Datuk Kasi A/L K.L. Palaniappan v 1. ) Modern Eden Sdn Bhd (WA-24NCC-411-09/2017)

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

PB TRUSTEE SERVICES BERHAD (Company No.: 196801000374 (7968-T)) (The Executor Of The Estate Of The Late TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (I/C No.: 490318-08-5599))

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (I/C No.: 701201-10-6138)

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

SETIA HARUMAN SDN. BHD. (Company No.: 425145-U) … DEFENDANTS [Heard together with the following Originating Summons pursuant to the Order dated 3.12.2019] IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) 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 Orders 7 and 88 of the Rules of Court 2012 BETWEEN DATUK KASI A/LKL PALANIAPPAN (I/C No.: 581025-10-6855) … PLAINTIFF

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

PB TRUSTEE SERVICES BERHAD (Company No.: 196801000374 (7968-T)) (The Executor Of The Estate Of The Late TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (I/C No.: 490318-08-5599))

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (I/C No.: 701201-10-6138)

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

SETIA HARUMAN SDN. BHD. (Company No.: 425145-U) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] There are 4 applications made by the Plaintiff before the court:

1.1 Enclosure (“Enc.”) 290 in Originating Summons WA- 24NCC-410-09/2017 (“Menara Embun OS”) and Enc. in Originating Summons WA-24NCC-411-09/2017 (“Modern Eden OS”) seeking for the Plaintiff’s further Affidavit affirmed on 10.09.2021 (“P afft 7”) to adduce 12 volumes of documents be admitted in evidence for Both OS (“Further Affidavit Application”); and

1.2 Enc. 286 in the Menara Embun OS and Enc. 272 in the Modern Eden OS that the Plaintiff be granted leave to cross-examine, through counsel, Farah Mahami Binti Tan Sri Datuk Haji Mustapha Kamal on her Affidavits and Felina Binti Tan Sri Datuk Haji Mustapha Kamal on the Affidavits affirmed on her behalf (“Cross Examination Application”). [2] I had allowed the applications on 5.9.2023. These are the reasons for my decisions. As the applications were related, it is convenient to deal with all 4 applications in one judgment. Background [3] The Menara Embun OS and Modern Eden OS were filed by the Plaintiff, Datuk Kasi a/l Palaniappan (“DK”) pursuant to Section 346 of the Companies Act, 2016 (“CA 2016”) complaining of minority oppression in respect of the affairs of Menara Embun Sdn Bhd and Modern Eden Sdn Bhd respectively. [4] DK together with one Impresive Circuit Sdn Bhd also commenced another minority oppression claim in respect of Setia Haruman Sdn Bhd vide Originating Summons No. WA-24NCC-290- 07/2017 (“Setia Haruman OS”). In the Setia Haruman OS, DK was struck out as a Plaintiff on 25.4.2018 as he was not a shareholder of Setia Haruman. DK however owns 50% of the shares in Impresive Circuit. The Setia Haruman OS was heard and eventually dismissed by me on 25.06.2021. The Court of Appeal had affirmed the decision on 20.1.2023. Impresive Circuit’s leave application to appeal to the Federal Court was dismissed by the Federal Court on 15.8.2023. [5] The Menara Embun OS and Modern Eden OS were converted into writ actions by Wong Chee Lin J but both had reverted back to OS actions after the 2nd to 4th Defendants’ appeals to the Court of Appeal was allowed on 26.08.2021 and the Plaintiff’s applications for leave to appeal to the Federal Court were dismissed on 21.2.2022. [6] In each of the 3 OS Actions, Tan Sri Mustapha Kamal (“TSMK”) was named as the 2nd Defendant. The Plaintiff’s complaints in the 3 OS Actions are that alleged oppressive acts were carried out in breach of an alleged Understanding, New Board Understanding that DK allegedly had with TSMK and DK’s legitimate expectation to participate in the management of Setia Haruman, Menara Embun and Modern Eden. The Further Affidavit Applications [7] Via P Afft 7, the Plaintiff seeks to adduce 12 volumes of documents as follows: a) Volumes 1 to 3 - documents exhibited in the earlier affidavits in these proceedings; b) Volume 4 - documents related to Setia Haruman Sdn Bhd; c) Volumes 5 to 9 - documents pertaining to 15 other companies and Setia Haruman; d) Volume 10 - documents pertaining to the affairs of several companies which existed before the incorporation of the 1st Defendant; e) Volume 11 - the notes of proceedings of the cross examination of TSMK, Azmy and THP in the Setia Haruman OS from 17th to 19th March 2021(which the 2nd to 4th Defendants have no objection); f) Volume 12 - document included by the 2nd to 4th Defendants to rebut the documents filed by the Plaintiff in volumes 4 to 10 for purposes of trial. [8] The documents sought to be adduced has since been narrowed down to volumes 1 to 3, 5 to 9 (except 1 document in volume 8 being the Certified True Copy of Form 13 A of MK Land by the Companies Commission of Malaysia, and volume 11 which was admitted by consent as these notes of proceedings are relevant but were not available earlier. [9] 2nd to 4th Defendants objections may be summarised as follows:

9.1 That the documents sought to be introduced concern other companies/joint ventures and Setia Haruman which are irrelevant documents;

9.2 These documents are sought to be adduced after the dismissal of the Setia Haruman OS. It is a belated attempt by the Plaintiff to cure the shortfalls of the Setia Haruman OS and an attempt to have a 2nd bite at the cherry;

9.3 Prior to the conversion, the Plaintiff had filed 6 affidavits in support of the Menara Embun OS and Modern Eden OS (“the OSs”). These documents were available to the Plaintiff at the time of filing of the OSs in 2017 and the exchange of affidavits; There was no explanation as to relevance and why these documents were not exhibited in the earlier affidavits citing in support of their arguments L.K Insulation Engineering (M) Sdn Bhd v. Apex Energy Sdn Bhd [2017] 1 LNS 733: “[10] At any rate the reason given is not cogent enough: that of wanting to file a further affidavit. Generally only 3 affidavits are allowed for an application: an affidavit in support, an affidavit in opposition and a further affidavit in reply to that affidavit in opposition. Unless there are cogent reasons for affirming a further affidavit as in the documents that were sought to be referred to were not available previously or that what has been referred to in the last affidavit filed is a lie, courts generally would not allow further affidavits to be filed. Otherwise there would be no end to affidavits filed because, human nature being what it is, everyone wants to have the final and last word! Therefore if in an affidavit in reply there is more than a reply to the affidavit filed in opposition, I would disregard the new matters raised which should have been raised in the affidavit in support.” (counsel’s emphasis) [10] The Plaintiff argued that:

10.1 The Plaintiff had in its Affidavits (Afft 7 Para 12) and Afft 8 Para 7 explained the contents of the documents as well as shown how these documents are both relevant and necessary to the core issues in both OSs i.e. the relationship between DK and TSMK, the Understanding, the New Board Understanding as well as the breaches of these understandings;

10.2 the documents relating to DK’s and TSMK’s various joint ventures are necessary and relevant to the manner in which DK and TSMK would run their joint ventures which include Menara Embun and Menara Eden;

10.3 The documents relating to Setia Haruman are necessary and relevant because the conduct at Setia Haruman affected DK’s participation in Menara Embun and Menara Eden. In this regard, the term “affairs of the company” in Section 346 of the Companies Act 2016 is to be widely construed such that it includes the affairs of various companies where such affairs are all closely connected e.g. parent and subsidiary companies citing in support:

Ng Kek Wee v Sim City Technology Ltd [2014] SGCA 47: “[42] We think that the approach adopted in the above cited cases is sound and we also agree that, in the final analysis, the question that must be answered in this regard is whether the affairs of the subsidiary affect or impact the holding company: Lim Chee Twang at [97]. Legitimate claims for relief from oppression should not be defeated by technical and legalistic objections relating to the company's shareholding structure; at the same time the doctrine of separate legal personalities and the strict words of the statute ("the affairs of the company" [emphasis added]) must be respected. In our view, the balance between these competing interests would be properly drawn by a requirement that commercially unfair conduct in the management of a subsidiary would be relevant so long and to the extent that such conduct affected or impacted the holding company whose member was the party claiming relief from oppression. The purpose and policy behind s 216 of the Companies Act is, above all, to grant relief from the oppressive behaviour to shareholders who would otherwise be unable to stop that abuse: see below at [49]. If the affairs of the subsidiary do not affect or impact the holding company, shareholders and members of the latter could hardly complain that their interests were therefore prejudiced.”

(ii) Tob Chee Hoong v Tob Chee Choong [2017] MLJU 1303: “[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. … [54] This provide much support to a wide reading of ‘affairs of the company’ which is wholly in line with the design of the law to ensure that in circumstances where oppressive conduct could be proven, legal redress to those unlawfully aggrieved is available and not impeded by the artificiality or in the complexity of corporate structures. Otherwise, wrongdoers in corporate world would be encouraged to strategize and build upon more complex conglomerate-like structures and perpetuate such unlawful and oppressive conduct in a fashion orchestrated to defeat the application of Section 181 (1) (Section 346 (1) of the Companies Act 2016), and almost literally employing the section as an engine of fraud. The law will fail in its true objective and the ends of justice will be far from being served if such a grim scenario is allowed to transpire, if not already manifest and flourishing.”

(iii) That this principle is applicable to Setia Haruman, Menara Embun and Menara Eden was recognised by Azizul Azmi J when he heard the striking out applications in the Setia Haruman OS where DK was struck out as a Plaintiff but Impresive Circuit was allowed to continue pursuing the claim in Datuk Kasi Palaniappan & Anor v Setia Haruman Sdn Bhd & Ors [2019] 9 MLJ 32: “[14] …Tob’s case established the principle that the expression ‘affairs of the company’ in s 346(1)(a) is to be construed widely, and would encompass oppressive conduct that is conducted at a subsidiary or a holding company. [15] While I fully agree with the ratio of the decision of Mohd Nazlan J in Tob’s case… … [18] He (DK) would have been perfectly entitled to allege, based on the principle in Tob’s case, that he was being oppressed at Menara Embun or Modern Eden by virtue of acts conducted at Setia Haruman. This is because the acts carried out at the Setia Haruman would amount to affairs of Menara Embun and/or Modern Eden. In my judgment, it makes no difference that Setia Haruman is not a subsidiary of either Menara Embun or Modern Eden. It suffices that either company holds shares in Setia Haruman, for conduct carried out at Setia Haruman to be the subject of a complaint of oppression at either Menara Embun or Modern Eden.”

10.4 P Afft 7 seeks to produce documents comprised previously in Part B of the Common Bundle of documents to enable the Plaintiff to discharge its burden to prove the Understanding, the New Board Understanding or the breaches of these understandings which amounted to oppressive acts against the Plaintiff; Having been produced in the Common bundles for trial, there is no surprise to the Defendants, the documents are admissible whether the matter is tried as a writ action or an originating summons citing in support the case of Thavanathan a/l Balasubramaniam v Public Prosecutor [1997] 2 MLJ 401, that all “evidence which is sufficiently relevant to the facts in issue is admissible”;

10.5 Both OSs are oppression claims which concern various complex factual and legal issues. To limit the Affidavits in such a case to only an Affidavit in support by the Plaintiff, one Affidavit in reply by the Defendant and then an Affidavit in reply by the Plaintiff as suggested by the Defendants would not lead to a just and effectual determination of both OSs. This is more so when the Defendants themselves have filed multiple Affidavits instead of subscribing to their own contention of Defendants only filing a single Affidavit in reply;

10.6 the Affidavits in respect of both OSs were still in the midst of being exchanged prior to the Conversion and once the Conversion was ordered, documents intended to be relied on by parties had to be adduced through the CBODs instead of further Affidavits; the Plaintiff had filed the Further Affidavit in both OSs to adduce the documents within 2 weeks of the Conversion being set aside by the Court of Appeal and well in advance of any hearing date of both OSs; L K Insulation Engineering relied upon by the Defendants is distinguishable because it concerned a summary judgment application for a debt recovery claim and the party seeking to file the further Affidavit had only informed the Court of their intention to do so at the hearing of the summary judgment application. Court’s finding [11] Having considered the cause papers and the parties’ submissions, I find the narrowed down documents sought to be adduced are relevant and necessary to both OSs as they relate to the central issue of the alleged Understanding, the New Board Understanding and the purported breaches thereof. [12] I am of the respectful view that the Plaintiff should be afforded the opportunity to fully ventilate his case in both OSs. In this regard, the Plaintiff had in his affidavits for the Further Affidavit Application explained although not in great detail why these documents are both relevant and necessary to the core issues in both OSs. [13] The Defendants’ posit that the Further Affidavit Application is an abuse of process because these documents ought to have been adduced in the Plaintiff’s 6 Affidavits prior to the Conversion is untenable as I accept the Plaintiff’s assertion that the affidavits in respect of both OSs were still in the midst of being exchanged prior to the Conversion after which the said documents (except for volume 11 which was not available then) were produced in Part B in the common bundles for trial. Once the appeal against the conversion to a writ action was allowed by the Court of Appeal which ordered the matters to continue and disposed by OS, the Plaintiff still wishing to rely on the said documents had no choice but to adduce them through a further affidavit, in this case through P Afft 7. [14] In any case, I find there is no element of surprise nor prejudice occasioned to the Defendants as they will have an opportunity to reply. [15] I find it just and equitable and thus exercised my discretion to grant leave to the Plaintiff to file P Afft 7 containing the narrowed down documents only and volume 11 which was consented to. Cross Examination Applications [16] I ought to set out some basic principles on this subject. [17] First, it is settled law that the court retains an absolute discretion whether or not to allow cross-examination of a deponent on his affidavit – see as mere examples, Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189; Balwant Singh Purba v R Rajasingam [1987] CLJ Rep 468; [1987] MLJU 3; Regional Centre for Arbitration v Ooi Beng Choo & Anor [1998] 2 MLJ 383. As such, each case is to be decided on its own particular facts as “Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case.” - Structural Concrete Sdn Bhd v. Wing Tiek Holdings Bhd [1997] 1 CLJ 300, at 306 CA. [18] Second, the applicant for leave to cross-examine a deponent bears the legal burden to persuade the court to exercise its discretion to grant leave - in Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638; [2007] 4 CLJ 487. [19] Third, the application has to be made bona fide or in good faith. In Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189, at 190, Salleh Abas FJ said: “To allow or not to allow the respondent’s application to cross-examine the appellant’s witnesses upon their affidavits, I take it, is a matter of court’s discretion. In appropriate circumstances, there is no reason why such application should be refused merely because the deponent is a foreigner living outside the jurisdiction (Re Lucas [1952] 1 All ER 102); “otherwise foreigners would have an advantage” (Strauss v Goldschmidt 8 SLR 239). It is really a matter of common sense and an elementary legal principle that a party who swears an affidavit much be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause vexatious or motivated by desire to delay the proceedings (Allen v Allen [1894] P 239). In view of the appellant’s application for judgment under Order 32 Rule 6, I am not, however, prepared to hold the respondent’s application to cross-examine the appellant’s witnesses as being without just cause or motivated by desire to delay the proceedings or without bona fide or sham or vexatious. (emphasis added) [20] Fourth, relevancy as to disputes of the facts has to be shown to warrant cross-examination. The Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah (supra) stated: “[25] You can discern from the authorities referred by the parties that three prime considerations would influence the court in the exercise of its discretion to allow or disallow cross-examination on affidavit. Firstly, the truth of the averment in the affidavit must be challenged or the issues of fact identified. Secondly, cross-examination should only be allowed if the disputed fact is relevant to the issue to be decided and must be limited to that issue only. And thirdly, cross-examination would not advance the cause of justice and should be refused if there is sufficient affidavit evidence or contemporaneous documents to enable the court to properly decide without the need of cross-examination. It is important to take into account all facts when considering an application for cross-examination and if it has little relevance or little weight to the issue which the judge has to decide, then cross-examination should not be permitted.” [21] Last but not least, as stated in Tetuan Kumar Jaspal Quah & Aishah (supra) cross-examination must advance the cause of justice. When a conflict in affidavit evidence may be resolved by undisputed contemporaneous document, the cause of justice is not advanced. Defendants’ objections. [22] The Defendants claim there is no basis for the cross-examination of Farah on her Affidavits and Felina on the Affidavits affirmed on her behalf. CA Order dated 26.8.2021 gave liberty to apply to cross-examine deponent [23] As for the Defendants’ 1st ground of objection that cross-examination would go against the decision of the Court of Appeal setting aside the Conversion, I find no merits in this contention for the simple reason that in fact, the Court of Appeal on 26.8.2021 allowed the Conversion Appeal with liberty to the Plaintiff to apply for cross-examination. The Order reads: "1. Rayuan ini dibenarkan dan keputusan Mahkamah Tinggi bertarikh 26.10.2018 yang menukarkan Saman Pemula bertarikh 28 September 2017 kepada tindakan Writ diketepikan dan perkara ini dikembalikan kepada Saman Pemula dengan kebebasan untuk memohon untuk memeriksa balas deponen.” This Order appears at Enc. 324 p 23-25. Viva voce evidence imperative [24] As for the next ground that the Plaintiff had not identified the disputes of material facts, I find that there is more than sufficient material in the affidavits to form a basis for cross-examination. Here, the pith of the Plaintiff’s claim lay in the alleged Understanding, the New Board Understanding. [25] Having considered the affidavits filed by the parties and the exhibits annexed, and the submissions of the parties both oral and written, I am of the firm view that anyhow once slices it, there are disputes of facts in the Affidavits relating to the Understanding, the New Board Understanding, the breaches of these understandings and the resolutions being passed in Menara Embun and Menara Eden purportedly without DK’s knowledge, consent and/or approval so as to facilitate the said breaches. All the Defendants have denied the existence of the said Understandings and the alleged breaches thereof. In my respectful view, the controversy of facts pertaining to the truth of the allegations of fact of the alleged Understandings and breaches can only be resolved by viva voce evidence. It would be critical to ascertain the true state of affairs by resort to cross-examination. It is insufficient merely to rely on affidavits evidence alone to make a definitive determination whether there is in fact minority oppression inflicted on DK in respect of the conduct of affairs of the 2 companies. [26] In my judgment, it would be wrong to ascribe no importance to why cross-examination is necessary. If the Plaintiff is denied leave to cross-examine Felina and Farar, as decided in Tahansan Sdn Bhd v Tay Bok Choon [1985] 1 MLJ 58, this court has to ignore the disputed averments in affidavits and, the Plaintiffs will run the risk of not being able to prove its case. In fact in the Tay Bok Choon case, the former Supreme Court held on the facts of that case, “in the face of the denial that the agreement was ever made, the trial judge should have heard oral evidence before deciding whether the alleged agreement was ever made” and the court can hear oral evidence even if no application was made under O 38 r 2(3): “Order 38 rule 2(3) of the Rules of the High Court empowers the Court to examine the deponents regardless of the absence of such application, and we agree that in this instance it should have done so.” [27] Just as in Tay Bok Choon, the Understandings and breaches here were denied by the Defendants. This need to cross examine is further exacerbated by the fact that the alleged Understanding, the New Board Understanding are not in writing. I hence cannot with conviction say that a decision can be made from the contemporaneous documents in the court file in order to arrive at a decision on the matters in issue. In my utmost respectful view, cross examination in this case would advance the cause of justice. [28] I find the case of Kumagai Gumi Co Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application [1994] 2 MLJ 789 cited by the Defendants is to be distinguished as the court there found the matter could be decided on the undisputed contemporaneous documents in that case. Similarly, the case of Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd [2018] 5 CLJ 751 is also distinguishable as the court there took the exceptional circumstances approach when considering whether to permit cross-examination of a deponent in the context of a winding up proceeding as:

it is a primary rule that petitions for winding up are heard on affidavit evidence;

(ii) the Companies Act 1965 and the Companies Winding-up Rules 1972 do not expressly provide for a similar right to apply for the cross-examination of the affidavits as found in the RC 2012;

(iii) it is public policy that a winding up petition be heard expeditiously. Cross-examination of non deponent [29] As for cross-examination of Felina in respect of affidavits affirmed on her behalf by TSMK, the Defendants contend the Plaintiff’s application to cross - examine her as a non-deponent is irrational, vexatious, misconceived and an abuse of process. The Defendants posited that Order 38 rule 2(2) ROC 2012 applies only to the cross examination of deponents of affidavits. It was pointed out that the Court of Appeal in Kumar Jaspal Quah did not agree with Gomez v Gomez [1969] 1 MLJ

[30] In Gomez v. Gomez, Raja Azlan Shah J (later Lord President and HRH Sultan of Perak) allowed the cross-examination of a priest who had given a letter which was annexed as an exhibit to the Wife’s custody affidavit owing to conflicting evidence concerning the capability of either parent to look after the welfare of the child based on religious ground. In allowing the application, His Lordship stated: “In the present case there is only 1 issue, that is, the issue in the pending action which is whether the order can be varied. The matter raised in the three affidavits are all matters relating to the action. The applicant complains that the respondent is no longer a fit and proper person to have custody of the child. The respondent says that she is still capable of looking after the child’s religion and moral upbringing. The Rev Father wood supports her. It is the same as if he has sworn an affidavit to that effect. It is only fair and proper that the appellant be allowed to cross-examine them on their affidavits.” [31] His Royal Highness considered:

31.1 O. 38 r. 1 of the then Rules of the Supreme Court 1957 (which is similar the present O. 38 r. 2(3) ROC 2012) stated: “The power given by O. 38 r. 1 is obviously a matter of discretion to be exercised in accordance with well known judicial principles.”

31.2 And approved the following passage from Leiserach v. Schalit [1934] 2 KB 353 where leave was granted to 2 arbitrators, who were not parties nor had they affirmed any affidavits, to be called as witnesses to assist the Court to ascertain the facts of the case: “This is a case in which the Court has listened to numerous, affidavits, statements in some of which directly contradict the statements in others. It is also a case in which it is essential, in order to do justice, that the Court should be enabled to make up its mind as to the actual facts of the case. In the view of the Court this is an exceptional case, and in this exceptional case the Court has arrived at the conclusion that the only way in which it can satisfactorily deal with the matter before it is by having the assistance of the evidence of the arbitrators, who, being independent persons, can tell the Court what it is to ascertain from a perusal of the affidavits on one side and the other - namely, what are the essential facts of the case. On that ground and on that ground only the Court accedes to the application to call as witnesses both the gentlemen who acted as arbitrators in the matter”. [32] Gomez v. Gomez was cited with approval in the following cases:

32.1 In Balwant Singh Purba v. R. Rajasingam [1987] CLJ Rep 468; [1987] MLJU 3 by Lim Beng Choon J: “In the circumstances Raja Azlan Shah J (as His Royal Highness then was) quite rightly allowed cross-examination on the respondent’s affidavit since the issue in the action before His Lordship was whether the custody of the child should be given to the applicant or the respondent in view of the conflicting evidence concerning the capability of either parent to look after the welfare of the child based on religious ground.”

32.2 In Paul Raj Samy Anthony v. Annamalar Anthonysamy [2003] 3 CLJ 166 where R K Nathan J stated: “Azlan Shah J (as his Highness then was) in a short but erudite judgment decided that O. 38 r. 2(3) of the RHC must be interpreted to also include the makers of the exhibits who would be subjected to cross-examination.” [33] In Messrs Kumar Jaspal Quah & Aishah v Dato’ Peh Teck Quee [2003] 5 MLJ 241, Mohd Hishamudin J (later JCA) however held that under O. 38 r. 2(3) “A party to a proceeding cannot apply to cross-examine a person if in the first place such person has not given any evidence either in the form of oral evidence or in the form of affidavit evidence. For, in the absence of such prior evidence, there is no material on which to cross-examine.” [34] On a literal interpretation, Order 38 rule 2(2) ROC 2012 empowers the Court to order the attendance for cross-examination of “the person making any such affidavit.” [35] With respect, here Felina’ has given evidence – the affidavits affirmed by her now late father, were also affirmed by him also on her behalf. She can be cross-examined when one applies the overriding interest of justice concept to enable Courts to deal with cases justly. In fact, Order 1A and Order 2 Rule 1 of the ROC 2012 exhorts the court in administering the Rules particularly here when the alleged Understandings are not in writing, to have regard to the overriding interest of justice and not only to the technical noncompliance with the Rules. These 2 orders give the Court wide powers in order to do justice. [36] I have also borne in mind the terse reminder of Mohtar Abdullah FCJ in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385, at page 426: “… Rules are rules! They must be obeyed. Numerous judgments can be cited in support of this firm stand on the necessity for a strict adherence of the rules. I agree. However, a judge should not be so besotted by the rules that his sense of justice and fairness becomes impaired because of his blinkered fixation on technicalities of the law and the cold letter of the law …” (emphasis added) [37] Although the Court of Appeal in a separate case in Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638; [2007] 4 CLJ 487 did not agree with Gomez v Gomez, with respect, I find a close reading of the case shows the Court of Appeal only disagreed with Gomez v Gomez on the aspect of the onus – which is on the respondent to show why cross-examination should not be allowed. [38] On my part, I have decided to follow the Gomez v Gomez principles on cross-examining a non deponent so that all relevant evidence available is adduced before the court and for. In the present case, it is also be noted TMSK has passed away and can no longer be cross-examined on the 2 affidavits filed but which were adopted by Felina as her evidence. No delay [39] In Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001] 4 MLJ 56; at 62, the application for cross-examination was dismissed owing to delay. Here the Defendants argued that the present application is filed for an improper purpose – that it is merely a strategy by DK to delay the hearing of the OSs to its conclusion. Nevertheless, I find there is no delay here as the application here was made on 10.9.2021 i.e. 2 weeks after the Court of Appeal allowed the Conversion appeal. Res judicata? [40] The Defendants’ final point of contention is that my findings in the Setia Haruman OS that there was no Understanding and New Board Understanding constitutes res judicata in respect of both OSs. [41] In the Setia Haruman OS, in Impresive Circuit Sdn Bhd v Setia Haruman Sdn Bhd & Ors [2021] MLJU 1508, I stated: “[38] I find that the said “Understanding” and/or “New Board Understanding were made between two non-members of the Company. As such DK’s complaint is not a complaint member qua member pursuant to the Shareholders’ Agreement and/or the Articles of Association… [66] Moreover, the principle in Jet-Tech (supra) was affirmed by the Federal Court in Looh Siong Chee…“Shareholder’s Agreement and breaches of the same are clearly not matters pertaining to the affairs of the company. They are private matters enforceable by the parties to the Shareholder’s Agreement. “Following these cases, DK’s complaints that he was not nominated by the 10th Defendant to be a director of the Company is best addressed in suit KLHC WA-22NCC-500-08/2018.” [42] Added to that, the Federal Court in dismissing Impressive Circuit’s application for leave to appeal against my decision in the Setia Haruman OS said, as evident from the minutes: “Finally, we do not see merit in the contention that the findings in this suit will prejudice the hearing of the remaining two suits.” [43] Thus, I do not feel disposed to adjudge on this point of res judicata at this juncture; issues on the Understanding and New Board Understanding which were personal to DK and TSMK are better pursued in both OSs as DK and TSMK are registered members of Menara Embun and Menara Eden. Whilst there is a common issue of the “Understanding” and “New Board Understanding” between the Plaintiff and TMSK in all 3 Actions, Impresive Circuit as the plaintiff in the Setia Haruman OS is not a party in the Menara Embun and Modern Eden OSs, UEM Land Berhad and Virtual Path Sdn Bhd who are the shareholders of Setia Haruman and the four (4) Directors of Setia Haruman all named as defendants in the Setia Haruman OS are not parties in the Menara Embun and Modern Eden OSs. In my utmost respectful view, the complaint of oppression in the Menara Embun and Modern Eden OSs should be heard and decided separately on their own facts and evidence. Whether or not there was oppression in the Menara Embun and Modern Eden OSs was for DK to prove; and any decision thereafter must be based strictly on the best evidence presented by DK and the defence if any put up by the Defendants. [44] I thus conclude that on the facts of the OSs, in the interest of doing substantive justice, it is appropriate to allow cross examination on the issue of the Understanding, the New Board Understanding, the breaches of these understandings and the resolutions being passed in Menara Embun and Menara Eden purportedly without DK’s knowledge, consent and/or approval to facilitate the said breaches. I find DK ought to be given the opportunity to fully ventilate his case and he has discharged the onus on why cross-examination should be ordered. [45] Consequently, leave in enc. 286 (OS 410 ) and enc. 272 (OS 411) is given to DK to cross examine (1) Farah Mahami Binti Tan Sri Datuk Haji Mustapha Kamal (NRIC No. 820512-14-5662) on the contents of the two (2) Affidavits she had affirmed on 28.11.2017 and 25.4.2018 and filed in these proceedings; (ii) Felina Binti Tan Sri Datuk Haji Mustapha Kamal (NRIC No. 701201-10-6138) on the contents of the two (2) Affidavits affirmed on her behalf on 25.4.2018 and 7.6.2018 and filed in these proceedings, with costs subject to allocator. Dated: 22nd October 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Mr Gopal Sreenevasan (together with him, Shermaljit Singh) Messrs Owee & Co For the 1st & 5th : Eric Clement Defendants Messrs Abd Halim Ushah & Assoc. For the 2nd, 3rd & 4th : Dato M. Pathmanathan (together with him, Defendants Shirin Pathmanathan and Fatin Muzfirah) Messrs M Pathmanathan & Co. CASES REFERRED: L.K Insulation Engineering (M) Sdn Bhd v. Apex Energy Sdn Bhd [2017] 1 LNS 733 Ng Kek Wee v Sim City Technology Ltd [2014] SGCA 47 Tob Chee Hoong v Tob Chee Choong [2017] MLJU 1303 Datuk Kasi Palaniappan & Anor v Setia Haruman Sdn Bhd & Ors [2019] 9 MLJ 32 Thavanathan a/l Balasubramaniam v Public Prosecutor [1997] 2 MLJ 401 Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 Balwant Singh Purba v R Rajasingam [1987] CLJ Rep 468; [1987] MLJU 3 Regional Centre for Arbitration v Ooi Beng Choo & Anor [1998] 2 MLJ 383 Structural Concrete Sdn Bhd v. Wing Tiek Holdings Bhd [1997] 1 CLJ 300 Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The Co-Operative Central Bank Ltd [2007] 4 MLJ 638; [2007] 4 CLJ 487 Tahansan Sdn Bhd v Tay Bok Choon - [1985] 1 MLJ 58 Kumagai Gumi Co Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application [1994] 2 MLJ 789 Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd [2018] 5 CLJ 751 Gomez v Gomez [1969] 1 MLJ 228 Paul Raj Samy Anthony v. Annamalar Anthonysamy [2003] 3 CLJ 166 Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 Messrs Kumar Jaspal Quah & Aishah v Dato’ Peh Teck Quee [2003] 5 MLJ 241 Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001] 4 MLJ 56 Impresive Circuit Sdn Bhd v Setia Haruman Sdn Bhd & Ors [2021] MLJU 1508 STATUTE/LEGISLATION REFERRED: Order 1A and Order 2 Rule 1, Order 38 rule 2(2) and 2(3) Rules of Court 2012