/akn/my/judgment/court-of-appeal/2017/0b6bebde-e817-4699-9da4-bc5c878371be
Court of Appeal of Malaysia30 Mar 2017N-02(W)-1305-08/2015 & n-02(W)-1308-06/2015
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“een the Defendants to commit fraud.” [7] The learned judge in the grounds went to deal with the locus of the plaintiffs to claim ownership and ruled that they have no locus to seek the reliefs under Specific Relief Act 1950. We do not propose to go through the facts and findings of the learned judge as we are in agreem”
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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: N-02(W)-1305-08/2015 PACIFIC-V HOLDINGS (M) SDN BHD … APPELLANT TAMPIN THEME PARK SDN BHD … RESPONDENT CONSOLIDATE WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
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TEW SU KEOW … APPELLANTS
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DING MING DOK @ TING LING THU
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TAMPIN THEME PARK SDN BHD (COMPANY NO.: 495686-M) … RESPONDENTS 2 [IN THE HIGH COURT IN MALAYA AT SEREMBAN IN THE STATE OF NEGERI SEMBILAN DARUL KHUSUS CIVIL SUIT NO. 22-172-2010 ORIGINATING SUMMON NO. 24-1390-2009] PACIFIC-V HOLDINGS (M) SDN BHD … PLAINTIFF TAMPIN THEME PARK SDN BHD … DEFENDANT CONSOLIDATE WITH [In the High Court in Malaya at Seremban In The State of Negeri Sembilan Darul Khusus Civil Suit No. 22-172-2010]
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TEW SU KEOW … PLAINTIFFS
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DING MING DOK @ TING LING THU
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TAMPIN THEME PARK SDN BHD (COMPANY NO.: 495686-M) … DEFENDANTS CORAM: David Wong Dak Wah, JCA Hamid Sultan bin Abu Backer, JCA Vernon Ong Lam Kiat, JCA 3 Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] Two appeals arising from two suits came up for hearing before us on 30-3-2017. The learned High Court judge had considered both the suits and given one grounds of judgment. After having heard the parties, we took the view that both the appeals had no merits and dismissed them with costs. We now give our grounds. [2] In the High Court, suit No. 22-122-2011, Pacific-V Holdings (M) Sdn Bhd (Pacific) sued Tampin Theme Park Sdn Bhd (Tampin). This in principle is the main suit as well as the complaint and is related to appeal No. ‘1305’. [3] Suit No. 22-172-2010 in the High Court is related to the shareholders of Pacific, Tampin and/or beneficiaries, etc. to support or debunk the main suit between Pacific and Tampin and/or to bring all necessary and interested parties to give evidence in court. Essentially, this suit is anchored to claim legal entitlement to the shares in Tampin, the 6th defendant. The High Court has ordered both the suits to be tried together and hence one ground of judgment. Brief Facts [3] The facts and law has been well articulated by the learned judge. The facts will appear to be complicated and had a chequered history. We do not think it is necessary to set them out here save to say that this 4 judgment must be read together with the judgment of the learned judge to appreciate the facts and application of the law in the proper perspective. In simple terms it can be deduce to the following facts:
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(i) Tampin is the current owner of the land and had entered into an investment agreement with Pacific to allow Pacific to develop the land and rent it to the third parties. The period was for 25 years and Pacific have to pay only RM2,251.80 per month and Pacific was to have quite enjoyment of the land. It must be noted that on the face of the record, shareholders of Pacific had direct and/or indirect interest in Tampin and the investment agreement under corporate jurisprudence will be nothing more than a sham transaction.
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(ii) The plaintiffs in suit No. 172 who are largely the shareholders of Pacific, had taken the position that they are lawful shareholders of Tampin. However, Tampin did not recognise their rights and made attempts to dishonour the agreement between Tampin and Pacific. In consequence, Pacific in suit No. 122 filed for the following prayers: “(i) a declaration that the Tenancy Agreement dated 1.1.2006 between the Plaintiff and the Defendant is valid and that the contents of the said agreement binds the Plaintiff and the Defendant.
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(ii) a declaration that the Investment Agreement dated 1.9.2005 between the Plaintiff and the defendant is still valid and that 5 the contents of the agreement binds the Plaintiff and the Defendant;
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(iii) an order that the Defendant or its agents is hereby restrained from interfering the Plaintiff from collecting rentals from the tenants of the Plaintiff at premises known as PT 121 until 127, PT 328, Taman Seri Intan, 7300 Tampin, Negeri Sembilan Darul Khusus.
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(iv) Whatever payments which had been paid to the Defendant for the rental of premises PT 121-127, PT 328 Taman Seri Intan, 7300 Tampin, Negeri Sembilan, Darui Khusus to be surrendered forthwith to the Plaintiff together with interest at the rate of 8% per annum until full realisation.
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(v) The defendant to pay damages for the tenancy which had been terminated at Lot 121-127, PT 328, Taman Seri Intan, 73000 Tampin, Negeri Sembilan at RM3,000 per month from August 2009 together with interest at the rate of 8 % per annum in the event of default until the expiry of the tenancy agreement of the Plaintiff.”
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(iii) The Tenancy agreement between Pacific and Tampin was signed by Yui Chin Siong, the 1st plaintiff in suit No. 172; for Pacific as the ‘Investor’ and by Yui Sui Lian (brother and sister) for Tampin as ‘The Proprietor’. The tenancy agreement as well as investment agreement was not approved by any resolution of Tampin and/or ratified by subsequent resolutions. There was also no evidence of lease. 6 [4] From the basic facts and law, we take the view that Pacific prayers could not have succeeded. The learned judge had given full reasons to dismiss the plaintiff action in suit ‘122’. We do not intend to go any further save to say that the appeal No. ‘1305’ must be dismissed in limine. Suit ‘172’ [5] The plaintiffs who were also signatories to the agreement in suit ‘122’ were purported shareholder in Tampin D(6). However, their shares were allegedly transferred to D1 and subsequently to other defendants and in consequence they are seeking in essence, to say:
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(i) Transfer of shares of D6 to D1 to D4 is null and void;
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(ii) The appointment of the defendants as director of D6 is void. [6] The issues to be determined by the court were as follows: “(i) Whether the Plaintiffs are legally entitled to the shares of D6;
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(ii) Whether the transfer of the shares in D6 by the Plaintiffs in favour of D1, D2, D3 and D4 is null and void.
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(iii) Whether the shares transfer forms, Form 32A favouring Dl, D2, D3 and D5 were forged as alleged by the Plaintiffs.
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(iv) Whether the Sales and Purchase Agreement (SPA) (P 62) was signed in blank.
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(v) Whether D1 had misrepresented to the Plaintiffs to follow his design when transferring landed properties to Tampin Theme Park Sdn Bhd. 7
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(vi) whether there was conspiracy between the Defendants to commit fraud.” [7] The learned judge in the grounds went to deal with the locus of the plaintiffs to claim ownership and ruled that they have no locus to seek the reliefs under Specific Relief Act 1950. We do not propose to go through the facts and findings of the learned judge as we are in agreement with the decision of the learned judge to dismiss the plaintiffs claim. [8] Taking into consideration the facts of both cases in a holistic manner and the conduct of plaintiffs in both the suits and applying the law as was done by the learned judge, we do not think any reasonable tribunal would have granted the prayers sought in both the suits. We also do not want to go into the nitty gritty of the facts and application of the law by the learned judge as we took the view that the decisions of the judge to dismiss both the suits were correct decisions. [9] For reasons stated above, we had no hesitation in dismissing both the appeals in limine. We hereby ordered so. Dated: 14 March 2018 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. 8 Note: Grounds of judgment subject to correction of error and editorial adjustment, etc. For Appellants: Mr. Sri Dev Nair [with Ms. Pramjit Kaur] Messrs. Mann & Associates Advocates & Solicitors No. 57-2 Jalan Bandar Rawang 1 Pusat Bandar Rawang 48000 Rawang Selangor Darul Ehsan [Ref: MN/PK/YCS/LMC/138/2016] For Respondents No. 1,2,3,4 & 6: Mr. Cheong Sek Kwan [with Mr. James Huntzen Ong] Messrs. Chan & Associates No. 1, Tingkat 1, Jalan Tun Sambanthan 30000 Ipoh, Perak Darul Ridzuan. [Ref: CKK/mc/8699] For Respondents No. 5: Mr. Iruthaya Raj Messrs Raj Selva & Co Advocates and Solicitors No. 28, Jalan Panglima 30000 Ipoh Perak Darul Ridzuan. [Ref: 969D(R)]
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