Ee Soon Guan Sdn. Bhd. v 1. ) Leong Wai Har (WA-24NCC-202-04/2024)

This is a sad case involving a family fight over money and perhaps greed. On one side are the eldest son and eldest daughter who are now “in control” of the plaintiff. The two defendants are the aged mother age 87 and the patriarch [deceased on 25-06-2023] who founded the companies and the family wealth that are currently the source of family dispute. On the side of the mother and father [deceased] are two younger daughters and the youngest son. Application before me

The application before me is dated 07-04-2025 [Enclosure 45] by the 1st defendant [“D1”] for the conversion of an Originating Summons [“OS”] [Enclosure 1] to a writ action.

At the outset of the hearing and even during the midst of oral submissions, I had asked counsel for the plaintiff whether the plaintiff is agreeable to convert the OS to a writ in view of my earlier finding, in a recusal application filed in this OS, that there are substantial disputes of facts in this OS. The plaintiff’s counsel declined.

The recusal application was filed by D1 to disqualify Mr. Yuean Jin Han and following that Messrs Cheang & Ariff from acting for the plaintiff in the OS and other actions in relation to or arising out from this OS due to conflict issues. I had allowed the application. My Grounds of Decision is now reported as Ee Soon Guan Sdn Bhd v Leong Wai Har & Anor [2025] 6 AMR 433, HC. It is now pending appeal at the Court of Appeal.

On 28-07-2025, after hearing oral submissions, I had struck out the OS with liberty to file afresh with costs subject to allocatur.

The plaintiff has appealed to the Court of Appeal on 27-08-2025. These are my Grounds of Decision.

In my Grounds, the plaintiff here will sometimes be referred to as Ee Soon Guan Sdn Bhd if I am also in the same paragraph referring to the related company Paloh Development Sdn Bhd [“PD”].

This is because in another KLHC OS No. WA-24NCC-203- 04/2024, a similar conversion to writ application has been filed in a suit filed by PD against D1 and D2 [deceased]. I had also allowed the application on 28-07-2025 and an appeal to the Court of Appeal was also lodged on 27-08-2025. A separate Grounds of Decision is prepared for that appeal. Facts of the case Parties and persons related to this OS

Ee Soon Guan Sdn Bhd and its related company PD are family-owned companies with substantial business and assets in Johor. The founders are D1 and her late husband Ee Soon Guan [sued as D2] [“Deceased”]. They were also at all material times the directors and shareholders of both companies.

D1 and the Deceased have 5 children. They are-i. Ee Poh Ping [“EPP”] ii. Ee Poh Ling [“EPL”] iii. Ee Choh Teck [“ECT”] iv. Ee Poh Swan [“EPS”] v. Ee Chow Huat [deceased] D1’s version of the disputes

The following is D1’s version of the disputes.

At all material times, the Deceased was the director and controlling mind of the plaintiff, and D1 was accustomed to act solely in accordance with his directions, instructions and wishes for all company related matters.

The Deceased was a traditional person of Chinese descent. As the patriarch of the family, his voice and actions unequivocally bind the family. Since the inception of the plaintiff, in D1’s capacity as a director, all decisions and actions undertaken by her were based on the express directives provided by the Deceased, ensuring his intentions were fully honoured and executed.

D1 does not have proficiency in Bahasa Malaysia and English as she was fully Chinese educated until she completed her studies in the secondary level. D1 is currently 87 years old. Show Cause notice from CCM

Sometime in April 2022, EPP had discovered a Notice for striking off of the plaintiff issued by the Companies Commission of Malaysia (“CCM”) on 21-05-2021.

The Show Cause notice dated 21-05-2021 was issued under section 551(1) of the Companies Act 2016 by CCM against the plaintiff to be struck off from the register.

After the discovery of the said Notice from CCM, it was agreed by ECT, EPS, and EPL, in the presence of the Deceased, EPP and D1, during a discussion on or around 23-04-2022, that the affairs of the plaintiff would be handled by EPS, ECT and EPL. Assurance given

The assurance was also given to D1 and the Deceased that if the plaintiff is liable to pay any penalties, fines, or warrants to CCM, the Inland Revenue Board, or any other authorities, or if any costs are required to regularize the plaintiff’s documents and affairs, such payments would be made from the plaintiff as it is a family company.

ECT had also later discovered that another family company, namely PD was struck off from the Register of the CCM. The same assurance was given by ECT to D1 again that all affairs of the plaintiff and PD would be taken care of by EPS, ECT and EPL, and any payment, if required, will be borne by the plaintiff and PD respectively, as they are family companies. Cheang & Ariff appointed

Sometime in May 2022, Messrs Cheang & Ariff (then known as Messrs Chooi & Co + Cheang & Ariff) were appointed by D1 and the Deceased to act for the plaintiff to respond to the Show Cause notice from CCM.

The reply issued by Messrs Cheang & Ariff to CCM in response to the Show Cause notice from CCM is dated 10-06-2022. [See Enclosure 15 D1’s supporting affidavit page 30 in Exhibit LWH-3].

CCM replied on the same day, that it had in fact on its own volition stopped the striking off process on 24-05-2021 as there were unsettled charges on the plaintiff’s records. JB OS in relation to PD

Messrs Cheang & Ariff was also appointed by D1 and the Deceased to act for PD in a court action against CCM.

In Mahkamah Tinggi Johor Bahru Saman Pemula No. JA-24NCC- 17-07-2022 [“JB OS”], D1 sued CCM for the reinstatement of PD on the register of the CCM.

As a result, PD was reinstated into the Register of CCM by virtue of an Order dated 14-05-2023 granted by the Johor Bahru High Court. Unlawful procurement of Power of Attorneys from the Deceased and D1

Sometime in the year 2022, the Deceased’s mental capacity had also diminished and he was diagnosed with dementia. In taking advantage of the Deceased’s mental incapacity and D1’s old age, limited language proficiency in English and Bahasa Malaysia and her trust in her children, ECT had procured Power of Attorneys from the Deceased and D1 around August 2022, and then carried out various impugned acts by relying on the same without D1’s and the Deceased’s knowledge.

The Deceased passed away on 25-06-2023. Fraudulent removal of D1 as a director of Ee Soon Guan Sdn Bhd and PD and transfer of the shares of the Deceased and D1 in the plaintiff to ECT

D1 discovered she was removed as a director of Ee Soon Guan Sdn Bhd and PD by her eldest son, ECT in collusion with her eldest daughter EPS on 10-07-2023. She also discovered the new directors of the plaintiff are now ECT and EPS.

A new company secretary of the plaintiff, namely Mr Tan Hong Shen, who is favourable and/or in-line with the directions of ECT and EPS was also appointed on 10-07-2023 without D1’s consent.

In addition of the above impugned fraudulent acts, ECT and EPS had attempted to fraudulently transfer and/or cause the transfer of the shares of the Deceased and D1 in the plaintiff to ECT. In this regard, ECT had signed the purported Forms of Transfer of Securities and the plaintiff’s directors’ resolutions on behalf of the Deceased and D1 (in his capacity as their purported Attorney) in ECT’s favour, with EPS being the witnesses of the instruments.

As a result of which, on 15-01-2024, D1 and her 2 daughters, namely EPP and EPL, together with the Administrator of the Estate of the late Ee Chow Huat (youngest son of D1 and the Deceased) who have equity and/or interest in the Estate of the Deceased have commenced a Civil Suit in the Muar High Court via Suit No. JB-22NCvC-2-01/2024, against: -

ECT;

EPS;

Tan Hong Shen (the plaintiff’s current company secretary);

PD;

the plaintiff; and

another family company named Bandar Enterprise Sdn Bhd.

The said Civil Suit was later transferred to the Kuala Lumpur High Court and was registered as Suit No. WA-22NCvC-283-05/2024 (“Civil Suit”).

In the said Civil Suit, among others, the validity and legitimacy of the appointment of ECT and EPS as the current directors of the plaintiff and PD have been challenged.

It was also prayed in the Civil Suit that an order be granted for D1 to be reinstated as the director of the plaintiff and PD. See Exhibit “LWH-5” Enclosure 4 – copies of the relevant cause papers for the Civil Suit.

D1 has challenged the said purported appointment of ECT and EPS, together with the removal of D1 from the position of director of the Plaintiff and PD, and any act carried out by ECT in relying on the purported Power of Attorney dated 19-08-2022 executed by D1 and registered at the Johor Bahru High Court vide Registration No. JA-SKW-4470-09/2022 on 12-09-2022 (“PA”).

The validity of the PA is currently challenged in the Civil Suit.

The plaintiff did not enter Appearance in the Civil Suit but has, in bad faith, chosen to initiate an action against D1 and the Deceased in this proceeding.

D1 had also revoked the purported PA through a Deed of Revocation of Power of Attorney dated 02-10-2023 which was registered at the Johor Bahru High Court on 05-10-2023 vide Registration No. JASKW-4470-09/2022. [See Exhibit “LWH-5” Enclosure 8 @ page 290 – 296 – a copy of the PA dated 19.08.2022, and Exhibit “LWH-6” Enclosure 8 @ page 305 – 308 – a copy the Deed of Revocation of Power of Attorney dated 02- 10-2023].

As such, the determination of the validity and the legitimacy of EPS and ECT’s appointment as directors of the plaintiff and PD will have a bearing on this OS as they may not have the necessary authority to cause the plaintiff and PD to initiate this OS here and the Originating Summons by PD under Originating Summons No. WA-24NCC-203-04/2024 (“PD OS”).

It should also be noted that ECT is currently assuming 2 roles-i. one as the executor of the Estate of the Deceased; and ii. the other as a director of the plaintiff. LOD for RM 1 million

D1 contends that as a revenge for the Civil Suit filed on 15-01- 2024 by her against inter-alia, ECT and EPS, ECT and EPS using the plaintiff and PD have sent a letter of demand dated 17-01-2024 to jointly demand RM 1 million from D1 only being the sum incurred for the court application to reinstate PD and for performing audit to facilitate the filing of backlog accounts. [Refer to Enclosure 2 - Exhibit ESG-11 @ page 121].

D1 had through her solicitors’ letter dated 30-01-2024 responded and denied the plaintiff’s allegations, and had further requested for further and better particulars and documents in respect of the alleged sum of RM 1 million and the various alleged “necessary acts” carried out by the plaintiff and PD. However, the Plaintiff and PD have failed to respond to the said letter. [Enclosure 2 – Exhibit ESG-12 @ pages 123 & 124]. OS before me

D 1 also contends instead of justifying the sum of RM 1 million demanded from her, ECT and EPS have 3 months later filed the OS herein in the name of the plaintiff on 26-04-2024, as well as the PD OS against D1 and the Deceased, with the malicious intent to exert undue pressure on D1 to not proceed with the Civil Suit against them.

The OS [Enclosure 1] filed in the name of the plaintiff was to sue D1 and the Deceased for them to, inter-alia, jointly and severally indemnify the plaintiff for all penalties, fines and/or warrants levied against the plaintiff by CCM and other authorities for their failure to file the plaintiff’s annual returns, financial statements and/or directors’ report with a backlog from Financial Year End of 1990 to 2023.

D1 contends the OS was filed [in the name of the plaintiff] in bad faith by ECT and EPS and that they did not come to court with clean hands. In addition, there are disputed issues of facts which cannot be resolved through OS.

As evidence of bad faith by ECT and EPS and that they did not come to court with clean hands, D1 pointed out that despite the Grant of Probate issued on 29-02-2024, ECT is not named in the pleadings herein as the ‘Executor of the Estate of the Deceased’, the 2nd defendant. Response of the plaintiff

The plaintiff denies the version of facts proffered by D1 and contends the facts allegedly in dispute are not relevant to the determination of the OS. The plaintiff also contends there are no disputed issues of facts. Issue - Whether there are disputes of facts which cannot be decided by OS

It is trite law that proceedings may only be begun by Originating Summons where there is unlikely to be any substantial dispute of facts. [See Order 5 rule 4(1)(b) of the Rules of Court 2012].

The Supreme Court in Ting Ling Kew & Anor. v Tan Eng Ironworks Co. Ltd. [1992] 2 MLJ 217, SC, held at page 227, paragraph C, as follows - Unquestionably, these conflicts in the evidence can only be properly and satisfactorily resolved if oral evidence is adduced and witnesses cross-examined on their evidence which, however, is not possible in proceedings begun by originating summons. … [Emphasis added]

The Court of Appeal in Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569, CA, cautioned that a party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realize that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it. This is what the Court of Appeal said-Even though this is allowed by the rules, we would not encourage such practice. A solicitor should know from the very beginning or, at the very least, after the defendant has filed his affidavit in reply, whether the action is one that should be begun by a writ action or by way of an originating summons. Secondly, contents of affidavits and pleadings are different in nature. Pleadings contain statement of facts while affidavits contain statement of facts and also evidence, including documentary exhibits. Thirdly, it causes confusion in the statistics kept by the Registry. Fourthly, it also causes confusion in the preparation of the record of appeal, subsequently. A party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realize that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it. [Emphasis added] Application to facts

In my view, there are substantial disputes of facts in this case.

The first substantial dispute of fact is on the discussion between D1, the Deceased, ECT, EPS and EPL on D1’s contention that any penalties, fines and/or costs that may be imposed were agreed by the family members to be borne by the plaintiff and PD. This is denied by the plaintiff.

D1 further stated that at all material times, it was agreed by ECT, EPS, and EPL, in the presence of the Deceased, EPP and D1 during a discussion on 23-04-2022, that if the plaintiff and/or PD is liable to pay any penalty, fine or warrant to CCM, the Inland Revenue Board of Malaysia, or other authorities, and any cost required to regularize the documents and affairs of the family companies, any such payment will be made by the plaintiff and/or PD given that they are family companies. Such assurance was given to D1 and the Deceased. This is denied by the plaintiff.

I have set out the full facts above and do not propose to set them out here again.

The other substantial disputes of facts are-i. D1 contends she was fraudulently removed as a director of the plaintiff and PD by her eldest son, ECT, in collusion with her eldest daughter EPS on 10-07-2023. The plaintiff denies the allegation and contends D1 had resigned from her position voluntarily as the plaintiff’s director on or around 10- 07-2023. ii. Whether ECT and EPS were validly appointed as the new directors of the plaintiff? and iii. If ECT and EPS were not validly appointed as directors, is the OS filed in the name of the plaintiff by ECT and EPS valid?

If the Civil Suit is decided in favour of D1, that would mean that D1 was wrongly removed as a director of the plaintiff and the OS filed here is invalid.

Ultimately, in my view the issues in the Civil Suit and the OS here are connected and both actions should be heard together.

As for this OS, I am not inclined to order a conversion to a writ now for reasons articulated by the Court of Appeal in Siow Yoon Keong v H Rosen Engineering BB [2003] 4 MLJ 569, CA. Further, at the outset of the hearing and even during the midst of oral submissions, I had asked counsel for the plaintiff whether counsel is agreeable to convert the OS to a writ. Counsel had declined.

For the reasons above, I strike out the OS with liberty to file afresh with costs subject to allocatur. Dated: 02nd September 2025 …………(signed)……………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Ryan Chu Soon Wei and O Ying Xin. Lee & Poh Partnership (Kuala Lumpur) Counsel for 1st defendant: Suhirthamalar a/p Sandeasekaran and Goh Loh Boon. W H Kan (Kuala Lumpur) Counsel for 2nd defendant: Joseph Lum. Felix Raj Chambers (Petaling Jaya) CASES REFERRED TO: 1) Ee Soon Guan Sdn Bhd v Leong Wai Har & Anor [2025] 6 AMR 433, HC. 2) Siow Yoon Keong v H Rosen Engineering BV [2003] 4 MLJ 569 CA. 3) Ting Ling Kew & Anor. v Tan Eng Ironworks Co. Ltd. [1992] 2 MLJ 217, SC. LEGISLATION REFERRED TO: 1) Companies Act 2016, section 551(1). 2) Rules of Court 2012, Order 5 rule 4(1)(b).