Savatery A/P Jayaraman v Advanced Fertilizer Manufacturer Sdn Bhd (WA-28NCC-1116-11/2023)

BETWEEN SAVATERY A/P JAYARAMAN (NRIC No. 580112-10-5944) … PETITIONER AND ADVANCED FERTILIZER MANUFACTURER SDN BHD (Company No. 0917252W) … RESPONDENT S/N Era1k2j/CUWx6lplzq1dDQ GROUNDS OF JUDGMENT

These Grounds concern a Notice of Appeal (Encl 67) dated 12.2.2025 to the Court of Appeal against my decision on 16.1.2026.

My decision was to dismiss the Petition (Encl 1) to wind up the Respondent (“the Company”) on the just and equitable ground.

The basis of the Petition was that there was a breakdown in mutual trust and confidence between the Petitioner (“Savatery”) and the Contributory, Teoh Ying Rin (“Teoh”).

The facts and allegations as stated in the Petition are summarised as below.

The shareholders of the Company were and/or are: a. Nantha Kumar (“Kumar”) - 2,750,000 shares; b. Savatery - 1,000,000 shares; c. Teoh - 1,250,000 shares.

Kumar set up the Respondent.

The Petitioner was the wife of Kumar. She was a director since inception, as was Kumar. The Petitioner was not involved in the business of the Respondent.

Teoh was made a director on 27.3.2015 on the direction of Kumar.

Kumar passed away on 7.6.2019. Teoh produced a last will and testament of Kumar dated 29.4.2019 (“the Will”).

Savatery maintained that the mutual trust and confidence between Teoh and Savatery has broken down. And that she could not be expected to work with Teoh.

The key to this case is stated at para 14 of Encl 1, Savatery alleges that the breakdown was caused by Teoh’s attempts to obtain benefits of Kumar’s estate through the Will. Savatery maintains that the Will is questionable and objected to the probate. The Will ended up in contentious probate proceedings. She also commenced proceedings in C/S No. BA-22NCVC-167- 06/2020 (“Suit 167”) for a declaration that the Will was null and void and that Kumar died intestate. Teoh strenuously resisted Suit 167.

12.

On 18.1.2023, the High Court held in favour of Savatery in Suit Teoh appealed. Following the High Court’s ruling, Kumar’s shares in the Company devolved on Savatery. S/N Era1k2j/CUWx6lplzq1dDQ 4 13. As stated above, Savatery’s claim in the Petition of a breakdown in mutual trust and confidence was based on Teoh’s alleged attempt to deprive Savatery’s legitimate interest in her late husband’s estate. It is important to appreciate that this is a private dispute not concerning the affairs of the Company. Savatery also alleged that there was a deadlock in the Company. For example, Teoh continuously asked Savatery to sign the financial statements. However, it is pleaded that Savetery refused, claiming she was not involved in the affairs of the Company and also citing the complete distrust of Teoh.

On reading the Petition, I accept the submission of Counsel for Teoh that Savatery is bound by the Petition in as far as the allegations and grounds raised therein. In Raub Mining & Development Company Sdn Bhd v Akay Holdings Sdn Bhd [2022] MLJU 3483, Nadzarin Wok Nordin J (as he then was) held: “[39] It is my further decision that the Petitioner cannot rely on the Interim Liquidators Report to strengthen or improve their pleaded case as per the Petition as per Datuk Mohd Sari Datuk Nuar v Idris Hyrdaullic (Malaysia) Berhad [1996] 3 CLJ where it was held as follows: “I hold that other than the statement accounts which the petitioner has adduced he cannot rely on any other extrinsic of fact or ground in support of his petition because the petitioner is bound by his petition and cannot traverse outside it.” S/N Era1k2j/CUWx6lplzq1dDQ [40] It is trite that a winding up is a remedy of last resort. In Re Dalkeith Investments Pty Ltd (1985) 3 ACLC 74, Mcpherson J had stated the following: “…that winding up is to be regarded as a remedy of last resort and one which ought not to be granted if some other less drastic form of relief is available and appropriate.”

It is also important to note that any loss of confidence must relate to the conduct and management of the Company’s affairs, not private matters. In Ho Shen Lee (M) Sdn Bhd & Ors v Lim Shen [2022] 6 MLJ 276, the Court of Appeal held: “[79] However, we are of the considered opinion that there is no evidence of an actual breakdown in mutual trust and confidence such as that would render it just and equitable for this court to wind up the respondent. Lord Shaw of Dunfermline in Loch v John Blackwood Ltd [1924] AC 783 at p 788 had stated as follows: ‘It is undoubtedly true that at the foundation of applications for winding up, on the ‘just and equitable’ rule, there must lie a justifiable lack of confidence in the conduct and management of the company’s affairs. But this lack of confidence must be grounded on conduct of the directors, not in regard to their private life or affairs, but in regard to the company’s business. Furthermore the lack of confidence must spring not from dissatisfaction at being outvoted on the business affairs or on what is called the domestic policy of the company. On the other hand, wherever the lack of confidence is rested on a lack of probity in the conduct of the company’s affairs, then the S/N Era1k2j/CUWx6lplzq1dDQ former is justified by the latter, and it is under the statute just and equitable that the company be wound up.’ [80] We find that there is no evidence before this court of any dishonesty or lack of probity shown to have been committed by the directors of the first appellant in the running of its business.”

There’s no allegation or evidence of dishonesty, lack of probity, or mismanagement by Teoh in the Company’s management or affairs. Therefore, can be no breakdown of trust or confidence within Ho Shen Lee (supra), and consequently, no basis for winding-up on the just and equitable ground.

On the other hand, I also find that the Petitioner is also responsible for the alleged deadlock in the Company, having refused to perform her statutory duty as a director, to attest the Company’s financial statements.

With respect, I find no basis for Encl

As such, I dismissed Encl 1 with costs of RM20,000.00 subject to allocatur. Dated the 06th day of April 2026 S/N Era1k2j/CUWx6lplzq1dDQ ..........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Case References: • Ho Shen Lee (M) Sdn Bhd & Ors v Lim Shen [2022] 6 MLJ 276 • Raub Mining & Development Company Sdn Bhd v Akay Holdings Sdn Bhd [2022] MLJU 3483, Nadzarin Wok Nordin J Decision Date: 26th January 2026 Counsel for the Petitioner: Solicitors: Liew Tech Huat, Lim Qi Si, Ong Kang Nyong & Divesh Ramani Messrs. Zaid Ibrahim Suflan T H Liew & Partners (Kuala Lumpur) Counsel for the Intervener (in support of the Respondent):