Pdc Associates Sdn Bhd v Golden Crescent Sdn Bhd (WA-24NCC-571-10/2025)

GOLDEN CRESCENT SDN BHD (Company No. 199701029836 (445336-A))

PELABUHAN BAGAN DATOH SDN BHD (Company No. 199801012769 (468897-K)) …DEFENDANTS GROUNDS OF JUDGMENT I. INTRODUCTION [1] This is an Originating Summons (Enclosure 1) filed by the Plaintiff on 8 October 2025 pursuant to section 37 of the Companies Act 2016 (“CA 2016”), Order 88 rule 2 and Order 92 rule 3 of the Rules of Court 2012 (“ROC 2012”). The Plaintiff seeks an order of this Court to incorporate certain clauses of a Shareholders Agreement dated 22 August 2019 (“the Shareholders Agreement”) into the Memorandum and Articles of Association of the 2nd Defendant (“the M&A”). [2] The 1st Defendant resists the application and prosecutes a counterclaim (Enclosures 17 to 22) for, among other things — a) a declaration that the Shareholders Agreement is null and void; S/N AHBwTptGlECZyx6wdfwnqw b) general damages; c) costs on a solicitor-client / full indemnity basis quantified at RM154,240.00; and d) interest at 5% per annum on costs. [3] The 2nd Defendant is a nominal Defendant. It has not appeared independently and adopts no position adverse to either the Plaintiff or the 1st Defendant. [4] Three principal questions fall for decision — a) whether the Plaintiff is entitled to relief under section 37 CA 2016; b) whether the application is in any event barred as a collateral attack on the prior decisions in High Court Suit No. WA-24NCC- 417-08/2024 (“Suit 417”) and the Court of Appeal in Civil Appeal No. W-02(NCC)(A)-104-01/2025 (“the COA Appeal”); and c) whether the 1st Defendant is entitled to the declaratory and consequential reliefs sought in its counterclaim. S/N AHBwTptGlECZyx6wdfwnqw [5] Having considered the affidavit evidence, the written and oral submissions, and the authorities relied upon, this Court orders that — a) the Plaintiff’s Originating Summons (Enclosure 1) is dismissed; b) the 1st Defendant’s counterclaim is also dismissed insofar as it seeks a declaration that the Shareholders Agreement is null and void; c) the Plaintiff shall pay to the 1st Defendant costs of RM25,000.00 in respect of the Originating Summons, subject to allocator; and d) there shall be no order as to costs on the counterclaim. [6] The reasons of this Court follow. II. BACKGROUND FACTS [7] The 2nd Defendant is a private limited company incorporated in Malaysia. Its issued share capital is held as follows — a) the Plaintiff — 45%; and b) the 1st Defendant — 55%. S/N AHBwTptGlECZyx6wdfwnqw [8] The 2nd Defendant in turn holds 99% of the shares in Ghadaf Marble Sdn Bhd, the underlying operating entity. Ghadaf Marble Sdn Bhd encountered financial difficulties prior to August 2019. [9] On 22 August 2019, the Plaintiff and the 1st Defendant entered into the Shareholders Agreement. It contained provisions concerning, among other things, board composition, restrictions on transfer of shares, and decision-making procedures at shareholder level. It is common ground that the Shareholders Agreement was not, at any material time, incorporated into the M&A by way of special resolution under section 36 of the CA 2016, nor was any amendment to the M&A lodged with the Registrar of Companies. [10] On 15 December 2019, the 2nd Defendant settled an SME Bank loan of approximately RM11.2 million using funds contributed by the Plaintiff and the 1st Defendant for the purpose of rescuing Ghadaf Marble Sdn Bhd. [11] In the course of 2024, deadlocks arose at general meetings of the 2nd Defendant. The 1st Defendant attributes this to the Plaintiff’s non-attendance. [12] In August 2024, the 1st Defendant commenced Suit 417 by way of Originating Summons in the Kuala Lumpur High Court S/N AHBwTptGlECZyx6wdfwnqw (Commercial Division). The principal relief sought there was an order to convene an Extraordinary General Meeting of the 2nd Defendant with a modified quorum of one member. The Plaintiff (as defendant in that suit) opposed the application and put forward, among other matters, the Shareholders Agreement as governing the affairs of the 2nd Defendant. [13] On 10 January 2025, the High Court (YA Atan Mustaffa J) delivered judgment in Suit 417. The 1st Defendant’s application was allowed. In the course of that decision, the learned Judge held that the Shareholders Agreement was not binding on the 2nd Defendant because it had not been incorporated into the M&A under section 36(3) CA 2016. The Broad Grounds of Decision are at Enclosure 26 of Suit 417. [14] On 23 January 2025, the Plaintiff applied for a stay of execution in Suit 417. On 7 March 2025, the High Court dismissed the stay application. [15] On 19 September 2025, the Court of Appeal in the COA Appeal dismissed the Plaintiff’s appeal and affirmed the decision of the High Court in Suit 417. No further appeal was, on the material before this Court, brought to the Federal Court within the time prescribed. S/N AHBwTptGlECZyx6wdfwnqw [16] On 8 October 2025 — less than three weeks after the Court of Appeal’s decision — the Plaintiff filed the present Originating Summons. The Plaintiff also filed an application for an interim injunction (Enclosure 3), which this Court dismissed on 17 October 2025. [17] The 1st Defendant filed Affidavits in Reply (Enclosures 17 to 22) on 7 November 2025 and 5 January 2026, opposing the Originating Summons and prosecuting the counterclaim summarised at paragraph [2] above. [18] The factual chronology is, in the main, undisputed. The dispute is one of law. III. PARTIES’ SUBMISSIONS A. The Plaintiff’s Submissions [19] The Plaintiff’s submissions, distilled, are these — a) Section 37 CA 2016 confers a discretion on this Court to alter or amend the constitution of a company where it is not practicable to do so by ordinary procedures. b) The Plaintiff, holding only 45% of the issued share capital of the 2nd Defendant, cannot pass a special resolution under section 36 CA 2016 (which requires a 75% majority) because the 1st S/N AHBwTptGlECZyx6wdfwnqw Defendant holds 55%. That, says the Plaintiff, is the impracticability that engages section 37. c) The Duomatic principle, derived from In re Duomatic Ltd [1969] 2 Ch 365, applies. Both shareholders signed the Shareholders Agreement; that constituted unanimous informal assent; and unanimous assent dispenses with the need for further formalities. d) On the principle invoked by reference to Pang Choon Weng (relied upon by the Plaintiff in oral submissions), unanimous shareholder assent obviates the requirement of formal resolutions in general meeting. e) On Cheow Chew Khoon @ Teoh Chew Khoon v Abdul Johari bin Abdul Rahman, an originating process must state the matters to be determined with sufficient particularity, and this Court should disregard submissions touching upon the subsidiary Ghadaf Marble Sdn Bhd because that company is not named in the intitulement. B. The 1st Defendant’s Submissions [20] The 1st Defendant’s submissions, distilled, are these — a) The Originating Summons is barred by res judicata, the rule in Henderson v Henderson, and the principle of coordinate jurisdiction. The status of the Shareholders Agreement was S/N AHBwTptGlECZyx6wdfwnqw conclusively determined in Suit 417 and affirmed by the Court of Appeal. b) The Plaintiff cannot meet the section 37 threshold. The fact that a 45% shareholder cannot, on its own, secure a 75% majority is not impracticability within the meaning of section 37. It is the ordinary operation of corporate democracy. c) The Duomatic principle is unavailable. The Federal Court in WTK Realty Sdn Bhd v Kathryn Ma Wai Fong has held that where statute prescribes a mechanism, the common law cannot be invoked to bypass it. d) The 2nd Defendant is not a quasi-partnership or family-run company; it is a commercial joint venture. The Duomatic principle has its province in the former, not the latter. e) The Plaintiff’s conduct is vexatious and oppressive. The 1st Defendant accordingly seeks indemnity costs of RM154,240.00 under Order 59 rule 16 of the ROC 2012, and the Shareholders Agreement should be declared null and void. S/N AHBwTptGlECZyx6wdfwnqw IV. ISSUES FOR DETERMINATION [21] The issues for determination are — a) Issue 1: whether the Plaintiff has established the threshold of “not practicable” required for relief under section 37 of the CA 2016; b) Issue 2: whether, independently, the Originating Summons is barred by res judicata, the rule in Henderson v Henderson, the principle of coordinate jurisdiction, or the broader doctrine of abuse of process; c) Issue 3: whether the Duomatic principle assists the Plaintiff; d) Issue 4: whether the 1st Defendant is entitled to a declaration that the Shareholders Agreement is null and void; and e) Issue 5: the appropriate orders as to costs. [22] Issues 1 and 2 are treated by this Court as twin pillars, each independently sufficient to dispose of the Originating Summons. The result of the Originating Summons stands even if the appellate court were to disagree with this Court on either pillar standing alone. S/N AHBwTptGlECZyx6wdfwnqw V. PRINCIPLES OF LAW A. Burden and Standard of Proof [23] The Plaintiff, as the applicant, bears the burden of satisfying this Court that the conditions for relief under section 37 of the CA 2016 are met. The 1st Defendant, as the party prosecuting the counterclaim, bears the burden in respect of the relief there sought. [24] The applicable standard is the civil standard, namely the balance of probabilities. As Denning J (as he then was) explained in Miller v Minister of Pensions [1947] 2 All ER 372, this requires no more than that the tribunal, on a fair consideration of all the evidence, can say that it is more probable than not. B. The Statutory Framework [25] Section 36 CA 2016 governs alteration of a company’s constitution by the company itself. The provision states — “36. Company may alter or amend constitution

Subject to this Act, a company may alter or amend its constitution by a special resolution unless the constitution itself provides that the constitution shall not be altered or amended.

The amendment of the constitution shall be lodged with the Registrar within thirty days from the date of the S/N AHBwTptGlECZyx6wdfwnqw resolution or such later date as may be specified in the resolution.

An alteration or amendment to a constitution under this section shall, on and from the date of the resolution or such later date as may be specified in the resolution, bind the company and the members as if they have been signed by every member and contained covenants on the part of the company and each member to observe all the provisions of the constitution.” [26] A “special resolution” is defined under the CA 2016 as a resolution passed by a majority of not less than 75% of such members entitled to vote. [27] Section 37 CA 2016 — the operative section invoked by the Plaintiff — provides — “37. Court may alter or amend constitution

The Court may, on the application of a director or member of a company, if it is satisfied that it is not practicable to alter or amend the constitution of the company using the procedures set out in this Act or in the constitution itself, make an order to alter and amend the constitution of a company on such terms and conditions as the Court thinks fit.

The Court may make any further order it considers necessary or expedient in connection with the alteration or amendment of the constitution of a company.” S/N AHBwTptGlECZyx6wdfwnqw [28] The Plaintiff also relies on Order 88 rule 2 and Order 92 rule 3 of the ROC 2012, which respectively govern originating processes for matters arising under the Companies Act and preserve the inherent jurisdiction of this Court. [29] The 1st Defendant’s prayer for indemnity costs invokes Order 59 rule 16 ROC 2012, the relevant portions of which provide — “16. Costs as between solicitor and client to be on indemnity basis (O. 59, r. 16)

The Court may, in any case, order costs to be taxed as between solicitor and client.

The Court in awarding costs to be taxed on a solicitor and client basis or on the indemnity basis shall take into consideration that nothing should be allowed which has been incurred contrary to duty, or unreasonably.” [30] The 1st Defendant’s prayer for declaratory relief in the counterclaim engages section 41 of the Specific Relief Act 1950, which provides — “41. Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion S/N AHBwTptGlECZyx6wdfwnqw make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” C. The Meaning of “Not Practicable” under Section 37 CA 2016 [31] Section 37 is a relatively novel provision in Malaysian company law. It has been considered, to date, principally in Chew Meu Jong v Lysaght (Malaysia) Sdn Bhd (High Court at Kuala Lumpur, Suit No. WA-24NCC-178-05/2017; reported at [2018] 1 LNS 1132; [2018] MLJU 1087). The decision was affirmed by the Court of Appeal, and leave to appeal was refused by the Federal Court. [32] Because the phrase “not practicable” is not defined in the CA 2016, the High Court in Chew Meu Jong derived guidance from the only comparable provision in the common law world, namely section 34 of the Companies Act 1993 of New Zealand. The two New Zealand decisions referred to were Karen Davy and John Dewar Marsh v Grace Natalie Scarrott & Ors [2016] NZHC 1791, and Shell (Petroleum Mining) Co Ltd v Todd Petroleum Mining Co Ltd (2006) 3 NZCCLR 538. [33] The proposition extracted from those authorities, and adopted by this Court, is this: “not practicable” means practically impossible, S/N AHBwTptGlECZyx6wdfwnqw and it is directed at process and not at substantive outcome. The Court’s intervention is justified only where the constitutional mechanism is structurally incapable of being employed — typical examples being persistent quorum failure, the loss of a class of shareholder, or the inability to convene a meeting at all. [34] Section 37 is not, accordingly, a forum for revising the outcome of a properly-conducted constitutional vote which the applicant has lost. To read section 37 otherwise would invert the corporate democracy that section 36(1) is designed to safeguard. D. The Distinction between a Shareholders’ Agreement and the Constitution [35] In Beh Chun Chuan v Paloh Medical Centre Sdn Bhd & Ors [1999] 3 MLJ 262, the High Court explained that a shareholders’ agreement is a contract between the members of the company to regulate their conduct and define their duties and obligations inter se. The shareholders’ agreement does not, of itself, bind the company. To bind the company, its terms must be incorporated into the constitution. [36] That principle is now also reflected in the architecture of the CA

The shareholders’ agreement and the constitution are separate instruments, with separate routes of amendment and separate scopes of binding effect. S/N AHBwTptGlECZyx6wdfwnqw E. The Duomatic Principle and Its Limits [37] In In re Duomatic Ltd [1969] 2 Ch 365, Buckley J held that where it can be shown that all shareholders entitled to attend and vote at a general meeting have assented to a matter which a duly convened meeting could carry into effect, that informal assent is as binding as a resolution duly passed in general meeting. [38] The doctrine, however, does not operate as a wholesale dispenser of statutory formality. The Federal Court in WTK Realty Sdn Bhd v Kathryn Ma Wai Fong & Anor and Other Appeals (Civil Appeal No. 02(f)-42-08/2023(Q)) held — albeit in the context of share allotment under section 132D of the (now repealed) Companies Act 1965 — that where statute prescribes a procedure, the Duomatic principle cannot be invoked to bypass it. Validation must be sought, if at all, through the statutory machinery itself. [39] That principle is, in this Court’s view, of general application and is equally apposite to section 36(3) of the CA 2016. The procedure for amending a company’s constitution is statutorily prescribed: a special resolution duly lodged with the Registrar. The Duomatic principle cannot be deployed to cut across that requirement. S/N AHBwTptGlECZyx6wdfwnqw F. Res Judicata, Henderson v Henderson, and Coordinate Jurisdiction [40] The leading Malaysian authority on res judicata remains the Supreme Court’s decision in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189. Peh Swee Chin FCJ, delivering the judgment of the Court, explained that the doctrine has two limbs: cause of action estoppel and issue estoppel. The animating maxims are interest rei publicae ut sit finis litium (it is in the public interest that there be finality in litigation) and nemo debet bis vexari pro eadem causa (no one ought to be vexed twice for the same cause). [41] Asia Commercial Finance also recognised the broader, “extended” doctrine drawn from Henderson v Henderson (1843) 3 Hare 100, under which a party is precluded from raising in subsequent litigation any point which properly belonged to the subject of earlier litigation and which could, with reasonable diligence, have been brought forward at that time. Where strict estoppel is not made out but re-agitation would, in the words of Wigram VC, be a “scandal and an abuse”, the Court may dismiss the action as an abuse of process. [42] The reception of the extended doctrine in Malaysia has been confirmed in Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133, where the Federal Court held that the doctrine extends to issues that could and should have been raised in the earlier proceedings. S/N AHBwTptGlECZyx6wdfwnqw [43] On coordinate jurisdiction, the Court of Appeal in Ang Game Hong & Anor v Tee Kim Tiam [2015] 4 MLJ 432 confirmed that a court of equal rank cannot overrule, override, or reopen the decision of another court of the same level. The proper avenue for any challenge is by way of appeal. G. Indemnity Costs [44] Indemnity costs under Order 59 rule 16(4) ROC 2012 are not awarded as a matter of course. They require a finding of conduct that goes beyond mere defeat on the merits — typically conduct that is oppressive, vexatious, or that constitutes a flagrant abuse of process: American Express (M) Sdn Bhd v Matthias Chang Wen Chieh [2009] 7 MLJ 489. The principle has also been considered in Takako Sakao v Ng Pek Yuen in the broader context of the costs jurisdiction. VI. ANALYSIS AND FINDINGS [45] This Court approaches the analysis on two principal tracks: (i) the substantive section 37 threshold; and (ii) the res judicata and abuse of process bar. Either track is independently sufficient to dispose of the Originating Summons. The Court treats them as twin pillars of equal weight. S/N AHBwTptGlECZyx6wdfwnqw Issue 1: The Section 37 Threshold [46] The Plaintiff’s case on impracticability is, with respect, candid. In its Affidavit in Support and its written submission, the Plaintiff puts the matter thus: as a 45% shareholder, it cannot on its own muster the 75% majority required by section 36 to incorporate the Shareholders Agreement into the M&A. That, says the Plaintiff, is the impracticability that engages section 37. [47] This Court rejects that submission. The reasons follow. [48] First, the proposition mistakes the meaning of “not practicable” within section 37 of the CA 2016. As set out at paragraphs [31] to [34] of this judgment, the statutory phrase is directed at process and not at substantive outcome. It addresses cases where the constitutional procedure for amendment is structurally incapable of operating — for example, where a class of shareholder has been lost (as in Chew Meu Jong), where quorum cannot be achieved no matter how often the meeting is convened, or where the constitution itself is internally contradictory. [49] Secondly, what the Plaintiff faces is not impracticability. It is the operation of corporate democracy. Section 36(1) of the CA 2016 sets the threshold for constitutional amendment at 75%. That threshold exists precisely to prevent constitutional alteration to the detriment of shareholders who do not consent, and to protect S/N AHBwTptGlECZyx6wdfwnqw the entrenched expectations of all members. The Plaintiff holds 45%; the 1st Defendant holds 55%. The Plaintiff cannot, on its own, reach 75%. That is not a procedural pathology to be cured by section 37. It is the architecture of the statute as the legislature designed it. [50] Thirdly, were the Plaintiff’s reading of section 37 correct, every minority shareholder defeated upon a constitutional vote would have a parallel route to court-ordered amendment. That would render section 36(1) virtually nugatory. Section 37 is plainly intended for narrow and exceptional cases. This Court declines to expand it into a routine remedy for minorities. [51] Fourthly, the Plaintiff has not demonstrated that the formal procedures under the CA 2016 cannot operate. The 1st Defendant’s earlier application in Suit 417 — successful, and affirmed on appeal — was itself an exercise of statutory machinery to break a meeting deadlock. The procedures provided by the CA 2016 have, on the evidence, in fact operated. There is no procedural impasse for this Court to cure. [52] Fifthly, and conditionally: it does not appear from the affidavits filed in support of Enclosure 1 that the existing M&A of the 2nd Defendant has been exhibited in full. If that is so, the Court is asked to alter what it has not seen — an application that falls short on its evidentiary foundation alone. This Court flags the S/N AHBwTptGlECZyx6wdfwnqw matter conditionally; the application fails on the substantive grounds set out above whether or not the M&A has been formally exhibited. [53] It is appropriate, at this point, to address the apparent tension between this Court’s rejection of impracticability and the existence of substantial deadlock between the parties. The two are not inconsistent. The deadlock between the Plaintiff and the 1st Defendant is one of substantive disagreement on commercial terms — the parties simply differ on whether the Shareholders Agreement should govern the company. Such disagreement is not a procedural pathology. The constitutional mechanism is not jammed; the constitutional vote has, in substance, occurred and produced a result the Plaintiff dislikes. That is the operation of corporate democracy, not the failure of it. [54] Issue 1 is accordingly resolved against the Plaintiff. The threshold of “not practicable” within section 37 of the CA 2016 has not been made out. Issue 2: Res Judicata, Henderson v Henderson, and Abuse of Process [55] Even if Issue 1 had been resolved in the Plaintiff’s favour — which it is not — this Court would, in any event, have dismissed the Originating Summons on the second pillar. S/N AHBwTptGlECZyx6wdfwnqw [56] In Suit 417, between the same parties, on substantially the same factual matrix, the High Court determined that the Shareholders Agreement was not binding on the 2nd Defendant because it had not been incorporated into the M&A under section 36(3) of the CA 2016. That decision was affirmed by the Court of Appeal on 19 September 2025. No further appeal was taken to the Federal Court within time. [57] The Plaintiff’s response is that this Originating Summons engages a different statutory provision — section 37 of the CA 2016 — and seeks a different remedy, namely a court-ordered constitutional alteration. On a strict view, this Court accepts that the cause of action is not identical to that pleaded in Suit 417. [58] The matter, however, does not end there. The principles in Asia Commercial Finance and Henderson v Henderson extend beyond strict cause-of-action estoppel. They cover issues that could and should have been raised in the earlier proceedings. [59] On the facts before this Court — a) Suit 417 was commenced in August 2024. The Plaintiff was the defendant. The Plaintiff actively contested the suit and put forward the Shareholders Agreement as its substantive defence; S/N AHBwTptGlECZyx6wdfwnqw b) the relief now sought under section 37 — constitutional alteration to give the Shareholders Agreement constitutional effect — was a relief plainly available to the Plaintiff at the time of Suit 417. It could have been raised by way of counterclaim in Suit 417 or by separate but contemporaneous proceedings; c) the Plaintiff did not do so. Instead, it ran its case to defence, lost at first instance, lost on appeal, and only thereafter — within three weeks of the Court of Appeal’s decision — commenced the present application. [60] The Plaintiff’s submission that section 37 was beyond the scope of Suit 417 misunderstands the extended doctrine. Henderson v Henderson was framed precisely to capture a defendant’s omission to raise an available cross-claim or alternative remedy. As Wigram VC put it in the original passage adopted in Asia Commercial Finance, the rule applies to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time. [61] This Court finds that the section 37 application properly belonged to the subject-matter of Suit 417. The Plaintiff, exercising reasonable diligence, could and should have raised it then. The Plaintiff’s decision to husband that argument until the appellate processes in Suit 417 had been exhausted, and to deploy it as a fresh proceeding thereafter, is precisely the S/N AHBwTptGlECZyx6wdfwnqw conduct which the extended doctrine in Henderson v Henderson was designed to defeat. [62] Independently, the Originating Summons constitutes an abuse of process. The substantive effect of the relief sought — incorporation of the Shareholders Agreement into the M&A — is to unwind the practical consequence of the High Court’s finding in Suit 417, affirmed by the Court of Appeal, that the Agreement is not binding on the company. To allow the present proceeding would be to allow a party who has lost on appellate hearing to obtain, by a side-door, the very effect that the appellate process has denied it. [63] As to coordinate jurisdiction: this Court accepts the Plaintiff’s submission that the present application invokes a different statutory section from that determined in Suit 417 and is therefore not, in strict jurisdictional terms, an “overruling” of the earlier judgment. To that extent, the strict ratio of Ang Game Hong & Anor v Tee Kim Tiam is not directly engaged. By way of observation only and not forming part of this Court’s ratio, however, the spirit of the principle in Ang Game Hong — that judicial finality between coordinate courts should not be eroded by oblique manoeuvre — fortifies the conclusion already reached on res judicata and abuse of process. S/N AHBwTptGlECZyx6wdfwnqw [64] Issue 2 is accordingly also resolved against the Plaintiff. The Originating Summons is barred under the extended doctrine in Henderson v Henderson and stands to be dismissed as an abuse of process. Issue 3: The Duomatic Principle [65] The Plaintiff’s reliance on the Duomatic principle, even if otherwise meritorious, encounters insuperable obstacles. [66] First, the Federal Court in WTK Realty Sdn Bhd v Kathryn Ma Wai Fong has authoritatively held that where statute prescribes a procedure, the Duomatic principle cannot operate as a substitute for that procedure. Although WTK Realty was concerned with section 132D of the now-repealed Companies Act 1965 and not section 36(3) of the CA 2016, the underlying logic — that informal common law assent does not displace mandatory statutory machinery — applies a fortiori to constitutional amendment, which is a more solemn corporate act than a single share allotment. The Plaintiff’s reliance on In re Duomatic Ltd and on Pang Choon Weng must yield to that authoritative pronouncement. [67] Secondly, the Duomatic doctrine is conventionally applied to small, family-run, or quasi-partnership companies, where strict adherence to corporate formality is not the norm and where the substance of unanimous agreement is plain. The 2nd Defendant S/N AHBwTptGlECZyx6wdfwnqw is a commercial joint venture between two corporate entities. Neither can fairly be characterised as a party to a familial or quasi-partnership relationship. The Duomatic doctrine sits uneasily, on these facts, with the commercial setting before this Court. [68] Thirdly, the Shareholders Agreement itself contains formal mechanisms for the conduct of meetings and decisions of the parties. It is internally inconsistent for the Plaintiff to invoke the very signing of that instrument as a wholesale waiver of the formalities the instrument itself prescribes. [69] On Pang Choon Weng: even taking the case at its highest, it cannot stand against the Federal Court’s pronouncement in WTK Realty, which is binding on this Court. [70] On Cheow Chew Khoon @ Teoh Chew Khoon v Abdul Johari bin Abdul Rahman: the Plaintiff invokes that decision for the proposition that an originating process must state with sufficient particularity the matters to be determined, and that this Court should not entertain submissions concerning Ghadaf Marble Sdn Bhd because that company is not named in the intitulement. The submission is briefly noted and rejected. Cheow Chew Khoon stands for the unobjectionable proposition that a Court ought not to determine reliefs not particularised in the originating process. It does not preclude the Court from receiving evidence of the S/N AHBwTptGlECZyx6wdfwnqw underlying commercial circumstances necessary to understand the dispute. References to Ghadaf Marble Sdn Bhd in this judgment are contextual; no relief is granted in respect of that entity. [71] Issue 3 is accordingly resolved against the Plaintiff. Issue 4: The 1st Defendant’s Counterclaim — Declaration of Nullity [72] The 1st Defendant prays for a declaration that the Shareholders Agreement is null and void. This Court declines to make that declaration. The reasons are these. [73] First, the only finding made by the High Court in Suit 417, and affirmed by the Court of Appeal, was that the Shareholders Agreement is not binding on the 2nd Defendant. That finding is grounded in the absence of incorporation under section 36(3) of the CA 2016. It is a finding directed at the company’s position. It is not a finding directed at the underlying validity of the contract as between the Plaintiff and the 1st Defendant. [74] Secondly, “not binding on the company” is materially different from “null and void”. Consistent with Beh Chun Chuan v Paloh Medical Centre Sdn Bhd, a shareholders’ agreement may remain a valid and enforceable contract inter se between the parties even though it cannot be enforced against the company. To S/N AHBwTptGlECZyx6wdfwnqw declare the Agreement entirely null and void would go further than what was decided in Suit 417. It would do so without any pleaded vitiating factor known to the law of contract — illegality, mistake, lack of capacity, frustration, or the like — and without legal foundation. [75] Thirdly, declaratory relief under section 41 of the Specific Relief Act 1950 is a discretionary remedy. The Court ought not to exercise that discretion where the declaration sought is broader than necessary to resolve any live dispute, or where its grant would amount to a roving determination upon contractual validity untested by pleaded contractual issues. Both vices are present here. [76] Fourthly, the practical position is already settled: the Shareholders Agreement cannot be enforced against the 2nd Defendant. That is the protection the 1st Defendant in substance needs and has already obtained. A declaration of nullity adds nothing of legal substance and risks overreaching by foreclosing private rights between the parties not before this Court. [77] Issue 4 is accordingly resolved against the 1st Defendant. The prayer for a declaration that the Shareholders Agreement is null and void is dismissed. S/N AHBwTptGlECZyx6wdfwnqw [78] The 1st Defendant’s prayer for general damages is also dismissed. No quantifiable loss has been particularised or proved, and none arises from the dismissal of the Originating Summons in any event. Issue 5: Costs [79] On the Originating Summons, costs follow the event. The Plaintiff has lost. Costs are payable to the 1st Defendant. The questions are the basis and the quantum. [80] This Court declines to award indemnity costs. Order 59 rule 16(4) of the ROC 2012 contemplates indemnity costs in cases where there is conduct which goes beyond mere defeat on the merits — typically conduct that is oppressive, vexatious, or that constitutes a flagrant abuse of process: American Express (M) Sdn Bhd v Matthias Chang Wen Chieh [2009] 7 MLJ 489. While this Court has, on Issue 2, characterised the Originating Summons as an abuse of process within the broader meaning of that term, that conclusion is not, on the present facts, the same as a finding that the Plaintiff’s conduct was vexatious in the sense contemplated by the indemnity costs jurisprudence. The reasons are these — a) section 37 of the CA 2016 is a relatively novel provision with a slim body of decided authority. The Plaintiff’s argument, although defeated, was not frivolous in conception; S/N AHBwTptGlECZyx6wdfwnqw b) the procedural pathway pursued was not designed to harass; it was designed (albeit misguidedly) to obtain a remedy that the Plaintiff considered, on legal advice, to be available to it; and c) the conduct of the litigation has, at all times, been within the bounds of reasonable advocacy. [81] Costs are accordingly awarded on the standard basis. Having regard to the complexity of the issues, the volume of affidavit evidence, the fact that the matter was disposed of on Originating Summons (without trial), and the proportionate response appropriate on the particular facts, this Court fixes costs at RM25,000.00 subject to allocator. The costs jurisdiction is, in its broader principles, also informed by Takako Sakao v Ng Pek Yuen, but the specific quantum is set by reference to proportionality on the particular facts. [82] On the counterclaim, the position is mixed. The 1st Defendant has prevailed in resisting the Originating Summons but has failed in its prayer for a declaration that the Shareholders Agreement is null and void. The Plaintiff has succeeded in resisting that prayer. The dismissal of the counterclaim, however, has occasioned no separate or distinct hearing; the issues were dealt with as part of the same set of submissions and on the same factual matrix. In the circumstances, this Court makes no order as to costs on the counterclaim. S/N AHBwTptGlECZyx6wdfwnqw VII. CONCLUSION AND ORDERS [83] For the reasons set out above, this Court formally orders that — a) the Plaintiff’s Originating Summons dated 8 October 2025 (Enclosure 1) is dismissed; b) the 1st Defendant’s counterclaim, insofar as it seeks a declaration that the Shareholders Agreement dated 22 August 2019 is null and void and ancillary relief, is also dismissed; c) the Plaintiff shall pay to the 1st Defendant costs of RM25,000.00 in respect of the Originating Summons, subject to allocator; d) no order as to costs is made on the counterclaim; and e) the 2nd Defendant being a nominal Defendant, no order as to costs is made in its favour or against it. VIII. APPRECIATION [84] This Court records its appreciation of the careful written and oral submissions of counsel for the Plaintiff and the 1st Defendant, which materially assisted the determination of these matters. S/N AHBwTptGlECZyx6wdfwnqw Dated 14hb May 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: Chuah Haw Ping & Alsyha Khazlida Alauddin Onn (Onn & Partners (Kuala Lumpur)) For the 1st Defendant: James Ee Kah Fuk & Saranyah a/p Boopalan (K.F.EE & CO.Advocates & Solicitors) For the 2nd Defendant: The 2nd Defendant (Pelabuhan Bagan Datoh Sdn Bhd) being a nominal Defendant, no separate appearance was entered. S/N AHBwTptGlECZyx6wdfwnqw

American Express (M) Sdn Bhd v Matthias Chang Wen Chieh [2009] 7 MLJ 489 2. Ang Game Hong & Anor v Tee Kim Tiam [2015] 4 MLJ 432, CA

Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995]

Beh Chun Chuan v Paloh Medical Centre Sdn Bhd & Ors [1999]

Cheow Chew Khoon @ Teoh Chew Khoon v Abdul Johari bin

Chew Meu Jong v Lysaght (Malaysia) Sdn Bhd [2018] 1 LNS 1132; [2018] MLJU 1087, HC (affirmed CA, 2021; leave to appeal refused FC, 2021)

Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 8. In re Duomatic Ltd [1969] 2 Ch 365 9. Karen Davy and John Dewar Marsh v Grace Natalie Scarrott &

Ors [2016] NZHC 1791 Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133,

11.

Miller v Minister of Pensions [1947] 2 All ER 372 Pang Choon Weng (as cited by the Plaintiff in submissions; full citation per parties’ bundles)

Shell (Petroleum Mining) Co Ltd v Todd Petroleum Mining Co Ltd

3 NZCCLR 538

Takako Sakao v Ng Pek Yuenb (No 2) 3 MLRA (Federal Court)

WTK Realty Sdn Bhd v Kathryn Ma Wai Fong & Anor and Other Appeals (Federal Court, Civil Appeal No. 02(f)-42-08/2023(Q)); [2025] 3 MLJ 401 (CA) S/N AHBwTptGlECZyx6wdfwnqw

Companies Act 2016 — sections 36, 37, 292 2. Companies Act 1965 (repealed) — section 132D (referred to in

Specific Relief Act 1950 — section 41 4. Rules of Court 2012 — Order 59 rule 16; Order 88 rule 2; Order 92 rule 3