Marcus Chan Jau Chwen v 1. ) Suria Waras Development Sdn. Bhd. (WA-24NCC-575-11/2024)

SURIA WARAS DEVELOPMENT SDN. BHD. [No. Pendaftaran Syarikat: 200701012085 (770090-X)]

PUJIAN SEKATA SDN. BHD. [No. Pendaftaran Syarikat: 200701007074 (765075-A)]

BENCHMARK LINK SDN. BHD. [No. Pendaftaran Syarikat: 201301000288 (1030125-M)]

IMPIANPURI SDN. BHD. [No. Pendaftaran Syarikat: 199401004023 (289702-D)]

CHEW YEW YEK (No. K/P: 730420-14-5367)

CHEN AH FOOK (No. K/P: 610901-08-6437)

OON SIM HOR @ THUM SIN HOR (No. K/P: 570113-07-5645)

DATUK ARIF SHAH BIN HAJI OMAR SHAH (No. K/P: 561102-08-5077)

DATO’ SATHARUBAN SIVASUBRAMANIAM (No. K/P: 580206-02-5523)

KHOO SIEW KIAT (No. K/P: 660925-07-5121) (Dalam kapasiti sebagai Pentadbir-Pentadbir Pendente Lite Bersama Harta Pusaka Puan Lim Siew Kim yang telah dilantik melalui Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 27.11.2023) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosures 4 and 24)

The Plaintiff in this action sought, via Amended Originating Summons (Enclosure 24) (“this Application”), the determination of questions of law relating to the obligations of the 1st, 2nd, 3rd and 4th Defendants (collectively, “the Companies”) towards the 9th and 10th Defendants, Dato’ Satharuban Sivasubramaniam and Mr. Khoo Siew Kiat (collectively, “the APLs” or “Administrators pendente lite”), who are the Joint Administrators pendente lite of the Estate of the late Madam Lim Siew Kim (“Madam Lim’s Estate”), appointed pursuant to an order of the Kuala Lumpur High Court dated 27.11.2023.

In this Application, the Plaintiff essentially sought declarations and consequential reliefs in respect of each of the four Companies (the 1st to 4th Defendants) on the following principal issues: i) whether each of the Companies is obliged to act upon the requests of the APLs, the Administrators pendente lite of the Estate of the late Madam Lim Siew Kim, who are not registered members of the companies, under the Companies Act 2016 and their respective Memoranda and Articles of Association; ii) whether the Companies are required to convene members’ meetings pursuant to section 311 of the Companies Act 2016 or to provide the Administrators pendente lite with documents or information as requested in their letters dated 16.10.2024; and iii) consequently, whether the Administrators pendente lite ought to be declared not to be members of the respective companies, and the Notice of Requisition to Convene Meeting dated 17.10.2024 be declared invalid, together with orders restraining them from interfering in the management and affairs of the companies.

On 17.12.2024, I granted an ad interim injunction (Enclosure 16) pursuant to the Plaintiff’s application in Enclosure 4, Page 6 of 24 restraining the Companies from convening members’ meetings and from disclosing documents to the APLs.

Although the 1st to 8th Defendants did not object to this Application, I directed that the original Originating Summons (Enclosure 1) and the related cause papers be served on the APLs, as the orders sought would materially affect their interests. The APLs thereafter applied to be joined as parties to these proceedings, and were duly added without objection. A]

The 5th to 8th Defendants are directors of the Companies.

The Plaintiff is a director and shareholder of the Companies (the 1st to 4th Defendants), whilst the late Madam Lim Siew Kim (“Madam Lim”) was the majority shareholder.

Madam Lim passed away on 14.7.2022. Her Will is currently under challenge in Suit No. WA-22NCVC-28-01/2023 (“Suit 28”). On 27.11.2023, Justice Leong Wai Hong appointed the 9th and 10th Defendants as APLs of Madam Lim’s Estate pending determination of Suit 28.

On 30.7.2024, the Plaintiff applied to remove the APLs on grounds including depletion of estate assets, interference with management of the Companies, and incurring unnecessary expenses.

On 17.10.2024, notwithstanding the removal application, the APLs requested the Companies’ Boards to convene members’ meetings pursuant to Section 311 of the Companies Act 2016 to appoint the APLs as directors. The APLs also requested operational and management documents and information from the Companies on 16.10.2024.

On 1.11.2024, the Companies, through their solicitors, denied the APLs’ power to requisition such meetings.

The APLs, although appointed as administrators pendente lite of Madam Lim’s Estate, have not taken steps to have the shares held by the Madam Lim transmitted to them pursuant to section 109 of the Companies Act 2016 (“CA 2016”).

The Plaintiff then filed this Originating Summons (Enclosure 1) on 29.11.2024.

Subsequently, in their affidavit affirmed on 23.4.2025, the APLs conceded that they would not take any steps to place themselves as directors under Section 311 until they are first made members of the Companies under Section 109 of the Companies Act 2016.

The APLs opposed this Application, their objections being raised principally by way of preliminary objections. Page 8 of 24 B] PRELIMINARY OBJECTION 1: FAILURE TO OBTAIN

The APLs contended that this Application is a nullity on the ground that the requisite leave of the High Court in Suit 28 had not been obtained. The APLs, as court-appointed administrators pendente lite, are officers of the Court subject to its control and supervision.

The APLs’ appointments were made pursuant to Section 19 of the Probate and Administration Act 1959. Section 19 of the Act states as follows: “19. Letters of administration pendente lite Pending any probate action, letters of administration may be granted to such person as the Court may appoint, limited so that the administrator shall not be empowered to distribute the estate, and shall be subject to such control by, and direction of, the Court, as the Court deems fit; and subject to that limitation the administrator so appointed shall have all the rights and powers of a general administrator.” (own emphasis added)

The Federal Court authority in N Chanthiran a/l Nagappan v. Kao Che Jen [2023] 5 MLJ 284 established the principle that leave is required before proceedings can be commenced against court-appointed officers, particularly where such Page 9 of 24 proceedings would affect their performance of duties under the appointment order.

In this regard, the Federal Court in N Chanthiran (supra) held as follows: “[53] The phrase ‘subject to the control of the Court’ in s 236(3) of the 1965 Act essentially means that a liquidator is answer able to the court in the performance of his duties. He is obligated to conduct the winding up process pursuant to the order granted by the winding up court. Once the liquidator is sanctioned to perform his duties by virtue of his appointment by the winding up court, no party can interfere with him save with the permission of the winding up court. It would amount to an abuse of process if proceedings can be commenced against the liquidator before a different court notwithstanding the supervision exercised by the winding up court over the liquidator and the winding up process as a whole.” (own emphasis added)

The Court of Appeal in Jigarlal Kantilal Doshi v. Amanah Raya Bhd (as the administrator of the estate of the late Kantilal Prabhulal Doshi, deceased) and other appeals [2014] 6 MLJ 629 likewise held that an APL is subject to the immediate control of the Court: “[17] In the United Kingdom, letters of administration pendente lite are generally granted under s 117 of the Supreme Court Act 1981 and are Page 10 of 24 issued where there is a dispute as to the validity of a will or of a person’s right to administer. Although subject to the immediate control of the court, an administrator pendente lite will usually have all the rights, duties and powers of an administrator. It does not differ from the powers granted to an administrator pendente lite under s 19. That this power could be exercised to give the administrator pendente lite to take action after the appointment is not in question. The question is whether the doctrine of relation back applied to give a backdated effect, so as to enable the Amanah Raya Bhd to regularise or cure the actions of Amanah Raya Bhd before its appointment as the administrator, and to continue or commence and maintain such actions without a grant of a letter of administration.” (own emphasis added)

While the Federal Court in N Chanthiran (supra) involved the position of a liquidator, there is no principled basis to differentiate the position of an administrator pendente lite. Both liquidators and administrators pendente lite share the essential characteristic of being court-appointed officers who are subject to the control and direction of the Court. Just as Section 236(3) of the Companies Act 1965 provides that a liquidator “shall be subject to the control of the Court”, Section 19 of the Probate and Administration Act 1959 similarly provides that an administrator pendente lite “shall be subject to such control by, and direction of, the Court, as the Court deems fit”. This commonality supports the application of the N Chanthiran Page 11 of 24 (supra) principle to administrators pendente lite (see Cairnhill Hotel (M) Sdn Bhd v. Lim Tian Huat [2022] MLJU 3678).

The reliefs sought here would essentially have a direct impact and potentially prohibit the APLs from performing their court-appointed duties in respect of the Companies. Any judgment restraining them from exercising powers over the Madam Lim’s Estate’s assets (including the Companies’ shares) would contravene the order of appointment and the Grounds of Judgment in Suit 28.

The Plaintiff’s failure to seek leave before filing this Application renders it procedurally defective and a nullity.

I find it both peculiar and somewhat unsatisfactory that the Plaintiff did not pursue in Suit 28 the reliefs now sought in this present case. While I acknowledge that the 1st to 8th Defendants are not parties to that suit, the substantive reliefs are in essence directed against the APLs. There is, therefore, no apparent reason why the Plaintiff could not have applied for such reliefs in Suit 28 itself, the same proceedings where the APLs were appointed and remain subject to the supervision of that Court.

It is also noteworthy that the Plaintiff did not, at the outset, make the APLs parties to this action. I had directed that the cause papers be served on the APLs, as the orders sought would directly affect them. The APLs thereafter applied to be Page 12 of 24 joined as parties, and the Plaintiff did not object to their inclusion. This sequence of events lends some support to the APLs’ contention that the present Application was not initiated with full regard to their position and have been pursued for collateral purposes. C]

The APLs also raised the objection that the Plaintiff lacked the necessary locus standi to institute this Application.

The Plaintiff is only one of the four surviving children of the Madam Lim and a named beneficiary under the disputed Will. His beneficial entitlement has not crystallised, whether under the Will or on intestacy, given that Suit 28 challenging the Will remains pending. The Federal Court in Chor Phaik Har v. Farlim Properties Sdn Bhd [1997] 3 MLJ 188 and Khaw Poh Chhuan v. Ng Gaik Peng [1996] 1 MLJ 761 made clear that a beneficiary has no legal or equitable interest in the estate’s assets until administration is complete and distribution effected. His position at present is therefore no more than a spes successionis (hope of succession).

The Plaintiff also relies on his position as a director and holder of a single share in each of the Companies. However, this minority interest does not confer on the Plaintiff locus standi to obtain declarations and injunctions that would, in substance, Page 13 of 24 restrain the APLs from performing their duties over the Madam Lim’s Estate’s majority shareholding.

The questions framed in this Application concern whether the Companies are obliged to act on the requisitions or requests of the APLs. Those are matters affecting the Companies as corporate entities. If any party had the locus standi to seek the Court’s determination, it would be the Companies themselves and not an individual minority shareholder or director. The aggrieved party is the Companies and not its shareholders or directors.

The Federal Court in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 reiterated the fundamental principle that a company is a separate legal entity distinct from its shareholders, and no shareholder has any proprietary interest in the company’s assets. Any loss suffered by a shareholder in that capacity is reflective of the company’s loss and cannot form the basis of a personal cause of action.

This principle was also stated by the Court of Appeal in Mega Forest Plantation Management Sdn Bhd v. Pengarah Perhutanan Negeri Selangor & Ors [2021] 4 MLJ 323 where it was held as follows: “[83] The principle that shareholders have no legal interest in the assets of the company in which shares are held, is trite. In this regard it was established by the seminal case of Mac aw a v Northern Assurance Page 14 of 24 Co Ltd [1925] AC 619; [1925] All ER 51 (HL) that shareholders have no interest in a company’s property. Lord Wrenbury’s speech at p 633 is instructive. He said that ‘the corporator even if he holds all the shares is not the corporation ... neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation’. [84] For completeness, we think that it is also relevant to refer to Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd NA nor and other uppeals [2012] 3 MLJ 616; [2012] 5 CLJ 169, where the Court of Appeal (per Zainun Ali JCA, as she then was) enunciated, [151] It is of course trite that the cornerstone of company law is that a company is a separate legal entity from its shareholders. As such, a shareholder cannot claim any right to any asset of the company, for it has no legal or equitable interest therein (See Law Kam Ley &Anor v Boltex Sdn Bhd & Ors [2005] MLJU 225; [2005] 3 CLJ 355).” (own emphasis added)

More recently, the Federal Court in Low Cheng Teik & Ors v. Low Ean Nee [2024] 5 MLJ 580 reaffirmed that where the act, omission or misconduct complained of results in a wrong suffered by the company as a whole, the cause of action properly vests in the company and the proper plaintiff is the company. Any attempt by an individual shareholder to pursue such a claim in a personal capacity amounts to a misapplication of the proper plaintiff rule.

In the present case, the Plaintiff’s attempt to restrain the APLs from acting in relation to the Companies’ affairs is in substance an indirect challenge to their authority as court-appointed Administrators in Suit 28. The appropriate forum for such a challenge is the Probate Court (Suit 28) which supervises their appointment and to which they are accountable. The Plaintiff has in fact already filed an application there seeking their removal. He cannot circumvent the supervisory jurisdiction of the Probate Court by way of this collateral Originating Summons.

Accordingly, I find that the Plaintiff does not have the requisite locus standi, whether in the capacity of a mere beneficiary of Madam Lim’s Estate or as a minority shareholder or director of the Companies, to maintain this Application. D]

The Plaintiff has already filed a Notice of Application for the removal of the APLs in Suit 28. Both applications, namely the Notice of Application in Suit 28 and this Application (the Amended Originating Summons herein), challenge the APLs’ authority and seek to restrain their activities in relation to Madam Lim’s Estate and the Companies.

Hence, the present action is duplicitous, gives rise to a multiplicity of proceedings, and amounts to a collateral attack on the supervisory jurisdiction of the Probate Court in Suit 28.

The Court of Appeal in Orange Business Services (Network) Sdn Bhd v. Dealtel (Malaysia) Sdn Bhd [2019] MLJU 477 made the following observation: “[17] The objection to multiplicity of proceedings is well-grounded and underscored by the public interest to avoid conflicting decisions by two different courts on the same issue between parties (see Lesco Development Corp Sdn Bhd v Malaysia Building Society Bhd [1987] CLJ (Rep) 160 and Taunton Collins v Cromie and Anor [1964] 2 All ER 332). Conflicting decisions on the same issue not only brings embarrassment to the court or tribunal but may also undermine public confidence in the administration of justice. [18] Authorities on the point also suggest that having multiple actions on the same issues is an abuse of process giving power to the court to act accordingly by striking out any such action or actions (see Jasa Keramat Sdn Bhd & Anor v Monatec (M) Sdn Bhd [1999] 4 MLJ 637; Damayanti Kantilal Doshi & Ors v Jigarlal Kantilal Doshi & Ors [2001] 6 MLJ 417; Penang Port Commission v Kanawagi s/o Seperumaniam [2008] 6 MLJ 686 and Lai Kim Loi v Dato’ Lai Fook Kim & Anor [1989] 2 MLJ 290).” (own emphasis added) E]

Beyond the preliminary objections, this Application has become academic and moot.

The APLs have acknowledged that they must first become registered members under Section 109 of the Companies Act 2016 before exercising any membership rights. They have expressly stated that they will not take steps to be made directors of the Companies until that process is completed. Following the Companies’ solicitors’ letter dated 1.11.2024, the APLs took no further steps to pursue their requisitions or requests.

It is material to note that, while the Plaintiff initially relied on earlier assertions by the APLs that they were entitled to be appointed as directors of the Companies (see Plaintiff’s Written Submissions in Enclosure 33 at paragraph 30), the APLs have since clarified their position. In their Affidavit In Reply (Enclosure 25, paragraphs 41.1–41.4) filed on 23.4.2025, well before the hearing on 13.8.2025, the APLs stated that they will not take any steps to appoint themselves as directors until they are first duly registered as members pursuant to Section 109 of the Companies Act 2016.

The relevant excerpts from the APLs’ Affidavit In Reply (Enclosure 25, paragraphs 41.1–41.4) are reproduced below: “41. We have been advised in law by our solicitors and verily believe that the questions in the OS are academic and should not be answered by this Honourable Court for the following reasons:-

41.1. First, the APLs have not taken any steps apart from that mentioned in paragraphs 38 and 40 above in respect of being made directors of the 1st to 4th Defendants. In other words, after receiving Messrs B&P’s 17.10.2024 Letter, the APLs had not taken any further steps to be made directors of the 1st to 4th Defendants.

41.2. Secondly and as alluded to above, the APLs shall be taking steps, in due course, to be first made members of the 1st to 4th Defendants, and the APLs have a right to do the same under Section 109 of the Companies Act 2016. Thereafter, the APLs would have access to all relevant documents and information of the LSK Companies.

41.3. Thirdly, the APLs will not be taking any steps to place ourselves as a director of the 1st to 4th Defendants whether under Section 311 of the Companies Act 2016 or at all, until we are made members of the 1st to 4th Defendants.

41.4. Finally, and for the foregoing reasons, there is no basis or reason for this Honourable Court to answer of the questions in the OS as the same are academic.” (own emphasis added)

At the hearing of this Application, the APLs confirmed that they have formally withdrawn their notices dated 16 and

17.10.2024, which were the triggers for this Application. This reinforces the academic nature of the reliefs sought in this Application, in particular prayers 1 to 3.

The Plaintiff’s position remains that the APLs lack authority to make requests to the Companies as they are not registered members, and that management rests with the directors.

The 1st to 8th Defendants have similarly acknowledged that the Companies are under no obligation to convene members’ meetings or provide the requested information until the APLs become registered members.

Accordingly, the clarification provided by the APLs aligns all parties on the central principle that no membership rights or director appointments may be exercised in the absence of proper transmission and registration of Madam Lim’s Estate’s shares.

With this alignment, the practical controversy that prompted this Application has effectively been resolved.

There is, therefore, no live dispute requiring determination, and the Application has become academic.

In this regard, the Courts will not determine academic questions where the practical dispute has been resolved. Judicial resources should not be expended on moot issues. Page 20 of 24 This principle was affirmed by the Federal Court in Tan Sri Musa bin Hj Aman v. Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Anor and another application [2020] 12 MLJ 121, where it was held as follows: “[24] It is trite law that a case before court may at some point in the litigation process lose an element of justiciability and become academic. It may occur when controversy initially existing at the time of the action was filed is no longer ‘live’ due to subsequent acts or events, so that an adjudication of the case or declaration on the issue would not serve any useful purpose or have any practical effect. ……. [26] The court does not determine abstract, academic or hypothetical questions of law. It is not the function of the court to decide such questions that do not have any impact on the rights and obligations of the parties. The court would not engage in a fruitless exercise. If the question is wholly ineffectual to the parties, it would be unnecessary and pointless but also inexpedient to decide and the court would properly decline to do so (see Tan Eng Hong v Attorney-General [2012] 4 SLR 476; [2012] SGCA45; Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 (HL) ar p 470 per Viscount Simon LC; Ainsbury v Millington [1987] 1 AU ER 929 at 930-931 per Lord Bridge; Loknath Padhan v Birendra Kumar Sahu 1974 AIR 505; SC per Bhagwati J; Datuk Syed Kechik bin Syed Mohatned & Anor v The Board of Trustees of the Sabah Foundation & Ors and another application [1999] 1 MLJ 257 per Edgar Joseph Jr FCJ; Bar Council Malaysia v Tun Dato’ Seri Arifn bin Zakaria & Page 21 of 24 Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773; [2018] 10 CLJ 129).” (own emphasis added)

Given that the practical controversy in this Application has been resolved and there is no longer a “live” issue between the parties, the questions posed are academic and moot. For these reasons, I decline to answer them, to the extent that they have already been specifically answered or addressed in the course of this Judgment. F]

The preliminary objections raised provide a sufficient basis to dismiss this Application. The combination of these fundamental flaws, namely the lack of locus standi and the failure to obtain leave from the Probate Court (Suit 28), together with the academic nature of the questions posed, warrants dismissal without entering into the merits.

It is not in dispute that the proper course is for the APLs to proceed with share transmission applications under section 109 of the Companies Act 2016 should they wish to exercise membership rights, whilst remaining subject to the supervisory jurisdiction of the Probate Court in Suit 28.

For the reason stated above, this Application is dismissed with costs of RM20,000/- awarded to the APLs (the 9th and 10th Defendants). No order as to costs is awarded in respect of the 1st to 8th Defendants, as they did not seek costs. The ad interim injunction granted on 17.12.2024 in Enclosure 16 is hereby discharged. Dated this 3rd day of November, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 23 of 24 THE PLAINTIFF : Goik Kenwayne (Foong Kar Yee together with him) Messrs Dennis Nik & Wong No. 68-1, Jalan Telawi, Bangsar Baru, 59100 Kuala Lumpur Tel: 03-22847188 Emel: general@dnw.com.my THE 1ST - 8TH DEFENDANTS : Simon Hong Messrs Simon Hong M-2-11 Plaza Damas, 60 Jalan Sri Hartamas 1, Sri Hartamas, 50480 Kuala Lumpur Tel: 03-62012929 Emel: simon@shas.my THE 9TH & 10TH DEFENDANTS : Thangaraj a/l Balasundram (Nadeem Rafiq together with him) Messrs Thangaraj & Assoc. Unit D1-3A-13, Block D1, Solaris Dutamas, No. 1, Jalan Dutamas 1, Hartamas Heights, 50480 Kuala Lumpur Tel: 03-62079725/6 Emel: solutions@thangarajassociates.com Page 24 of 24 LEGISLATION / RULES CITED Companies Act 2016 ▪ Section 109 ▪ Section 311 ▪ Section 236(3) Probate and Administration Act 1959 ▪ Section 19

Cairnhill Hotel (M) Sdn Bhd v. Lim Tian Huat [2022] MLJU 3678

Chor Phaik Har v. Farlim Properties Sdn Bhd [1997] 3 MLJ 188

Jigarlal Kantilal Doshi v. Amanah Raya Bhd (as the administrator of the estate of the late Kantilal Prabhulal Doshi, deceased) and other appeals [2014] 6 MLJ 629

Khaw Poh Chhuan v. Ng Gaik Peng [1996] 1 MLJ 761

Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355

Low Cheng Teik & Ors v. Low Ean Nee [2024] 5 MLJ 580

Mega Forest Plantation Management Sdn Bhd v. Pengarah

N Chanthiran a/l Nagappan v. Kao Che Jen [2023] 5 MLJ 284

Orange Business Services (Network) Sdn Bhd v. Dealtel (Malaysia) Sdn Bhd [2019] MLJU 477

Tan Sri Musa bin Hj Aman v. Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Anor and another application [2020] 12