Datuk Kasi a/l K.L. Palaniappan v 1. ) Menara Embun Sdn. Bhd. & 4 Lagi (24NCC-410-09/2017; 24NCC-411-09/2017)

MENARA EMBUN SDN. BHD. (Company No. 428618-M)

TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (NRIC No. 490318-08-5599) 2

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (NRIC No. 701201-10-6138)

MKN HOLDINGS SDN. BHD. (Company No. 91625-P)

SETIA HARUMAN SDN. BHD. (Company No. 425145-U) …DEFENDANTS IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR ORIGINATING SUMMONS NO. WA-24NCC-411-09/2017 In the matter of Modern Eden Sdn. Bhd. (Company No. 623037-H) And In the matter of Section 346 of the Companies Act, 2016 And In the matter of Order 7 and Order 88 of the Rules of Court, 2012 3 BETWEEN DATUK KASI A/L K.L. PALANIAPPAN (NRIC NO. 581025-10-6855) …PLAINTIFF

MODERN EDEN SDN. BHD. (Company No. 623037-H)

TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (NRIC No. 490318-08-5599)

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (NRIC No. 701201-10-6138)

MKN HOLDINGS SDN. BHD. (Company No. 91625-P)

SETIA HARUMAN SDN. BHD. (Company No. 425145-U) …DEFENDANTS BEFORE YA KHADIJAH BINTI IDRIS JUDICIAL COMMISSIONER 4 JUDGMENT Introduction [1] This judgment concerns two suits – Originating Summons No. WA- 24NCC-410-09/2017 (OS 410) and Originating Summons No. WA- 24NCC-411-09/2017 (OS 411). OS 410 and OS 411 are filed by the same plaintiff pursuant to s. 346 of the Companies Act 2016 (the CA 2016) against defendants who are substantially the same. The facts surrounding both OS 410 and OS 411 as will be seen later relate to similar series of events. Both OS 410 and OS 411 whenever appropriate will hereinafter be collectively referred to as the “Two Originating Summons”. [2] In OS 410, the parties are as follows –

the plaintiff is Datuk Kasi a/l K.L. Palaniappan (DK);

The defendants are -

the first defendant is Modern Eden Sdn Bhd (Modern Eden) 5

(ii) the second defendant is Tan Sri Datuk Haji Mustapha Kamal Bin Haji Abu Bakar (TS MK);

(iii) the third defendant is Felina Binti Tan Sri Datuk Haji Mustapha Kamal (Felina) who is TS MK’s daughter;

(iv) the fourth defendant is MKN Holdings Sdn Bhd (MKN Holdings); and

the fifth defendant is Setia Haruman Sdn Bhd (Setia Haruman). [3] The relief sought by DK in OS 410, among others, are –

a declaration that the 2nd to the 4th Defendants respectively had managed and conducted the affairs of the 1st Defendant, Modern Eden Sdn. Bhd. (Company No. 623037-H) (“Company) and/or exercised their powers oppressively and/or disregarded and/or acted in a mean unfairly prejudicial to the interest of the Plaintiff as a member of the

an order that the 2nd to 4th Defendants do jointly and/or severally purchase the 2 ordinary shares of the Company 6 owned or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court;

the costs of and costs occasioned by the Originating Summons herein be borne personally by the 2nd to the 4th Defendants, jointly and/or severally, and paid to the Plaintiff on an indemnity basis or on any basis deemed fit and proper by the Honourable Court. [4] In OS 410, the parties filed the following interlocutory applications –

the plaintiff filed an application for an order that OS 410 be transferred to Kuala Lumpur High Court NCC 6 (NCC 6

TS MK and Felina filed an application for OS 410 to be strike out – Enclosure 18;

Setia Haruman also filed an application to strike out OS 410 – Enclosure 13. 7 [5] In OS 411, the parties are –

the plaintiff is also DK;

the defendants named are –

Menara Embun Sdn Bhd (Menara Embun) as the first defendant;

(ii) TS MK as the second defendant;

(iii) Felina as the third defendant;

(iv) MKN Holdings as the fourth defendant; and

Setia Haruman as the fifth defendant. [6] The relief sought by DK in OS 411, among others, are –

a declaration that the 2nd to the 4th Defendants respectively had managed and conducted the affairs of the 1st Defendant, Modern Eden Sdn. Bhd. (Company No. 428618-M) (“Company) and/or exercised their powers oppressively and/or disregarded and/or acted in a mean unfairly prejudicial to the interest of the Plaintiff as a member of the Company; 8

an order that the 2nd to 4th Defendants do jointly and/or severally purchase the 105,000 ordinary shares of the Company owned or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court;

the costs of and costs occasioned by the Originating Summons herein be borne personally by the 2nd to the 4th Defendants, jointly and/or severally, and paid to the Plaintiff on an indemnity basis or on any basis deemed fit and proper by the Honourable Court. [7] In OS 411, similar applications were filed by the parties –

Application by DK to transfer OS 411 to NCC 6 Court –

Application by TS MK and Felina to strike out OS 411–

Application by Setia Haruman to strike out OS 411 by Setia Haruman – Enclosure 13. [8] For the purpose of this judgment, DK’s applications to transfer OS 410 and OS 411 which are both Enclosure 15 will collectively be referred 9 to as the “Plaintiff’s Transfer Applications”. The applications by TSMK and Felina (Enclosure 18) and Setia Haruman (Enclosure 13) to strike out OS 410 and the same application in OS 411, namely, Enclosure 17 by TSMK and Felina and Enclosure 13 by Setia Haruman will hereinafter collectively be referred to as the “Defendants’ Striking Out Applications”. [9] Having heard the Plaintiff’s Transfer Applications and the Defendants’ Striking Out Applications in the Two Originating Summons, I dismissed the said applications. The parties appealed. [10] In OS 410, the parties’ appeals are registered as follows –

Enclosure 13 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-721-04/2018;

Enclosure 15 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-488-03/2018; and

Enclosure 18 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-724-04/2018. 10 [11] In OS 411, the parties’ appeals are registered as follows –

Enclosure 13 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-722-04/2018;

Enclosure 15 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-489-03/2018; and

Enclosure 17 – Mahkamah Rayuan Rayuan Sivil No. W- 02(IM)(NCC)-723-04/2018. [12] As can be seen from the above, the parties involved in OS 410 and OS 411 are all the same except the first defendant company where the alleged oppressive conduct was said to have taken place. Based on DK’s affidavit in support of the Two Originating Summons, the background which led to the filing of the Two Originating Summons emanates from the agreement between DK and TS MK to embark on a business joint venture through Moden Eden and Menara Embun and also through companies owned by DK and TS MK, which are Impressive Circuit and Virtual Path respectively. Thus the reason for both the Two Originating Summons are dealt together with in this judgment. 11 Parties in the Two Originating Summons [13] DK, the plaintiff in the Two Originating Summons holds –

105,000 ordinary shares which represents a 35% equity in Menara Embun the first defendant in OS 410. DK was appointed director of Menara Embun on 28 August 1998; and

2 ordinary shares which represents a 30% stake in Modern Eden the first in OS 411. DK was appointed director of Modern Eden on 22 September 2003. [14] Menara Embun (first defendant in OS 410) is a private company, with a total issued share capital of RM300,000.00 comprising 300,000 ordinary shares. It is a company incorporated and utilised by both DK and TS MK as their investment holding company in their joint participation in Setia Haruman. [15] Modern Eden (first defendant in OS 411) is also a private company, with a total issued share capital of RM5.00 comprising 5 ordinary shares. It is also incorporated and utilised by both DK and TS 12 MK as their investment holding company in their joint participation in Setia Haruman. [16] TS MK the second defendant named in the Two Originating Summons hold –

195,000 ordinary shares which represent a 65% stake in

3 ordinary shares which represents a 60% stake in Modern Eden. TS MK was a director of Modern Eden and resigned on 16 October 2015. [17] Felina, the third defendant named in the Two Originating Summons, was appointed as director of Menara Embun and Modern Eden effective 1 December 2008. Felina is a nominee of TS MK. Despite Felina’s appointment all dealings with regard to Menara Embun and Moden Eden and Setia Haruman remain between DK and TS MK. [18] MKN Holdings is the fourth defendant in the Two Originating Summons. It is an investment holding company of TS MK. TS MK held 9,999,993 (out of 10,000,000 shares issued by MKN Holdings) since 1996 and the balance held by TS MK’s wife. However the entire 13 10,000,000 shares are now held by PB Trustee Service Berhad as the trustee appointed for a trust established by the 2nd Defendant for his family. At all material times MKN Holdings is under the control of TS MK as members of its board are made up of TS MK, his wife and children. [19] Setia Haruman the fifth defendant in the Two Originating Summons is a private company incorporated to carry out development project, in particular the Cyberjaya project. Based on information extracted from the Companies Commission of Malaysia (CCM) its total issued share capital is RM6,000,000.00 comprising 6,000,000 ordinary shares. The shareholders and shareholding structure Setia Haruman is as follows – Shareholders Holdings Ordinary Shares Equity Menara Embun 1,500,000.00 25% UEM Land Berhad 1,500,000.00 25% Virtual Path Sdn Bhd 1,500,000.00 25% Modern Eden 750,000.00 12.5% Impressive Circuit Sdn Bhd 750,000.00 12.5% [20] The joint participation of DK and TS MK in Setia Haruman was premised upon a relationship of mutual trust and confidence on the following understanding (Understanding) – 14

that both DS and TS MK would jointly manage their joint business ventures; and

that both DS and TS MK would share the profits of their joint business ventures by being the shareholders with the TS MK holding the majority while DK holding the balance. [21] Pursuant to a Shareholders Agreement dated 7 May 1997 executed by the then 4 equal shareholders of Setia Haruman, each shareholder is entitled to nominate 2 directors to the board of Setia Haruman. [22] Both DK and TS MK subsequently took over control of 75% equity of Setia Haruman by acquiring a further 50% equity of the same via their joint vehicles, Menara Embun and Modern Eden and also via their personal vehicles, namely TS MK’s Virtual Path and DS’s Impresive Circuit. Such move resulted in TS MK and DK having a stake of 48.75% and 26.25% respectively in Setia Haruman. This also entitled TS MK to appoint 4 nominees and DK to appoint 2 nominees to the board of Setia Haruman. [23] Pursuant thereto, the Plaintiff and his nominee, one Balasingam a/l Govindan (Balasingam) were appointed to the board of Setia Haruman. 15 DK was appointed director to the board of Setia Haruman on 10 September 1998. It is DK’s position that he has always been the corporate representative of Setia Haruman and a nominated director of Setia Haruman and that both Balasingam and the Plaintiff were always re-elected as directors of Setia Haruman. Complaints of oppressive conduct [24] In both the Two Originating Summons, the alleged oppressive acts in Setia Haruman which is said to be in total disregard of DS’s right / interest as a member of Menara Embun and Modern Eden are as follows -

TS MK and his nominees to the board of Setia Haruman, together with the remaining members of Setia Haruman, namely UEM Land Berhad (UEM Land) and UEM Land’s nominees to the board of Setia Haruman failed or refused to appoint DK’s nominee to the board as a replacement of Balasingam who had resigned; and

the nominees of TS MK and UEM Land had also excluded DK from participating in the management of Setia Haruman, 16 by refusing to re-elect DK as a director of Setia Haruman until the matters complained of herein. [25] In OS 410, the complaints of oppressive act of Menara Embun as shareholders of Setia Haruman which affect Setia Haruman, were –

TS MK’s 195,000 shares in Menara Embun was transferred to MKN Holdings vide a directors’ circular resolution dated 16 October 2015 (Resolution dated 16 October 2015);

The registered address of Menara Embun was changed to Wisma Mustapha Kamal Menara 2, Level 2, Neocyber, Lingkaran Cyberpoint Barat Cyber 12, 6300 Cyberjaya, Selangor vide Form 44 dated 5 May 2015 (Form 44 dated 5

Farah Mahami binti Tan Sri Datuk Haji Mustapha Kamar (Farah Mahami) and Teh Heng Poh were nominated as the nominees of Menara Embun to the board of Setia Haruman, purportedly vide a letter of Menara Embun dated 20 June 2016 (Letter dated 20 June 2016) and a directors’ circular 17 resolution dated 24 June 2016 (Resolution dated 24 June 2016); and

TS MK or Felina or TS MK’s son, Ahmad Khalif bin Tan Sri Datuk Haji Mustapha Kamal (Ahmad Khalif) was appointed as the corporate representatives of Menara Embun, purportedly vide a letter of Menara Embun dated 20 June 2016 (Letter dated 20 June 2016 (2) ) and a directors’ circular resolution dated 24 June 2016 Resolution dated 24 June 2016 (2) ). [26] It is DK’s position that the above oppressive acts were carried out without his knowledge, consent or approval. The said acts were in breach of the Understanding and DK’s legitimate expectation to participate in the management of Menara Embun and Setia Haruman. [27] With regards to OS 411, the alleged oppressive in Modern Eden the other shareholder of Setia Haruman are as follows -

TS MK’s 3 shares in Modern Eden was transferred to MKN Holdings vide a directors’ circular resolution dated 16 18 October 2015 which was not circulated to the Plaintiff (Resolution dated 16 October 2015);

the registered address of Modern Eden was changed to Wisma Mustapha Kamal Menara 2, Level 2, Neocyber, Lingkaran Cyberpoint Barat Cyber 12, 6300 Cyberjaya, Selangor vide Form 44 dated 5 May 2015 (Form 44 dated 5

TS MK or Felina or TS MK’s son, Ahmad Khalif was appointed as the corporate representatives of Modern Eden purportedly vide a letter of Modern Eden dated 20 June 2016 (Letter dated 20 June 2016 (2) ) and a directors’ circular resolution dated 24 June 2016 (Resolution dated 24 June 2016 (2) ). [28] As what transpired in Menara Embun, the above oppressive acts were also carried out without DK’s knowledge, consent or approval, in breach of the Understanding and DK’s legitimate expectation to participate in the management of Modern Eden and Setia Haruman. 19 Defendants’ Striking Out Applications [29] The Defendants’ Striking Out Applications are essentially premised on the following grounds –

(a)

both TS MK and Felina names are not entered in the Register of Members as holders of any shares in Menara Embun and Modern Eden.

TS MK ceased to be a member of Modern Eden since 16 October 2015.

the 3rd Defendant was not at any point in time a member of Modern Eden.

both TS MK and Felina are only directors of Menara Embun and Modern Eden.

in so far as Setia Haruman is concerned, DK admits that he is not seeking any relief from Setia Haruman and the only reason Setia Haruman is named in the Two Originating 20 Summons is that the relief sought by DK, if granted, may involve Setia Haruman.

DK’s allegations of oppression is on the management and decision of the shareholder of Menara Embun and Modern Eden which could be ventilated and examined without Setia Haruman actually being named as a party. Premised on the above it was argued that DK has no cause of action against the TS MK, Felina and Setia Haruman. [30] The fact that DK had filed a separate suit in the Kuala Lumpur High Court suit No: WA- 24NCC-290-07/2017 (Suit 290) under s. 346 of the CA 2016 against Setia Haruman to address allegations of oppression/s in the same goes to show that DK’s allegations in the Two Originating Summons and OS 290 are separate and distinct. [31] As s. 346(2)(c) of the CA 2016 only empowers the Court to order “members or debenture holders of the company or the company itself” to purchase the share of the members aggrieved by oppression, TS MK, Felina and Setia Haruman cannot be compelled to purchase DK’s shares in Menara Embun and Modern Eden which is the sole relief sought by the Plaintiff in the Two Originating Summons. 21 [32] Since the Two Originating Summons are grounded on a clear statutory provision, namely, s. 346 of the CA 2016, DK’s locus standi, rights and relief must therefore be strictly confined within the ambit of the said statutory provision. The Plaintiff’s contentions [33] In resisting the Defendants’ Striking Out Applications, the Plaintiff forwarded the following grounds:

TS MK, Felina and Setia Haruman are at all material times the proper and necessary parties to the Two Originating Summons.

With regard TS MK and Felina, there are corroborating documents to evident their participation and contribution to the oppressive and prejudicial acts in their capacity as directors of Menara Embun and Modern Eden in the following manner – 22

TS MK and Felina had, without DK’s knowledge, consent or approval, executed the Resolution dated 16 May 2015 that allowed TS MK’s 195,000 shares in Menara Embun be transferred to MKN. The said Resolution was not circulated to the Plaintiff.

(ii) TS MK and Felina allowed and/or effected the changes of Menara Embun’s Registered Address via Form 44 dated 5 May 2015 without DK’s knowledge, consent or approval.

(iii) TS MK and Felina had, without DK’s knowledge, consent or approval, issued the Letter dated 20 June 2016 and executed the Resolution dated 24 June 2016 nominating Farah Mahami and Teh Heng Poh as nominees of Menara Embun to the board of Setia Haruman; and

(iv) TS MK and Felina had, without DK’s knowledge, consent or approval, issued the Letter dated 20 June 2016 (2) and executed the Resolution dated 24 June 2016 (2) appointing TS MK, Felina or Ahmad Khalif as 23 the corporate representatives of Menara Embun to the board of Setia Haruman.

TS MK and Felina executed the Resolution dated 16 May 2015 that allowed TS MK’s 3 shares in Modern Eden be transferred to MKN without DK’s knowledge, consent or approval. The said Resolution was not circulated to the Plaintiff.

(ii) TS MK and Felina allowed and/or effected the changes of the registered address of Modern Eden via Form 44 dated 5 May 2015 without DK’s knowledge, consent or approval.

(iii) TS MK and Felina had, without DK’s knowledge, consent or approval, issued the Letter dated 20 June 2016 (2) and executed the Resolution dated 24 June 2016 (2) appointing TS MK or Felina or Ahmad Khalif as the corporate representatives of Modern Eden to the board of Setia Haruman. 24 [34] As such TS MK and Felina ought to be remained as defendants in the Two Originating Summons to ensure all matters in dispute between the parties could be determined and adjudicated upon. DK contends he should not be deprived of the opportunity of presenting his case against both TS MK and Felina simply by the miscomprehended and overly legalistic and erroneous argument that the sole relief sought in the Two Originating Summons is not available against TS MK and Felina. [35] In so far as Setia Haruman is concerned, the Plaintiff relies on the case of Tob Chee Hoong v Tob Chee Choong & Ors [2017] LNS 1256 as the authority which allows an aggrieved shareholder of the holding company to seek relief by way of an action for oppression in the subsidiary and/or associate company where the alleged oppressive conduct took place. [36] It is DK’s contentions that it is not a plain and obvious case that warrants the Two Originating Summons to be strike out and that whether TS MK, Felina and Setia Haruman are liable for the oppressive acts can only be proven in the trial. 25 The Law [37] 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 Order 18 rule 19 of the RoC 2012. Accordingly such power should be exercised sparingly (Bandar Builders Sdn Bhd 2 Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36; Solai Realty Sdn Bhd v. United Overseas Bank (M) Bhd [2013] 1 LNS 384; [2013] 4 MLJ 545). [38] It is for TS MK, Felina and Setia Haruman 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] 1 CLJ 285; [2010] 1 LNS 1038; [2011] 2 MLJ 192). Findings of the court [39] The Defendants’ Striking Out Applications raise common fundamental issues which concern the interpretation of s. 346 of the CA

The applicants in the Defendants’ Striking Out Applications argued that the relief sought by the Plaintiff cannot be enforced against them because s. 346 of the CA 2016 only empowers the court to order 26 members of the company to purchase the shares of the complainant/shareholder aggrieved by oppression. DK’s relief of prayer is as follows –

an order that the 2nd to 4th Defendants [TS MK, Felina and Setia Haruman] do jointly and/or severally purchase the 2 ordinary shares of the Company owned or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court

an order that the 2nd to 4th Defendants [TS MK, Felina and Setia Haruman] do jointly and/or severally purchase the 105,000 ordinary shares of the Company owned or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court [40] It is argued that the CA 2016 introduced a pertinent change to “minority oppression” actions in that the new s. 346 of the same takes away the wide discretion / jurisdiction previously available under section 181(2) of the CA 1965. The changes and the consequences are –

introduction of a statutory definition of “member”

the CA 2016 introduce a specific definition of the word “member”. Pursuant to the strict statutory definition there is 27 no room or scope in law for other categories of persons to be admitted under equitable principle of estoppel. There is no equivalent of s. 16(6) of the CA 1965 in the new CA

2016.

(ii) under the repealed CA 1965 there was no definition of the term “member” and the courts adopted liberal and “just and equitable” interpretation to the expression “member” by resorting to s. 16(6) of the CA 1965 to allow parties whose names were not in the register of members to prevent injustice and inequity. With the new law the Malaysian cases relied on by the Plaintiff which were all decided under the repealed s. 181 of the CA 1965 is no longer applicable.

relief under s. 346 of the CA 2016

The “wide discretion” and “unlimited jurisdiction” of the Court to grant relief under s. 181(2) of the CA 1965 is now curtailed and limited to only the 5 orders stated in s. 346(2)(a) to (e) of the CA 2016. This is due to the removal of the liberal words “without prejudice to the generality of the foregoing” preceding the 5 reliefs stated in (a) to (e) of 28 the said s. 346(2) and replaced with “without prejudice to the generality of subsection (1)”. Subsection (1) of the said s. 346 refers to the 2 grounds on which an oppression action can be founded. The amendment now removes this limitation and allows for additional grounds which may amount to oppression, prejudicial conduct and unfair dealings.

(ii) Thus in so far as the buy-out relief under s. 346(2)(c) of the CA 2016 is concerned, such relief can only be made against the following 3 parties – (aa) another member of the company; (bb) debenture holders of the company; or

(cc) the company itself. TS MK, Felina and Setia Haruman are not within any of the said 3 parties. [41] For ease of reference, the relevant provisions in the CA 1965 and CA 2016 is reproduced verbatim and tabulated below – 29 Companies Act 1965 Companies Act 2016 Registration and incorporation 16(1) … Members of company

The subscribers to the memorandum shall be deemed to have agreed to become members of the company and on the incorporation of the company shall be entered as members in its register of members, and every other person who agrees to become a member of a company and whose name is entered in its register of members shall be a member of the company.

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 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; 181 Remedy in cases of an oppression

Any member or holder of a debenture of a company or, in the case of a declared company under Part IX, the Minister, may apply to the Court for an order under this section on the ground-

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 holders of debentures including himself or in disregard of his or 346 Remedy in cases of an oppression 1) Any member or debenture holder of a company may apply to the Court for an order under this section on the ground-

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 30 their interests as members, shareholders or holders of debentures of the company; or

that some act of the company has been done or is threatened or that some resolution of the members, holders of debentures 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 holders of debentures (including himself).

If on such application the Court is of the opinion that either of those grounds is established the Court may, with the view to bringing to an end or remedying the matters complained of, make such order as it thinks fit and without prejudice to the generality of the foregoing 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 future;

provide for the purchase of the shares or debentures of the company by other members or holders of debentures of the company or by the company itself; 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; 31

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

provide that the company be wound up.

Where an order that the company be wound up is made pursuant to paragraph

(e) the provisions of this Act relating to winding up of a company shall, with such adaptations as are necessary, apply as if the order had been made upon a petition duly presented to the Court by the company.

Where an order under this section makes any alteration in or addition to any company's memorandum or articles, 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 memorandum or articles 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

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 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 32 applicant with the Registrar within fourteen days after the making of the order. Penalty: One thousand ringgit. Default penalty. 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. [42] Whilst it is apparent the CA 2016 had introduced a specific definition to the word “member”, the meaning given to it is not substantially and fundamentally different from the description attached to the word “member” in s. 16(6) of the CA 1965. It can be seen that the criteria to determine a “member” of a company is the entry of names of persons in the register of members of the company concerned. In fact the definition provided specifically in s. 2 of the CA 2016 is nothing new as it actually endorse the interpretation given by the courts where, in dealing with complaints of oppression under s. 181 of the CA 1965, the provisions in s. 16(6) of the CA 1965 is applied to determine who are those persons considered as “member” ( Owen Sim Liang Khui v Piasau Jaya Sdn Bhd [1996] 2 AMR 2477 (FC); Soh Jiun Jen v Advance Colour Laborator Sdn Bhd [2010] 4 CLJ 897; [2010] 5 MLJ 342 (CA) ). 33 [43] As there is no substantial and fundamental difference in the meaning of the word “member”, I am of the view nothing turn on the issue of having a specific definition (in the CA 2016) or none (in the CA 1965). The pertinent point to note is that both CA 2016 and CA 1965 has the same criteria in determining the word “member”. Accordingly, it is my considered opinion cases under s. 181 of the CA 1965 should still be relevant in so far as the word “member” is concerned. [44] With regards to the limited relief under s. 346 of the CA 2016, such contention is premised on the removal of the words “without prejudice to the generality of the foregoing” which was substituted with “without prejudice to the generality of subsection (1)” in s. 346(2) of the same. The defendants in the Defendants’ Striking Out Applications argue that such amendment has the following effect:

the grounds on which an oppression action can be founded is now no longer limited to the 2 grounds previously found in s. 181 (1) of the CA 1965. The new s. 346 of the CA 2016 allows for additional grounds which may amount to oppression, prejudicial conduct and unfair dealings. 34

the relief for oppression actions are only those relief stated in s. 346(2) of the CA 2016 and in so far as the buy-out relief under s. 346(2)(c) is concerned, it can only be made against another member of the company, debenture holders of the company or the company itself. [45] The above argument appears to have left out the other important part of the provision in the said s. 346. In this respect it must be noted that subsection (1) of s. 346 of the CA 2016 (which is substantially identical to subsection (1) of the CA 1965) not only provides for the various circumstances upon which an oppressive proceedings may be initiated, it also provides for persons who may initiate such proceedings, namely, a member and debenture holder of a company. Thus, if the defendants’ argument is to be accepted, not only the grounds (upon which oppressive actions may be initiated) are now not limited but it would also necessarily mean the persons who may commence oppressive actions are also not limited to the persons specifically stated in the said provision. [46] Such an approach appears to be in conflict with the definition of the word “member” assigned to it in the CA 2016. However as stated above the definition of the word “member” in the CA 2016 and the description 35 given to it in the CA 1965, the word “member” for all intent and purposes simply refers to a person whose name is entered in the register of members of the company concerned. [47] Based on case law the word “member” under s. 181 of the CA 1965 is given a wide interpretation to prevent injustice (Owen Sim Liang Khui v Piasau Jaya Sdn Bhd [1996] 2 AMR 2477 (FC); Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd & Ors [2014] 3 CLJ 309 (HC); Koh Jui Hiong @ Koa Jui Heong & Ors v Ki Tak Sang @ Kee Tak Sang and another appeal [2014] 3 MLJ 10 (FC); Kondapuram Raghuram v Soo Peng @ Yew Soo Peng [2006] 7 MLJ 510 (HC); Drico Ltd v Drico (Water Specialist) Sdn Bhd & Ors [2011] 1 MLJU 439 (HC); Kejutan Holdings Sdn Bhd v Magnum 4D (Perak) Sdn Bhd & Ors [2005] 2 CLJ 766 (HC); Tob Chee Hoong v Tob Chee Choong & Ors [2017] LNS 1256) (HC) ). As such in so far as the word “member” is concerned there is no reason why cases decided under s. 181 of the CA 1965 is not applicable to cases under s. 346 of the CA 2016. [48] Based on the above, the Defendants’ Striking Out Applications must fall as the defendants failed to prove there is no cause of action against them. Moreover, the discussion above with regards to the applicability of the new s. 346 of the CA 2016 as proposed by the 36 defendants goes to show that the case against them is not a plain and obvious one which warrants this court to exercise its power to strike out the Two Originating Summons under Order 18 rule 19 of the RoC 2012. Thus on this ground alone the Defendants’ Striking Out Applications is dismissed. Be that as it may, I will discuss the merits of the Defendants’ Striking Out Applications. [49] S. 346 of the CA 2016 (which is identical in substance to s.181 of the CA 1965) provides relief to a member of a company where –

the affairs of the company are being conducted; or

the powers of the directors are being exercised in a manner oppressive to the member or in disregard of his or their interests as member. [50] In this respect it is pertinent to note the undisputed fact that TSK and Felina are directors of Menara Embun and Modern Eden. In Kejutan Holdings Sdn Bhd v Magnum 4D (Perak) Sdn Bhd & Ors [2005] 2 CLJ 766, the 8th and 9th respondents applied to strike out their name from a petition under s. 181 of the CA 1965 on the ground that they were not members of the 1st respondent company where oppressive conducts 37 were alleged to have occurred. However it was not disputed that the 8th respondent was the subsidiary of the 9th respondent whilst the 9th respondent held the controlling stake in the 1st respondent company. Both the 8th and 9th respondent argued that a petition under s. should only be directed against any member or shareholder or directors of the company in question and not against outside party such as the 8th and 9th respondents. In dismissing the 8th and 9th respondents’ application, the court held – There is nothing in s. 181 to say that only members of the company or its director or those in control of the company may be made respondents to the petition filed thereunder. The principle is that all alleged oppressors are proper parties to the petition, including outside parties who are participants in the transactions forming the subject matter of the complaints. In this regards, the learned author of " Corporate Powers Accountability " has this to say of the power under s. 181: Generally, it is up to the petitioner to decide who should be joined as respondents apart from the company itself. The guiding principles are contained in O. 15 r. 6 of the Rules of the High Court 1980. In relation to a s. 181 petition, there is nothing in its terms to say that only members of the company, or its directors, or those in control of the company may only be made respondents to the petition. The principle is that all alleged oppressors are proper parties, including outside parties who are participants in the transactions forming the subject matter of the complaints and parties who will be effected by the relief sought. (emphasis added) 38 [51] The court in Kejutan Holdings referred to a string of authorities in support of the above proposition. One of the authority referred which to my mind relevant to the instant case is – … in the case of Automobiles Peugeot SA v. Asia Automobile Industries Sdn. Bhd. & Ors. [1988] 1 LNS 77; [1988] 3 MLJ 209, the petitioner sought to amend the petition by adding the directors who were the oppressors, to hold them personally liable for damages to the company as a result of their oppressive conduct. In rejecting the argument that the proposed amendment was not proper and that a derivative action be brought, Siti Norma J (now CJM) said: The injured party in this action is the 1st Respondent and s. 181(1) and s. 181(2) of the Companies Act 1965 under which this petition is presented and relief sought was specifically enacted to overcome the problem posed by Foss v. Harbottle and to strengthen the position of the minority shareholders in limited companies. Since there is now statutory sanction for the shareholder with a minority interest in a company to institute proceeding against directors from conducting the affairs of the company in a manner prejudicial to the company, there is no longer any need for a derivative action to be filed by the petitioner in the manner suggested by the 2nd Respondent as that would amount to the same subject matter. In Kumagai - Gumi Co. Ltd. v. Zenecon Pte. Ltd. & Ors [1995] 2 SLR 297, the Court of Appeal Singapore applied the decision in Automobiles Peugeot SA. (emphasis added) 39 [52] Thus in light of the above authorities, TSK and Felina who are directors of Menara Embun and Modern Eden and who are alleged to have participated and contributed to the offensive and prejudicial act by issuing various letters and passing various resolutions of both the two companies, are necessary and proper parties to the OS. Based on the facts TS MK and Felina must remain as defendants so as to ensure that all matters in dispute between the parties be effectively adjudicated upon. This includes whether the acts complained of is oppressive within the context of s. 346 of the Companies Act which is fundamentally a question of facts to be determined through oral evidence in a trial. [53] With regards to Setia Haruman, it is undisputed that it is not a member of Menara Embun and Modern Eden. Thus in the context of s. 346 of the CA 2016, Setia Haruman appears to be a stranger or outsider. However as can be seen from the shareholder and shareholding structure of Setia Haruman its shareholders includes, among others, Menara Embun (1,500,000.00 ordinary shares which is 25% equity) and Modern Eden (holds 750,000 ordinary shares which is 12.5% equity). This makes Setia Haruman a subsidiary of Menara Embun and Modern Eden. 40 [54] DK alleges he was excluded from effective participation in the management of Setia Haruman when TS MK and his nominees in Setia Haruman refused or failed to re-elect DK and appoint DK’s nominee to the board of Setia Haruman. Thus the alleged oppressive acts occurred at the holding companies, namely, Menara Embun and Modern Eden and also at the subsidiary level, namely, Setia Haruman. [55] A similar situation like the above was discussed in the case of Tob Chee Hoong where the plaintiff complained of oppressive conducts by the first, second and third defendants in the fourth defendant company where the plaintiff held 30% shares and the balance 70% shares were held by the first to the third defendants making them in control of the fourth defendant company. The plaintiff and the first to the third defendants were the only four directors of the fourth defendant company. The plaintiff also complained of oppressive conducts in a wholly owned subsidiary of the fourth defendant where the plaintiff was not a shareholder. The only two directors of the wholly owned subsidiary company was the second and third defendants. The defendants argued the complaints by the plaintiff in relation to the wholly owned subsidiary company ought not be considered by the court because the plaintiff was not a member of the same. 41 [56] It was held by the court that by the words “affairs of the company” found in s. 181 of the Companies Act 1965 (also found in s. 346 of the CA 2016) need not necessarily relate to only the affairs of the company in which the complainant is a member as under certain circumstances it is justifiable for the affairs of a subsidiary company ought to be considered as the affairs of the holding company. Mohd Nazlan bin Mohd Ghazali J said – [24] Crucially however, in my assessment, the terms 'affairs of the company' found in paragraph (a) of sub-section (1) of Section 181 does not necessarily limit the scope to those 'affairs' concerning only the company of which the complainant is a member. In other words, the affairs of the fourth defendant may encompass matters which are more directly affecting its subsidiary, Orchard Circle being the prime and classic example. In certain circumstances, the affairs of a subsidiary should be construed as falling within the spectrum of the affairs of the parent company. [30] But in the instant case, although the plaintiff is not a registered member of Orchard Circle, in respect of which some of the oppressive conduct were alleged to have been perpetrated by the defendants, he is a member of Orchard Circle's holding company, the fourth defendant herein. In a group of companies situation under Section 181 particularly concerning a relationship of a company and its wholly-owned subsidiary, complaints on the affairs of the wholly-owned subsidiary should justifiably be taken into account when such affairs impact or affect its holding company. 42 [31] The test concerning the impact on the holding is especially clearly fulfilled in a situation like presently in the case of Teletone Enterprise, where as an investment holding company, it is purely carrying an investment holding status since its business is entirely comprising the operations of its wholly-owned subsidiary, Orchard Circle. … [34] … a true application of Section 181 (1) (a) additionally warrants evidence of oppressive or prejudicial conduct concerning the "affairs of the company". This is an expression which admits of a wide interpretation. Simply stated, the affairs of a company could be argued to include that of its own subsidiary in which the complainant is clearly not a member. … [36] Thus focus on the words 'the affairs of the company" in the fashion they are proposed to be construed is both apposite and necessary, when proper regard be had to the commercial realities of a corporate structure of a conglomerate or a group of companies, instead of a preference for a much narrower and too legalistic a construction which does less to remove the mischief of Section 181 and promote the interest of justice. If the position were otherwise, there will be a serious lacuna in the remedies available to an aggrieved minority shareholder. [37] Therefore, the plaintiff in the instant case, as a registered member of Teletone Enterprise is complaining about among others the way in which the first, second and third defendants, as the present controller of the company, conducted the affairs of Teletone Enterprise, which include that of its wholly-owned subsidiary. But it is an almost basic commercial fact in the context of groups of companies, that it cannot be seriously doubted that the affairs of the wholly-owned subsidiaries would likely 43 tend to influence the affairs of the parent. And what more for Orchard Circle, being the only subsidiary and the only business operating entity in the Teletone Enterprise group. [45] This decision in Gross v. Rackind thus makes it clear that the conduct in the affairs of one company could, the unambiguous words of Section 459 (1) notwithstanding, also constitute conduct in the affairs of another company. It held that the 'affairs of a company' is a wide concept and could encompass those of a subsidiary. Moreover, the reverse is also true, for the affairs of a subsidiary could extend to those of the holding company, particularly where there are common directors in both. It is also plainly logical, for the manner in which the affairs of a subsidiary, especially a wholly owned subsidiary of a company are conducted affect the value of the parent company's investment in the subsidiary. … [50] I would respectfully follow this observation and rule that in this country, similarly the phrase ‘affairs of the company’ found in section 181(1) of the CA (and the new but identically worded section 346(1) of the Companies Act 2016) should be construed widely, to encompass the affairs of entities which are not themselves the subject of the oppression action but which affairs of those entities, affect the subject company in the nature and to the extent which is beyond the inconsequential, be it a parent or a subsidiary. [57] In the instant case, by virtue of TS MK’s shareholding in Menara Embun and Modern Eden, TS MK is entitled to nominate his nominee to the board of Setia Haruman for purpose of protecting his interest in the same. Given that Menara Embun and Modern Eden are the investment holding company and that its participation in Setia Haruman is said to be 44 the one and only business investment carried out by Menara Embun and Modern Eden, the act and conduct of Setia Haruman as its subsidiary would inevitably has an impact on Menara Embun and Modern Eden. In particular, where DK is concerned it is the affairs of Setia Haruman conducted through its directors who are nominees of the TS MK and purportedly oppressive and prejudicial which may have a significant impact on DK as a member of Menara Embun and Modern Eden. [58] Thus on the facts of the instant case, Setia Haruman is a necessary and proper party to the Two Originating Summons and ought to remain as a defendant so that the issues raise by DK can be properly ventilated and adjudicated including whether the acts complained of in Setia Haruman are oppressive and that it is the conduct of Menara Embun and Modern Eden. [59] Premised on the above I am of the view the defendants in the Defendants’ Striking Out Applications has failed to prove that there is no reasonable cause of action against them. The claim made by DK in the Two Originating Summons and the defendants’ defence to such claim shows this is not a plain and obvious case to be struck off as there are issues involving question of facts which need to be determined by this 45 court later during trial. Accordingly the Defendants’ Striking Out Applications was dismissed with costs. Plaintiff’s Transfer Applications [60] Besides the Two Originating Summons, DK together with Impressive Circuit Sdn Bhd (Impressive Circuit) had initiated Originating Summons No. 24NCC-290-07/2017 (OS 290) against several defendants in respect of a series of events alleged to be oppressive and prejudicial to the rights and interest of both DK and Impressive Circuit in Setia Haruman. OS 290 is pending in NCC 6 Court. [61] The nine defendants in OS 290 are:

Setia Haruman (first defendant);

TS MK (second defendant);

Ahmad Khalif (third defendant);

Dato’ Hajah Fazwinna binti Tan Sri Datuk Haji Mustapa (fourth defendant);

Farah Mahami (fifth defendant);

Lao Chok Keang (sixth defendant);

Azhar bin Othman (seventh defendant); 46

Anwar Syahrin bin Abdul Ajib (eighth defendant); and

UEM Land Berhad (ninth defendant). [62] The relief sought in OS 290 is for the second to the ninth defendants to jointly and/or severally purchase the 750,000 ordinary shares held by Impressive Circuit in Setia Haruman. [63] It is the Plaintiff’s contentions that the OS can be conveniently heard and disposed in NCC 6 Court. The Defendant’s Transfer Applications is premised on the following grounds:

The underlying issues arising in the OS are closely connected to the issues in OS 290.

The transfer will ensure that all issues in dispute arising from all the claims in the Two Originating Summons are before the same forum for an effectual and complete determination by the court and to avoid inconsistent decisions.

2 out of the 5 defendants named in the Two Originating Summons (TS MK and Setia Haruman) are also defendants in the OS 290.

The Plaintiff’s Transfer Applications merely seeks to transfer the OS to a different court which is of coordinate jurisdiction 47 and the transfer will not cause any prejudice or any inconvenience. [64] The defendants submits there is no convenience or fairness to be achieved by the transfer of the OS. Instead it will occasion inconveniences, cause inordinate delay and impede the expeditious disposal of the Two Originating Summons. The grounds opposing the Plaintiff’s Transfer Application includes the following:

The complainant and complaint of alleged oppression in both suits are different and distinct.

The relief sought by the plaintiff in OS 410, OS 411 and OS 290 are different as it involves shares in different companies owned by different persons.

The status of OS 410, OS 411 and OS 290 involves striking out applications by various parties and this cause uncertainty as to who will remain as the ultimate plaintiff and defendant.

In OS 290, DK who is also the plaintiff has made an application to amend the Writ and Statement of Claim to include Menara Embun, Modern Eden and Virtual Path as additional defendants. DK’s application is bound to be allowed, so this would enable him to raise his complaints and 48 grievances about the affairs of Menara Embun and Modern Eden in OS 290 after both the companies are added as party.

OS 290 is confined to the affairs of Setia Haruman whereas OS 410 and OS 411 is confined to the affairs of Menara Embun and Modern Eden.

The Plaintiff’s Transfer Application is not made bona fide. It is more convenient to transfer OS 290 to this court as there are already 2 originating summons pending in this court where Plaintiff is the complainant, namely, OS 410 and OS

411.

Moreover as DK has had another case Civil Suit No. 22NCVC-662-05/2012 heard before the Judge in NCC 6 it is argued that it would be extremely awkward, unpleasant and cause unnecessary embarrassment to the Judge if the Two Originating Summons are transferred to NCC 6 Court, and this would cause the Defendants to then apply for the Judge’s recusal. However I fail to see the relevancy and significance of this argument as there is nothing in the affidavits of TS MK, Felina and Setia Haruman which relate to the said argument. 49 The law [65] The provisions in relation to transfer of a case from one court to another court of coordinate jurisdiction is Order 57 rule 1 of the RoC 2012 which provides as follows –

Transfer of proceedings to another Court (O. 57 r. 1)

Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Court.

Before making any order to transfer any proceedings from – … the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or Subordinate Court which shall hear the case is located at or nearest to the place where –

(A) the cause of action arose;

(B) the defendant, or one of the several defendants, resides or has his place of business;

(C) the facts on which the proceedings are based exist or are alleged to have occurred;

(D) the land the ownership of which is disputed is situated; or

(E) for other reasons it is desirable in the interests of justice that the proceedings should be transferred. 50 [66] The burden is on the applicant to satisfy the court why the transfer to another court would be more convenient, appropriate and fair for the trial of the case. In this respect, the balance would tilt in favour of the party which is able to satisfy more of the criteria set out under s. 23(1) of the Court of Judicature Act 1964 (which provides for the civil jurisdiction of the High Court) and Order 57 (Tan Hoo Eng & 2 Ors v. Lim Keck Eng & 6 Ors [2014] 9 CLJ 992; [2014] AMEJ 1362). [67] Having considered the affidavits and the parties’ submission I am of the view it there is no sufficient facts to support DK’s contentions that it would be more convenient, appropriate and fair for the Two Originating Summons to be heard in NCC 6 Court. My reasons are stated below. [68] DK’s complaints in OS 290 is in relation to oppressive and prejudicial conducts in Setia Haruman where DK is being precluded from participating in the management in Setia Haruman in the following manner –

DK is not being appointed as director of Setia Haruman.

There was no representative of Impressive Circuit in the board of Setia Haruman.

Setia Haruman failed to pay dividend to Impressive Circuit. 51 [69] Whereas as can be seen from the facts narrated above the complaints in the Two Originating Summons are in relation to the oppressive and prejudicial conducts carried out in two different companies which are Menara Embun and Modern Eden. As such it would be the affairs of these two companies which would be scrutinised in order to determine whether it is indeed oppressive as alleged by DK. The establishment of Menara Embun and Modern Eden as investment holding companies may be the result of the mutual agreement between DK and TS MK to venture and invest in Setia Haruman but that does not necessarily make the facts of what transpired in both Menara Embun and Modern Eden are inter-connected with each other or with Setia Haruman the target company in OS 290. [70] Moreover, the only common individual defendant in OS 410, OS 411 and OS 290 is TS MK who, as far as the Plaintiff is concerned, had participated in the oppressive conducts in his capacity as director of Menara Embun and Modern Eden. But that does not necessarily mean the factual circumstances is inter-connected. At this juncture the complaints against Menara Embun is that DK was not informed of the disposal of TS MK’s shares to MKN Holdings, its change of address, the resolutions in relation to the appointment of Menara Embun’s nominee and its corporate representative to the board of Setia Haruman. 52 [71] Similar complaints were also made by DK in relation to Modern Eden which resulted in DK being precluded from the management of both Menara Embun and Modern Eden. In this respect besides relying on the history of the formation of Menara Embun, Modern Eden and Setia Haruman (which to my mind do not support the Plaintiff’s Application for Transfer) and the Understanding between him and TS MK, DK did not demonstrate how the facts in relation to the complaints made by him against Menara Embun, Modern Eden and Setia Haruman are so inter-connected to justify for the OS 410 and OS 411 be transferred to where OS 290 was filed for purpose of consolidating the three originating summons. [72] In this respect the question posed by the defendants merit consideration – if the facts are so inter-connected as claimed by DK, why application was not made for OS 290 to be transferred to this court where there are already the OS 410 and OS 411 commenced by DK. Considering there are already the Two Originating Summons pending in this court and assuming that the facts are so inter-connected that justify OS 290 and the Two Originating Summons be heard before one forum, this court would have the closest nexus to the dispute between the parties and this court would be the convenient forum. 53 [73] Premised on the above it is my considered opinion that the plaintiff in the Two Originating Summons failed to satisfy this court that it is convenient, appropriate and fair for the Two Originating Summons be transferred to NCC 6 Court and heard together with OS 290. The Plaintiff’s Applications for Transfer was thus dismissed with costs. ( KHADIJAH BINTI IDRIS ) JUDICIAL COMMISSIONER HIGH COURT DATED 28 SEPTEMBER 2018 Counsel: Plaintiff/Appellant : Owee Chia Ming with Khor Heng How of Messrs Owee & Ho Defendant/Respondent : Eric Clement a/l A. Sebastian of Messrs Abd Halim Ushah & Associates (for the 1st and 5th Respondents) : Dato M Pathmanathan with Shirin Devi Pathmanathan of Messrs M Pathmanathan & Co (for the 2nd, 3rd and 4th Respondents)