions must necessarily depend on the facts and circumstances of that particular case… [48] Based on the case of Silver Corridor, whether the transfer of the one (1) TCK’s share in the 1st Defendant to Mohd Sunawan was made in 45 good faith or for valuable consideration would necessarily depend on the facts and circumstances. To my mind, based on the affidavits evidence adduced, it can be reasonably inferred that the transfer was not done in good faith. It was done to circumvent s. 52 of the BA 1957 so that in the event TCK is adjudged bankrupt TCK’s shares would not be passed to the DGI who is empowered to receive, manage and realise TCK’s assets for the benefit of TCK’s creditors. As the transfer is void against the DGI, it follows the agreement between TCK and Mohd Sunawan for Mohd Sunawan to hold the one (1) shares in trust for the benefit of TCK is void. Therefore, like night follows day, Mohd Sunawan does not possess the legal capacity and good title to deal with the one (1) share. [49] Accordingly Mohd Sunawan does not has good title over the TCK’s Shares (consists of the initial 1 (one) share and the 49,999 ordinary shares which was issued to him by the 1st Defendant on 3 May 2011 and held on trust for TCK - see Exhibit TCH-6 Enclosure 18 and Exhibit ABS- 3 Enclosure 13) to transfer it to the 5th Defendant which he subsequently held on trust for TCK including transferring the shares which he held on trust for TCK to others. [50] In this respect it is pertinent to note the contemporaneous evidence and by the Plaintiff’s own averment (paragraph 13 and 14 of 46 Enclosure 2), it is not disputed that the transfer of the TCK’s Shares by Mohd Sunawan to the 5th Defendant took place on 15 April 2013 which was after TCK was adjudged bankrupt on 15 August 2012. The 5th Defendant then executed the Trust Documents where the 5th Defendant declared he holds 70,000 ordinary shares of RM1 each in the 1st Defendant in trust for the Plaintiff. [51] The Plaintiff relies on the Trust Documents and claim he is the beneficial owner of the TCK’s Shares in the 1st Defendant, which he claims entitle him to initiate this oppressive action under s. 346 of the CA 2016 because of the oppressive conduct on the part of the 1st to the 5th Defendants as set out in paragraph 9 above. [52] It is pertinent to note that the transfer of the TCK’s Shares to the 5th Defendant in 2013 was done after TCK was adjudged bankrupt in 2012. [53] Pursuant to s. 24 read with s. 8 of the Bankruptcy Act 1967 (BA 1967), upon TCK adjudged bankrupt on 15 August 2012, all TCK’s properties including the TCK’s Shares are vested in the Director General of Insolvency who is also the receiver of all TCK’s properties. By virtue of s. 58 of the BA 1967, the properties of TCK is passed to the DGI 47 without any conveyance, assignment or transfer. In Tong Soon Tiong & Ors V. Fa Securities Sdn Bhd [2013] 2 CLJ 448 the Federal Court said as follows – [11] When a debtor is adjudicated a bankrupt his property vests in the DGI immediately and with that property being divisible among his creditors. No conveyance, assignment or transfer is required for the bankrupt's property to vest in the DGI who now acts as the trustee of the creditors. Thenceforth the bankrupt will be subject to certain statutory restrictions and responsibilities, amongst them to give an account of all his monies and property to the DGI every six months, handing over to the DGI any unexpanded funds, informing him of any change of address, and the like. In a gist the bankrupt is not as free as an unadjudicated person… [54] Since TCK’s properties are vested with the DGI upon him being adjudged a bankrupt, TCK has no title and right over the TCK’s Shares in the 1st Defendant. It follows that he has no legal capacity to transfer the TCK’s Shares to Mohd Sunawan in 2013. This is in accordance with the principle nemo dat quod non habet where no one can give what he does not have. This is stated in Md Hilmi Md Noor & Anor v Azman Ahmad & Ors [2016] 6 MLRA 39 – [34] … This clearly is an exception to the nemo dat quod non habet principle, which literally means that no one can give what he does not have. Under the English common law, it is quite simply stated that no 48 one can give a better title than what he himself possesses. Much less, if he has none to begin with... [55] As TKC has no good title over the 50,000 shares to pass to Mohd Sunawan it follows the dealings or transactions carried out in respect of the TCK’s Shares by TCK and the transactions thereafter is of no effect, null and void. Pursuant to s. 24 of the Contacts Act 1950 the Trust Documents executed by the Plaintiff and the 5th Defendant is unlawful and void as it was clearly in violation of the BA 1967. [56] As such the Plaintiff cannot rely on the Trust Documents to acquire beneficiary title/ownership over the TCK’s Shares in the 1st Defendant so as to enable him to initiate this oppressive proceedings under s. 346 of the CA 2016. To allow the Plaintiff to assert ownership over the TCK’s Shares would tantamount to lending a hand to the Plaintiff to violate and defeat the BA 1965 which is simply against public policy. In VVO Construction Sdn Bhd v Bina MYK Sdn Bhd and another case [2017] MLJU 79 it was held by the learned Judge that no cause of action can be based on an illegal contract or that one’s action in law cannot be for furthering an illegal purpose or having the effect of defeating the law. 49 [57] It is the Plaintiff’s contention that there is conflict of evidence in the various affidavits filed by the parties and therefore this is not a plain and obvious case to be determined summarily. Having combed through the various affidavits, I am of the view in so far as the beneficial ownership of the TCK’s Shares is concerned, there is no conflict of evidence. To my mind the conflict of evidence alleged by the Plaintiff is not real and substantive as to warrant oral evidence be adduced in order to verify the truth of the facts in relation to the Plaintiff’s ownership over the TCK’s Shares. This is because the issue of ownership of the TCK’s Shares can be adequately determined through the undisputed contemporary evidence adduced in the affidavit evidence (Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah Sdn Bhd) & Ors [1996] 1 MLJ 309). [58] TCK’s action and conduct was a blatant violation of the Bankruptcy Act 1967. The reasonable inference to be drawn from the transfer of the initial one (1) share in the 1st Defendant to Mohd Sunawan is TCK’s intention to siphon the said share from the DGI and save it for the Plaintiff (TCK’s son) who in 2011 has yet to possess the legal capacity to hold properties. Besides that, it is apparent from the Plaintiff’s own admission (paragraph 8 Enclosure 2) TCK is conducting business through the Plaintiff who manages TCK’s business in Johor. This is 50 another instant of violation of the bankruptcy law as a bankrupt is not allowed to carry on any business except with the prior permission of the DGI (s. 38 of the BA 1967). [59] As stated above, the crucial undisputed fact which is gathered from the contemporaneous evidence and on top of it all, from the Plaintiff’s own admission, is that TCK had transferred the TCK’s Shares in the 1st Defendant after he was adjudged a bankrupt. In accordance with the principle nemo dat quod non habet TCK has no good title to transfer the one (1) initial share to Mohd Sunawan. Mohd Sunawan in turn has no good title to transfer the TCK’s Shares to the 5th Defendant who in turn has no good title to transfer the TCK’s Shares to the 6th Defendant. In this respect I am incline to agree with learned counsel for the 1st to the 4th Defendants that no amount of oral evidence in trial would alter the said crucial facts. Conclusion [60] Since the Plaintiff’s action is premised on s. 346 of the CA 2016, the crucial issue to be determined here is the Plaintiff’s status and standing as a member of the 1st Defendant. This is because the complaint mounted by Plaintiff is in relation to the affairs of the 1st 51 Defendant and/or the powers of the directors of the 1st Defendant which is alleged to be oppressive or in disregard of the Plaintiff’s interest as a member of the 1st Defendant or unfairly discriminates or is otherwise prejudicial to the Plaintiff as a member of the 1st Defendant. [61] It is an undisputed fact that the Plaintiff is not and was never ever a registered member of the 1st Defendant in the context of the definition of the term “member” as stated in s. 2 of the CA 2016. On the facts, the Plaintiff is not entitle to seek refuge under the exception to the statutory requirement under the said s. 346 which is set out in the Owen Sim Liang Khui’s case. As such the Plaintiff has no locus to commence this oppressive action under s. 346 of the CA 2016 and it is therefore plain and obvious that the Plaintiff’s action under s. 346 is unsustainable. I accordingly allowed the applications to strike out Enclosures 14 and 15 with costs. [62] In view of the fact that the TCK’s Shares are shares vested in the DGI, it is only appropriate and just for this court to exercise its inherent powers and make a consequential order for the 6th Defendant to transfer the said TCK’s Shares to the DGI. I accordingly ordered the 6th Defendant to transfer the TCK’s shares to the DGI within two weeks 52 from the fair copy of the order in respect of Enclosures 10 and 14 is extracted. ( KHADIJAH BINTI IDRIS ) JUDICIAL COMMISSIONER HIGH COURT (COMMERCIAL DIVISION) DATED 30 APRIL 2018 Counsel: Plaintiff/Applicant : T Gunaseelan, G. Nadesh and Sheril Aishah of Messrs Malek Paulian & Gan Defendant/Respondent : Wilson Ho and Bryan Ho of Messrs Ho Partnership (for the 1st to 4th Defendants) : Sakthy Vell Saminathan of Messrs Sakthy Vell (for the 5th to 6th Defendants)