Low Kim Hong v Low Shee Kian (WA-22NCC-917-12/2023)

This judgment concerns an application for an interlocutory injunction in a dispute over the transfer of shares in a family-owned company. The case centers on allegations of undue influence in the execution of share transfer documents, pitting a father against his eldest son. At the heart of the matter is whether the transfer of a majority stake in the company was a voluntary gift or the result of improper influence during a period when the father's health was allegedly in decline. The court must consider the competing narratives: one of filial care and gratitude, the other of exploitation and manipulation. Key issues include the mental capacity of the father at the time of the transfer, the circumstances surrounding the signing of the disputed documents, and subsequent attempts to halt the share transfer. The case also raises questions about the 2 management and future direction of the family business, as well as the distribution of assets among family members. In deciding whether to grant the injunction, the court must weigh the potential harm to each party and consider whether damages would be an adequate remedy.

Low Kim Hong, the Plaintiff, is the father of Low Shee Kian, the Defendant, and five other children. The Plaintiff founded Sritama Sdn Bhd (“Sritama”) in 1977, a company involved in property development and investment. As of July 2023, the shareholding of Sritama was divided as follows: the Plaintiff held 648,450 shares, the Defendant held 123,250 shares, and Low Su Kian, another son, held 64,800 shares.

In March 2020, the Plaintiff suffered a stroke and subsequently retired from active management of Sritama. He handed over management to the Defendant and Low Su Kian. The Plaintiff, who was 81 years old at the time of filing this suit, required various medications for his health.

On 11.7.2023, the Defendant brought the Plaintiff to the office of T&L Consultants Sdn Bhd (“T&L Consultants”), the company secretary of Sritama. There, the Plaintiff signed several documents including a Share Transfer Form dated 11.7.2023, a letter from the Plaintiff to Sritama's Board of Directors dated 11.7.2023, and an undated Directors' Resolution (collectively referred to as the “Disputed Documents”). These documents were prepared for the purpose of transferring the Plaintiff's 648,450 shares in Sritama to the Defendant.

On 15.7.2023, the Plaintiff's daughter Lisa visited him and inquired about the events of 11.7.2023. The Plaintiff then contacted Yun Nan, an individual from Sritama's audit firm, to clarify the contents of the Disputed Documents. Upon learning that the documents were for transferring his shares, the Plaintiff requested Yun Nan to stop and cancel the Disputed Documents.

On 17.7.2023, Messrs Chieng & Lum Associates, appointed by the Plaintiff's daughter Estee, issued a letter to T&L Consultants stating the Plaintiff's instructions to cancel the share transfer and return the Disputed Documents.

On 21.7.2023, Messrs Raja Eleena Siew Ang & Associates sent a letter to Messrs Chieng & Lum Associates stating they were representing the Plaintiff and that Messrs Chieng & Lum Associates had no prerogative to act for the Plaintiff.

On 25.7.2023, Messrs Goik, Ramesh & Loo took over representation from Messrs Raja Eleena Siew Ang & Associates, purportedly on behalf of the Plaintiff, and instructed T&L Consultants to transfer the shares within 24 hours.

On 27.7.2023, T&L Consultants filed Originating Summons No. WA-24NCC-405-07/2023 (“OS 405”) in the Kuala Lumpur High Court to obtain confirmation on whether to proceed with the share transfer.

On 19.9.2023, Low Su Kian and Estee filed an injunction application in OS 405 to maintain the status quo of the share transfer.

Despite the pending injunction application, on 20.9.2023, Sritama's company secretary was changed from T&L Consultants to an individual named Chua Eng Hock. On 22.9.2023, the Defendant proceeded to execute the transfer of the Plaintiff's shares to himself. On 25.9.2023, the Defendant's sons, Bryan Low Keng Seong and Jeffrey Low Hanxiang, were appointed as directors of Sritama.

In or around August 2023, Originating Summons No. WA- 24NCvC-3653-08/2023 (“OS 3653”) was filed against Messrs Chieng & Lum Associates, purportedly on behalf of the Plaintiff, to deny that they had authority to represent him. The Kuala Lumpur High Court allowed OS 3653 on 8.11.2023. However, at a subsequent hearing on 26.3.2024, Messrs Goik, Ramesh & Loo admitted they had a conflict of interest in representing the Plaintiff in OS 3653 while also acting for the Defendant in the present proceedings. The Plaintiff maintains that he was unaware of and did not authorise the filing of OS 3653.

On 7.11.2023, the Defendant attempted to transfer the Plaintiff's shares in Genting Singapore Ltd on the Singapore Stock Exchange, but these shares had already been sold previously.

On 16.11.2023, the Plaintiff was taken out of the Defendant's care by his other children and brought to a hospital. The Plaintiff's identity card, passport, and mobile phone remained in the Defendant's possession at this time.

On 18.12.2023, the Plaintiff filed this suit against the Defendant, seeking various reliefs including declarations that the Disputed Documents are invalid, an injunction compelling the Defendant to transfer back the 648,450 Sritama shares to the Plaintiff, and the return of the Plaintiff's identity card, passport, and mobile phone.

On 22.12.2023, the Plaintiff filed an ex parte application for an interim injunction against the Defendant.

On 14.2.2024, the court granted an ex parte interim injunction order preventing the Defendant from dealing with the 648,650 Sritama shares, exercising voting rights over these shares, dealing with Sritama's properties and assets, and dealing with the Plaintiff's properties and assets.

The Plaintiff alleges that he was under undue influence when he signed the Disputed Documents on 11.7.2023, which purportedly transferred his 648,450 shares in Sritama to his eldest son, the Defendant. The Plaintiff contends that at the time of signing, his health had deteriorated significantly, and he was not mentally alert due to his advanced age and the medications he was taking.

The Plaintiff claims that he never intended to transfer all of his shares in Sritama to the Defendant alone. He states that his intention was to distribute his assets according to his will dated 1.8.2019. The Plaintiff asserts that he was brought to the office of T&L Consultants by the Defendant on 11.7.2023, where he was surrounded by people he trusted, including the Defendant and Yun Nan from the audit firm, which led him to not pay close attention to what he was signing.

The Plaintiff alleges that upon realising the implications of the Disputed Documents, he took immediate steps to halt the transfer of shares. This included instructing his daughter Lisa to contact Yun Nan to cancel the transfer, and authorising his daughter Estee to appoint Messrs Chieng & Lum Associates to take legal action to stop the transfer.

The Plaintiff contends that despite his clear instructions to halt the transfer and the pending injunction application in OS 405, the Defendant proceeded to execute the transfer of shares on 22.9.2023. The Plaintiff argues that this transfer is invalid as it was done against his expressed wishes and without his consent.

Furthermore, the Plaintiff alleges that while under the Defendant's care, he was made to sign various other unknown documents. He expresses concern that these documents may include transfers of his other assets or grant authority to the Defendant to manage his rights. The Plaintiff also claims that the Defendant attempted to transfer his shares in Genting Singapore Ltd and accessed his bank accounts in Singapore without his knowledge or consent.

The Plaintiff asserts that since being removed from the Defendant's care on 16.11.2023, his health has improved, and he has become more mentally alert. He maintains that the transfer of shares to the Defendant was unlawful and should be nullified.

The Plaintiff seeks various reliefs from the court, including declarations that the Disputed Documents are invalid, injunctions to prevent the Defendant from dealing with the Sritama shares and other assets, and orders for the return of his personal documents and belongings.

The Plaintiff's application in Enclosure 4 is an application for injunctive relief against the Defendant seeking orders, pending the disposal of this action, to: (a) restrain the Defendant from dealing with 648,650 shares in Sritama formerly owned by the Plaintiff; (b) prevent the Defendant from exercising voting rights over these shares; (c) prohibit the Defendant from dealing with or disposing of any of Sritama's properties and assets; (d) restrain the Defendant from dealing with or disposing of any of the Plaintiff's properties and assets, including transferring them to himself; and (e) where any of the Plaintiff's properties or assets had already been transferred to the Defendant, prevent the Defendant from continuing to deal with or dispose of them.

The application was premised on grounds that the Defendant had procured the transfer of the Sritama shares through undue influence when the Plaintiff was in poor health and under the Defendant's control. The Plaintiff contended that he never intended to transfer all his shares to the Defendant alone, and that immediate injunctive relief was necessary to prevent dissipation of assets given the Defendant's conduct in proceeding with the share transfer despite pending legal challenges and his failure to return substantial sums allegedly misappropriated from the Plaintiff's accounts.

On 14.2.2024, the Court granted an ex parte interim injunction in terms of the prayers sought, pending the hearing of the inter partes application. The ex parte order effectively preserved the status quo by preventing the Defendant from dealing with both the Sritama shares and the Plaintiff's assets until the inter partes hearing could be conducted.

The matter then came before this Court for the inter partes hearing, where both parties were heard on whether the injunctive orders granted ex parte should be maintained until the disposal of the action.

The Plaintiff submits that there are serious issues to be tried in this case. He contends that the transfer of 648,450 shares in Sritama to the Defendant was executed under undue influence. The Plaintiff argues that his deteriorating health, advanced age, and the medications he was taking at the time of signing the Disputed Documents rendered him susceptible to manipulation. He asserts that he never intended to transfer all his shares to the Defendant alone, and that this action contradicts his expressed wishes in his last will and testament.

The Plaintiff maintains that he took immediate steps to halt the share transfer upon realising its implications. He points to his instructions to cancel the transfer, given to his daughter and to Yun Nan from the audit firm, as evidence of his true intentions. The Plaintiff contends that these actions, along with the appointment of Messrs Chieng & Lum Associates to take legal action, demonstrate his consistent opposition to the share transfer.

The Plaintiff argues that the balance of convenience favors granting the injunction. He asserts that if the injunction is not granted, there is a risk that the Defendant may further dispose of the shares or Sritama's assets, potentially to third parties. The Plaintiff contends that such actions could render the main suit academic and cause irreparable harm to his interests. He maintains that, conversely, an injunction would not cause any significant prejudice to the Defendant.

The Plaintiff further submits that damages are not an adequate remedy in this case. He argues that the shares in question represent a majority stake in a family business he founded and developed since 1977. The Plaintiff contends that the sentimental and strategic value of these shares cannot be adequately compensated by monetary damages. Moreover, he asserts that at his advanced age, his wish is to bequeath his assets according to his will, which would be defeated if the Defendant is allowed to dispose of the shares or other assets.

The Plaintiff maintains that the ex parte nature of the initial injunction application was necessary due to the Defendant's previous conduct. He points to the Defendant's actions in OS 405, where the share transfer was executed despite a pending injunction application. The Plaintiff argues that this demonstrates the Defendant's disregard for court proceedings and justifies the need for an ex parte order to prevent further unilateral actions by the Defendant.

The Defendant contends that there is no serious issue to be tried in this case. He argues that the transfer of shares was a valid gift inter vivos from father to son, made voluntarily and without any undue influence. The Defendant asserts that the principle of undue influence does not apply to gifts. He maintains that the Plaintiff was of sound mind when he signed the Disputed Documents and fully understood the implications of his actions.

The Defendant argues that the Plaintiff's claims of undue influence are mere afterthoughts, likely instigated by his other siblings who are dissatisfied with the Plaintiff's decision to give all his shares to the Defendant. He points to video recordings of the share transfer meeting, which he claims demonstrate the Plaintiff's clear intention and understanding of the transaction. The Defendant asserts that these recordings show the Plaintiff was alert, calm, and even jovial during the meeting.

The Defendant maintains that he has been the primary caregiver for the Plaintiff since 2020, providing comprehensive care and attention to the Plaintiff's health and well-being. He argues that this demonstrates his genuine concern for the Plaintiff's welfare, contradicting allegations of undue influence or manipulation. The Defendant contends that the Plaintiff's health and quality of life have deteriorated since being removed from his care on 16.11.2023.

The Defendant submits that the balance of convenience lies in his favour. He argues that as the second-largest shareholder and active manager of Sritama, he should be allowed to continue making business decisions for the company. The Defendant contends that an injunction would unnecessarily hinder the company's operations and potentially cause more harm than good.

The Defendant argues that damages would be an adequate remedy in this case. He points to the Plaintiff's own estimation of Sritama's value at RM30 million, suggesting that any potential loss could be compensated financially. The Defendant maintains that there is no evidence to suggest he intends to sell or dispose of the shares, further negating the need for an injunction.

Finally, the Defendant challenges the credibility of the Plaintiff's current position. He points to affidavits previously sworn by the Plaintiff in other proceedings (OS 405 and OS 3653) which contradict his current claims. The Defendant argues that these prior statements, made when the Plaintiff was under his care, represent the Plaintiff's true intentions and should be given more weight than his current assertions, which the Defendant claims are influenced by other family members. Analysis and findings of the court Serious question to be tried on the validity of the transfer of the Plaintiff's 648,650 Sritama shares to the Defendant due to undue influence

The Plaintiff contended that the Sritama shares were transferred to the Defendant under the undue influence of the Defendant, and thus the transfer is invalid.

The Plaintiff argued that on 11.7.2023, when the Plaintiff signed the Disputed Documents, the Plaintiff was under the control and influence of the Defendant. The Plaintiff's medication, schedule and activities were all under the Defendant's supervision and command, resulting in the Plaintiff being mentally unalert. The Plaintiff took immediate measures to halt the transfer of shares upon realising the repercussions of signing the disputed documents.

The Defendant contended that the Plaintiff had voluntarily signed the Disputed Documents and intended to transfer the Sritama shares to the Defendant as a gift. The Defendant relied on the video recording in Exhibit LSK-1 of Enclosure 29 to show that the Plaintiff had affirmed his intention to transfer the shares to the Defendant in front of the company secretary, Yun Nan.

Having considered the submissions of the parties and the evidence adduced, I am of the view that there are serious questions to be tried on the validity of the transfer of the Sritama shares to the Defendant. The principles for the granting of an interlocutory injunction were aptly summarised by Gopal Sri Ram JCA in the Federal Court case of Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 193. The first question is whether the totality of the facts presented discloses a bona fide serious issue to be tried. At this interlocutory stage, the court must refrain from making any determination on the merits and it is sufficient if serious issues are identified with precision.

In the present case, I find that there is a serious issue to be tried on whether the transfer of the Sritama shares to the Defendant was done under the undue influence of the Defendant. A transaction, including a gift, may be set aside if it is entered into under the undue influence of another, as held in Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242. Ahmad Fairuz bin Zainol Abidin JC (as he then was) stated: “A person who has been induced to enter into a transaction (e.g. a gift, contract or guarantee) by the undue influence of another (the wrongdoer) is 15 entitled to set that transaction aside as against the wrongdoer. The effect of undue influence, like duress, is to make the contract voidable.”

The facts raised by the Plaintiff via affidavit evidence, disclose a serious issue that warrants further investigation at trial. The Plaintiff, an 81-year old man enfeebled by disease and under medication, had signed the Disputed Documents under the influence and control of the Defendant. Almost immediately after, the Plaintiff took steps to halt the share transfer by instructing the company secretary Yun Nan to revoke the transfer and through his solicitors issuing a revocation letter on 17.7.2023. As stated in Saw Gaik Beow v Cheong Yew Weng [1989] 3 MLJ 301, steps taken to repudiate an agreement are relevant in assessing undue influence.

I do not think the video recordings in Exhibit LSK-1 of Enclosure 29 are conclusive to definitively prove that there was no undue influence, such as to negate a serious issue to be tried. It is not appropriate at this interlocutory stage to make a finding on this, as cautioned in Keet Gerald. The evidence should be assessed at full trial, with the benefit of cross-examination.

While the Defendant relied on Zaleha bte Ariffin v Salmah bte Md Zain [2001] 6 MLJ 234 to argue that undue influence does not apply to a gift transfer, I find that case to be distinguishable. There, the court found it unnecessary to assess undue influence because the transfer of land had 16 been duly registered and was thus protected by indefeasibility. Hishamuddin J (as he then was) stated: “At the outset, I wish to state my view that, by reason of the undisputed facts and the law, it is not necessary for me to assess the conflicting evidence to determine whether or not there was undue influence. For reasons which I shall give in due course, the issue whether or not there was undue influence is, to my mind, irrelevant.”

Here, the Plaintiff had taken immediate steps to halt the share transfer before it was effected.

Therefore, I conclude that there is a serious question to be tried on the validity of the transfer of the Sritama shares to the Defendant, in light of the Plaintiff's claim of undue influence.

The Plaintiff in his application in Enclosure 4 also sought an interlocutory injunction to restrain the Defendant from dealing with or disposing any of the Plaintiff's properties or assets. The key contention by the Plaintiff is that the Defendant had misappropriated a substantial sum of RM4,737,219.00 from the Plaintiff's bank accounts and the joint account between the Plaintiff and Defendant, over a period from 21.7.2023 to 11.3.2024.

The Plaintiff claimed to have only discovered these transactions on or around 2.4.2024, after he was no longer under the control and influence of the Defendant. The Plaintiff also alleged that the Defendant had caused him to sign a letter dated 5.9.2023 to a tenant of the Plaintiff's property, to change the Plaintiff's bank account details to their joint account, after which the Defendant transferred out the rental monies collected. The Plaintiff contended that he had no knowledge of this letter and the various transactions, which were done without his consent at a time when he was mentally unwell and under the undue influence of the Defendant.

In response, the Defendant argued that he had transferred the funds pursuant to the Plaintiff's instructions and was willing to return the funds if a request was made by the Plaintiff. However, 2 two letters of demand were issued by the Plaintiff to the Defendant dated 4.4.2024 and 9.4.2024 to request the return of the monies amounting to RM4.7 million. Despite these demands, the Defendant failed to return the funds to the Plaintiff.

I am satisfied based on the evidence before me that there is a serious question to be tried on the issue of the Defendant's alleged misappropriation of RM4.7 million from the Plaintiff's bank accounts. The law is clear, as held in Keet Gerald, that the court should not at an interlocutory stage conduct an extensive examination of the merits based on affidavit evidence alone. The court's role is to identify if 18 there are serious issues or questions which merit a full investigation at trial.

Here, the Plaintiff had adduced prima facie credible evidence of the impugned transactions, spanning a period of around 7 months, through the documents in Exhibit LKH-

These transactions, amounting to RM4.7 million, are notably substantial. The Plaintiff's claim is further bolstered by the letter dated 5.9.2023 which the Plaintiff contends he had no knowledge of. The Defendant's willingness to return the monies, while arguing that the transfers were done on the Plaintiff's instructions, in my view suggests that the Plaintiff's allegations are not frivolous or baseless. There is a serious issue regarding the Defendant's authority or mandate to make such substantial transfers involving the Plaintiff's monies. The court would need to hear full evidence at trial, tested by cross-examination, to ascertain if the Plaintiff had indeed instructed the Defendant to make the transfers as alleged by the Defendant. [55] It is also not disputed that the Plaintiff had issued two formal letters of demand dated 4.4.2024 and 9.4.2024 seeking the return of the RM4.7 million transferred out by the Defendant. The failure by the Defendant to return the monies, despite these demands by the Plaintiff, lends credence to the Plaintiff's contention that the transfers were unauthorised and done without his consent. The Defendant's bare assertion that the transfers were done on the Plaintiff's instructions, without more, is insufficient to negate the existence of a serious triable issue in light of the Plaintiff's positive averments that he had no knowledge of the transactions and was acting under the undue influence of the Defendant during the material period. [56] Therefore, I am satisfied that the Plaintiff has crossed the threshold of establishing a serious question to be tried warranting a full investigation at trial, regarding the propriety of the cash transfers made by the Defendant. The particulars pleaded by the Plaintiff in Enclosure 43, supported by the documentary evidence in Exhibit LKH-2, clearly disclose bona fide issues of substance that are not frivolous or vexatious. The court should not at this interlocutory stage make any determination on the merits of the claim, which can only be done after a full consideration of the evidence adduced by the parties at trial. Balance of convenience [57] The next issue that arises for consideration is where the balance of convenience lies in respect of the Plaintiff's application for an interlocutory injunction. The Plaintiff argued that the interim injunction granted on 14.2.2024 ought to be maintained to preserve the status quo prior to the Defendant transferring the Plaintiff's Sritama shares to himself on or around 22.9.2023. This was to prevent any dissipation of the shares and the Plaintiff's assets before the full trial of the dispute between the parties regarding the validity of the share transfer. [58] The Plaintiff contended that if the injunction is refused, there is a real risk that the Defendant will deal with or dispose the Sritama shares to put them beyond the reach of the Plaintiff. The Plaintiff pointed to the Defendant's conduct of proceeding with the share transfer, despite express notice by the Plaintiff and his solicitors not to do so, and even after an injunction application was filed in OS 405. The Plaintiff further argued that after the shares were transferred, the Defendant proceeded to appoint his two sons as directors of Sritama. This showed a propensity by the Defendant to deal with the Plaintiff's assets and properties regardless of any legal challenge. [59] In response, the Defendant submitted that the balance of convenience was in his favour. The Defendant argued that as he was the second largest shareholder in Sritama before acquiring the Plaintiff's shares, he should be given the liberty to decide the company's business direction moving forward. The Defendant also contended that there was no evidence of any intention on his part to dispose the Sritama shares. [60] It is well established that in determining where the balance of convenience lies in an interlocutory injunction application, the court should take whichever course appears to carry a lower risk of injustice if the court turns out to be wrong in its decision. This was elucidated by the Court of Appeal in Alor Janggus Soon Seng Trading Sdn Bhd v Sey Hoe Sdn Bhd [1995] 1 MLJ 241. The court must assess the relative risks of injustice between granting and refusing the injunction at the interlocutory stage when the evidence is incomplete. [61] Applying the principles in Alor Janggus, I am satisfied on a balance of probabilities that there is a greater risk of injustice to the Plaintiff if the injunction is refused, as opposed to the Defendant if the injunction is granted. Based on the evidence, it is clear that the Defendant had proceeded to register the transfer of the Plaintiff's Sritama shares to himself despite clear objections by the Plaintiff. Crucially, the Defendant effected the transfer even after an injunction application was filed on 19.9.2023 in the interpleader proceedings in OS 405 to restrain him from doing so. This injunction application was served on the Defendant on 19.9.2023 and 20.9.2023. Yet, the Defendant proceeded to register the share transfer on 22.9.2023. [62] The Plaintiff had also adduced evidence that shortly after the share transfer, the Defendant had appointed his two sons as directors of Sritama. In my assessment, the speed and timing of the Defendant's actions, in registering the share transfer despite an injunction application and appointing his sons as directors, raises a clear concern that the Defendant would not hesitate to deal with the Sritama shares and assets regardless of the Plaintiff's legal challenge. There is a real risk that the Defendant may take further steps to dissipate the Plaintiff's assets, including selling or transferring the Sritama shares to third parties, which would render the Plaintiff's claim nugatory. [63] I do not think this risk is adequately addressed by the Defendant's contention that he intends to decide Sritama's future business direction as the majority shareholder. With respect, the Defendant's entitlement to make major decisions for the company is the very mischief that the Plaintiff is seeking to prevent, given the serious issues regarding the validity of the share transfer. It would be unjust to the Plaintiff to allow the Defendant to make key business decisions or restructure the company in the interim, which may be irreversible, when there is a pending dispute on the Defendant's legal authority to do so as a shareholder. [64] Further, I find that any prejudice to the Defendant if the injunction is granted is comparatively limited. The Defendant is merely restrained from dealing or disposing the Sritama shares until the trial is concluded. The injunction does not impede the day-to-day operations of Sritama or prevent the Defendant from acting as a director to discharge his duties to the company. The Defendant has not adduced any credible evidence of specific plans or decisions that would be thwarted by the interim injunction. General assertions of plans to decide Sritama's business direction are in my view insufficient to outweigh the clear risk to the Plaintiff. If the Defendant succeeds at trial, he would be able to proceed as planned without any significant loss in the interim. [65] Therefore, I am satisfied that the balance of convenience and justice favours preserving the status quo before the Sritama shares were transferred to the Defendant, pending the resolution of the Plaintiff's claim at trial. The injunction is necessary to protect the subject matter of the dispute and to prevent any dissipation of assets that may render the Plaintiff's claim academic. Accordingly, the interim injunction granted on 14.2.2024 shall be maintained to restrain the Defendant from dealing with the Sritama shares or assets until the conclusion of the trial. Damages as adequate remedy for the Plaintiff [66] The final issue that I have to decide is whether damages would be an adequate remedy for the Plaintiff, such that an interlocutory injunction is not necessary. The Plaintiff strenuously argued that damages are not an adequate remedy in the present circumstances, as the injunction sought relates to the Sritama shares and to the Plaintiff's properties. The Plaintiff submitted that these assets have a special value which cannot be easily quantified or compensated monetarily if they are lost. [67] In particular, the Plaintiff relied on the Court of Appeal's decision in Alor Janggus which recognised that where shares are concerned, there would be difficulties in estimating the loss suffered. The value of shares fluctuates and there may be claims which cannot be taken into monetary account, such as loss of goodwill. The Plaintiff also cited the High Court decision in Perwira Affin Bank Bhd v KI Production Sdn Bhd [2000] 4 MLJ 652 which held that land has a special value and its loss may not be adequately compensated by damages. [68] The Plaintiff highlighted that the present injunction relates to a 77.5% bloc of shares in Sritama, which is a significant majority. Following Alor Janggus and the High Court's decision in Lee Ah Lan v Wong Koon Hung [2023] MLJU 1562, the Plaintiff submitted that damages are not an adequate remedy where such a majority bloc of shares is involved. [69] On the other hand, the Defendant argued that damages are an adequate remedy. The Defendant contended that the Plaintiff himself had estimated the value of the Sritama shares to be around RM30 million. As such, any loss suffered by the Plaintiff can be quantified and compensated by an award of damages. [70] It is trite law that the availability of damages as an adequate remedy is a key factor for the court's consideration in an interlocutory injunction application. The governing principle, as stated by the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] AC 396, is whether damages would be an adequate remedy for the party injured by the court's grant of, or failure to grant, an interlocutory injunction. [71] Applying the authorities, I am convinced that the present case falls within the category of cases where damages do not constitute an adequate remedy. I accept the Plaintiff's submission that the injunction sought relates to assets which have a special value that is not easily compensable by a monetary award. The Sritama shares in question represent a 77.5% majority bloc, which has a unique value and significance. Relying on the Court of Appeal's decision in Alor Janggus, I find that shares generally, and majority blocs of shares in particular, are assets where damages may not be an adequate remedy. The fluctuations in share value make it difficult to quantify the loss with precision. Further, the loss of a controlling bloc of shares may have wider consequences on the company's goodwill and business that cannot be captured by a mere monetary award. [72] The Defendant's contention that the Plaintiff had estimated the value of the Sritama shares at RM30 million does not in my view negate the special value of the shares. The RM30 million figure, as mentioned in paragraph 10 of Enclosure 5, appears to be the Plaintiff's approximate estimation of Sritama's asset value. This does not mean that the loss of the Plaintiff's majority bloc of shares can be simply quantified at a proportionate fraction of RM30 million. The Plaintiff may suffer other losses such as loss of control over the company which are not easily compensable. [73] I also find that the Plaintiff's shares in Sritama have a unique special value to him as he had founded the company himself in 1977 and developed it as a family business. The Plaintiff, now at an advanced age of 81 years, may not be able to simply regain a similar majority stake in the company if he loses the present 77.5% bloc of shares. [74] Additionally, I am minded to accept the Plaintiff's argument that lands and properties have a special value which may not be adequately compensated by damages, following the High Court's decision in Perwira Affin Bank. The injunction sought covers not just the Sritama shares, but also seeks to restrain the Defendant from dealing with the Plaintiff's properties and assets. There is force in the Plaintiff's submission in paragraph 75 of Enclosure 5 that allowing the Defendant to dissipate his assets would defeat the intention of the Plaintiff, now of advanced age, to bequeath his assets according to his testamentary wishes. [75] Therefore, I conclude that damages are not an adequate remedy in the specific circumstances of the present case. The subject matter of the injunction, being the Sritama shares and the Plaintiff's properties, have a peculiar special value to the Plaintiff which cannot be readily compensated by damages alone if dissipated before the trial. Accordingly, the grant of an interlocutory injunction is necessary to protect the Plaintiff's interests. Conclusion [76] Having considered all the evidence and submissions before me, I am satisfied that the Plaintiff has established the requirements for an interlocutory injunction. There are serious questions to be tried regarding both the validity of the Sritama share transfer and the alleged misappropriation of the Plaintiff's funds. The balance of convenience clearly favors maintaining the injunction to preserve the status quo until trial. Furthermore, damages would not be an adequate remedy given the special nature of the majority shareholding and other assets in question. [77] The Defendant's conduct in proceeding with the share transfer despite pending legal challenges, and his failure to return the Plaintiff's funds despite formal demands, reinforces the need for injunctive relief. The court must act to prevent any further dissipation of assets that could render the main suit academic. While I make no determination on the ultimate merits of the case, which must be decided at trial, I am convinced that the interests of justice require the continuation of the injunctive orders. [78] Accordingly, I allow the Plaintiff's application in Enclosure 4 with the following orders: a) The Defendant is restrained, whether by himself or through any associates, officers, servants, agents, nominees or anyone else, from dealing with any of the 648,650 shares in Sritama formerly owned by the Plaintiff until the disposal of this action; b) The Defendant is restrained, whether by himself or by proxy or anyone, from exercising voting rights over the 648,650 shares in Sritama formerly owned by the Plaintiff until the disposal of this action; c) The Defendant is restrained, whether by himself or through any associates, officers, servants, agents, nominees or anyone else, from dealing with and/or disposing of any of Sritama's properties and/or assets until the disposal of this action; d) The Defendant is restrained, whether by himself or through any associates, officers, servants, agents, nominees or anyone else, from dealing with and/or disposing of any of the Plaintiff's properties and/or assets until the disposal of this action, including transferring any of the Plaintiff's properties and/or assets to the Defendant himself; e) If any of the Plaintiff's properties and/or assets have been transferred to the Defendant, the Defendant is restrained, whether by himself or through any associates, officers, servants, agents, nominees or anyone else, from continuing to deal with and/or dispose of any of the Plaintiff's properties and/or assets until the disposal of this action. f) Costs shall be costs in the cause. 1 November 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Guok Ngek Seong (Messrs Chong + Keng Hoe) For the 1st and 2nd Defendants: Melissa Wong (Messrs Goik, Ramesh & Loo)