Sung Tiak Keng v Siang Tiak Hock (MA-22NCvC-5-01/2020)

SUNG HOCK CHAN SDN BHD (No. Syarikat: 148551-A)

HOCJAYA SDN BHD (No. Syarikat: 194137-A)

WISMA GEMILANG SDN BHD (No. Syarikat: 263321-X)

HOCJAYA PROPERTIES SDN BHD (No. Syarikat: 323639-P)

HOCJAYA DEVELOPMENT SDN BHD (No. Syarikat: 502000-K) ... DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This action concerns the breakdown of a long-standing commercial relationship between two brothers, the Plaintiff, Sung Tiak Keng ("the Plaintiff"), and the 1st Defendant, Siang Tiak Hock ("the 1st Defendant"), whose association in business spans almost six decades. At its core, the dispute is not merely about corporate governance or shareholding. Rather, it concerns whether the 1st Defendant, while entrusted with the management of the family business, subsequently exercised the powers vested in him as director and shareholder of the 2nd Defendant in a manner contrary to the parties' longstanding understanding, their relationship of mutual trust and confidence, and the contractual rights allegedly arising under the constitution of the 2nd Defendant. The Plaintiff further contends that the 1st Defendant thereafter used the corporate structure of the 2nd Defendant and several related companies to consolidate control over the business to the exclusion of the Plaintiff. These allegations are denied by the Defendants, who maintain that all corporate decisions were lawfully undertaken in accordance with the Companies Act, the Memorandum and Articles of Association of the 2nd Defendant and the relevant corporate resolutions. MATERIAL FACTS AND PROCEDURAL HISTORY The Parties [2] The Plaintiff is a Malaysian citizen who, at the commencement of this action, was approximately seventy-two years of age. He resides in Bachang, Melaka. It is common ground that he was one of the original shareholders and directors of the 2nd Defendant. According to the pleadings, he has throughout maintained that he held fifty per cent of the paid-up equity of the company and was entitled to participate equally in its management and administration. [3] The 1st Defendant is likewise a Malaysian citizen and is the younger brother of the Plaintiff. Like the Plaintiff, he was an original shareholder and director of the 2nd Defendant. Throughout these proceedings, the parties do not dispute their familial relationship. However, they fundamentally disagree as to the legal consequences arising from that relationship in the management of the company. [4] The 2nd Defendant, Sung Hock Chan Sdn Bhd, was incorporated on 16 December 1985. Its registered office is situated at Plaza Semabok, Melaka. According to its registered objects and subsequent corporate records, it carries on the business of processing, packaging, wholesale and retail of fresh and frozen seafood, meat products and oil palm plantation activities. The parties are agreed that this company constitutes the principal operating company from which the present dispute arises. [5] The remaining corporate defendants comprise Hocjaya Sdn Bhd (3rd Defendant), Wisma Gemilang Sdn Bhd (4th Defendant), Hocjaya Properties Sdn Bhd (5th Defendant) and Hocjaya Development Sdn Bhd (6th Defendant). Their incorporation dates, registered offices, shareholders and directors are pleaded in considerable detail by the Plaintiff, who alleges that these companies were subsequently established under the control of the 1st Defendant and operated in conjunction with the 2nd Defendant. The Defendants dispute the significance attributed by the Plaintiff to these corporate relationships. Origins of the Family Business [6] The factual history preceding the incorporation of the 2nd Defendant occupies a significant portion of the Plaintiff's Statement of Claim and the evidence adduced at trial. The Plaintiff traces the origins of the family business to his late father, Sung Yoke Chai, also known as Siang Kok Chye, who commenced a sole proprietorship dealing in fresh fish and seafood at the Melaka General Market on 1 January 1960 under the business name "Siang Kok Chye". [7] According to the Plaintiff, he began assisting his father in the business from a young age. The 1st Defendant subsequently joined the same business after leaving school. Both brothers thereafter worked together under the supervision of their late father until his death in July 1979. The Plaintiff's evidence is that, during this period, their respective roles became established, with the Plaintiff principally handling marketing, collections and customer relations while the 1st Defendant gradually assumed responsibility for administrative and financial matters. [8] Following the death of their father, the Plaintiff and the 1st Defendant continued the business as partners under the name "Shong Kok Chai Fishery Co", which was registered as a partnership on 4 June 1982. The Plaintiff's case is that this partnership represented the continuation of their father's business and was founded upon mutual trust, confidence and equality between the two brothers. [9] The Defendants do not dispute the historical existence of the partnership business. However, they deny that any legally enforceable agreement concerning future corporate governance survived the subsequent incorporation of the 2nd Defendant. This issue ultimately became one of the principal matters requiring determination during the trial. Incorporation of the 2nd Defendant [10] On 16 December 1985, the partnership business was incorporated as Sung Hock Chan Fishery Sdn Bhd before subsequently changing its name to Sung Hock Chan Sdn Bhd on 6 January 1990. The corporate documents tendered during trial establish that both the Plaintiff and the 1st Defendant each subscribed one subscriber share upon incorporation and were appointed as the only directors of the company. The company's Memorandum and Articles of Association were also adopted at incorporation. [11] The Plaintiff's case is that incorporation did not alter the fundamental nature of the parties' relationship. He maintains that the company remained, in substance, a family enterprise, conducted on the basis that both brothers would continue participating equally in ownership, management and decisionmaking notwithstanding the adoption of the corporate structure. According to him, incorporation merely provided a more convenient legal vehicle through which the pre-existing family business would continue to operate. [12] The Plaintiff pleads that the business therefore retained all the characteristics of what he describes as a domestic family company or a quasi-partnership, namely one founded upon personal confidence, mutual trust and equal participation in management. These allegations are expressly denied by the Defendants, who contend that after incorporation the rights of the parties became exclusively regulated by the Companies Act and the Memorandum and Articles of Association. Corporate Evolution of the 2nd Defendant [13] The documentary evidence establishes that the 2nd Defendant was incorporated on 16 December 1985 with an authorised capital of RM200,000.00 divided into 200,000 ordinary shares of RM1.00 each. Upon incorporation, the Plaintiff and the 1st Defendant each subscribed one subscriber share and became the only shareholders and directors of the company. The contemporaneous incorporation documents, including the Memorandum and Articles of Association, the first directors' resolutions and statutory returns, were produced at trial and were not disputed as to their authenticity. The principal dispute concerns the legal significance of those documents and whether they represented the complete agreement between the parties or merely formalised a pre-existing family arrangement. [14] The Plaintiff's pleaded case is that notwithstanding incorporation, the commercial relationship between himself and the 1st Defendant continued exactly as before. According to the Plaintiff, both brothers remained equal participants in every significant aspect of the business. The Plaintiff continued to manage procurement, sales, marketing and customer relations whilst the 1st Defendant oversaw administration, finance and internal management. The Plaintiff maintains that this division of responsibilities reflected a mutual understanding rather than a formal allocation of legal powers, and that neither brother was intended to dominate the other in corporate decision-making. [15] The Defendants reject this characterisation. Their case, both in the pleadings and throughout the trial, is that once the company was incorporated, all rights and obligations between the parties became governed by the Companies Act and the company's constitutional documents. They deny the existence of any separate legally enforceable oral understanding governing future management or ownership of the company. Progressive Increase in Capital [16] It is common ground that after incorporation the authorised capital of the 2nd Defendant was progressively increased through several Extraordinary General Meetings. The Plaintiff relies extensively upon these corporate documents to demonstrate what he describes as a consistent historical pattern of equal treatment between the two brothers. [17] The evidence shows that:

(a) on 26 November 1987, the authorised capital was increased from RM200,000.00 to RM250,000.00 through the creation of an additional 50,000 ordinary shares of RM1.00 each;

(b) on 8 September 1988, the authorised capital was further increased from RM250,000.00 to RM300,000.00 through the creation of another 50,000 ordinary shares; and

(c) on 29 December 1995, the authorised capital was increased from RM300,000.00 to RM500,000.00 through the creation of an additional 200,000 ordinary shares. [18] The Plaintiff emphasises that every allotment prior to December 1995 preserved parity between himself and the 1st Defendant. The statutory returns, resolutions, Forms 24 and attendance records produced during trial show that from incorporation until the end of 1995, every increase in issued capital maintained equal shareholdings between the brothers save for the temporary allotment made to Mustajab bin Baharom, whose shares were subsequently transferred equally back to the Plaintiff and the 1st Defendant. These historical corporate records were put extensively to the 1st Defendant during cross-examination. The 1st Defendant accepted the authenticity of the relevant resolutions, attendance sheets, statutory forms and allotments although he disputed the legal inferences sought to be drawn from them. [19] During cross-examination, the 1st Defendant acknowledged, amongst others:

(a) the Extraordinary General Meeting of 19 November 1987 approving equal allotments of 107,000 shares each to the Plaintiff and the 1st Defendant;

(b) the first Directors' Meeting attended only by the Plaintiff and himself;

(c) the Circular Resolution dated 18 March 1986 approving equal allotments of 10,000 shares each;

(d) the temporary allotment of 2,500 shares to Mustajab bin Baharom in March 1987;

(e) the subsequent transfer of those shares; and

(f) the authenticity of the statutory company documents reflecting those transactions. [20] The Plaintiff relies heavily upon these admissions to support his contention that equality between the two brothers remained the consistent corporate practice from incorporation until the disputed allotment in December 1995. The Disputed Allotment of 29 December 1995 [21] The central factual dispute concerns the allotment of shares effected on 29 December 1995. [22] The Plaintiff pleads that prior to this allotment both brothers held equal interests in the company and that equality had been consistently maintained since incorporation. According to the Plaintiff, when the authorised capital was increased to RM500,000.00, the proper allotment ought to have preserved complete parity by allocating equal numbers of shares to both brothers, inclusive of their subscriber shares. Instead, the 1st Defendant caused 250,000 shares to be allotted to himself but only 249,999 shares to the Plaintiff, thereby obtaining one additional share and thereafter asserting that he had become the majority shareholder. [23] The Plaintiff further alleges that the Share Application Forms relied upon to effect the allotment had been signed by him in blank, in accordance with the longstanding practice whereby he trusted the 1st Defendant and the company secretary to complete the necessary corporate documentation. He maintains that he neither authorised nor appreciated that the additional one share would be allotted to the 1st Defendant. This account is borne out by the Plaintiff's own evidence. In his witness statement (Enclosure 399) the Plaintiff (SP-1) deposed that whenever documents were handed to him for signature — usually by the accounts manager, Siang Shu Hua, or the clerk, Ms Boon — he was told only that they required his signature as director and shareholder and that the 1st Defendant had asked him to sign, and that he signed in reliance upon that assurance (Q&A 50, 52 and 53); that he neither reads nor writes English or Bahasa Malaysia and speaks only Hokkien and Mandarin (Q&A 45); and that the contents of the documents at the pages put to him were not read, translated or explained to him before he signed (Q&A 47 to 49). His son, Sung Yau Peng (SP-3), gave evidence to like effect, namely that only the signing pages, in English or Bahasa Malaysia, were brought to the Plaintiff by the company's staff under the 1st Defendant's direction, and that he never saw the 1st Defendant explain any document to the Plaintiff before obtaining his signature (Enclosure 400, Q&A 65 and 66). [24] The Plaintiff contends that the additional share was deliberately allotted to the 1st Defendant for the ulterior purpose of enabling him subsequently to claim majority control of the company. According to the Plaintiff, the legal significance of the additional share only became apparent many years later when the 1st Defendant began asserting majority shareholder status and relying upon that status to justify unilateral corporate decisions. The Plaintiff's evidence upon this matter was that he never knew how or when his holding came to be one unit less than that of the 1st Defendant, having always understood their shares to be equal (Enclosure 399, Q&A 29 and 30); that it was his son who, upon examining the draft audited accounts, first drew the discrepancy to his attention, the accounts recording the Plaintiff as holding 249,999 shares and the 1st Defendant 250,000 shares (Q&A 31 and 33); and that this differential first appeared in the company's accounts from the year 2000 (Q&A 35). When the Plaintiff raised the matter with the company's auditor, Mr Sim Lian Hing, he was assured that it was a normal and minor matter, existing for the smooth running of the company and not a cause for concern (Q&A 39 to 41). His daughter, Sung Soo Tin (SP-6), likewise deposed that the records obtained from the auditors, Messrs Sim & Teo, showed the 1st Defendant holding 250,000 shares and the Plaintiff one share fewer, a differential which had subsisted since the year 2000 (Enclosure 454, Q&A 13 and 14). [25] Conversely, the Defendants deny any impropriety in the allotment. Their case is that the allotment was lawfully approved through valid corporate resolutions, reflected in the statutory returns lodged with the Companies Commission, and remained unchallenged by the Plaintiff for many years thereafter. The Defendants contend that the Plaintiff was fully aware of the allotment and signed the necessary documentation voluntarily. The 1st Defendant further maintains that his majority shareholding was lawfully acquired and entitled him to exercise the powers subsequently vested in him as majority shareholder. The Defendants' evidence in support was twofold. The 1st Defendant deposed (Enclosure 394, Q&A 7 and 8) that in 1990 he had made a personal investment in a construction company with one Koh Kim Ho, a friend of his; that the Plaintiff was aware of that investment and himself suggested that the 1st Defendant become the majority shareholder of the 2nd Defendant, the 1st Defendant being its hands-on Managing Director, so as to give Koh confidence in the development business and direction of the company; that the 2nd Defendant itself invested in and became a shareholder of the 3rd Defendant on 29 December 1995; and that in the more than two decades between the allotment and the filing of this suit the Plaintiff, being on his account fully aware of the additional share, never complained of it. The company secretary, Ms Boon Gwek Neo, confirmed (Enclosure 564, Q&A 8 and 16) that the resolution for the allotment of the 33,499 shares was signed by both the Plaintiff and the 1st Defendant and filed in the minutes books of the company; that a Share Application Form, signed by both brothers and filled up when it was signed, was involved in the allotment and subscription; that no physical meeting was held, the allotment having been approved by Members' Circular Resolution in reliance upon section 152A of the Companies Act 1965; and that the Plaintiff and the 1st Defendant paid RM16,749.00 and RM16,750.00 respectively for the shares allotted to them (Q&A 19). [26] This disputed allotment forms one of the principal factual foundations upon which the Plaintiff challenges virtually every subsequent corporate act undertaken by the 1st Defendant. According to the Plaintiff, if the additional one share was unlawfully obtained, the entire premise upon which the 1st Defendant thereafter asserted majority control necessarily falls away. Corporate Structure of the Related Companies [27] The Plaintiff also pleads that after the incorporation of the 2nd Defendant, the 1st Defendant progressively established a network of related companies comprising the 3rd, 4th, 5th and 6th Defendants. The Plaintiff relies upon company searches, annual returns and corporate records to demonstrate that these companies shared common registered offices, company secretaries, auditors and overlapping management. [28] According to the Plaintiff:

(a) the 3rd Defendant was incorporated on 27 February 1990 and carried on construction and property development activities;

(b) the 4th Defendant was incorporated on 4 May 1993 and became a wholly-owned subsidiary of the 2nd Defendant;

(c) the 5th Defendant was incorporated on 16 November 1994, with its sole shareholder being Md Rashid bin Sahat, whom the Plaintiff alleges was merely the 1st Defendant's nominee; and

(d) the 6th Defendant was incorporated on 23 December 1999, its shareholders being the 1st Defendant and Koh Kim Ho. [29] The Plaintiff further relies upon documentary evidence showing that all five companies shared substantially the same registered office, company secretaries and auditors. He contends that these common features demonstrate that the companies operated as an integrated corporate group under the effective control of the 1st Defendant. The Defendants dispute the conclusions sought to be drawn from these facts and maintain that each company remained a separate legal entity carrying on its own business. The Parties' Respective Roles in the Management of the 2nd Defendant [30] Notwithstanding the parties' sharply divergent positions on the legal consequences of incorporation, there is comparatively little dispute concerning the practical manner in which the business of the 2nd Defendant was conducted during its formative years. Both the pleadings and the oral evidence demonstrate that the Plaintiff and the 1st Defendant assumed different but complementary responsibilities within the business. The dispute lies not in whether these responsibilities existed, but whether they arose merely as an administrative convenience or pursuant to an enforceable understanding governing the future management of the company. [31] The Plaintiff's case is that from the commencement of the family business until approximately 2019, he was responsible principally for the commercial and operational aspects of the enterprise. According to him, he managed the procurement of fresh fish and seafood, maintained relationships with suppliers and customers, attended the wholesale market in the early hours of each morning, supervised sales and collections, and remained actively involved in generating the revenue of the business. The Plaintiff contends that his daily routine required him to leave home before dawn to attend the central market before returning to the company's premises later in the day. [32] By contrast, the 1st Defendant was entrusted with the internal administration of the company. According to both parties, he assumed responsibility for accounting matters, banking arrangements, payment of suppliers, maintenance of company records, correspondence with the company secretary and auditors, and the general financial administration of the business. The Plaintiff maintains that this division of labour was entirely consistent with the mutual confidence existing between the brothers, whereby each relied upon the other to discharge his respective responsibilities honestly and in the common interest of the company. [33] During cross-examination, the 1st Defendant accepted that at the inception of the company the Plaintiff principally managed the marketing and fresh fish operations while he himself attended to administration. He likewise accepted that this division of responsibilities existed during the earlier years of the company's operations. However, he disputed that such arrangements conferred upon the Plaintiff any continuing right to participate equally in every aspect of management. [34] The Plaintiff further contends that because of this mutual confidence, he routinely signed numerous company documents, resolutions and statutory forms prepared by the company secretary without independently scrutinising their contents. According to him, he did so because he trusted both the 1st Defendant and the company's professional advisers to complete the documentation honestly and consistently with their mutual understanding. He alleges that this trust was subsequently abused when corporate documentation was utilised to alter the balance of control within the company. [35] The Defendants reject that allegation. Their position is that every corporate document signed by the Plaintiff reflected valid corporate decisions duly authorised by law and that the Plaintiff cannot now avoid the legal consequences of documents voluntarily executed by him merely because relations between the brothers subsequently deteriorated. The Alleged Family Understanding [36] The existence and legal effect of what the Plaintiff describes as a "persefahaman", "perjanjian" and "aku janji" between the two brothers forms the central factual foundation of the Plaintiff's case. [37] According to the Plaintiff, following the death of their father in 1979, both brothers agreed that they would continue operating the family business together as equal partners. This understanding, the Plaintiff contends, survived the subsequent incorporation of the 2nd Defendant and remained the basis upon which the company was managed for more than three decades. [38] The Plaintiff's pleaded case is that the principal terms of this understanding included:

(a) that both brothers would remain equal shareholders of the company;

(b) that both would participate equally in management;

(c) that neither would exercise control over the other;

(d) that important corporate decisions would be taken jointly;

(e) that each brother would continue devoting his respective skills to the business; and

(f) that the family business would continue to be operated for their mutual benefit and that of their respective families. [39] The Plaintiff characterises this relationship as one founded upon mutual trust, confidence and good faith, akin to a quasi-partnership notwithstanding the existence of the corporate structure. He repeatedly pleads that the company was a domestic family company whose affairs could not properly be understood solely by reference to formal corporate documentation. The Plaintiff's testimony was to the same effect. He deposed that upon their father's death the brothers agreed to continue the family business between themselves as equal partners and not to admit any outside party, in accordance with their father's wish (Enclosure 399, Q&A 25 to 28), and that this remained their agreement and arrangement from 1979 through to the incorporation of the 2nd Defendant, in which they were the only two shareholders and directors, each holding fifty per cent (Q&A 114). Sung Yau Peng (SP-3) confirmed that throughout the life of the partnership and of the 2nd Defendant only the Plaintiff and the 1st Defendant were shareholders and directors, each holding an equal half share (Enclosure 400, Q&A 28, 29 and 34). [40] During the proceedings before this Court, considerable argument arose regarding the legal characterisation of these allegations. Counsel for the Plaintiff consistently maintained that the action was not an oppression petition under the Companies Act but rather a personal action founded upon the contractual and constitutional rights of shareholders together with the pleaded understanding between the parties. Counsel for the Defendants emphasised that the action remained one based upon section 33 of the Companies Act and the Articles of Association, and not a statutory oppression action. The Court subsequently clarified during trial that oppression was not pleaded as a distinct cause of action but that the evidence remained relevant to the pleaded issues and the alternative prayer based upon just and equitable winding up. [41] The Defendants deny that any enforceable oral understanding existed beyond the Memorandum and Articles of Association. Their evidence is that after incorporation, the legal rights of shareholders were governed entirely by the company's constitution and the Companies Act. Accordingly, any alleged personal understandings inconsistent with the constitutional documents are denied. The 1st Defendant's evidence (Enclosure 394, Q&A 28 and 29) was that no shareholders' agreement exists between the brothers; that upon the death of their father the sole proprietorship came to an end and, so advised, the brothers formed the partnership of Shong Kok Chai; that upon the advice of their accountants the 2nd Defendant was thereafter incorporated with both brothers as equal shareholders; and that upon incorporation both were briefed by the company secretary that their relationship as shareholders and the management of the company would be in accordance with the Memorandum and Articles of Association, which, on his account, has been observed to this day, so that the issue of a domestic family company does not arise. The company secretary gave evidence to like effect (Enclosure 564, Q&A 3, 5 and 6): that there was no shareholders' agreement, that no agreement governs the relationship of the shareholders over and above that contained in the Articles, and that the Memorandum and Articles do not state that the 2nd Defendant is a domestic family company. [42] According to the Plaintiff, relations between the parties remained substantially harmonious until approximately 2018 and early 2019, when he gradually became aware that the 1st Defendant had begun asserting exclusive control over the affairs of the company. [43] The Plaintiff alleges that among the changes which occurred were:

(a) he ceased being consulted on major corporate decisions;

(b) banking arrangements were altered without his effective participation;

(c) he was no longer requested to countersign company cheques;

(d) company information became increasingly unavailable to him;

(e) members of the 1st Defendant's immediate family progressively assumed key positions within the business; and

(f) the 1st Defendant began asserting that he was the majority shareholder entitled to determine corporate affairs unilaterally. [44] The Plaintiff further pleads that by this stage the management of the company had become concentrated within the 1st Defendant's immediate family. Particular reliance is placed upon the employment of the 1st Defendant's wife, daughters and brother in positions relating to accounts, administration and management, while only one child of the Plaintiff remained employed in the company. The Plaintiff contends that this demonstrated the practical exclusion of his own family from participation in the management of the enterprise. [45] The Defendants dispute that any exclusion occurred. Their position is that staffing decisions were made in the ordinary course of business, based upon operational requirements, and not for the purpose of marginalising the Plaintiff. The Breakdown of Relations in 2019 [46] The documentary evidence demonstrates that by June 2019 the relationship between the brothers had irretrievably deteriorated. [47] On 19 June 2019, the Plaintiff issued the first of several formal letters addressed to the 1st Defendant complaining of the manner in which the affairs of the 2nd Defendant were being conducted. This correspondence was subsequently marked as Exhibit P1 and extensively referred to during the crossexamination of the 1st Defendant. [48] During cross-examination, the 1st Defendant initially stated that he could not remember whether he had received the Plaintiff's letter dated 19 June 2019. When subsequently confronted with his own reply dated 23 July 2019, however, he accepted that he had in fact responded to the Plaintiff's earlier correspondence. [49] Following his letter of 19.06.2019, the Plaintiff sent further letters dated 17 July 2019, 25 July 2019 and 15 August 2019, all of which formed part of the agreed documentary bundle and were marked as exhibits during trial. The Plaintiff relies heavily upon this correspondence as contemporaneous evidence of his attempts to resolve the dispute amicably before commencing litigation. [50] One feature of these exchanges assumed particular significance during trial. In his reply dated 23 July 2019, the 1st Defendant agreed to meet the Plaintiff but proposed that an additional agenda be included, namely the "splitting of the company." During cross-examination, the 1st Defendant accepted that the proposal to discuss splitting the company originated from him and not from the Plaintiff. He further accepted that this proposal appeared in his own letter addressed to the Plaintiff. [51] The Plaintiff contends that notwithstanding this proposal, the 1st Defendant never produced any written proposal explaining how such a division was intended to occur, despite repeated requests made in subsequent correspondence. The Plaintiff further alleges that although both parties agreed to hold a second meeting on 13 August 2019, the 1st Defendant failed to attend and instead shortly thereafter commenced Originating Summons proceedings seeking, amongst other relief, the appointment of an additional director and the transfer of one share to his wife. These matters became the subject of extensive cross-examination during the trial and form an important part of the Plaintiff's allegation that the 1st Defendant had no genuine intention of negotiating an equal resolution of the dispute. The Originating Summons Proceedings Commenced by the 1st Defendant [52] Shortly after the exchange of the correspondence referred to above, the relationship between the parties moved from attempted private resolution to formal litigation. The documentary evidence establishes that on 20 August 2019, approximately one week after the parties had agreed to hold a further personal meeting regarding the future of the company, the 1st Defendant commenced Originating Summons proceedings in the High Court. During cross-examination, the Plaintiff relied heavily upon both the chronology and the relief sought in that proceeding to contend that the 1st Defendant had no genuine intention of negotiating a consensual resolution of the dispute. [53] The Originating Summons sought, amongst others, orders permitting:

(a) the appointment of Siang Eau Huat as an additional director of the 2nd Defendant;

(b) the transfer of one share in the 2nd Defendant to the 1st Defendant's wife, Lee Yan Fern; and

(c) consequential corporate orders concerning the management of the company. These proceedings subsequently assumed considerable significance during the present trial because the Plaintiff contends that they reflected the 1st Defendant's intention to consolidate voting control within the company. The Defendants, however, maintain that the proceedings were lawfully commenced to resolve an impasse in corporate management. [54] During cross-examination, the 1st Defendant acknowledged that he had commenced the Originating Summons on 20 August 2019 through his then solicitors. He further accepted that one of the reliefs sought was the appointment of Siang Eau Huat as an additional director while another sought the transfer of one share to his wife. Nevertheless, he denied that those applications were intended to diminish the Plaintiff's position within the company. [55] The Plaintiff contends that the sequence of events is particularly significant. According to him, after proposing the "splitting of the company" and agreeing to continue discussions, the 1st Defendant neither furnished the promised written proposal nor attended the second meeting scheduled for 13 August 2019. Instead, he commenced the Originating Summons within days thereafter. The Plaintiff relies upon this chronology as demonstrating that the proposal to negotiate had never been genuine and that the 1st Defendant had already resolved to pursue unilateral corporate control through legal proceedings. That chronology is supported by the evidence of the Plaintiff's witnesses. The Plaintiff (SP-1) deposed that a first meeting was held at the company's office at Cheng, attended by him and his three daughters and, on the 1st Defendant's side, by the 1st Defendant together with Siang Teck Siong and Siang Bee Kim, at which the 1st Defendant pressed for a splitting of the company and it was agreed that a second meeting would be held about two weeks later (Enclosure 399, Q&A 85 to 95); that the 1st Defendant failed to attend the second meeting, at which the Plaintiff and his daughters waited before leaving (Q&A 98 and 99); and that the 1st Defendant thereafter furnished no written proposal for splitting the company but instead commenced proceedings against him (Q&A 103). Sung Yau Peng (SP-3) fixed the first meeting at 29 July 2019 and the second in August 2019, and confirmed that the 1st Defendant did not attend the second meeting but shortly afterwards filed the Originating Summons seeking the appointment of Siang Eau Huat as an additional director (Enclosure 400, Q&A 40 and 41); and Sung Soo Tin (SP-6) put the second meeting at 15 August 2019 and its appointed time at 10.00 a.m., the 1st Defendant not having attended (Enclosure 454, Q&A 28 and 29). The variance between 13.08.2019 and 15.08.2019 in the witnesses' recollection of the appointed date is minor and nothing turns upon it; upon either version the meeting preceded, by days, the commencement of the Originating Summons on 20.08.2019. [56] The Defendants dispute that inference. Their position is that by August 2019 the relationship between the parties had irretrievably broken down and that the Originating Summons represented the only practical mechanism by which the affairs of the company could continue to be managed. That position rests upon the 1st Defendant's evidence (Enclosure 394, Q&A 10) that he was compelled to file the Originating Summons pursuant to section 314 of the Companies Act 2016 to resolve the deadlock in the holding of the Annual General Meeting, the Plaintiff having, on his account, refused to attend general meetings thereby frustrating the quorum and refused to sign the statutory documents, including the profit and loss accounts; that the application was filed in the best interest of the 2nd Defendant and did not compromise the Plaintiff's interest as shareholder or director; and that on 26 February 2021 the Court allowed his application to transfer one of his shares to his wife, Lee Yan Fern, whereupon the quorum requirement was fulfilled and the Annual General Meeting of the 2nd Defendant could proceed. The weight of that explanation falls to be assessed together with the chronology upon which the Plaintiff relies. Subsequent Corporate Changes [57] The Plaintiff further alleges that after asserting majority shareholder status, the 1st Defendant progressively altered the management structure of the 2nd Defendant without the Plaintiff's concurrence. [58] Particular complaint is made regarding the appointment of members of the 1st Defendant's family into positions of influence within the company. According to the Plaintiff, the evidence establishes that the 1st Defendant's wife, daughters and close relatives progressively assumed responsibility for accounting, administration and financial management whilst the Plaintiff himself became increasingly excluded from meaningful participation in corporate affairs. [59] During trial, the Plaintiff further alleged that his office within the company's premises was eventually removed, that he was excluded from financial information and that banking arrangements were altered in a manner preventing him from participating in the operation of the company's accounts. The Defendants deny that these measures constituted exclusion or oppression and contend instead that they reflected ordinary business decisions taken in the interests of efficient management. Commencement of the Present Proceedings [60] Against that background, the Plaintiff commenced the present action by Writ and Statement of Claim dated 24 January 2020. The writ seeks extensive declaratory and consequential relief concerning the affairs of the 2nd Defendant together with relief against the remaining corporate defendants. The pleadings subsequently expanded into a comprehensive factual narrative tracing the history of the parties' relationship from the family business established by their late father through to the events immediately preceding the commencement of this litigation. [61] The Plaintiff's pleaded case may broadly be summarised as alleging that:

(a) the 2nd Defendant was established and operated as a family company founded upon mutual trust and equal participation;

(b) the 1st Defendant subsequently breached the parties understanding and contractual rights;

(c) the additional one share allotted in December 1995 was improperly utilised to assert majority control;

(d) the 1st Defendant thereafter exercised that purported majority to exclude the Plaintiff from management;

(e) corporate funds and opportunities belonging to the 2nd Defendant were utilised for the benefit of related companies controlled by the 1st Defendant; and

(f) the Plaintiff thereby suffered prejudice in his capacity as shareholder and director of the 2nd Defendant. [62] The Defendants deny each of those allegations. Their defence is founded principally upon the proposition that:

(a) all corporate acts complained of were authorised by valid resolutions;

(b) the Plaintiff had knowledge of, and in many instances participated in, the impugned transactions;

(c) the additional one share was lawfully allotted;

(d) no legally enforceable understanding existed outside the Memorandum and Articles of Association;

(e) the Plaintiff voluntarily ceased participating in management; and

(f) all decisions were taken in accordance with the Companies Act and the constitutional documents of the company. Agreed Facts Emerging During Trial [63] Notwithstanding the breadth of the dispute, a considerable number of matters ultimately became common ground during the course of the trial. [64] The evidence establishes, and there is ultimately no dispute, that:

(a) the Plaintiff and the 1st Defendant are brothers;

(b) both succeeded to the family fish business after the death of their father;

(c) the partnership business known as Shong Kok Chai Fishery Co existed prior to incorporation;

(d) the 2nd Defendant was incorporated on 16 December 1985;

(e) the Plaintiff and the 1st Defendant were the original subscribers and directors;

(f) all historical corporate documents relating to incorporation, allotments and statutory returns are genuine corporate records;

(g) the authorised capital of the company was progressively increased through resolutions passed between 1985 and 1995;

(h) the temporary allotment to Mustajab bin Baharom occurred before his shares were subsequently transferred;

(i) the company thereafter continued carrying on the family fish business under the corporate structure; and

(j) relations between the brothers had completely broken down by 2019, leading to extensive correspondence and ultimately litigation. Matters Remaining in Dispute [5] By the close of the factual evidence, however, several substantial issues remained sharply contested. [66] These include:

(a) whether the parties' relationship gave rise to enforceable contractual or equitable obligations beyond the company's constitutional documents;

(b) whether the allotment of the additional one share on 29 December 1995 was valid;

(c) whether the 1st Defendant lawfully became majority shareholder of the 2nd Defendant;

(d) whether the company was in substance a domestic family company or quasi-partnership;

(e) whether the Plaintiff was wrongfully excluded from management;

(f) whether the loans, transfers and corporate transactions involving the 3rd to 6th Defendants were authorised;

(g) whether the Plaintiff consented to the impugned corporate decisions;

(h) whether the Plaintiff is entitled to the declaratory and consequential relief sought; and

(i) whether the alternative relief based upon just and equitable winding up arises on the evidence ultimately accepted by the Court. [67] It is against this factual background, and the extensive documentary record comprising the pleadings, contemporaneous correspondence, statutory corporate records, agreed bundles of documents, witness testimony and admissions made during cross-examination, that the legal issues fall to be determined. ISSUES FOR DETERMINATION [68] Having considered the pleadings, the agreed issues, the evidence adduced during trial, the contemporaneous documentary record and the submissions of learned counsel, it is apparent that notwithstanding the numerous allegations advanced by both parties, the present dispute ultimately turns upon several fundamental questions of law and fact. Those questions substantially correspond with the agreed Issues to be Tried subsequently settled by the parties during the course of the trial, together with those issues necessarily arising from the pleadings and evidence. [69] Before addressing the individual allegations concerning the management of the 2nd Defendant, it is first necessary to determine the juridical basis upon which the Plaintiff's claim rests. Throughout the proceedings considerable time was devoted to clarifying whether this action constituted:

(a) a statutory oppression action;

(b) an action founded upon breach of section 33 of the Companies Act and the company's constitution;

(c) a purely contractual dispute between shareholders; or

(d) some combination of the foregoing. The answer to that question necessarily informs both the scope of the evidence properly receivable and the relief ultimately available to the Court. [70] Accordingly, the principal issues requiring determination may conveniently be stated as follows: ISSUE 1 Whether Sung Hock Chan Sdn Bhd was, in substance, a domestic family company or quasi-partnership enterprise founded upon mutual confidence and equal participation between the Plaintiff and the 1st Defendant, notwithstanding its incorporation under the Companies Act. ISSUE 2 Whether there existed any enforceable understanding, agreement or legitimate expectation between the Plaintiff and the 1st Defendant outside the Memorandum and Articles of Association governing the ownership, management and control of the 2nd Defendant. ISSUE 3 Whether the additional one share allotted to the 1st Defendant pursuant to the corporate resolutions of 29 December 1995 was validly allotted and whether the 1st Defendant thereby lawfully acquired majority control of the 2nd Defendant. ISSUE 4 Whether the Plaintiff's action is properly characterised as:

(a) a personal action between shareholders;

(b) an action for breach of the contractual rights embodied in the company's constitution pursuant to section 33 of the Companies Act;

(c) an oppression action; or

(d) some other recognised cause of action. ISSUE 5 Whether the various acts complained of by the Plaintiff, including the appointment of directors, alteration of banking arrangements, exclusion from management, transfer of shares, advancement of corporate loans, utilisation of company assets and dealings with the 3rd to 6th Defendants constituted breaches of the parties' contractual rights, fiduciary obligations or other legal duties. ISSUE 6 Whether the Plaintiff had knowledge of, acquiesced in, consented to, or is otherwise estopped from challenging the impugned corporate acts. ISSUE 7 Whether the Plaintiff's claims are defeated by the rule against reflective loss or otherwise fail because the alleged losses belong properly to the 2nd Defendant rather than to the Plaintiff personally. ISSUE 8 Whether, having regard to all the evidence, the Plaintiff is entitled to the declarations and consequential relief sought in the Statement of Claim. ISSUE 9 If liability is established, whether the evidence also justifies the grant of the Plaintiff's alternative prayer for relief upon just and equitable grounds. [71] For clarity of exposition, I record at the outset how the issues so framed are disposed of in the body of this judgment, so that no framed issue is left undetermined. Issue 4, concerning the proper characterisation of the action, is determined first, at [72] to [94], because it governs the admissibility of the evidence and the relief ultimately available. Issues 1, 2 and 3 are determined under their own headings. Issue 5 is determined under the headings styled Issues 4 and 5 in the analysis, which address respectively the conduct of the 1st Defendant and the transactions with the 3rd to 6th Defendants. Issues 6 and 7 are determined together under the heading styled Issue 6, the defences of knowledge, acquiescence, consent and estoppel and the rule against reflective loss having been argued as a single body of objections. Issues 8 and 9 are determined under the heading styled Issue 7 and in the concluding sections at [483] to [495], which address the individual prayers and the alternative relief. The difference in numbering is one of arrangement only and leaves no issue unresolved. The Proper Characterisation of the Plaintiff's Cause of Action [72] I consider it both logical and necessary to address first the proper legal characterisation of the Plaintiff's action. This issue permeated the entire trial. It determined the admissibility of evidence, the permissible scope of cross-examination and, ultimately, the remedies available to the Court. [73] During the latter stages of the proceedings, learned counsel for the Defendants repeatedly submitted that the Plaintiff had attempted to transform what was pleaded as a personal contractual action into an oppression action. Learned counsel argued that the two are conceptually distinct, carry different statutory foundations and attract different remedies. They submitted that oppression under the Companies Act was never pleaded and that evidence directed solely towards oppression therefore fell outside the pleaded issues. [74] Learned counsel for the Plaintiff, on the other hand, consistently maintained that the present proceedings were not a statutory oppression petition. Rather, the Plaintiff's case was that the action was a personal action brought by one shareholder against another for breach of the contractual rights arising under the company's constitution and the long-standing understanding between the parties. According to learned counsel, evidence demonstrating oppressive conduct remained relevant because it formed part of the factual matrix supporting the pleaded breaches and, in particular, the Plaintiff's alternative prayer founded upon just and equitable winding up. [75] This issue was not merely raised in final submissions. It repeatedly surfaced throughout the trial, particularly when disputes arose concerning the admissibility of evidence relating to matters said by the Defendants to be "unpleaded". The Notes of Proceedings reveal that previous rulings permitting certain lines of questioning had themselves been influenced by references to "oppression", thereby giving rise to the present controversy after the matter became part-heard before this Court. [76] It therefore became necessary for this Court to identify with precision the true nature of the Plaintiff's pleaded cause of action. [77] Having carefully examined the Statement of Claim in its entirety, I am satisfied that the Defendants are correct to the extent that the Plaintiff has not pleaded oppression as an independent statutory cause of action. [78] The pleadings do not invoke the statutory oppression jurisdiction under the Companies Act as the substantive basis of the claim. Neither do they seek the statutory remedies ordinarily associated with an oppression petition. Instead, the Plaintiff's pleaded case is consistently framed as alleging that the 1st Defendant:

(a) breached contractual rights arising under the company's constitution;

(b) breached the parties' alleged understanding concerning the management of the company;

(c) wrongfully asserted majority control through the disputed allotment of one additional share;

(d) exercised that control contrary to the Plaintiff's legal rights as shareholder and director; and

(e) thereby became liable to the Plaintiff personally. [79] In that sense, I accept the Plaintiff's submission that the present action is properly characterised as a personal action between shareholders founded principally upon the contractual incidents of membership recognised under section 33 of the Companies Act together with the pleaded factual matrix. [80] However, that is not the end of the matter. [81] Although oppression is not pleaded as an independent cause of action, the evidence adduced throughout the trial concerning exclusion from management, loss of mutual confidence, concentration of corporate control, removal of participation in management and deterioration of the parties' relationship is not thereby rendered irrelevant. [82] Those matters remain directly relevant because they form part of the factual circumstances from which the Court must determine:

(a) whether the alleged contractual understanding existed;

(b) whether the 1st Defendant acted inconsistently with that understanding;

(c) whether the Plaintiff has established the pleaded breaches relied upon in the Statement of Claim; and

(d) if liability is ultimately established, whether the alternative relief based upon just and equitable winding up may properly arise upon the evidence. [83] During the course of the trial I indicated to learned counsel that there was an important distinction between evidence suggestive of oppressive conduct and a pleaded statutory cause of action founded upon oppression. That distinction must continue to be maintained in the present judgment. The Court cannot determine liability upon a cause of action which has never been pleaded. Equally, the Court cannot ignore otherwise relevant evidence merely because such evidence may also be capable of supporting a statutory oppression claim had one been pleaded. [84] I therefore approach the remainder of the case on the following basis. [85] First, this action is not determined as a statutory oppression action. [86] Secondly, the Plaintiff's rights must be evaluated by reference to the pleaded contractual, constitutional and equitable issues arising between the parties. [87] Thirdly, the evidence concerning the parties' relationship, mutual confidence and subsequent breakdown remains relevant only insofar as it bears upon those pleaded causes of action and, where appropriate, upon the Plaintiff's alternative prayer. [88] It follows that the Court must next consider what, if any, legal relationship existed between the parties beyond the mere existence of the corporate structure. That issue lies at the heart of the Plaintiff's case and necessarily requires consideration of whether the 2nd Defendant was, in substance, a domestic family company or quasi-partnership and whether any enforceable understanding existed between the Plaintiff and the 1st Defendant regarding its ownership and management. Before doing so, two preliminary matters the admissibility of the Plaintiff's witness statement and the statutory foundation upon which the action rests must first be addressed. THE STATUTORY FOUNDATION OF THE ACTION AND THE ADMISSIBILITY OF THE EVIDENCE [89] At the threshold of the trial a question was raised touching the admissibility of the Plaintiff's witness statement, marked PWS-1 (Enclosure 399). In cross-examination the Plaintiff (SP-1) stated on more than one occasion that the answers recorded in that statement were not within his personal knowledge but were those of his son (SP-3) and his solicitors ("Anak saya dan peguam saya yang uruskan"; "Semua peguam yang uruskan, saya tidak tahu apa-apa"), notwithstanding the express averment in the statement that all his answers lay within his personal knowledge. The interpreter, Ms Ong Swe Lan (SP-2), confirmed that the statement already contained the answers when she came to translate it. A witness statement must constitute the witness's own evidence and conform to Order 38 of the Rules of Court 2012, and the Court must be astute that counsel does not supply the answers, which would be tantamount to coaching: JMC Ventures Sdn Bhd v Ng Kee Wei & Ors and Another Case [2022] MLJU 401; Bhavanash Sharma a/l Gurcharan Singh Sharma (practicing under the name and style of "Bhavanash Sharma") v Jagmohan Singh Sandhu and another appeal [2024] 4 MLJ 669. [90] I do not, however, expunge PWS-1 in its entirety. The proper course is to treat the Plaintiff's candid concession as a matter going to the weight of his evidence rather than to its admissibility as a whole. Where his account is corroborated by the contemporaneous corporate records and correspondence it may safely be relied upon; where particular answers rest solely upon information conveyed by others and not otherwise established, or concern matters not pleaded in the Statement of Claim, they are given correspondingly reduced weight or are disregarded, for pleadings are not evidence and a party is held to his pleaded case: Order 18 rule 7 of the Rules of Court 2012; Wong Kim Lan & Ors v Chai Nyuk Kong & Ors [2015] 5 MLJ 76. [91] For completeness I record the Plaintiff's position upon this question. The Plaintiff resisted the expunction of PWS-1 and relied upon the full Notes of Proceedings of 13 December 2023 (Enclosure 451), contending that the objection taken to that statement had been incompletely represented and that, read as a whole, the record did not warrant its wholesale rejection. In his reply submissions dated 30.06.2026 the Plaintiff went further: it was contended that the Defendants had clearly withdrawn their objection to PWS-1 in open Court before the learned Judge previously seised of these proceedings, and that it was unethical for counsel for the Defendants to raise the alleged non-admissibility of PWS-1 once again before me. By their solicitors' letter dated 01.07.2026 (Enclosure 592) the Defendants took issue with that characterisation of the record. They pointed out, first, that the notes of evidence of 22.03.2024 (Enclosure 449) contain no statement by their counsel withdrawing the objection to PWS-1; secondly, that the indulgence extended by their counsel was confined to the form of the questions in that statement the leading questions it contained counsel stating that he understood his learned friend's difficulty with a witness who did not understand the language and that he was not a difficult lawyer; and, thirdly, that their substantive objection, namely that PWS-1 did not truly constitute the evidence of the witness in compliance with the Evidence Act 1950 and Order 38 of the Rules of Court 2012, the answers being those of his son and the solicitors, was never abandoned. Having revisited the notes of proceedings to which both sides have referred, I accept that they record no withdrawal of the substantive objection; what they record is an indulgence, extended as a matter of courtesy between counsel, directed to the leading form of the questions in PWS-1. The non-admissibility objection was accordingly not waived, and there was nothing improper in its being pursued before me; the accusation of unethical conduct levelled at counsel for the Defendants is not made out, and I say no more of it. By his solicitors' letter in reply dated 06.07.2026 (Enclosure 594), the Plaintiff joined issue with the whole of Enclosure 592, maintaining the entirety of his reply submissions upon this question and contending that the Defendants' account of what had passed before the learned Judge previously seised of these proceedings was itself incomplete and did not reflect what senior counsel for the Defendants had submitted when the matter was recorded on 22.03.2024 (Enclosure 449). I have considered that reply. For the reasons already given it does not alter my conclusion: the notes of proceedings to which both sides refer disclose no withdrawal of the substantive objection, but only the indulgence I have described, directed to the leading form of the questions in PWS-1. In any event, the point is immaterial to the outcome, for my ruling has not proceeded upon any waiver or withdrawal of the objection by either side: the objection was entertained and determined upon its merits, and it is upon its merits that I have declined to expunge the statement while treating the matters raised as going to the weight of the Plaintiff's evidence, for the reasons given at [89] and [90]. Whether a witness statement conforms to Order 38 and constitutes the evidence of the witness is, moreover, a question upon which the Court must satisfy itself whatever position the parties may take. Nothing in this exchange alters the course I have taken, which treats the Plaintiff's concession as going to weight rather than to admissibility. The Plaintiff further submits, and there is force in the point, that one cannot at once contend that the Plaintiff is illiterate in English so as to impugn his witness statement and yet maintain that he appreciated and is bound by the full legal effect of every corporate document placed before him for signature. That observation bears directly upon the defences of estoppel and non est factum considered under Issue 3, to which I return below. [92] As to the juridical basis of the action, it was ultimately common ground that the Plaintiff does not invoke the statutory oppression jurisdiction but sues as a member upon the statutory contract constituted by the company's constitution. By section 33 of the Companies Act 1965, under which the 2nd Defendant was incorporated, the memorandum and articles when registered bind the company and its members as if signed and sealed by each of them and contain covenants to observe their provisions; that contract binds the members inter se in their capacity as members: Ling Beng Hui & Ors v Ling Beng Sung [1990] 2 MLJ 186; Tung Ah Leek & Anor v Perunding DJA Sdn Bhd & Ors [2005] 3 MLJ 667. A bargain struck outside the articles binds only in personam and does not become a regulation of the company unless incorporated into the articles: Jet-Tech Materials Sdn Bhd & Anor v Yushiro Chemical Industry Co Ltd & Ors and another appeal [2013] 2 MLJ 297. [93] The 2nd Defendant having since been re-registered under the Companies Act 2016, section 33(1) of that Act provides to like effect that the constitution, subject to the provisions of the Act, binds the company, its directors and its members. A member's standing to enforce the constitution is not, however, absolute. The constitution comprises both provisions which confer enforceable contractual rights upon a member in his capacity as member and provisions which merely regulate the internal administration of the company, and not every departure from the Articles amounts to a breach of section 33. Even where a member has standing to enforce a provision of the constitution, the court may decline relief where the matter complained of is one of internal management to which the irregularity principle applies: Yung Siu Ying v Hong Kong Sailing Federation [2010] HKCU 254. These distinctions assume importance because the Statement of Claim alleges no more than a breach and violation by the 1st Defendant of the Articles of Association of the 2nd Defendant, without identifying the particular provision said to bear contractual force or the manner of its breach; the consequence of that want of particularity is considered when I turn to the relief sought. The continuity of that position across the change of statute is confirmed by the general transitional provisions of the Companies Act 2016. By section 619(1) a person appointed under the corresponding previous written law and holding office at the commencement of the 2016 Act remains in office as if appointed under it, so that the Plaintiff and the 1st Defendant, appointed directors under the 1965 Act, continued in office notwithstanding the re-registration; and by section 619(3) the memorandum and articles of an existing company, together with any regulations of Table A adopted as part of its articles, continue to have effect as if made or adopted under the 2016 Act unless otherwise resolved by the company. The constitution by reference to which the Plaintiff's rights fall to be measured is therefore one and the same throughout. [94] Two further evidential principles inform the analysis which follows and are applied even-handedly to both sides. A suggestion merely "put" to a witness is not evidence; unless the proponent leads evidence to prove what was put, the bare suggestion carries no probative weight: Low Keang Guan v Sin Heap Lee-Marubeni Sdn Bhd [2007] 7 MLJ 216. Conversely, a failure to cross-examine a witness upon a material part of his evidence ordinarily amounts to an acceptance of that evidence: Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212. The admissions made by the 1st Defendant in the course of cross-examination, being statements suggesting an inference as to a fact in issue and made by a party to the proceeding, are admissions within the meaning of sections 17 and 18 of the Evidence Act 1950 and are receivable as evidence against him. ANALYSIS AND DETERMINATION Issue 1: Whether the 2nd Defendant Was, in Substance, a Domestic Family Company or Quasi-Partnership Applicable Principles [95] The first issue requiring determination concerns the true character of the 2nd Defendant. Although incorporated as a private company under the Companies Act, the Plaintiff contends that the company was, in reality, no more than the continuation of the family partnership business previously carried on by himself and the 1st Defendant. According to the Plaintiff, the corporate structure merely provided a convenient legal vehicle through which the brothers continued operating their father's business upon the same basis of mutual confidence, equality and personal trust. The Defendants, on the other hand, submit that once incorporation occurred, the legal incidents of partnership ceased entirely and the parties' rights thereafter became governed exclusively by the Companies Act and the company's Memorandum and Articles of Association. [96] The issue is significant because the Court must avoid two equally erroneous approaches. [97] On the one hand, it would be incorrect to disregard the separate legal personality of the company merely because it is owned by members of the same family. [98] On the other hand, it would be equally unrealistic to ignore the factual circumstances in which many closely-held family companies are formed. Commercial reality often demonstrates that incorporation simply formalises an existing family enterprise without fundamentally altering the mutual expectations upon which the business has historically operated. [99] The authorities recognise that certain companies, although incorporated, possess the essential characteristics of what has traditionally been described as a quasi-partnership or domestic company. Such companies are generally characterised by three principal features:

(a) a pre-existing personal relationship founded upon mutual confidence;

(b) an understanding that all or substantially all shareholders will participate in management; and

(c) restrictions upon the transfer of shares, thereby preventing members from readily terminating their relationship by disposing of their interests. [100] Whether those characteristics exist is necessarily a question of fact to be determined from the whole of the evidence rather than by reference to any single document. EVALUATION OF THE EVIDENCE [101] Having carefully considered both the documentary evidence and the oral testimony, I am satisfied that several features of the present case strongly support the Plaintiff's contention that the 2nd Defendant originated as a domestic family enterprise. [102] First, the evidence establishes beyond dispute that the business did not originate upon incorporation in December 1985. [103] The historical documents demonstrate that the business commenced originally as the sole proprietorship of the parties' late father before continuing, following his death, as the partnership known as Shong Kok Chai Fishery Co. Thereafter, the partnership business itself became incorporated as the 2nd Defendant. This chronology is supported not only by the pleadings but also by the contemporaneous corporate records and was not seriously disputed during trial. [104] Secondly, there is no dispute that the Plaintiff and the 1st Defendant were the only original shareholders and directors upon incorporation. [105] The incorporation documents, Forms 24, annual returns, directors' resolutions and attendance sheets consistently demonstrate that the affairs of the company were initially managed solely by the two brothers. The documentary evidence further establishes that corporate decisions during the early years were routinely executed jointly by them. The 1st Defendant accepted the authenticity of those documents during cross-examination. [106] Thirdly, the evidence demonstrates that the operational management of the business was divided between the two brothers according to their respective expertise. [107] The Plaintiff concentrated upon procurement, marketing and sales whilst the 1st Defendant managed administration, finance and accounting. Significantly, the 1st Defendant himself accepted during cross-examination that this was indeed how the business operated during its formative years. [108] Fourthly, the corporate history prior to December 1995 reveals a consistent pattern of equality. [109] Every significant allotment of shares prior to the disputed allotment maintained parity between the Plaintiff and the 1st Defendant. Indeed, even where temporary allotments were made to Mustajab bin Baharom, the subsequent corporate documentation restored equality between the brothers. In my judgment, this historical pattern is difficult to dismiss as mere coincidence. Rather, it objectively supports the Plaintiff's assertion that equality constituted the governing principle upon which the company operated for many years. [110] Fifthly, the contemporaneous correspondence exchanged in July and August 2019 is, in my view, particularly revealing. [111] The proposal to discuss the "splitting of the company" did not originate from the Plaintiff. It originated from the 1st Defendant himself. During cross-examination he accepted that the additional agenda proposing the splitting of the company appeared in his own letter dated 23 July 2019. [112] In my judgment, that proposal is not easily reconcilable with the Defendants' submission that the relationship between the parties had always been governed solely by ordinary incidents of majority shareholding. [113] One does not ordinarily propose "splitting" a company between two shareholders unless there already exists an underlying appreciation that both parties possess some form of equal proprietary stake extending beyond mere numerical shareholding. [114] I therefore consider the proposal to split the company to constitute important contemporaneous evidence supporting the Plaintiff's contention that, at least until relations finally deteriorated, both brothers themselves recognised the business as one jointly owned and jointly operated. [115] Sixthly, the longevity of the relationship cannot be ignored. [116] The brothers worked together in substantially the same business for almost four decades before the present dispute arose. Throughout that period the Plaintiff remained actively engaged in generating the business whilst the 1st Defendant managed its administration. Such an enduring relationship founded upon personal confidence is entirely consistent with the characteristics traditionally associated with domestic family companies. THE DEFENDANTS' ARGUMENTS [117] The Defendants nevertheless submit that these factual circumstances cannot override the company's constitutional documents. In support they point to the evidence of the 1st Defendant that the issue of a domestic family company does not arise, the brothers having been briefed upon incorporation that their relationship as shareholders and the management of the company would accord with the Memorandum and Articles of Association (Enclosure 394, Q&A 29), and to that of the company secretary that the Memorandum and Articles nowhere state that the 2nd Defendant is a domestic family company (Enclosure 564, Q&A 6), the secretary adding that she had no knowledge of any conversion of the partnership into the company (Q&A 21). [118] I agree with that submission so far as it goes. [119] Incorporation necessarily creates a distinct legal entity. The Articles of Association remain binding upon the members. The Companies Act governs the internal administration of the company. [120] However, the Plaintiff does not invite the Court to disregard those principles. [121] Rather, his case is that the constitutional documents must be interpreted against the factual matrix within which they were adopted. [122] In my judgment, there is nothing legally impermissible in recognising that a company may simultaneously be:

(a) a separate legal entity under the Companies Act; and

(b) a domestic family company whose members entered into the corporate relationship against the background of mutual confidence and longstanding personal understandings. [123] Those propositions are not mutually inconsistent. FINDING [124] Having considered the evidence as a whole, I make the following findings. [125] I find that the 2nd Defendant originated as the continuation of the pre-existing family fish business previously conducted by the Plaintiff and the 1st Defendant. [126] I further find that the company was established upon a relationship of personal trust and mutual confidence existing between the two brothers. [127] I also find that, at least during its formative years and until the deterioration of relations, both parties expected to participate substantially and equally in the ownership and management of the company. [128] However, I do not accept the Plaintiff's broader submission that every alleged personal understanding automatically overrides the constitutional documents of the company. [129] Any alleged understanding must still be established by evidence and must be capable of existing consistently with the Articles of Association and the applicable provisions of the Companies Act. [130] Accordingly, whilst I find that the 2nd Defendant possessed the characteristics of a domestic family company or quasipartnership in its origin and operation, that finding does not itself determine the validity of the Plaintiff's individual complaints. [131] Those complaints must still be examined individually to determine whether the alleged contractual understanding was in fact established, whether it remained operative after December 1995, and whether the impugned corporate acts constituted actionable breaches of the Plaintiff's legal rights. [132] That inquiry necessarily leads to the next and perhaps most important question, namely whether there existed an enforceable understanding between the Plaintiff and the 1st Defendant beyond the written constitutional documents and, if so, the scope and legal effect of that understanding. Before turning to that question, it is convenient to set out the authorities which govern the characterisation I have made, and against which my finding upon this issue is to be measured. The Quasi-Partnership Test and the Governing Authorities [133] The conclusions I have reached upon the character of the 2nd Defendant accord with settled principle. The equitable considerations which may render an incorporated company a quasi-partnership were restated in Ho Sue San v Hovid Bhd & Ors [2024] 10 CLJ 853, adopting Ebrahimi v Westbourne Galleries Ltd & Ors [1973] AC 360, namely (i) an association formed or continued on the basis of a personal relationship involving mutual confidence, often where a pre-existing partnership has been converted into a limited company; (ii) an understanding that all or some of the members shall participate in the conduct of the business; and (iii) a restriction upon the transfer of the members' interest. The burden lies upon the party asserting the relationship to establish circumstances going beyond a purely commercial association. [134] On the evidence the first element is amply made out. The $ 2^{\mathrm{nd}} $ Defendant was the corporate continuation of a fish and seafood business begun by the parties' late father and thereafter carried on by the two brothers, and equality was preserved through every allotment from incorporation in 1985 until December 1995. The contention that the partnership was never "converted" into the $ 2^{\mathrm{nd}} $ Defendant, supported by the evidence of SD-7 that the company was a separate entity and by the company search said to record the cessation of the earlier partnership, does not displace that conclusion: the first element looks to the substance of an association continued upon a relationship of mutual confidence, which the documentary history establishes, and not to the technical question of statutory conversion. [135] That the corporate records do not record a formal taking over of the partnership does not detract from this conclusion. The Annual Returns of the 2nd Defendant show that upon its incorporation the whole of its share capital was paid in cash, with no entry crediting the assets or liabilities of the partnership as payment in kind, and neither the company secretary nor the auditors of the 2nd Defendant gave any independent confirmation that a conversion had occurred. SD-7, who is both company secretary and auditor of the 2nd Defendant, maintained in cross-examination that the partnership business of Shong Kok Chai was not taken over by the 2nd Defendant and that the company was a separate entity (Enclosure 576, at pages 76 to 77); and the Plaintiff stated in his witness statement (Enclosure 399, Q&A 13) that the partnership was terminated because the parties had changed their business from a partnership to a private limited company carrying on the same business, the partnership of Shong Kok Chai Fishery Co having been terminated on 13 September 1988 and its registration having expired on 5 July 1989 (page 153 of Bundle C). These matters, for the reason already given, do not displace the satisfaction of the first element upon the documentary history. The auditors' tenure is not in dispute: Mr Sim Lian Hing confirmed that his firm, Messrs Sim & Teo, now Baker Tilly ST PLT, has been the auditor of the 2nd Defendant since its incorporation in the year 1985 (Enclosure 565, Q&A 2 to 4). [136] The Plaintiff's reply lends affirmative support to the same conclusion. The contemporaneous statutory records establish that the partnership of Shong Kok Chai Fishery Co was registered on 4 June 1982, that its business commenced on 15 May 1982, and that it was not terminated until 13 September 1988 - almost three years after the incorporation of the 2nd Defendant on 16 December 1985 (exhibit P10). That the partnership and the company carried on the identical business of dealing in fresh fish, between the same two brothers and from substantially the same market premises, for that overlapping period is cogent evidence that the partnership was in substance continued through, and taken over by, the 2nd Defendant rather than abandoned in favour of a wholly new venture. The evidence of SD-7 does not stand in the way. In cross-examination SD-7 accepted that exhibit P10 records the partnership of Shong Kok Chai Fishery Co as a dealer in fish, with the Plaintiff and the 1st Defendant as its partners, and that the incorporation of the 2nd Defendant was undertaken upon his own professional advice; and the 1st Defendant himself admitted that it was the accountant who had advised the conversion of the partnership into a limited company. Coming from the very person who served as secretary and auditor of the 2nd Defendant from its incorporation, those admissions reinforce, rather than detract from, the conclusion that the first element of the quasi-partnership test is made out. [137] The second and third elements stand differently. The Plaintiff admitted in cross-examination that, apart from the Memorandum and Articles, there exists no written agreement governing his relationship with the 1st Defendant, and that nothing in the Articles describes the 2nd Defendant as a domestic or family company ("Tidak disebut"). As to the third element, the Plaintiff submits in reply that Articles 33 to 38 of the Articles of Association, appearing under the express heading "Restriction of Transfer", impose precisely such a restriction, with the consequence that the Plaintiff - having lost his confidence in the 1st Defendant and having ceased to participate in the management of the company - cannot realise his fifty per cent interest and take it elsewhere. There is force in that submission, and I am satisfied that the third element is, in substance, met; the supposed absence of a transfer restriction is therefore not a ground upon which the quasi-partnership character of the company may be denied. It is the second element - the understanding of equal participation that stands upon a more contested footing. Where parties have chosen to regulate their company by its Articles, an understanding said to qualify the rights so conferred ought ordinarily to have been incorporated into those Articles: Tung Ah Leek & Anor v Perunding DJA Sdn Bhd & Ors (supra). In so far as reliance is placed upon a legitimate expectation of equal participation, such an expectation is not a free-standing cause of action but the consequence of an equitable restraint arising only where it would be unfair for a party to insist upon his strict legal rights, as explained in O'Neill v Phillips [1999] 2 All ER 961 and applied in Ho Sue San (supra). For these reasons the finding that the company bore the character of a quasi-partnership in its origin does not, of itself, dispose of the Plaintiff's individual complaints. Lest the second element be thought to have been left unresolved, I record my conclusion upon it. For the reasons developed under Issue 2 at [177] and [178], the second element is in my judgment made out in the limited sense there described - as a mutual understanding of substantially equal participation in ownership and management, forming part of the factual matrix - though not as an independent contract qualifying the rights conferred by the Articles. All three elements of the Ebrahimi formulation are accordingly satisfied to that extent, and to that extent only. [138] The burden of establishing that understanding rests upon the Plaintiff who asserts it, and he must show by whom and how it was made: sections 101 to 103 of the Evidence Act 1950. A unilateral intention, unannounced and uncommunicated, does not suffice, and an understanding said to govern the affairs of a company must be a mutual one common to its members rather than the private expectation of one of them: Eng Man Hin @ Ng Mun Heng & Anor v King's Confectionery Sdn Bhd & Ors [2006] 4 MLJ 421. The Plaintiff's admission that nothing in writing governed his relationship with the 1st Defendant beyond the Memorandum and Articles is, in that light, significant, and confirms that the understanding cannot operate as an independent contract qualifying the rights which the Articles confer. Issue 2: Whether There Existed an Enforceable Understanding Between the Plaintiff and the 1st Defendant Beyond the Company's Constitution [139] Having concluded that the 2nd Defendant possessed the characteristics of a domestic family company at its inception, the next issue is whether the Plaintiff has established the existence of an enforceable understanding governing the ownership and management of the company beyond the formal provisions contained in its Memorandum and Articles of Association. [140] This issue lies at the heart of the Plaintiff's case. If no such understanding existed, many of the Plaintiff's complaints become little more than objections to decisions lawfully taken by a majority shareholder. Conversely, if such an understanding is established, the Court must then determine whether the subsequent conduct of the 1st Defendant constituted a departure from that understanding and thereby a breach of the Plaintiff's contractual rights. THE PLAINTIFF'S CASE [141] The Plaintiff's pleaded case is not that there existed a written shareholders' agreement separate from the company's constitutional documents. Rather, his case is that the understanding arose from the entirety of the parties' relationship beginning with their father's business, continuing through the partnership and thereafter into the incorporation of the 2nd Defendant. [142] According to the Plaintiff, the essential terms of that understanding were that:

(a) both brothers would remain equal participants in the ownership of the company;

(b) both would participate equally in management;

(c) neither would dominate or exclude the other;

(d) major corporate decisions would be undertaken jointly;

(e) both would continue contributing their respective expertise to the business; and

(f) the company would continue as the family enterprise established by their late father. These matters are pleaded throughout the Statement of Claim and were repeated consistently during the Plaintiff's evidence. [143] Learned counsel for the Plaintiff submitted that this understanding was repeatedly reflected in the parties' conduct over almost thirty-five years. Particular reliance was placed upon:

(i) the equal allotments of shares throughout the company's early history;

(v) the proposal by the 1st Defendant himself in July 2019 to discuss the "splitting of the company." THE DEFENDANTS' CASE [144] The Defendants, however, contend that no legally enforceable understanding ever existed outside the constitutional documents. [145] They submit that whatever personal arrangements may have existed prior to incorporation were superseded once the company came into existence. Thereafter, the parties' legal rights became governed entirely by:

(a) the Companies Act;

(b) the Memorandum and Articles of Association;

(c) valid corporate resolutions; and

(d) the statutory rights attached to their respective shareholdings. [146] The Defendants further submit that to recognise a separate oral understanding would undermine the certainty of company law and permit informal arrangements to override formally adopted constitutional documents. EVALUATION OF THE EVIDENCE [147] In my judgment, the issue cannot be answered simply by asking whether a written shareholders' agreement existed. [148] The evidence demonstrates that no such written agreement was ever prepared. That much is common ground upon the Defendants' evidence: the 1st Defendant confirmed that no shareholders' agreement exists (Enclosure 394, Q&A 28), and the company secretary confirmed both that fact and the absence of any agreement governing the shareholders' relationship over and above that contained in the Articles (Enclosure 564, Q&A 3 and 5). [149] The more relevant question is whether the parties' conduct objectively establishes a mutual understanding capable of legal recognition. [150] Several features of the evidence are particularly significant.

(a) Equal Participation for More Than Three Decades [151] The documentary evidence demonstrates that from incorporation until the events giving rise to this litigation, the Plaintiff and the 1st Defendant jointly occupied the positions of directors of the 2nd Defendant. [152] Throughout that period, neither party attempted to remove the other from office. [153] Corporate records, annual returns and statutory documents consistently reflected their joint participation in the management of the company. [154] Equally significant is the absence of any evidence suggesting that, prior to the emergence of the present dispute, either brother sought to exercise majority voting power against the other. [155] If, as the Defendants now contend, the additional one share allotted in 1995 immediately conferred effective majority control upon the 1st Defendant, it is noteworthy that no evidence has been produced demonstrating that he asserted such control during the succeeding two decades. [156] In my view, the practical operation of the company during those years is more consistent with the Plaintiff's evidence that both parties continued treating one another as equal participants notwithstanding the technical shareholding position asserted by the Defendants.

(b) The Conduct of the Parties [157] The conduct of parties after entering into a legal relationship frequently provides the most reliable evidence of their mutual understanding. [158] In the present case, several aspects of the parties' conduct point towards continuing equality. [159] The Plaintiff remained responsible for generating the company's business through procurement, sales and customer relations. [160] The 1st Defendant accepted responsibility for administration and finance. [161] The business prospered under this arrangement for many years. [162] Significantly, the Defendants produced no convincing evidence that the Plaintiff had ever agreed that the 1st Defendant could thereafter exercise unilateral control over the affairs of the company merely because one additional share had been allotted in December 1995.

(c) The 2019 Correspondence [163] I attach considerable weight to the correspondence exchanged immediately before litigation commenced. [164] As earlier observed, it was the 1st Defendant himself who proposed that the parties discuss "splitting the company." [165] During cross-examination, he accepted that this proposal originated from him. [166] For the reasons I have given at [112] to [114], it is difficult to understand why that proposal would have been advanced at all had the 1st Defendant genuinely regarded himself as the unquestioned majority shareholder entitled to exercise complete control. [167] In my judgment, that proposal objectively demonstrates that even the 1st Defendant recognised the existence of a broader relationship extending beyond strict legal rights derived from the additional share. [168] The detail of the contemporaneous correspondence, relied upon by the Plaintiff in reply, reinforces that conclusion. By his letter of 17 July 2019 (exhibit P4) the Plaintiff did not merely seek a meeting; he set out a series of proposals for the joint conduct of the company's affairs that the parties jointly instruct the secretary to regularise the company's statutory filings, that they be joint signatories of all the company's bank accounts, that the Plaintiff's salary arrears be settled and his remuneration brought into parity with that of the 1st Defendant, that they manage and administer the business as equal partners, that an extraordinary general meeting be convened to amend Article 68, and that the Plaintiff's office at the company's premises be restored. In his reply (exhibit D160) the 1st Defendant acknowledged receipt of that letter, agreed to meet, advanced his own agenda of "splitting the company", and proposed to bring his sister and brother to the discussion. That the future of the company was framed, on both sides, as a matter to be resolved among family members is itself indicative of the domestic and quasi-partnership character of the enterprise. The Plaintiff's requests for joint signatories, equal management and the restoration of his office are the language of a participant who understood himself to be an equal, and not that of a minority content to be governed by the votes of a majority.

(d) The Company Secretary's Evidence [169] The Defendants also relied upon the evidence of the company secretary, Ms Boon Gwek Neo. [170] Ms Boon confirmed that she was unaware of any separate shareholders' agreement between the Plaintiff and the $ ^{1 \mathrm{st}} $ Defendant. She further stated that she knew of no personal understanding governing the company's management. Her testimony to that effect is recorded in her witness statement (Enclosure 564, Q&A 3 and 5). [171] accept her evidence entirely. [172] However, I do not consider her evidence determinative of the present issue. [173] Ms Boon became company secretary only after the company had already been incorporated. Her appointment as secretary took effect on 1 December 1988, some three years after the incorporation of the company on 16 December 1985 (Enclosure 564, Q&A 1 and 2). [174] She candidly accepted that she possessed no personal knowledge concerning the relationship between the brothers before incorporation or the discussions which preceded the formation of the company. [175] Accordingly, whilst her evidence establishes that no formal shareholders' agreement existed in the company's records, it does not negate the possibility that the parties themselves entered into a personal understanding which simply was never reduced into writing. [176] Having evaluated the evidence as a whole, I make the following findings. [177] I accept that the Plaintiff has established, on the balance of probabilities, that there existed a mutual understanding between himself and the 1st Defendant concerning the manner in which the family business would continue after incorporation. [178] That understanding included the expectation that both brothers would continue participating substantially and equally in the ownership and management of the company. [179] However, I do not accept the Plaintiff's submission that every aspect of that understanding possessed independent contractual force capable of overriding the company's constitution. [180] Rather, the understanding formed part of the factual matrix against which the constitutional documents were adopted and the parties thereafter conducted themselves. [181] It therefore informs the Court's interpretation of the parties' rights and obligations but cannot itself invalidate corporate acts which were otherwise lawfully authorised under the Companies Act unless those acts are shown to have been undertaken in breach of the contractual or constitutional rights which the Plaintiff seeks to enforce. [182] The practical significance of that finding becomes immediately apparent when considering the next issue, namely the validity of the disputed allotment of 29 December 1995. [183] That allotment lies at the centre of the present dispute. If valid, it provides the legal foundation upon which the 1st Defendant claims majority control. If invalid or otherwise liable to be set aside, much of the subsequent corporate conduct relied upon by the Defendants necessarily requires reconsideration. [184] I therefore turn to examine the evidence surrounding the disputed allotment and whether the 1st Defendant lawfully acquired the additional one share upon which his asserted majority depends. Before doing so, it is necessary to state the principles governing the relationship between the understanding I have found and the Articles of Association, for those principles delimit the use to which that understanding may properly be put in the analysis which follows. The Articles as the Statutory Contract and the Limits of Extrinsic Understanding [185] The finding that a mutual understanding of equal participation formed part of the factual matrix must be reconciled with the principle that the Articles constitute the exhaustive statement of the members' rights as members. Articles of association have the special characteristic that, being registered, they are addressed to the world and may not be contradicted or supplemented by extrinsic evidence of the parties' prior dealings; the balance is struck in favour of excluding such evidence: Cherry Tree Investment Ltd v Landmain Ltd [2013] Ch 305, applying Bratton Seymour Service Co Ltd v Oxborough [1992] BCLC 693. Consistently, by section 91 of the Evidence Act 1950 the terms of a document required by law to be reduced to writing must be proved by the document itself, and a collateral term inconsistent with a mandatory constitutional document is not admissible to vary it. What that constitution comprises is itself fixed by statute. By section 30 of the Companies Act 1965 the articles may adopt the regulations contained in Table A of the Fourth Schedule, and where articles are registered those regulations apply, so far as the registered articles do not exclude or modify them, in the same manner and to the same extent as if they were contained in the registered articles. The members' rights in their capacity as members are accordingly to be found within the registered articles as so supplemented, and not in any understanding lying outside them. [186] It follows, and I so hold, that the understanding between the brothers operates not as an independent contract overriding the Articles but as the matrix against which the Court evaluates whether the impugned acts were done in breach of the contractual and constitutional rights the Plaintiff is entitled to enforce. The Court is not at liberty to rewrite the Articles or to imply into them rights not apparent on their face: Cherry Tree Investment Ltd v Landmain Ltd (supra). Where it is sought to alter the constitution, that is a matter for the members by special resolution under section 36 of the Companies Act 2016; the Court's power under section 37(1) of that Act arises only where it is satisfied that it is not practicable to effect the alteration by the procedure laid down in the Act or in the constitution: Chew Meu Jong v Lysaght (Malaysia) Sdn Bhd (Liew Swee Mio @ Liew Hoi Foo & Ors, intervenor) [2019] MLJU 2168. No evidence was led that such alteration was impracticable, and the Plaintiff (SP-1) admitted that he had never requested the company secretary to amend the Articles. [187] To the extent that the case rests upon breaches of fiduciary obligation, the authorities invoked Re Gee Hoe Chan Trading Co Pte Ltd [1991] 3 MLJ 137, Tan Guan Eng & Anor v Ng Kweng Hee & Ors [1992] 1 MLJ 487, Arab Malaysian Finance Bhd v Meridien International Credit Corporation Ltd London [1993] 3 MLJ 193 and Chiew Sze Sun & Anor v Cast Iron Products Sdn Bhd & 4 Ors [1994] 1 CLJ 157 establish that directors must act bona fide and for proper purposes and may not employ their powers for collateral ends. Those principles are not in doubt; their application to the impugned transactions falls to be considered under Issues 3 to 5 below. Issue 3: Whether the Allotment of the Additional One Share to the 1st Defendant on 29 December 1995 was Valid [188] I now turn to what is, in my judgment, the pivotal factual issue in this action. Almost every substantive complaint advanced by the Plaintiff ultimately traces its origin to the allotment of one additional share to the 1st Defendant on 29 December 1995. It is that additional share which enabled the 1st Defendant to claim majority ownership of the 2nd Defendant and thereafter to justify the exercise of powers said to arise from that majority. [189] The Plaintiff does not dispute that resolutions relating to the increase of authorised capital and the subsequent allotment of shares were passed in December 1995. Nor does he dispute that statutory returns were thereafter lodged with the Companies Commission. His complaint is directed instead to the manner in which the allotment was effected and, in particular, the decision to allot 250,000 shares to the 1st Defendant but only 249,999 shares to himself. [190] The Plaintiff's case is that such an allotment was fundamentally inconsistent with the parties' longstanding arrangement of equality and that there existed no commercial or legal justification for disturbing that equality by conferring one additional share upon the 1st Defendant. [191] The Defendants, however, maintain that the allotment was entirely lawful. They submit that:

(a) the increase in authorised capital was validly approved;

(b) the allotment was reflected in properly executed corporate resolutions;

(c) the Plaintiff himself signed the relevant documentation;

(d) statutory returns were duly filed;

(e) the Plaintiff took no objection for many years thereafter; and

(f) the allotment therefore became final and binding. THE DOCUMENTARY EVIDENCE [192] The documentary evidence establishes the following matters beyond dispute. [193] On 29 December 1995, the authorised capital of the 2nd Defendant was increased from RM300,000.00 to RM500,000.00. [194] Pursuant to that increase, further shares were allotted resulting in the 1st Defendant holding one additional share more than the Plaintiff. [195] Those allotments are reflected in:

(a) the Members' Circular Resolution;

(b) the relevant Forms 24;

(c) the statutory returns lodged with the Registrar;

(d) subsequent annual returns;

(e) share certificates; and

(f)company searches obtained from the Companies Commission. The authenticity of those documents has not been challenged. Indeed, they were produced from official company records and admitted as part of the agreed documentary bundles. [196] The Plaintiff therefore does not contend that the documents themselves are fabricated. Rather, his complaint is that they fail accurately to reflect the true consensus between the parties. THE PLAINTIFF'S EXPLANATION [197] The Plaintiff explained that throughout the operation of the family business he habitually signed corporate documents prepared by the company secretary without independently verifying every detail. According to him, he did so because he trusted the 1st Defendant and believed both brothers continued to operate upon the basis of equality. [198] The Plaintiff further contends that he did not appreciate the significance of the additional share until many years later when the 1st Defendant began relying upon that additional share to justify unilateral corporate decisions. [199] Learned counsel for the Defendants criticised this explanation as inherently improbable. It was submitted that no experienced businessman could sign corporate documents over many years without appreciating their legal consequences. [200] That submission undoubtedly carries some force. [201] However, it overlooks an important feature of the evidence. [202] This was not an ordinary commercial relationship between unrelated investors. [203] It was a relationship between two brothers who had conducted the same family business together for decades before incorporation. [204] The evidence consistently demonstrates that considerable trust existed between them throughout most of that period. [205] In those circumstances, I do not regard it as inherently implausible that one brother might sign documents prepared by the company secretary without anticipating that they would subsequently be relied upon to alter fundamentally the balance of control between them. THE SIGNIFICANCE OF THE HISTORICAL PATTERN [206] In determining whether the Plaintiff's explanation should be accepted, I consider it necessary to examine the broader historical pattern. [207] As earlier observed, every allotment prior to December 1995 maintained equality between the parties. [208] Every major corporate decision concerning share ownership before that date preserved parity. [209] There is no evidence that either party sought to acquire numerical superiority over the other during the preceding decade. [210] Against that background, the appearance of a single additional share assumes considerable significance. [211] The Court therefore asks the obvious question. Why Was Equality Abandoned in December 1995? [212] The Defendants have not, in my respectful view, provided any satisfactory commercial explanation. The explanation which the 1st Defendant did advance in his witness statement (Enclosure 394, Q&A 7) that in 1990 he had made a personal investment in a construction company with Koh Kim Ho; that the Plaintiff was aware of it and himself suggested that the 1st Defendant become the majority shareholder, being the hands-on Managing Director, so as to give Koh confidence in the development business and direction of the 2nd Defendant; and that the 2nd Defendant invested in and became a shareholder of the 3rd Defendant on 29 December 1995 I have considered with care, and I am unable to accept it as a satisfactory commercial explanation, for four reasons. First, it stands uncorroborated: Koh Kim Ho himself gave evidence for the Defendants, yet his witness statement (Enclosure 395) says nothing of any such suggestion or assurance, confining itself to the affairs of the 3rd and 6th Defendants and the repayment of the advances. Secondly, no contemporaneous document records any request, suggestion or agreement by the Plaintiff that the equality maintained since incorporation should be surrendered. Thirdly, it is not easy to see how a differential of a single share could rationally have been thought necessary to instil confidence in an outside business associate, each brother having subscribed and paid for his allotment in the almost identical sums of RM16,749.00 and RM16,750.00 (Enclosure 564, Q&A 19). Fourthly, the company secretary who prepares the company's resolutions upon the instructions of the 1st Defendant, and upon whose instruction the 33,499 shares were allotted (Enclosure 564, Q&A 14,15 and 17) candidly stated that she did not know why the allotment was made in the proportions it was (Q&A 8). In the result, the bare assertion in the 1st Defendant's witness statement, unsupported and uncorroborated as it is, does not constitute credible evidence that the Plaintiff agreed that equality should cease. [213] No evidence has been produced showing:

(a) that the Plaintiff agreed equality should cease;

(b) that either brother contributed different amounts of capital justifying unequal allotment;

(c) that one brother subscribed additional consideration unavailable to the other;

(d) that any valuation exercise required unequal allotment; or

(e) that the company itself possessed any commercial reason why one brother should thereafter exercise majority control. [214] During the trial, neither the documentary evidence nor the oral testimony supplied any convincing explanation for the departure from the consistent historical practice of equality. Where the party against whom the inference is sought offers no credible explanation for a departure of this kind, the Court may accept the version advanced by the party who bears the burden, that party being required to establish its case only upon a balance of probabilities: Gerard Jude Timothy Pereira v Kasi a/l KL Palaniappan [2017] 6 MLJ 54. DELAY [215] The Defendants nevertheless place considerable emphasis upon the Plaintiff's delay in challenging the allotment. [216] There is no dispute that the Plaintiff did not immediately commence proceedings after the allotment occurred. [217] Equally, there is no dispute that the statutory filings remained publicly available for many years. The 1st Defendant's evidence was that the Plaintiff, being fully aware of the additional share, made no complaint of it in the more than two decades between the allotment and the filing of this suit (Enclosure 394, Q&A 8); and the company secretary confirmed that between 1995 and 2019/2020 the Plaintiff never complained to her of the 1st Defendant holding one share more than him, that she was never questioned as to why the Plaintiff had one share fewer, and that the shareholdings of both brothers including the differential subsisting since 1995 or 1996 were reflected in the Annual Returns of the 2nd Defendant filed annually with the Companies Commission of Malaysia and in statutory documents signed by the Plaintiff (Enclosure 564, Q&A 9 to 13 and 20). [218] Delay is undoubtedly a relevant consideration. [219] However, delay cannot be considered in isolation. [220] If, as the Plaintiff contends, both brothers continued operating the business substantially upon the same basis for many years thereafter, the practical consequences of the additional share may not have become immediately apparent. [221] The evidence suggests that it was only when the relationship deteriorated and the 1st Defendant began asserting majority rights against the Plaintiff that the significance of the additional share assumed practical importance. [222] In those circumstances, delay alone cannot be treated as conclusive proof that the Plaintiff knowingly accepted the legal consequences now asserted by the Defendants. The Conduct After 1995 [223] In my judgment, the conduct of the parties after the allotment provides important assistance. [224] Had the 1st Defendant genuinely regarded himself as possessing absolute majority control from December 1995 onwards, one would ordinarily expect that control to manifest itself in the company's affairs, as I have already observed at [155] in another connection. [225] Yet the evidence reveals that for many years thereafter:

(a) both brothers continued acting as directors;

(b) both remained publicly associated with the management of the company;

(c) the Plaintiff continued running substantial aspects of the business;

(d) no attempt was made to remove the Plaintiff from management; and

(e) no evidence has been produced of majority voting being exercised against him during that lengthy period. [226] In my judgment, that prolonged course of conduct is inconsistent with the proposition that the additional share immediately altered the practical relationship between the parties. [227] Rather, it tends to support the Plaintiff's evidence that both brothers continued treating each other as equals notwithstanding the formal shareholding reflected in the statutory records. [228] The Plaintiff bears the burden of proving that the allotment should not be relied upon in the manner asserted by the Defendants. Lest there be any misapprehension as to the incidence of that burden, I state how it operates. The legal burden of establishing the facts upon which his claim depends rests upon the Plaintiff throughout, upon a balance of probabilities: sections 101 to 103 of the Evidence Act 1950. The affirmative defences of estoppel, acquiescence and waiver are for the Defendants, who assert them, to establish. And where the exercise of the fiduciary power to allot is impugned and the party in whom that power resided offers no explanation for a departure from an established course of equality, the evidential burden of explanation shifts to him, although the legal burden never leaves the Plaintiff. It is upon that footing that the questions which follow are answered. [229] It is important to distinguish between two separate questions. [230] The first is whether the statutory allotment itself occurred. [231] The answer to that question is plainly yes. [232] The second is whether the allotment, viewed against the entire factual matrix, automatically entitled the 1st Defendant thereafter to disregard the longstanding understanding between the parties and exercise unilateral control over the company. [233] On that second question, my conclusion is different. [234] I am not persuaded that the mere existence of the additional share, without more, displaced the mutual understanding which had governed the parties' relationship for many years. [235] Equally, I am not persuaded that the documentary records alone establish that the Plaintiff knowingly agreed to surrender the equal participation which had characterised the company's management since its inception. [236] Accordingly, whilst I accept that the statutory allotment occurred and remained part of the company's corporate records, I do not accept the Defendants' broader submission that the additional share, by itself, conclusively determined all subsequent questions concerning management, participation and control. [237] The significance of that additional share must therefore be assessed together with the entirety of the parties' subsequent conduct. [238] It follows that the Court must next examine whether the 1st Defendant thereafter exercised the powers arising from his asserted majority consistently with the parties' contractual relationship and the obligations owed between them, or whether the subsequent corporate acts constituted breaches of those obligations. That inquiry requires consideration of the Plaintiff's complaints concerning exclusion from management, the appointment of family members, the loans to related companies, banking arrangements and the various impugned corporate decisions. Before doing so, it remains to address the defences of estoppel and non est factum raised against the Plaintiff's challenge to the allotment, and to state with precision the consequence of my findings for the allotment itself. Estoppel, Non Est Factum and the Good-Faith Exercise of the Power to Allot [239] The documents evidencing the impugned allotment of 29 December 1995 are not in dispute. They comprise the directors' resolution of that date (exhibit D56, at page 42 of Bundle I, Enclosure 393), signed by both the Plaintiff and the 1st Defendant; the share certificate (exhibit P63, at page 239 of Bundle R); the certificate issued under section 54(1) of the Companies Act 1965 (exhibit D57); and the return of allotment in Form 24 dated 2 January 1996 (exhibit D58). They record an allotment of 16,749 shares to the Plaintiff and 16,750 shares to the 1st Defendant the single-share differential from which the 1st Defendant's asserted majority of 250,000 to 249,999 ultimately derives. [240] Upon the strength of those documents two lines of authority were pressed against the Plaintiff. The first is that a person who signs a document is bound by it, in the absence of fraud or misrepresentation, whether or not he has read it: L'Estrange v F Graucob, Limited [1934] 2 KB 394; Lin Wenchih & Anor v Mycom Bhd [2014] 3 MLJ 691; and that a shareholder who knows of and acquiesces in a share issue over many years, taking benefit from it, is estopped from impugning it: Re Duomatic Ltd [1969] 1 All ER 161; Ever-Yield Sdn Bhd v Yap Keat Choon and other appeal [2023] 2 MLJ 90; WTK Realty Sdn Bhd v Kathryn Ma Wai Fong & Anor and other appeals [2025] 8 CLJ 988. [241] In support of that approach the constitutional and documentary framework within which the allotment was made is relied upon. By Article 7 of the Articles (page 23 of Bundle I) the shares were at the disposal of the directors, who might allot them to such persons and upon such terms as they thought proper; and by Article 95 (page 34 of Bundle I) a resolution in writing signed by a majority of the directors, being not less than two, was as valid and effectual as a resolution passed at a duly constituted meeting. The resolution of 29 December 1995 was so signed by the Plaintiff, who in addition drew a cheque upon his own account for RM16,749 in favour of the 2nd Defendant in payment for the shares he subscribed. It is further pointed out that the Plaintiff pleaded, in paragraph 11(g) of the Statement of Claim, that although he had no formal education he was able to read and write Chinese, and that he admitted in cross-examination that he could read numbers, a matter demonstrated in the course of his evidence. The company secretary's evidence completed this documentary picture: no physical meeting was held, the allotment having been approved by Members' Circular Resolution in reliance upon section 152A of the Companies Act 1965; the resolution was signed by both brothers and filed in the minutes books; and the Share Application Form was signed by both and had been filled up when it was signed (Enclosure 564, Q&A 8 and 16). [242] Against these stands a principle directly in point, recognised by the Court of Appeal in Soo Boon Siong @ Saw Boon Siong v Saw Fatt Seong and Soo Hock Seang (as estate representative Soo Boon Kooi @ Saw Boon Kooy (deceased)) & Ors [2008] 1 MLJ 27. There it was held that the defence of non est factum is available not only where fraud exists but where the mind of the signer did not accompany his signature; that where shares are allotted so as to create a family shareholding majority and the director responsible has never explained why the allotment was not made equally, the fiduciary power to raise capital has not been exercised in good faith, with the consequence that the allotment and the transfers that followed stand impugned; and that a director's statutory confirmation of the accounts is not conclusive of his knowledge or intention, nor is a director precluded from challenging the very accounts he has signed. That principle is reinforced by the wider doctrine governing the exercise of the power to allot shares. The issue of shares is a fiduciary power which must be exercised bona fide in the interests of the company as a whole and for the purpose for which it was conferred; an allotment whose substantial purpose is to alter an existing majority, or to create or secure control in a particular shareholder, is an improper exercise of that power and may be set aside notwithstanding that the directors believed themselves to be acting honestly: Howard Smith Ltd v Ampol Petroleum Ltd [1974] 2 WLR 689; Residues Treatment & Trading Co Ltd & Anor v Southern Resources Ltd & Ors (No 4) (1988) 14 ACLR 569. An allotment made with an improper motive and otherwise than in good faith is ultra vires and liable to be declared null and void: Dr Mahesan & Ors v Ponnusamy & Ors [1994] 3 MLJ 312; as is an allotment effected otherwise than in conformity with the company's articles: Mahima Singh & Ors v Buldev Singh [1975] 1 MLJ 173. The 1st Defendant's unexplained departure from equality, measured against these principles, confirms that the power to allot was not exercised in good faith or for a proper purpose. [243] I have weighed these competing principles against the evidence. The Duomatic and WTK Realty line proceeds upon informed knowledge and acquiescence; yet I have found that the practical equality of the brothers continued for more than two decades after 1995, that no commercial justification for departing from equality was ever advanced, and that the Plaintiff who is illiterate in English and had entrusted the company's administration to the 1st Defendant did not appreciate that the single share would be relied upon to assert unilateral control. In those circumstances the requirements of estoppel and acquiescence are not satisfied, and the rule in L'Estrange v F Graucob Ltd does not foreclose the inquiry which Soo Boon Siong requires into whether the power to allot was exercised in good faith. The unexplained departure from equality, viewed against the whole of the evidence, displaces the contention that the additional share conclusively determined all subsequent questions of control. [244] It is necessary, finally, to state with precision the consequence of these findings for the allotment itself, so that the disposition under this Issue is not left in doubt. Three matters of clarification should be recorded. First, I do not set aside the allotment of 29 December 1995, and I do not order the rectification of the register of members: the statutory allotment occurred, both brothers subscribed and paid for the shares allotted to them, and no consequential relief of that character is warranted upon the findings made. Secondly, what the findings do establish is that the additional single share, having been obtained through an exercise of the power to allot which was not shown to have been made in good faith or for a proper purpose and for which no explanation was ever given, may not be relied upon by the 1st Defendant as conferring upon him unilateral majority control against the Plaintiff or as displacing their equal participation. Thirdly, it follows that the prayers in paragraphs 40(9) and 40(10) of the Statement of Claim, concerning the single share, succeed to that declaratory extent and no further, and are disposed of in the terms of order (b) below. Issue 4: Whether the Subsequent Conduct of the 1st Defendant Constituted Breaches of His Duties Owed to the Plaintiff [245] Having determined that the additional one share did not, by itself, conclusively determine the parties' respective rights, it becomes necessary to examine the specific acts complained of by the Plaintiff. It is these acts which, according to the Plaintiff, demonstrate that the 1st Defendant progressively departed from the parties' longstanding understanding and thereafter exercised control of the 2nd Defendant in a manner inconsistent with the Plaintiff's contractual and proprietary rights. [246] The Plaintiff's complaints may broadly be grouped into the following categories:

(a) exclusion from the management of the 2nd Defendant;

(b) unilateral exercise of corporate control;

(c) appointment of family members into positions of management;

(d) diversion of corporate opportunities and financial resources to related companies;

(e) refusal to disclose financial information and corporate records;

(f) unilateral alteration of banking arrangements;

(g) dealings concerning the oil palm plantation;

(h) removal of the Plaintiff from participation in the affairs of the company; and

(i) the cumulative effect of those acts upon the relationship between the parties. I shall consider each category in turn.

(a) Exclusion from Management [247] The Plaintiff contends that although he remained both shareholder and director, he was progressively excluded from the management of the company after the 1st Defendant began asserting majority shareholder status. [248] The evidence relied upon by the Plaintiff includes:

(a) the gradual cessation of consultation on major corporate decisions;

(b) alteration of banking mandates;

(c) exclusion from accounting records;

(d) refusal to furnish management accounts;

(e) refusal to provide audited financial information promptly;

(f) removal of his office within the company's premises;

(g) diminishing involvement in corporate decision-making; and

(h) concentration of management within members of the 1st Defendant's immediate family. [249] These matters are not supported merely by oral assertions. [250] The contemporaneous correspondence exchanged between June and August 2019 demonstrates repeated requests by the Plaintiff for meetings, information and discussion concerning the affairs of the company. Those requests culminated in the series of letters exhibited as P1 through P7, each progressively reflecting the deterioration of trust between the brothers. [251] Particularly significant is the letter dated 17 July 2019, whereby the Plaintiff sought a personal meeting to discuss numerous matters relating to the company's affairs. [252] The 1st Defendant responded on 23 July 2019, agreeing to the meeting but introducing his own proposal concerning the splitting of the company. [253] The evidence subsequently establishes that although the Plaintiff attended the first meeting and remained willing to continue discussions, the anticipated second meeting never produced any resolution of the dispute. [254] During cross-examination, the 1st Defendant repeatedly answered that he either could not remember the events surrounding those meetings or denied the Plaintiff's version of events. However, he accepted the authenticity of the correspondence itself and acknowledged that the proposal concerning the splitting of the company had originated from him. [255] The contemporaneous documentary correspondence records events and meetings in July and August 2019 which the 1st Defendant, during cross-examination, testified he was unable to remember. Specifically, when questioned regarding the letter dated 17 July 2019 and the meeting scheduled for 13 August 2019, the 1st Defendant repeatedly answered, "Saya tidak ingat" [256] The letters demonstrate a Plaintiff seeking information, requesting meetings and attempting to resolve disputes concerning the management of the company. [257] The correspondence shows that while the 1st Defendant responded to the Plaintiff's initial requests by proposing an agenda for a personal meeting in his letter dated 23 July 2019 (Exhibit D159), he subsequently initiated an Originating Summons (OS 24NCC-7-08/2019) on 20 August 2019. The record indicates that the 1st Defendant did not attend the second personal meeting that had been scheduled for mid-August prior to the commencement of that litigation

(b) The Appointment of Family Members [258] The Plaintiff next complains that the management of the 2nd Defendant progressively became concentrated within members of the 1st Defendant's immediate family. [259] The evidence establishes that several close relatives of the 1st Defendant occupied important positions within the administration of the company. [260] The Plaintiff submits that this was not objectionable merely because they were family members. [261] Rather, his complaint is that those appointments occurred contemporaneously with his own exclusion from management and were utilised to consolidate the 1st Defendant's control over the affairs of the company. [262] The Defendants respond that every appointment was made upon merit and according to operational requirements. [263] Standing alone, I do not regard the appointment of family members as constituting any breach of duty. [264] Many family companies employ members of the same family. [265] Such appointments are neither unusual nor unlawful. [266] The question is therefore not whether relatives were employed. [267] The relevant question is whether those appointments formed part of a wider course of conduct intended to exclude the Plaintiff from participating in the management of the company. [268] On the evidence before me, I consider those appointments to possess significance only when viewed cumulatively together with the remaining complaints advanced by the Plaintiff.

(c) Alteration of Banking Arrangements [269] The Plaintiff also complains that the banking arrangements of the company were altered without his effective participation. [270] During cross-examination, considerable attention was directed to the resolutions passed concerning banking mandates. [271] The Plaintiff contends that these changes progressively deprived him of practical participation in the financial affairs of the company. [272] The 1st Defendant, however, maintained that these alterations became necessary because the Plaintiff was no longer actively involved in the administration of the business. His fuller account (Enclosure 394, Q&A 12 to 15) was that from incorporation until 30 August 2007 both brothers were signatories, either singly or, where facilities taken by the company so required, jointly; that in 1999 the mandate at the Maybank Taman Malim Jaya branch was altered to provide for his sole signature or the joint signature of both brothers because, on his account, the Plaintiff was taking for himself the daily cash collections from the company's sales; that by the circular resolution of 30 August 2007 passed, he said, following the discovery of the Plaintiff's misuse of the company's funds and upon an agreement between the brothers that the Plaintiff would not sign cheques without his knowledge or consent the signatories became the 1st Defendant alone or both brothers jointly with effect from 3 September 2007; and that no reason has been given as to why that resolution ought now to be revoked and set aside. He explained the operational necessity of a sole-signatory mandate by the exigencies of the trade: payments against letters of credit and bills of lading must be effected promptly upon the arrival of imported goods, failing which the company incurs penalties for storage charges at the port, and the Plaintiff was not ordinarily present at the office when such payments fell due (Q&A 14). The company secretary confirmed that the resolution of 30 August 2007 was passed for the purpose of the bank signatories (Enclosure 564, Q&A 25). I record, however, that the allegation of misuse of the company's funds in 1999 which the 1st Defendant likewise assigned as the reason for the Plaintiff's resignation as a director in 2007 and his reappointment in December 2010 (Enclosure 394, Q&A 11) was not substantiated by any documentary evidence at trial, and I make no finding upon it. [273] The documentary evidence establishes that various banking resolutions were indeed passed over the years. [274] However, the evidence equally demonstrates that by the material time the Plaintiff had ceased participating in the administrative management of the company, having continued instead with the operational aspects of the business. [275] Accordingly, I do not consider every alteration to the banking mandates necessarily indicative of wrongdoing. [276] Their significance depends upon whether they formed part of the broader pattern alleged by the Plaintiff.

(d) Refusal to Provide Information [277] One complaint which, in my judgment, carries considerably greater weight concerns the Plaintiff's repeated requests for information. [278] Throughout the correspondence exhibited during trial, the Plaintiff consistently sought:

(a) audited accounts;

(b) management accounts;

(c) financial statements;

(d) explanations concerning corporate decisions; and

(e) meetings to discuss the affairs of the company. [279] The Plaintiff's concern regarding access to information did not emerge for the first time during litigation. [280] Rather, it appears consistently throughout the contemporaneous correspondence exchanged before proceedings were commenced. [281] This aspect of the evidence assumes particular importance because directors ordinarily remain entitled to information necessary for the proper discharge of their responsibilities. [282] The Defendants submit that much of the requested information was in fact supplied. [283] Whether that submission is correct requires consideration together with the documentary evidence relating to the contempt proceedings and the earlier interlocutory injunctions. [284] On the evidence, the audited accounts from 2019 to the current year were furnished to the Plaintiff and his solicitors, in part pursuant to the interlocutory injunction orders made in this action. The complaint that accounts were withheld was not put to the 1st Defendant or to SP-10, the accountant of the 2nd Defendant, and emerged for the first time in submission; to that extent it bears the character of an afterthought and is not made out upon the record. The Plaintiff's complaint concerning access to information accordingly retains weight only in respect of the period and the requests evidenced by the contemporaneous correspondence, and not as a general allegation that the company's accounts were suppressed. This conclusion accords with the evidence of the Plaintiff's own witnesses as to the obtaining of the company's records. Teh Ai Loon (SP-5) and Sung Soo Tin (SP-6) deposed that they attended at the offices of the company's external auditors, Messrs Sim & Teo, and there obtained copies of the accounting and audited financial records of the 2nd Defendant for the years 2011 to 2018 (Enclosure 455, Q&A 8 and 11; Enclosure 454, Q&A 5 to 8), the auditors declining only to release their own audit files and working papers for the later years on the footing that those were the auditors' property (Enclosure 455, Q&A 16 and 17; Enclosure 454, Q&A 8 and 9). That evidence confirms that the audited accounts were in substance made available to the Plaintiff, and that the complaint of suppression is not borne out upon the record.

(e) The Contempt Proceedings [285] During trial considerable argument arose concerning pending contempt proceedings relating to earlier interlocutory injunctions. [286] Those proceedings themselves are not the subject matter of the present action. [287] However, the Notes of Proceedings establish that the learned Judge previously seised of these proceedings had directed that issues relating to the contempt proceedings would be dealt with after completion of the trial. [288] The present Court subsequently clarified that no finding of contempt had yet been made and that only procedural matters concerning cross-examination remained outstanding. [289] Accordingly, I attach no weight to the mere existence of those proceedings in determining the substantive liability of the parties in the present action. [290] Nevertheless, the surrounding circumstances demonstrate the extent to which the parties' relationship had deteriorated by the time this matter came for trial. OVERALL ASSESSMENT [291] Having examined these complaints collectively rather than individually, several conclusions emerge. [292] First, I am not persuaded that every complaint advanced by the Plaintiff has been established. [293] Certain allegations rest upon inference rather than direct evidence. [294] Others concern matters capable of legitimate commercial explanation. [295] However, the Court must avoid the error of analysing each complaint in complete isolation. [296] The proper approach is to consider whether the cumulative effect of the evidence demonstrates a progressive departure from the relationship which had previously existed between the parties. [297] Viewed in that manner, I find that the evidence establishes a gradual concentration of practical control in the hands of the 1st Defendant. [298] That concentration was reflected not merely in formal corporate powers but also in the day-to-day management of the company's affairs. [299] By 2019 the Plaintiff's participation in management had become substantially diminished notwithstanding his continuing status as shareholder and director. [300] The contemporaneous correspondence strongly supports that conclusion. [301] Whether that exclusion ultimately amounted to a breach of the Plaintiff's legal rights depends, however, upon one further issue of considerable importance, namely the legality of the transactions undertaken between the 2nd Defendant and the related companies controlled by the 1st Defendant, including the advances, loans and utilisation of corporate assets. Those transactions constitute the next major issue for determination and require separate consideration against the documentary evidence and the expert accounting material before the Court. Before turning to those transactions, however, three matters arising within the present issue the incidence of the 1st Defendant's fiduciary duties, the cessation of the Plaintiff's salary and the non-declaration of dividends fall first to be addressed. Fiduciary Duties, the Cessation of Salary and the Non-Declaration of Dividend [302] In assessing the complaint of exclusion it is necessary to keep in view to whom the 1st Defendant's duties as director were owed. A director owes his fiduciary duties to the company and not to his fellow director or to individual shareholders: Dato' Abul Hasan Mohamed Rashid v Multi-Code Electronics Industries (M) Bhd & Anor [2012] 1 LNS 258, applying Percival v Wright [1902] 2 Ch 421 and Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] Ch 258. To the extent, therefore, that the complaints are framed as breaches of a duty owed to the Plaintiff personally, they can succeed only upon the statutory contract and the equitable considerations peculiar to a quasi-partnership, and not upon the general fiduciary duties which the 1st Defendant owed to the 2nd Defendant alone. That principle is not, however, the whole of the matter where the company is a quasi-partnership. The Plaintiff relies in reply upon the decision of the Federal Court in Pan-Pacific Construction Holdings Sdn Bhd v Ngiu-Kee Corporation (M) Bhd & Anor [2010] 6 CLJ 721, in which Richard Malanjum CJ (Sabah & Sarawak), delivering the judgment of the Court, recognised that in a company which is in the nature of a quasi-partnership the members are, beyond the duties owed to the company, obliged in law to act in good faith towards one another, equity superimposing upon the exercise of their strict legal powers the constraints derived from the law of partnership. To that extent the position is more nuanced than the general rule in Percival v Wright alone would suggest, and it accords with the equitable analysis I have already adopted under Issues 1 and 2. I am bound, however, to read Pan-Pacific in full. The Federal Court there held that a breach of such fiduciary obligations does not automatically amount to conduct that is oppressive or unfairly prejudicial, and that the mere breakdown of trust and confidence between quasi-partners is not, of itself, sufficient to found relief; what must be shown is a justifiable lack of confidence grounded upon the conduct of the company's affairs, and not merely dissatisfaction at being outvoted. That qualification I keep steadily in view when I turn, under Issue 7, to the alternative relief. It does not displace the findings I have made, which rest not upon breakdown alone but upon the unexplained departure from equality and the progressive concentration of control already described. The standard by which conduct of this character is judged is a demanding one. In Re Kong Thai Sawmill (Miri) Sdn Bhd; Kong Thai Sawmill (Miri) Sdn Bhd & Ors v Ling Beng Sung [1978] 2 MLJ 227 the Privy Council held that the mere fact that those managing a company possess a majority of the voting power and, in reliance upon it, make policy or executive decisions with which the complainant disagrees is not enough; there must be a visible departure from the standards of fair dealing and a violation of the conditions of fair play which a shareholder is entitled to expect. That approach has since been affirmed by the Federal Court in Looh Siong Chee v Numix Engineering Sdn Bhd & Ors and other appeals [2015] 4 MLJ 561, where the concept of fairness was held to fall to be applied judicially, in the sense of commercial fairness. These principles inform, without themselves determining, the conclusions I reach upon the alternative prayer under Issue 7. [304] The complaint of exclusion must also be measured against the Plaintiff's own evidence. He admitted in cross-examination that he chose to leave the financial administration of the company to the 1st Defendant ("Sebab saya tidak tahu baca, jadi saya serahkan urusan akaun kepada Defendan") and that his work concerned the procurement and delivery of stock and the collection of debts. The cessation of his director's salary of RM6,000 per month is explained on the evidence by his ceasing to attend the office from February 2019 and by his declining to regularise his directorship at the 33rd Annual General Meeting; by Article 82 he was in any event subject to retirement by rotation. These matters bear upon the gravity, but not the existence, of the diminution in his participation which I have found. In this connection the Defendants invoke Tan Sri Dato' Wan Sidek bin Wan Abdul Rahman v Rahman Hydraulic Tin Bhd [2012] 6 MLJ 681, in which the Court of Appeal held that clear and unambiguous articles operate strictly to determine a director's tenure of office and the capacities that flow from it a director appointed to a casual vacancy holding office only until the following annual general meeting, and a merely de facto directorship conferring none of the capacities the articles reserve to a director duly appointed in accordance with them. [305] The Plaintiff joins issue with the explanation tendered for the cessation of his salary. He submits in reply that his monthly remuneration was stopped from February 2019 without notice and for no stated reason, and that the justification pleaded by the 1 $ ^{st} $ Defendant that the Plaintiff lacked clean hands and attended the office only to conduct a personal trade in fish skin using the company's cold storage was never made good by any documentary or other evidence at trial. He points to the fact that it required a mandatory order of this Court, made on 7 January 2022, to compel payment of the arrears and the continuation of his salary. He relies further upon the demolition of his ground-floor office at the company's Cheng premises, a matter confirmed by SP-7, and upon the refusal to advance moneys for his medical expenses. As to Article 82, the Plaintiff makes the pointed observation that, the Plaintiff and the 1st Defendant being the only two directors of the company, any retirement by rotation that removed the Plaintiff would, on the same reasoning, equally remove the 1st Defendant. I accept that the justification advanced for the stoppage of salary was not established by evidence, and that the recourse to a mandatory order, the demolition of the Plaintiff's office and the refusal of assistance are consistent with, and reinforce, the progressive exclusion I have found; they do not, however, sound in any separate head of personal relief beyond that exclusion. That authority does not, however, carry the Defendants as far as they would take it. Wan Sidek turned upon a director who had ceased to hold office through the nonholding of an annual general meeting within the period fixed by the articles, and upon the want of capacity of a de facto director to be appointed managing director; neither circumstance arises here, where the Plaintiff's status as an original and continuing director is not in issue and no loss of office by operation of the articles is asserted against him. The strict operation of Article 82, moreover, cuts both ways: upon a board of two, retirement by rotation would fall upon the 1st Defendant no less than upon the Plaintiff. Nor does the further principle in Wan Sidek that a party who has himself flouted the Companies Act and the articles may not resort to equity and good conscience to assist him - avail the Defendants, for it presupposes a want of clean hands in the party seeking equity; and the factual premise of that objection, the alleged personal trade in fish skin, is for the reasons already given not made out. If anything the maxim tells the other way, against the unexplained departure from equality which I have held under Issue 3 not to have been a bona fide exercise of the power to allot, though I do not rest the outcome upon it. The Plaintiff's own evidence was that, in February 2019, the 1st Defendant caused his daughter, Siang Shu Hua, the accounts manager, to stop paying the Plaintiff's monthly salary of RM6,000, and that the Plaintiff's office at the company's Cheng premises was demolished without his knowledge (Enclosure 399, Q&A 59 and 60); and that, whereas he was paid RM6,000, members of the 1st Defendant's family drew substantially higher remuneration from the company (Q&A 174 and 175). Sung Yau Peng (SP-3) confirmed both the cessation of the salary from February 2019 and the demolition of the office, and deposed that it required the mandatory order of 7 January 2022 to secure payment of the arrears and the continuation of the salary, which is now being paid (Enclosure 400, Q&A 36). The justification for the stoppage was advanced in the 1st Defendant's own evidence (Enclosure 394, Q&A 16): that the Plaintiff was engaged in an outside business, using the 2nd Defendant's name and facilities, of selling fish skin and fish maw in direct conflict with the company's business and his position as director; that the Plaintiff rarely came to work, attending for some two hours each morning to oversee that trade and making use of the company's refrigeration system; and that the company nonetheless continued to pay the Plaintiff's telephone bill, the road tax and insurance for the company car ceasing only after the Plaintiff drove the car away and did not return to the office. As I have said, that justification was not made good by documentary or other evidence at trial. As to the office, the 1st Defendant denied that the Plaintiff's office was torn down, asserting that what was demolished were two rooms at the loading bay area to create more space for workers, and that the Plaintiff's room remains next to his own on level three (Q&A 24); that account stands against the confirmation given by SP-7 and, even upon the 1st Defendant's own version, the works were undertaken unilaterally. It is right also to record the sequel: following the order of 7 January 2022 the Plaintiff's salary was paid in full, nothing remaining outstanding, and the sum of RM20,065.35 was paid to the Plaintiff's solicitors (Enclosure 394, Q&A 17 and 34). The necessity for a mandatory order of this Court to achieve that result is, however, itself part of the picture I have described. The 1st Defendant's own remuneration of RM12,000.00 per month as Managing Director was, on his evidence, verbally agreed by the Plaintiff at a meeting sometime in 2018 (Q&A 18); nothing in this action turns upon it. [306] The non-declaration of dividend cannot, on the evidence, stand as an independent wrong. The Plaintiff admitted in crossexamination that, save for the two occasions pleaded in paragraph 24.1 of the Statement of Claim, the Board (comprising himself and the 1st Defendant) resolved not to declare a dividend, and the audited accounts which he signed for the financial years 1996 to 2018 record that decision. By Articles 112 and 113, and by section 131 of the Companies Act 2016, the declaration of a dividend is a matter for the company and the directors' declaration as to profits is conclusive; the retained profits belong to the company absolutely: Tung Ah Leek & Anor v Perunding DJA Sdn Bhd & Ors (supra). A formal admission of this character may operate as an estoppel and, unless explained away, stands as evidence against its maker: sections 31, 58 and 115 of the Evidence Act 1950; Tan Keen Keong v Tan Eng Hong Paper & Stationery Sdn Bhd & Ors and other appeals [2021] 2 CLJ 318. That said, the persistent accumulation of undeclared profits over more than two decades remains part of the factual matrix relevant to the breakdown of confidence considered under Issue 7. The 1st Defendant's evidence upon the dividends (Enclosure 394, Q&A 19 and 25) was that dividends were paid whenever there was a surplus cash reserve; that the Plaintiff did not raise the payment of dividends after 2015; that sometime in 2016 the Plaintiff voiced an intention to leave the company, but the 1st Defendant could not afford to buy out the Plaintiff's shares at the price offered, and the discussion of a buy-out in either direction did not materialise; and that since 2015 the cash of the 2nd Defendant has been kept intact and unused. The auditor, Mr Sim Lian Hing, confirmed that the directors' decision not to declare a dividend is stated in the Directors' Report of the 2nd Defendant (Enclosure 565, Q&A 23). [307] The related complaint, that the dividends declared for the financial years 2011 and 2015 were not in fact received, was not pleaded. Paragraph 24.1 of the Statement of Claim pleads only that those dividends were declared and paid; the assertion of non-payment was raised for the first time in cross-examination and finds no place among the Issues to be Tried in Enclosure 547. The Plaintiff signed the payment vouchers acknowledging the dividend cheques at pages 64 and 65 of Bundle I, which were made payable to him and issued by the 2nd Defendant, and SP-11 confirmed that the two cheques, of RM250,000 and RM500,000, cleared on 22 July 2016 and 6 February 2016 respectively, SD-4 and SD-5 likewise confirming that the cheques issued in the Plaintiff's name were cleared. Having pleaded that those dividends were paid, the Plaintiff may not approbate and reprobate, and the burden lay upon him to establish that he did not receive them. [308] The Plaintiff presses the matter further in reply, contending that the two cheques were uncrossed bearer instruments, bearing his name but neither his identity card number nor the words "account payee", such that any holder might have presented them, and that he denies having received either sum. He observes that the 1st Defendant called bank officers (SD-3, SD-4 and SD-5) but did not subpoena any officer of the beneficiary bank into which the proceeds were said to have been paid, and he invites the Court to draw an adverse inference under section 114(g) of the Evidence Act 1950. He further submits that the explanation offered for the long non-declaration of dividends that profits were retained to build a hotel was an unpleaded afterthought, the 1st Defendant having admitted in cross-examination that he had not so much as a building plan, and that the persistent withholding of dividends from a profitable family company is itself conduct upon which equitable relief may be founded, relying upon Chiew Sze Sun & Anor v Cast Iron Products Sdn Bhd & 4 Ors (supra) and upon Re a Company (No 00370 of 1987), ex parte Glossop [1988] BCLC 570, a decision contained in his bundle of authorities concerning a family company whose directors had failed to pay reasonable dividends out of substantial accumulated profits. That decision must, however, be read with care. Harman J there held that a failure to declare a proper dividend, bearing as it does equally upon all the members, is not without more conduct unfairly prejudicial to some part only of them, though his Lordship acknowledged the broader expectation that a company making trading profits should in the ordinary way distribute them by way of dividend. The authority therefore assists the Plaintiff only as an element of the wider factual matrix, and not as a free-standing wrong. Since no relief is pleaded in respect of the RM750,000, the dispute as to whether those particular cheques were received does not fall to be finally resolved, and I make no finding adverse to the Plaintiff upon it. The broader point that profits were accumulated and dividends withheld over more than two decades I have already taken into account, and I carry it forward, as part of the factual matrix, to the question of relief under Issue 7. Issue 5: Whether the Transactions between the 2nd Defendant and the 3rd to 6th Defendants Constituted Breaches of the 1st Defendant's Duties [309] A substantial portion of the trial was devoted to the financial dealings between the 2nd Defendant and the related corporate defendants, namely Hocjaya Sdn Bhd (3rd Defendant), Wisma Gemilang Sdn Bhd (4th Defendant), Hocjaya Properties Sdn Bhd (5th Defendant) and Hocjaya Development Sdn Bhd (6th Defendant). According to the Plaintiff, these transactions demonstrate the manner in which the 1st Defendant utilised his position within the 2nd Defendant to benefit companies under his effective control, without the Plaintiff's knowledge or approval. The Defendants reject those allegations and maintain that every transaction was undertaken in the ordinary course of business and for the commercial benefit of the 2nd Defendant. The Plaintiff's Complaint [310] The Plaintiff's pleaded case is that substantial sums belonging to the 2nd Defendant were advanced to the 3rd, 5th and 6th Defendants over many years without:

(a) proper resolutions of the Board of Directors;

(b) approval by the Plaintiff as co-director;

(c) proper commercial justification; or

(d) adequate security for repayment. [311] According to the Plaintiff, those advances represented an improper diversion of the financial resources of the 2nd Defendant to companies effectively controlled by the 1st Defendant. He contends that these transactions materially prejudiced the interests of the 2nd Defendant and, consequently, his own interests as shareholder. [312] The Plaintiff further relies upon the evidence of the Court-appointed accounting expert, the documentary bundles and the company records to demonstrate the movement of funds between the various corporate defendants. Those materials formed a substantial part of the documentary evidence before the Court. The Defendants' Response [313] The Defendants contend that these transactions must be viewed in their proper commercial context. [314] Their evidence is that the companies operated as complementary entities within the same family business, each undertaking different commercial functions. According to the Defendants, inter-company advances were a longstanding feature of the businesses and were made in the ordinary course of commercial operations. Koh Kim Ho, a director and shareholder of both the 3rd and 6th Defendants and the 1st Defendant's partner in those companies, described the 3rd Defendant as a construction company and the 6th Defendant as a property development company, the 2nd Defendant being a twenty per cent shareholder of the 3rd Defendant (Enclosure 395, Q&A 1 to 3). [315] It is further contended that the 2nd Defendant itself benefited from those arrangements because it remained a shareholder in certain of the related companies and stood ultimately to benefit from their commercial success. The 1st Defendant's evidence was that the 2nd Defendant, as a shareholder, was paid a dividend from the completed project, and that a further dividend will fall due from the 3rd Defendant to the 2nd Defendant once the defect liability period for the project expires and the accounts are completed (Enclosure 394, Q&A 22). [316] The Defendants also argue that the Plaintiff had knowledge of these arrangements over many years and never objected until relations between the brothers deteriorated. That contention, too, rests upon the 1st Defendant's evidence that the giving of loans out of the 2nd Defendant's funds without directors' resolutions was a practice subsisting since incorporation, undertaken with the Plaintiff's full knowledge and appearing in the company's accounts (Enclosure 394, Q&A 20). The Documentary Evidence [317] During cross-examination of the 1st Defendant, learned counsel for the Plaintiff repeatedly challenged him on the absence of formal Board resolutions authorising many of the loans and advances. [318] The 1st Defendant accepted that, in many instances, formal Board resolutions had not been prepared. Indeed, during his evidence he stated that throughout the operation of the family business such matters were frequently undertaken without formal resolutions. [319] That admission is significant. [320] However, it does not automatically establish impropriety. [321] The evidence before the Court demonstrates that the management of the 2nd Defendant was, for many years, conducted informally notwithstanding the existence of the corporate structure. Numerous decisions affecting the company's affairs appear to have been implemented upon mutual understanding rather than through formal corporate procedures. [322] The Plaintiff himself relies heavily upon precisely that informality in support of his contention that the parties continued operating the company as a domestic family enterprise. [323] In those circumstances, the absence of formal resolutions cannot, without more, establish that every impugned transaction was unauthorised. Knowledge of the Plaintiff [324] The more difficult question concerns whether the Plaintiff possessed knowledge of the advances made to the related companies. [325] The Plaintiff maintains that he did not. [326] The Defendants maintain that he did. [327] The documentary evidence is not entirely consistent on this issue. [328] Certain transactions appear in the audited financial statements over many years. [329] The Plaintiff accepts that he received annual financial statements. [330] However, he contends that the true nature and extent of the advances only became apparent after detailed examination of the accounting records obtained during the course of these proceedings. [331] The Defendants, on the other hand, argue that the Plaintiff cannot simultaneously rely upon the audited accounts when they assist his case whilst denying knowledge of matters appearing within those same accounts. [332] The Court notes the Defendants' position that the Plaintiff, having signed the annual financial statements for over two decades, is charged with knowledge of their contents. This position is contrasted by the Plaintiff's testimony that he signed documents in trust because he was unable to read English or Bahasa Malaysia, and that he only realized the full extent of the shareholding disparity after conducting searches in 2019 [333] A director cannot ordinarily disclaim all responsibility for financial statements received over many years. [334] Nevertheless, the Court must recognise the practical reality of the manner in which this family company operated. [335] The evidence consistently demonstrates that responsibility for accounting and financial administration rested primarily with the 1st Defendant. [336] The Plaintiff, by contrast, concentrated almost exclusively upon operational matters relating to procurement, marketing and sales. [337] Accordingly, whilst the Plaintiff cannot be treated as entirely ignorant of the company's financial affairs, neither can it be assumed that every inter-company transaction appearing within lengthy audited accounts necessarily came to his personal attention. [338] Two matters bear upon the Plaintiff's professed want of knowledge of the advances pleaded in paragraph 25 of the Statement of Claim. First, his own witness statement (Enclosure 399) makes no reference to that paragraph or to the advances to the 3rd Defendant. Secondly, the audited accounts of the 2nd Defendant for the financial years 2011 to 2018, which SD-7 confirmed had been approved and signed by the directors and which carried a note disclosing the intercompany loans and related-party transactions, were signed by the Plaintiff as a director, and SD-1 stated (Q&A 20) that the Plaintiff was aware of the advances because they appeared in the company's accounts signed by both directors. These matters confirm that the Plaintiff cannot disclaim all knowledge of the advances, although, for the reasons already given, they do not of themselves establish that he gave an informed assent to the manner in which the advances were made. [339] Considerable reliance was placed by both parties upon the reports prepared by the Court-appointed accounting expert. [340] Those reports analysed extensive financial records relating to the various companies. [341] The expert did not, however, determine issues of legality. [342] His function was to analyse the accounting records and explain the movement of funds. [343] Whether particular transactions constituted breaches of duty remains a question for the Court. [344] I have considered the expert reports together with the oral explanations given during trial. [345] They establish the existence of substantial financial dealings between the companies. [346] They do not, however, by themselves establish that those dealings were unlawful. In this connection I have not overlooked the evidence of the auditor, Mr Sim Lian Hing, whose firm Messrs Sim & Teo, now Baker Tilly ST PLT has audited the 2nd Defendant since its incorporation in the year 1985 (Enclosure 565, Q&A 2 to 4). While accepting the accounting standard that monies receivable, of which the company has knowledge, should be recognised as receivable in the financial year in which the company becomes aware of them, he took issue with paragraph 3.3 of the report of Crowe PLT upon the footing that the accounts there cited were draft accounts for the financial years 2019, 2020 and 2021, yet to be audited and finalised by the Board of Directors, so that the conclusion that the financial statements were not true and accurate was, in his view, unfair and premature (Q&A 21); and he confirmed, upon the information supplied to him for the preparation of the draft financial report of the 2nd Defendant for the financial year 2022, that the dividend of RM1.2 million declared by the 3rd Defendant has been credited to the account of the 2nd Defendant (Q&A 22). That evidence goes to the weight to be attached to the expert material, and it reinforces the caution with which I approach it. The Nature of the Related Companies [347] The Plaintiff repeatedly emphasised that the related companies were under the effective control of the 1st Defendant. [348] The evidence supports that proposition to a substantial extent. [349] However, it is equally true that certain of those companies were themselves owned wholly or partly by the 2nd Defendant. [350] Consequently, the mere movement of funds between companies within the same corporate group cannot automatically be characterised as misappropriation. [351] The critical question remains whether those transactions were undertaken:

(a) bona fide in the interests of the 2nd Defendant; or

(b) primarily for the benefit of the 1st Defendant personally. [352] Having considered the evidence as a whole, I am unable to accept the Plaintiff's broader submission that every intercompany advance constituted a breach of duty. [353] The evidence simply does not support so sweeping a conclusion. [354] At the same time, I am equally unable to accept the Defendants' submission that the Court should simply presume every transaction to have been proper because it occurred within a family group of companies. [355] Directors remain subject to fiduciary obligations irrespective of the informality with which family businesses are managed. [356] Where corporate funds are utilised for the benefit of related entities, the director responsible bears the burden of demonstrating that such transactions were undertaken honestly, for proper purposes and consistently with the interests of the company whose funds were deployed. [357] In the present case, I find that the evidence demonstrates a pattern of informal financial management extending over many years. [358] That informality characterised not merely the impugned loans but much of the corporate administration generally. [359] Consequently, I do not regard the absence of formal Board resolutions, standing alone, as sufficient to establish liability. However, the cumulative effect of these transactions remains relevant when considered together with the Plaintiff's broader complaint that the 1st Defendant progressively concentrated financial control in himself whilst excluding the Plaintiff from meaningful participation in the affairs of the 2nd Defendant. For completeness, I record a counter-complaint appearing in the 1st Defendant's evidence: that Warisan Rembau, notwithstanding reminders from the 2nd Defendant requesting that the sale proceeds be paid to the company, has been paying proceeds due and payable to the 2nd Defendant directly to the Plaintiff upon the strength of the Plaintiff's letter to Warisan dated 10 February 2021, in an amount approximating RM28,000.00 (Enclosure 394, Q&A 35 and 36; pages 160 to 171 of Enclosure 393). That matter is not pleaded, no relief is sought in respect of it, and I make no finding upon it; it serves only to illustrate the depth of the mutual distrust into which the relationship has descended. [361] That broader issue cannot be determined solely by reference to the loans themselves. It requires consideration of the totality of the evidence concerning corporate governance, financial control, disclosure of information and the exercise of the powers asserted by the 1st Defendant as majority shareholder. [362] I therefore turn to examine the Defendants' affirmative defences, including acquiescence, delay, estoppel and, in particular, the contention that the Plaintiff's claims are barred by the rule against reflective loss and the alleged absence of locus standi. Those issues were extensively argued by learned counsel and require separate consideration before the Court can determine whether any of the substantive relief sought should ultimately be granted. Before doing so, I complete the present issue by addressing the proper plaintiff principle and the evidence of repayment, together with the discrete findings concerning the sales to Sang Tiap Thye Fishery Sdn Bhd. The Proper Plaintiff Principle and the Evidence of Repayment [363] The advances complained of were made out of the funds of the 2nd Defendant. Where a wrong is done to a company, the proper plaintiff is the company itself, and an individual shareholder has no standing to recover in his own name a loss sustained by the company: Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn Bhd & Ors [1995] 3 MLJ 417, applying the rule in Foss v Harbottle (1843) 67 ER 189. The internal management of a company is, moreover, a matter with which the Court will not lightly interfere: Owen Sim Liang Khui v Piasau Jaya Sdn Bhd & Anor [1996] 1 MLJ 113. Any claim to recover such advances lay, if at all, by way of a derivative action under section 347 of the Companies Act 2016, and not by this personal action. The boundary marked by that rule is well settled. It governs wrongs done to the company, and actions brought, whether expressly or by their nature, by a member for the company's benefit; it has no application to an action brought by a member in his own name to vindicate a personal right belonging to him as a member: Ting Chong Maa v Chor Sek Choon [1989] 2 CLJ (Rep) 572; Edwards v Halliwell [1950] 2 All ER 1064. Its recognised exceptions — an act which is ultra vires or illegal, a fraud on the minority where the wrongdoers control the company, and an act requiring a special majority which has not been obtained — are equally established by those authorities; but each is an exception permitting a member to sue for the benefit of the company, and none converts a loss belonging to the company into one recoverable by the member personally. That the proper plaintiff for a wrong done to the company is the company itself was reaffirmed by the Federal Court in Koh Jui Hiong @ Koa Jui Heong & Ors v Ki Tak Sang @ Kee Tak Sang and another appeal [2014] 3 MLJ 10, which held that a statutory remedy may not be used to outflank the rule in Foss v Harbottle, that a derivative action is one in which relief is sought on behalf of, and for the benefit of, the company, and that the derivative element must be an incident of the matters complained of. [364] That principle is reinforced by the state of the evidence. The court-appointed investigative accountant (SP-11) and the accountant of the 2nd Defendant (SP-10) confirmed that the advances to the 3rd Defendant had been repaid in full before this action was commenced; the inter-company balances were recorded in the audited accounts for the financial years 2014 to 2018; and SD-7, who confirmed the same in examination-in-chief, was not cross-examined upon it, so that his evidence stands unchallenged: Wong Swee Chin v Public Prosecutor (supra). Several of the sums pleaded in paragraph 25 of the Statement of Claim were shown not to be advances by the 2nd Defendant at all the sum of RM218,517.44, the sum of RM650,000 and the sum of RM149,564 being, on the unchallenged evidence of SP-11, moneys advanced to the 2nd Defendant rather than by it while the advance to the 4th Defendant, a wholly-owned subsidiary, was applied to acquire land in Melaka which the Plaintiff (SP-1) accepted had appreciated to the company's benefit, the 4th Defendant being treated as a nominal defendant only. The repayment of the advances to the 3rd Defendant is recorded in the forensic investigation report of SP-11 dated 23 November 2023, at pages 282 to 301 of Enclosure 406; and the sums said to have been advanced to the 5th and 6th Defendants were, on the unchallenged evidence, moneys lent by those Defendants to the 2nd Defendant and since repaid by it, so that the claim against them is not made out. The defence evidence is to the same effect. The 1st Defendant set out the repayments seriatim (Enclosure 394, Q&A 20 and 21): the payments received from the 6th Defendant in the years 2008, 2009, 2011 and 2012 as the return of the 2nd Defendant's investment upon completion of the housing project undertaken by the 6th Defendant; the sums of RM1,400,000.00 (March to June 2014), RM1,500,000.00 (April 2015), RM3,220,000.00 (February to December 2016) and RM1,500,000.00 (January to October 2017) paid to the 3rd Defendant to comply with that company's tender work conditions, each fully repaid to the 2nd Defendant; the denial that any loan of RM2,033,587.21 was given to the 6th Defendant; the characterisation of the sums of RM650,000.00 and RM149,564.00 as debt repayments by the 2nd Defendant to the 5th and 6th Defendants respectively; and the repayment in full of the loans of RM70,000.00 to a younger brother and RM190,000.00 to Siang Teck Nam, the latter repaid on 21 August 2019 — the documentary evidence of the repayments being, he said, contained in the Additional Bundle of Documents (Enclosure 393). Koh Kim Ho gave matching evidence of the same payments (Enclosure 395, Q&A 4), and Norzuraidah binti Karim, the sole director and shareholder of the 5th Defendant since 4 October 2019, deposed that upon the accounts of the 5th Defendant no debt remains owing to the 2nd Defendant, that company having been dormant since 2018 and without assets (Enclosure 397, Q&A 1 to 3). [365] I have not, however, overlooked the evidence of SP-11 that the directors' remuneration recorded in the general ledger diverged from that declared in the EA Forms lodged with the revenue, a discrepancy which the 1st Defendant was unable to explain. That evidence establishes no pleaded cause of action vested in the Plaintiff personally, and any loss is the company's; it is, nonetheless, of a piece with the broader picture of financial control concentrated in the 1st Defendant, to which I return under Issue 7. This conclusion is reinforced by principle. The duty to prepare the company's accounts is owed to the company and not to its members individually, and a shareholder has no standing to maintain a personal action complaining of the manner in which the accounts were prepared, a matter of business judgment with which the Court will not interfere in the absence of bad faith: Devlin v Slough Estates Ltd & Ors [1983] BCLC 497. The discrepancy was, moreover, neither pleaded nor made the subject of any relief, and was not put to SP-10, the accountant of the 2nd Defendant called by the Plaintiff; if any discrepancy existed, its investigation lay within the remit of SP-11 as the Court-appointed expert. The concentration of financial control is further illustrated by the Bank Analysis at Section 14 of the report (Enclosure 407), which traces, month by month across the financial years 2018 to 2021, the sources and application of the 2nd Defendant's banking funds - including substantial fixed-deposit placements and inter-account transfers - the administration of which lay with the 1st Defendant. [366] The Plaintiff meets the proper-plaintiff objection in reply upon a distinct footing. He contends that the advances to the 3rd, 5th and 6th Defendants were not merely irregular but unlawful, being made in contravention of Object Clause 15 of the Memorandum of Association of the 2nd Defendant, without any resolution of the Board, without interest, without security and without terms of repayment, as confirmed by SP-11 and SD-1; and that, the transactions being thus tainted by illegality, the rule in Foss v Harbottle does not stand in the way of a personal action. He submits further that he does not seek recovery of the principal, which is admitted to have been repaid, but an account of the profits made by the 1st Defendant and his associated companies through the use of the company's funds, for which purpose he asks that Mr Jimmy Ung of Crowe be appointed to take the account; and he relies in support upon Lee Ah Kong. To the like effect he points to the two advances to Lee Yan Fern, of RM268,166.70 on 21 December 2016 and RM200,000 on 14 January 2019, recorded at page 301 of the report of SP-11 (exhibit P142) and there found to be non-trade in nature and unsupported by any resolution.The 1st Defendant's evidence being that the advance of RM268,166.70 made on 21 December 2016 was fully repaid to the 2nd Defendant on 11 January 2017: Enclosure 394, Q&A 20(d). In support of the illegality so alleged the Plaintiff relies upon Kheamhuat Holdings Sdn Bhd v The Indian Association, Penang [2006] 2 CLJ 1040, where it was held that the memorandum is akin to the statute of incorporation of the company, that an attempted departure from its provisions is ultra vires and cannot be validated by the assent of the members in general meeting or by estoppel, and that in construing its objects and clauses the ordinary rules of construction of documents apply. [367] I have weighed these submissions and remain of the view I have already expressed. The illegality exception to the rule in Foss v Harbottle permits a member to sue where the impugned act is incapable of ratification; it does not transform into a personal claim a loss which, upon analysis, is sustained by the company. An account of profits earned through the misapplication of the company's funds is, by its very nature, a remedy vindicating the company's interest, recoverable if at all by a derivative action under section 347 of the Companies Act 2016, as I have held at [363]. The doctrine of ultra vires, in any event, no longer avoids a transaction once it has been completed and executed, the company being possessed in law of full legal capacity; and the principal having been repaid, no subsisting loss to the company in respect of the principal remains to be recovered. The discrete complaint concerning the advances to Lee Yan Fern, not having been pleaded as a separate head of relief, I do not finally determine; it falls, together with the wider pattern of unilateral financial dealing, to be weighed under Issue 7, where it lends further support to the conclusion I reach upon the breakdown of mutual confidence. To the extent that the Plaintiff founds upon the illegality of the impugned advances, I accept that a court may take cognisance of an illegality appearing upon the evidence even where it has not been pleaded by the party against whom it operates: Wai Hin Tin Mining Co Ltd v Lee Chow Beng [1968] 2 MLJ 251. That power goes only to the court's refusal to lend its aid to an illegal transaction; it neither enlarges the Plaintiff's standing nor converts a loss sustained by the 2nd Defendant into one recoverable by him in his personal capacity. The exception upon which the Plaintiff would rely is that recognised in Hurley & Anor v BGH Nominees Pty Ltd & Ors (1982) 6 ACLR 791, where it was held that a shareholder has a sufficient interest to sue on the company's behalf under the fraud-on-the-minority exception to the rule in Foss v Harbottle where the wrongdoer controls the company so that the wrong cannot be ratified, and that the availability of a personal remedy in another capacity does not preclude a derivative action. That exception, however, permits a member to sue for the benefit of the company; it does not convert the company's loss into one recoverable by him personally. The Sales to Sang Tiap Thye Fishery Sdn Bhd and the Lost Profit Analysis [368] A discrete body of evidence, distinct from the inter-company advances already considered, emerged from the forensic examination undertaken by the Court-appointed investigative accountant, SP-11, into the sales made by the 2nd Defendant to Sang Tiap Thye Fishery Sdn Bhd ("STT"). Those findings are recorded in the forensic investigation report of SP-11 (exhibit P142), at Sections 10.4.2.6 and 10.5, appearing at pages 237 to 260 of Enclosure 405. STT is not itself a party to this action; the Plaintiff relies upon these findings in support of his broader complaint that the affairs and resources of the 2nd Defendant were applied for the benefit of interests connected with the 1st Defendant. The detailed working underlying that analysis is contained in the further parts of SP-11's forensic investigation report now before the Court at Enclosures 407 to 411, comprising the Bank Analysis (Section 14), the Sales Transaction Test and the Detailed Verification of Sales Transaction (Sections 17.3 and 17.4), the analysis of Cost of Goods Sold and Purchases (Section 18) and the Product Gross Profit and Gross Profit Margin analysis (Section 19.2). I have examined those enclosures and refer to them in the paragraphs that follow. [369] SP-11 identified four features of the dealings with STT which were said to be anomalous. First, none of the invoices issued to STT bore any credit term. Secondly, whereas the first recorded transactions with STT occurred only in the financial year 2020, with sales totalling RM473,000, the sales to STT surged in the financial year 2021 to RM1.576 million, notwithstanding that the total collection from STT over the two year period was no more than RM600,000; it appeared commercially unusual for the 2nd Defendant to extend so substantial a credit exposure to a customer whose payments so significantly lagged its purchases. Thirdly, the business address of STT was found to be identical to that of Hockjaya Sdn Bhd at No. 313, Jalan Parameswara, 75000 Melaka. Fourthly, the number of items comprised in each invoice to STT was markedly higher than in the ordinary run of the 2nd Defendant's sales, which typically comprised fewer than 20 items; the invoices to STT frequently exceeded 20 items and, in certain instances, reached as many as 85 items, a sample of seventeen invoices yielding an average of 41 items. The Detailed Verification of Sales Transaction bears out the escalation. In the financial year 2020 the dealings with STT appear in that verification as a single transaction ranked sixteenth by value, being invoice 00637822 dated 10 August 2020 in the sum of RM64,954 (Section 17.4.7, Enclosure 409); in the financial year 2021, by contrast, STT recurs among the very highest-value sales of the 2nd Defendant, occupying ranks eight to thirteen upon invoices ranging from RM110,411 to RM176,757 — the largest being invoice 00658917 dated 26 April 2021 in the sum of RM176,757 — each of which is there shown to comprise a large number of separate line items (Section 17.4.8, Enclosures 409 to 410). This corroborates both the surge in the year 2021 and the unusual composition of the invoices to which SP-11 drew attention. [370] I record the third of those matters as SP-11 expressed it, and no further. The correspondence between that business address and the name of the 3rd Defendant, Hocjaya Sdn Bhd, is suggestive; but the report spelt the entity "Hockjaya", no independent identification of the two was established in the evidence before me, and I make no conclusive finding that STT and the 3rd Defendant share premises. The anomaly nonetheless retains its evidential character as a matter calling for explanation. [371] The more significant aspect of SP-11's work concerned the profitability of the sales to STT. SP-11 reviewed the STT sales invoices for the financial years 2020 and 2021, isolated those products whose sales exceeded RM10,000, and compared the selling prices taken from the invoices with the average cost prices derived from the 2nd Defendant's own UBS accounting system. The comparison disclosed that a substantial number of products had been sold to STT at prices below their cost to the 2nd Defendant, producing negative gross profit margins. To take a single illustration, item SEP C060 (31/40 frozen shrimp meat) was sold to STT for RM13,134.00 against an estimated cost of RM24,695.90, yielding a gross loss of RM11,561.90 and a negative margin of some 88 per cent; other products were sold at margins as adverse as negative 155 per cent. When the margins realised on the sales to STT were set against those earned upon the same products sold to the 2nd Defendant's customers generally, the STT margins were consistently and materially the lower, the general sales yielding positive margins where the STT sales did not. The methodology by which SP-11 arrived at these figures — the isolation of individual products, the matching of each recorded sale against the average cost of the corresponding purchases drawn from the 2nd Defendant's UBS accounting system, and the computation of gross profit and gross profit margin transaction by transaction is set out and performed at large in the Product Gross Profit analysis at Section 19.2 of the report (Enclosures 410 to 411), where the exercise is verified item by item across the financial years under examination. [372] I approach this material with the same caution I have applied to the inter-company advances. SP-11's function was to analyse and to quantify, not to pronounce upon legality, and sales below cost may, taken in isolation, admit of more than one explanation. Even so, the persistent sale of the company's stock to a single customer at prices below cost, without credit terms and upon a rapidly escalating and largely uncollected exposure, is not readily explicable as ordinary commercial dealing; and the 1st Defendant, upon whom the pricing and administration of the company's sales rested, offered no satisfactory account of it. To that extent the STT findings are consistent with, and reinforce, the broader pattern of financial control concentrated in the 1st Defendant which I have already described. [373] The loss so occasioned was, however, a loss to the 2nd Defendant in the diminution of its trading profit, and not a loss suffered by the Plaintiff in his personal capacity. For the reasons I have given in relation to the proper plaintiff rule, any recovery in respect of that loss lies, if at all, with the company whether by a derivative action under section 347 of the Companies Act 2016 or otherwise and not by way of this personal action: Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn Bhd & Ors (supra), applying the rule in Foss v Harbottle (supra). The STT findings therefore found no separate head of personal relief. They take their place, together with the wider evidence of unilateral financial dealing, as part of the factual matrix bearing upon the breakdown of mutual confidence to which I return under Issue 7. [374] I record, in fairness to the 1st Defendant and for completeness, a feature of the same enclosures which cuts the other way. STT appears in the report not only as a customer of the 2nd Defendant but also, in the financial year 2021, as one of its suppliers, the Purchase Transaction Test recording a purchase by the 2nd Defendant from STT under invoice IV- 96374 in the sum of RM9,900 (Section 18.2.8, Enclosure 410). The dealings between the two companies were therefore reciprocal. A two-way trading relationship is not, of itself, evidence of impropriety, and I do not treat it as such. The gravamen of the Plaintiff's complaint lies not in the existence of dealings with STT but in their terms — the absence of any credit control, the rapidly escalating and largely uncollected exposure, and, above all, the persistent sale of the company's stock below cost — for which the report furnishes the detail I have described. Nothing in the reciprocal purchases displaces the conclusions I have drawn, which remain findings as to the loss sustained by the 2nd Defendant and not by the Plaintiff personally. Issue 6: Whether the Plaintiff's Claims Are Defeated by Acquiescence, Delay, Estoppel, Waiver or the Rule against Reflective Loss [375] The Defendants further contend that even if the factual allegations advanced by the Plaintiff are accepted, the Plaintiff is nevertheless precluded from obtaining relief by reason of his own conduct. The principal affirmative defences advanced may conveniently be grouped under four broad headings:

(a) acquiescence and delay;

(b) waiver and estoppel;

(c) locus standi; and

(d) the rule against reflective loss. [376] Each defence requires separate consideration. Acquiescence, Estoppel and Reflective Loss the Governing Principles [377] The affirmative defences of acquiescence and estoppel depend upon proof that the Plaintiff knew the material facts, appreciated his rights and intentionally refrained from asserting them so as to lead the 1st Defendant to act on the belief that they would not be enforced. The authorities relied upon Re Duomatic Ltd (supra), Ever-Yield Sdn Bhd v Yap Keat Choon (supra) and WTK Realty Sdn Bhd v Kathryn Ma Wai Fong & Anor (supra) all proceed upon informed and unanimous assent. Whether that foundation exists here falls to be tested against the findings already made under Issue 3 concerning the Plaintiff's illiteracy in English, his reliance upon the 1st Defendant for the company's administration and the continuance of practical equality for more than two decades after the impugned allotment. The principle in Soo Boon Siong v Saw Fatt Seong & Ors (supra), that delay does not bar a member who only later appreciates the significance of an unequal allotment, applies with equal force to the defence of delay. [378] As to reflective loss, the rule prevents a member from recovering personally a loss which is merely the reflection of a loss suffered by the company and which the company is entitled to recover; it does not bar a claim founded upon the breach of a duty owed to the member personally: Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn Bhd & Ors (supra); Tung Ah Leek & Anor v Perunding DJA Sdn Bhd & Ors (supra). The scope of the rule was delineated by the Federal Court in Rinota Construction Sdn Bhd v Mascon Rinota Sdn Bhd & Ors [2018] 1 MLJ 141, which held that the reflective loss principle applies only where the company itself has suffered a loss, caused by a breach of a duty owed both to the company and to the member and which the company is entitled to recover, such that a question of double recovery arises; it has no application where the loss is that of the member alone and the company has no claim of its own. It is by these principles, together with the findings under Issue 3, that the defences which follow fall to be measured.

(a) Acquiescence and Delay [379] Learned counsel for the Defendants submit that the Plaintiff knowingly permitted the impugned corporate arrangements to remain in place for many years without objection. [380] Particular reliance is placed upon the following matters:

(a) the allotment of the additional share in December 1995;

(b) the annual returns subsequently lodged;

(c) the audited financial statements issued over many years;

(d) the various banking arrangements;

(e) the appointment of directors;

(f) the inter-company advances; and

(g) the Plaintiff's continued participation in the affairs of the company without commencing legal proceedings until 2020. [381] According to the Defendants, the Plaintiff cannot now challenge matters which he either expressly accepted or knowingly allowed to continue over such an extended period. [382] There is undoubtedly force in that submission. [383] Equity has long recognised that a party who knowingly stands by while another alters his position may, in appropriate circumstances, be precluded from subsequently asserting inconsistent rights. [384] However, acquiescence is not established merely because time has passed. [385] The requirements are those which I have stated at [377] above; mere lapse of time, without knowledge, appreciation and intentional forbearance, does not suffice. [386] In the present case I am not satisfied that those requirements have been fully established. [387] The evidence demonstrates that for many years the parties continued conducting the family business substantially upon the same basis notwithstanding the formal corporate documents. [388] The Plaintiff remained actively involved in the operational side of the business. [389] The relationship between the brothers remained substantially intact. [390] It was only after the relationship deteriorated that the practical consequences of the disputed one share,the asserted majority control and the various corporate decisions assumed real significance. [391] In my judgment, the Plaintiff's delay must therefore be viewed in that factual context, consistently with the reasons I have developed at [218] to [222] under Issue 3. [392] It cannot simply be measured by reference to the date appearing upon the statutory documents. [393] Accordingly, whilst delay undoubtedly occurred, I do not consider that delay, standing alone, bars the Plaintiff's claim.

(b) Waiver and Estoppel [394] The Defendants further submit that by signing numerous corporate documents over many years, the Plaintiff must be taken to have waived any objection to the subsequent exercise of majority rights. [395] Again, this submission cannot be accepted in its absolute form. [396] There is an important distinction between:

(a) signing corporate documentation in the ordinary course of business; and

(b) intentionally relinquishing fundamental proprietary rights. [397] The evidence before this Court does not establish that the Plaintiff expressly agreed that the 1st Defendant should thereafter exercise unrestricted majority control over the affairs of the company. [398] Indeed, much of the Plaintiff's case is founded upon the assertion that he trusted the 1st Defendant and signed documentation without appreciating that the additional one share would subsequently be relied upon in that manner. [399] Whether that explanation ultimately succeeds is a matter already considered. [400] However, I am not persuaded that the evidence establishes any clear and unequivocal waiver of the Plaintiff's alleged rights. [401] Equally, the Defendants have not established the necessary elements of estoppel. [402] There is no satisfactory evidence that the Plaintiff represented to the 1st Defendant that he would never challenge the disputed allotment or the subsequent exercise of majority powers. [403] The defence of estoppel therefore cannot succeed in the manner advanced.

(c) Locus Standi [404] The Defendants also contend that many of the complaints advanced by the Plaintiff concern wrongs allegedly suffered by the 2nd Defendant rather than by the Plaintiff personally. [405] Consequently, it is submitted that the Plaintiff lacks locus standi to pursue those claims in his own name. [406] This issue arose repeatedly throughout the proceedings. [407] Indeed, the Notes of Proceedings record that earlier applications under Order 18 rule 19 seeking to strike out the action on, amongst others, grounds of locus standi had previously been dismissed before trial. During discussions concerning the Issues to be Tried, learned counsel for the Plaintiff submitted that those issues had effectively been determined, whereas learned counsel for the Defendants maintained that they remained available for consideration at trial. [408] In my judgment, the earlier interlocutory decisions do not finally determine the present issue. [409] An application to strike out requires the Court to assume the pleaded facts to be true. [410] The present trial, by contrast, requires the Court to determine whether those facts have actually been established upon the evidence. [411] Accordingly, the issue remains open for determination. [412] This accords with principle. An order made upon an application to strike out under Order 18 rule 19, which determines only that the claim is not so plainly unsustainable as to warrant summary disposal at the interlocutory stage, does not finally determine the substantive question after full consideration upon a complete record, and so gives rise to no issue estoppel in the subsequent trial: Baharudin bin Abdul Latip v Prudential Assurance Malaysia Bhd & Anor [2026] MLJU 2069. [413] The Plaintiff reinforces this conclusion in reply by reference to the prior history of these proceedings. The applications of the 3rd, 5th and 6th Defendants to strike out the action against them, in Enclosures 18, 20 and 22, were dismissed with costs after full hearing by the learned Judge previously seised of these proceedings on 11 February 2021, the sealed Orders being Enclosures 159, 161 and 163; that disposal was not appealed. In dismissing those applications His Lordship held, applying the established test, associated with Bandar Builders, that a claim will be struck out only where it is plain and obvious or obviously unsustainable, that there were triable questions of the fiduciary duty owed by the 1st Defendant to the Plaintiff and to the 2nd Defendant, of loans made from the company's funds without the approval of the Board, and of the oppression of the minority viewed in the historical perspective of the company from its formation in 1985; that the 1st to 6th Defendants were all necessary parties for the determination of the issues; and that the action, being a personal action commenced by writ and not a derivative action, did not engage sections 346 and 348 of the Companies Act 2016. The Plaintiff submits, relying upon Kondapuram Raghuram v Soo Peng @ Yew Soo Peng [2006] 7 MLJ 510 and Hii Heng Tuong Alphonsus v Lok Min Wah & Ors [1995] 4 MLJ 259, that the related corporate Defendants are accordingly proper and necessary parties to this action. The Plaintiff relies further upon Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241, in which the Supreme Court held that an objection that a shareholder lacks locus standi or a cause of action ought to be taken by an application to strike out under Order 18 rule 19, or as a preliminary issue under Order 33 rule 2, and not otherwise, and that the Court must in any event consider whether the shareholder falls within the exception to the rule in Foss v Harbottle applicable where the wrongdoers control the company. [414] That history is consistent with the conclusions I have reached. The dismissal of the strike-out applications determined only that the claims were not plainly unsustainable, and gives rise to no issue estoppel binding upon the trial, as I have explained at [412]. But the observations of the learned Judge previously seised of these proceedings as to the character of the action accord with my own finding that the Plaintiff's claim is, in substance, a personal action by writ to which sections 346 and 348 do not apply, and that the related Defendants, being the recipients of the impugned advances, are properly joined. To that extent the strike-out ruling supports the Plaintiff's standing to maintain the action in its personal aspect; it does not, of course, relieve him of the burden of proving that aspect of his case upon the evidence, which I have addressed under each issue in turn. In this connection the Plaintiff invoked the principle of res judicata, including in its constructive form, by which a matter decided at an earlier stage of proceedings, or which might and ought then to have been raised, binds the parties at a later stage: Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74. That principle does not avail him, for the reason already given: a dismissal upon a striking out application adjudicates only that the claim is not plainly unsustainable and does not determine the substantive question after trial, so that no issue estoppel arises from it. [415] Having considered the pleadings carefully, I do not accept the Defendants' submission that the Plaintiff's entire claim belongs exclusively to the company. [416] A substantial portion of the Plaintiff's claim concerns alleged breaches of rights said to arise personally between himself and the 1st Defendant as shareholders. [417] Those allegations are capable, in principle, of founding a personal action. A director who complains that he has been wrongfully excluded or removed from the board asserts, in that respect, a personal right; being also a shareholder he has a sufficient proprietary interest to maintain such an action in his own name, the rights of a director being more than a mere spes successionis: Hayes v Bristol Plant Hire Ltd [1957] 1 WLR 499. [418] However, certain complaints relating to the misuse of company assets, diversion of corporate funds and financial losses allegedly suffered by the company itself plainly require closer scrutiny. [419] Those matters overlap with the next issue concerning reflective loss.

(d) The Rule Against Reflective Loss [420] Learned counsel for the Defendants submit that many of the losses alleged by the Plaintiff are no more than reflections of losses said to have been suffered by the 2nd Defendant. [421] Consequently, they contend that the Plaintiff cannot recover personally for losses properly belonging to the company. [422] The Plaintiff responds that this submission misunderstands the nature of his claim. [423] According to the Plaintiff, he is not suing merely because the company has suffered financial loss. [424] Rather, he complains that the 1st Defendant breached obligations owed directly to him as shareholder and director by excluding him from management, disregarding their mutual understanding and unlawfully asserting majority control. [425] accept that distinction. [426] The rule against reflective loss does not prohibit every claim brought by a shareholder. [427] Its scope is that which I have already stated at [378] above. [428] However, where the shareholder establishes breach of a duty owed personally to him, the rule has no application merely because the company also suffered loss. [429] The critical inquiry therefore becomes one of characterisation. [430] Having analysed the pleadings and evidence, I am satisfied that the Plaintiff advances both categories of complaint. [431] Certain allegations, particularly those concerning:

(a) exclusion from management;

(b) denial of participation;

(c) breach of the alleged understanding;

(d) wrongful assertion of majority rights; and

(e) interference with his personal rights as shareholder, are plainly personal in nature. [432] Those complaints are not defeated by the rule against reflective loss. [433] On the other hand, allegations complaining solely that company assets were depleted or that the company entered into disadvantageous transactions require considerably greater caution. [434] Unless such allegations are connected to an independent breach of duty owed personally to the Plaintiff, they properly belong to the company itself the advances pleaded in paragraph 25 of the Statement of Claim, considered under Issue 5, being the clearest instance, their remedy lying, if at all, in a derivative action. [435] I therefore do not accept either party's submissions in their entirety. [436] The rule against reflective loss neither defeats the Plaintiff's entire action nor is it wholly irrelevant. [437] It operates only to prevent recovery where the alleged loss belongs properly to the company rather than to the Plaintiff personally. Conclusions on Issue 6 [438] For these reasons I conclude as follows:

(a) the Plaintiff's action is not barred by delay or acquiescence;

(b) the Defendants have not established waiver or estoppel;

(c) the Plaintiff possesses sufficient locus standi to pursue those claims founded upon breaches of duties allegedly owed personally to him;

(d) however, complaints which relate solely to losses suffered by the company must be approached consistently with the rule against reflective loss and cannot automatically be recovered by the Plaintiff in his personal capacity. [439] These conclusions leave for determination the ultimate question in the litigation, namely whether, having regard to the evidence as a whole, the Plaintiff has established the pleaded breaches entitling him to the declarations and consequential relief sought in the Statement of Claim. [440] It is to that final issue that I now turn. Issue 7: Whether the Plaintiff Is Entitled to the Reliefs Claimed [441] Having considered the evidence, the pleadings, the documentary exhibits, the contemporaneous correspondence, the expert evidence, the admissions elicited during crossexamination and the applicable principles of law, I now turn to determine whether the Plaintiff has discharged the burden of establishing the reliefs sought. [442] It is trite that the Plaintiff bears the legal burden of proving his case on the balance of probabilities. The Court is not required to determine whether the Plaintiff's version is theoretically possible or whether the Defendants' version is entirely free from criticism. Rather, the Court must determine which version is more probable having regard to the totality of the evidence. The legal burden rests throughout upon the Plaintiff, who asserts the facts upon which his claim depends: sections 101 to 103 of the Evidence Act 1950. Where a fact is especially within the knowledge of a party, the burden of proving it lies upon him: section 106 of that Act. [443] In undertaking that exercise, I have borne in mind that this litigation concerns events extending over almost four decades. Understandably, certain witnesses were unable to recall specific details of individual meetings and transactions. In such circumstances, the contemporaneous documentary evidence assumes particular importance. [444] Where oral testimony conflicts with contemporaneous documents created at the material time, the latter will ordinarily provide the more reliable guide unless compelling reasons exist to conclude otherwise. [445] Likewise, where a witness repeatedly professes an inability to remember events which are otherwise clearly reflected in contemporaneous correspondence, the Court is entitled to prefer the documentary record. Credibility of the Principal Witnesses [446] This trial came before me part-heard. I have had the advantage of observing the demeanour of the witnesses who testified before me, that is to say from SP-10 onwards, including the witnesses called for the defence. For the witnesses whose evidence was taken before the learned Judge previously seised of these proceedings, I have had the full benefit of their witness statements and of the complete Notes of Proceedings, which I have studied with care. To that extent, my assessment of those witnesses rests not upon demeanour but upon the internal consistency of each account and, above all, upon its consistency with the contemporaneous documents, in accordance with the approach I have described. [447] The Plaintiff gave his evidence in a generally straightforward manner. Although his recollection of certain historical events was understandably imperfect, his account concerning the evolution of the family business, the equal participation of the brothers and the subsequent deterioration of their relationship remained substantially consistent with the documentary evidence. [448] The Plaintiff readily accepted matters adverse to his own case where they were objectively established. He acknowledged, for example, the existence of the disputed corporate resolutions, the statutory filings and the fact that he had signed various corporate documents. His complaint was directed not to the authenticity of those documents but to the use subsequently made of them. [449] The 1st Defendant, for his part, gave his evidence in a composed and self-assured manner. [450] However, there were numerous occasions during crossexamination where he repeatedly answered that he could not remember receiving letters, attending meetings or responding to correspondence, only later to accept documents demonstrating precisely those matters. [451] A striking example concerns the sequence of correspondence between June and August 2019. [452] Initially, the 1st Defendant stated that he could not remember receiving the Plaintiff's letter of 19 June 2019. [453] Subsequently, when confronted with his own reply dated 23 July 2019, he accepted that he had indeed responded to the Plaintiff's earlier correspondence. [454] Similarly, the 1st Defendant initially professed uncertainty concerning the meeting proposed for 29 July 2019 but later accepted both the meeting itself and the proposal concerning the splitting of the company. [455] These inconsistencies do not necessarily demonstrate dishonesty. [456] However, they do diminish the reliability of those portions of his evidence resting solely upon his present recollection rather than contemporaneous documents. [457] By contrast, I found the evidence of the company secretary, Ms Boon Gwek Neo, to be careful, measured and entirely objective. [458] She readily accepted matters beyond her knowledge and made no attempt to speculate concerning events preceding her involvement with the company. I accept her evidence without reservation. Her witness statement (Enclosure 564) was of a piece with her oral evidence: confined to the corporate records, precise as to the allotments and the Annual Returns, and frank in the acknowledgment that she did not know why the allotment of 29 December 1995 was made in unequal proportions. [459] Similarly, the subpoenaed bank officers gave honest evidence confined strictly to matters within their respective knowledge. They properly declined to speculate beyond the banking records available to them. Their evidence was of assistance principally in explaining banking procedures rather than determining the substantive disputes between the parties. Of the remaining defence witnesses, Koh Kim Ho (Enclosure 395) and Norzuraidah binti Karim (Enclosure 397) gave short and essentially documentary evidence confined to the affairs of the 3rd, 5th and 6th Defendants and the repayment of the advances, which I accept so far as it goes. The auditor, Mr Sim Lian Hing (Enclosure 565), gave his evidence with professional restraint; he could not remember whether the Plaintiff and his son had met him concerning the one-share differential (Q&A 16), and he did not agree with the Plaintiff's evidence that he had been deceived in relation to the extra share (Q&A 17). His defence of the draft accounts I have already addressed; it goes to weight and does not detract from his general credit. Whether the Plaintiff has Established the Core of His Case [460] In my judgment, the Plaintiff has established several fundamental propositions. [461] First, he has established that the 2nd Defendant originated as the continuation of the family business previously conducted by the parties. [462] Secondly, he has established that the relationship between himself and the 1st Defendant was founded upon mutual trust and confidence extending over many years. [463] Thirdly, he has established that equality between the brothers characterised the practical management of the company for a considerable period notwithstanding the formal corporate structure. [464] Fourthly, he has established that by 2019 that relationship had fundamentally broken down. [465] Fifthly, he has established that the 1st Defendant progressively assumed substantially greater practical control over the affairs of the company. [466] However, the Plaintiff has not succeeded in establishing every allegation contained in the Statement of Claim. [467] In particular, I am not persuaded that every inter-company transaction complained of constituted an actionable breach of duty. [468] Nor am I satisfied that every corporate decision taken after 1995 was necessarily unlawful merely because the Plaintiff disagreed with it. [469] The evidence demonstrates that the business was managed informally over many years. That informality inevitably complicates attempts to evaluate individual transactions many years after they occurred. The Reliefs [470] It follows that the Court must distinguish between reliefs properly flowing from the findings actually made and those extending beyond the evidence. [471] In my judgment, the Plaintiff is entitled to relief to the extent that the Court recognises and vindicates his personal rights as shareholder arising from the pleaded contractual and constitutional relationship between the parties. [472] However, relief directed solely towards losses properly belonging to the company itself cannot automatically be granted in this personal action. [473] Equally, relief founded upon allegations not established upon the evidence must necessarily fail. The Alternative Prayer [474] The Plaintiff also seeks alternative relief founded upon just and equitable principles. [475] During the course of the proceedings considerable discussion took place regarding the distinction between:

(a) a statutory oppression action; and

(b) the alternative prayer pleaded in the present proceedings. [476] As earlier explained, I have determined this action upon the pleaded causes of action and not as a statutory oppression action. [477] Nevertheless, the evidence demonstrates a profound breakdown in the relationship of mutual confidence which originally characterised the parties' association. [478] Whether that breakdown ultimately justifies the grant of the alternative relief depends not merely upon the existence of disagreement but upon the totality of the findings made throughout this judgment. [479] In considering that issue, I have also borne in mind that winding up is an exceptional remedy. [480] It is ordinarily a remedy of last resort. [481] Before such relief is granted, the Court must be satisfied that no lesser remedy adequately protects the rights of the parties. [482] Having regard to the findings already made, I shall return to this question when formulating the final orders of the Court. The Reliefs Sought, the Limits of the Court's Power and the Alternative Prayer [483] When the individual prayers are examined against these conclusions, several cannot be granted. The prayers seeking the amendment of Article 68, and the wider relief in paragraphs 40(1), (3) and (4) and (24) of the Statement of Claim, invite the Court to rewrite the Articles, which it has no power to do; the avenue for alteration lies with the members by special resolution under section 36 of the Companies Act 2016, the conditions for the Court's intervention under section 37(1) being unmet: Cherry Tree Investment Ltd v Landmain Ltd (supra); Chew Meu Jong v Lysaght (Malaysia) Sdn Bhd (supra). The prayers in paragraphs 40(11) and (12) concerning the bank mandate engage Articles 104 and 105B and are matters of internal management with which the Court will not interfere: Owen Sim Liang Khui v Piasau Jaya Sdn Bhd & Anor (supra). [484] The prayer in paragraph 40(2), that the notice dated 28 June 2019 convening the 33rd Annual General Meeting be declared null and void for breach of section 334 of the Companies Act 2016, is not made out: the 33rd Annual General Meeting was never held, and no evidence was adduced to support the declaration sought, a pleaded averment requiring proof: Wong Kim Lan & Ors v Chai Nyuk Kong & Ors (supra). The prayer in paragraph 40(17), that the related defendants repay all sums to the 2nd Defendant, fails upon the unchallenged evidence of repayment already discussed. The prayers in paragraphs 40(9) and (10) concerning the single share fall to be determined in accordance with my findings under Issues 3 and 6 and, as recorded at [244], are disposed of in the declaratory terms of order (b) below. [485] For completeness, certain further prayers in the Statement of Claim fall to be expressly disposed of, so that none is left unaddressed. The prayer in paragraph 40(5), for a declaration that the 2nd Defendant is a domestic family company in the nature of a quasi-partnership, succeeds upon my findings under Issue 1 and is granted in the declaratory terms of order (a) below. The prayers in paragraphs 40(6), (7) and (8), which concern the cessation and the continuation of the Plaintiff's monthly salary, have been overtaken by events: as recorded at [305], the mandatory order of this Court made on 07.01.2022 secured payment of the arrears and the continuation of the salary, which has since been paid in full, and no further order upon those prayers is necessary. The prayers in paragraphs 40(13) and (14), for the delivery of the fixed deposit receipts, bank statements and the corporate records of the related Defendants, no longer serve any practical purpose: the audited accounts were furnished, in part pursuant to the interlocutory injunction orders, as recorded at [284], and upon the winding up ordered below the custody of the 2nd Defendant's records and financial affairs will pass to the liquidator; those prayers are accordingly refused. The prayers in paragraphs 40(15) and (16), for the appointment of an accountant to investigate the accounts of the corporate Defendants and for the delivery of records to him, were likewise overtaken by the appointment in these proceedings of the Court-appointed investigative accountant (SP-11), whose forensic reports (exhibit P142; Enclosures 405 to 411) are before the Court and have been fully considered under Issue 5; no further investigation is warranted. The general prayers in paragraphs 40(25), (26) and (27), for such further relief as the Court thinks fit, for liberty to apply and for costs, are addressed by order (i) below and by the order for costs made at the conclusion of this judgment. [486] The Statement of Claim further prays, in paragraph 40(24), for damages. This was not a bifurcated trial; no direction for the separate assessment of damages was given before its commencement, and the Plaintiff led no evidence quantifying any loss. In those circumstances damages cannot be separately assessed or awarded: Kemajuan Masteron Sdn Bhd v Chong Nge Wei & Ors [2020] MLJU 547. The prayer for damages is accordingly refused. [487] The Plaintiff puts his complaint concerning Article 68 in reply upon a footing distinct from the prayers I have just considered. He contends that the Article, in so far as it permits a person who is not a member to be appointed a proxy, is ultra vires and void as offending section 149(1) of the Companies Act 1965 and section 294(1) of the Companies Act 2016, and that his prayer is therefore to be understood not as an invitation to the Court to rewrite the constitution but as a request for a declaration that the Article is, to that extent, void. He relies upon Lim Hean Pin v Thean Seng Co Sdn Bhd & Ors [1992] 2 MLJ 10, and observes that, before action, he had by his pre-action correspondence (exhibit P4, paragraph 6(i)) requested the 1st Defendant jointly to instruct the company secretary to amend the Article, a request which went unanswered. The 1st Defendant's evidence, for its part, was that the Plaintiff had never suggested or discussed with him any amendment of Article 68, and that from incorporation the businesses and meetings of the 2nd Defendant have been carried on in accordance with the Articles of Association (Enclosure 394, Q&A 27) an assertion which must, however, be read subject to the request in fact conveyed by paragraph 6(i) of exhibit P4. [488] So understood, the objection at [483], that the Court will not rewrite the Articles, does not arise, for a declaration of voidness operates upon the law and not by way of amendment. The difficulty for the Plaintiff lies elsewhere. The 33rd Annual General Meeting, at which the proxy provision might have been invoked to his prejudice, was never held; no proxy was in fact appointed under the Article; and no concrete prejudice flowing from it has been demonstrated upon the evidence. A declaration as to the validity of a constitutional provision will not be granted in the abstract, divorced from any operative effect upon the rights of the parties. For that reason, and consistently with my conclusion at [484], the declaratory relief sought in respect of Article 68 is not made out. [489] There remains the alternative prayer in paragraph 40(23) of the Statement of Claim for relief upon just and equitable grounds, pursuant to section 465(1)(h) of the Companies Act 2016. Winding up upon that ground is, as I have already observed at [479] to [481], an exceptional remedy and one of last resort, to be granted only where no lesser remedy will meet the justice of the case. Yet the evidence as a whole the loss of the mutual trust upon which this family enterprise was founded, the concentration of financial control in the 1st Defendant, the unexplained departure from equality and the irretrievable breakdown of the relationship by 2019 discloses the very destruction of the substratum of mutual confidence which that jurisdiction exists to address. It is, moreover, the relief which, in the alternative, was itself acknowledged to be the appropriate course should the Court find that the parties' mutual trust and the substratum of their understanding had been destroyed. It is in the light of that alternative, and of the findings made throughout this judgment, that the final orders of the Court fall to be formulated. That conclusion accords with the manner in which the just and equitable jurisdiction has been applied to incorporated family enterprises derived from a partnership, where the destruction of the mutual confidence upon which the company was founded has been held to warrant a winding up, winding up remaining nonetheless a drastic remedy: Re City Meat Co Pty Ltd (1983-1984) 8 ACLR 673. And where the members stand, in substance, upon an equal footing, the court will not lend its procedural powers to break the resulting deadlock in favour of one of them; the appropriate course in such a case is relief upon the just and equitable ground: Ross v Telford and another [1998] 1 BCLC 82. Measured against the demanding standard restated in Re Kong Thai Sawmill (Miri) Sdn Bhd (supra) and applied in Looh Siong Chee v Numix Engineering Sdn Bhd & Ors (supra), the conduct I have found — the unexplained departure from equality effected otherwise than by a good-faith exercise of the power to allot, the progressive exclusion of the Plaintiff from management which required a mandatory order of this Court to restore even his salary, and the concentration of the company's financial administration in the 1st Defendant — amounts to a visible departure from the standards of fair dealing and a violation of the conditions of fair play which a shareholder is entitled to expect, and not to mere disagreement with the decisions of a majority. I have also asked myself, as [481] requires, whether any lesser remedy would adequately protect the rights of the parties. A buy-out cannot be ordered in this action for the jurisdictional reasons given at [491]; damages have been refused for want of proof; and declaratory relief alone cannot restore the mutual confidence whose destruction I have found, the two brothers standing in equal and irreconcilable opposition. No lesser remedy will therefore meet the justice of the case. [490] It is convenient, before stating the orders, to record the precise relief the Plaintiff seeks and to address his primary prayer. By his reply the Plaintiff withdraws prayers 40(18) to 40(21) of the Statement of Claim and seeks an order in terms of prayers 40(1) to 40(17), together with the relief prayed in paragraph 40(22). The substance of prayer 40(22), as developed before me, is an order that the 1st Defendant purchase the Plaintiff's fifty per cent shareholding in the 2nd Defendant at a value to be fixed by an auditor appointed by the Court as at January 2019; the Plaintiff relies in this regard upon Re A Company and upon the lien he asserts over the 1st Defendant's shares. [491] I am unable to grant that primary relief in this action. An order compelling one member to purchase the shares of another is the characteristic remedy conferred by section 346 of the Companies Act 2016 upon a finding of oppression or unfair prejudice. This action was not brought as a petition under that section; it was commenced as a personal action by writ, and I have held, consistently with the prior ruling upon the strike-out applications, that sections 346 and 348 do not apply to it. That conclusion accords, moreover, with the manner in which the Plaintiff himself conducted the trial. As the Defendants observed by their solicitors' letter dated 01.07.2026 (Enclosure 592), in answer to paragraph 41 of the Plaintiff's reply submissions (Enclosure 589) dated 30.06.2026 by which an order that the 1st Defendant purchase the Plaintiff's fifty per cent shareholding in the 2nd Defendant was pressed it was repeatedly affirmed on the Plaintiff's behalf throughout the trial that his claim was not one for oppression under section 346 of the Companies Act 2016; and the buy-out for which that paragraph contends is the remedy conferred by section 346(2)(c) upon precisely such a claim. A party who disclaims the statutory cause of action cannot at the same time claim its characteristic statutory remedy. By his solicitors' letter in reply dated 06.07.2026 (Enclosure 594), the Plaintiff answered this objection. He contended that it was misconceived; that the Court possesses the jurisdiction and the power to make such orders, grant such reliefs and give such directions as the facts may warrant in the interest of justice; that an order of the kind sought falls within the prayer contained in paragraph 40(22) of the Statement of Claim; and that in other cases the Court has granted relief of that character under such a prayer, the Plaintiff seeking leave to place the supporting authorities before me on 15.07.2026. I have weighed these contentions, but they do not persuade me to a different conclusion. Neither the width of the Court's power to fashion relief nor the generality of a prayer for such further or other relief as the Court thinks fit is a source of jurisdiction in itself; each presupposes a jurisdiction into which the relief sought already falls, and neither can supply a remedy which the substantive law confines to a cause of action that the Plaintiff has, of his own election, disclaimed. As to the authorities the Plaintiff would place before me on 15.07.2026, I do not consider it necessary to defer judgment to receive them, for no authority can invest the Court with a jurisdiction to compel one member to purchase the shares of another outside the statutory remedy for oppression, which is the very jurisdiction the Plaintiff has throughout declined to invoke; and his entitlement is, in any event, fully met by the alternative relief granted below. The only alternative jurisdiction invoked, section 465(1)(h), empowers the Court to order that the company be wound up upon the just and equitable ground; it does not empower the Court to compel a purchase of shares. Re A Company, upon which the Plaintiff relies, does not supply a jurisdiction to order a buy-out outside the statutory remedy for oppression. The primary prayer for a purchase of the Plaintiff's shareholding therefore cannot be granted in this action; and the justice of the case falls to be met, as the Plaintiff himself recognised in framing the winding up as his alternative, upon the alternative prayer under section 465(1)(h), which for the reasons given at [489] I find to be made out. The Competence of the Court to Grant Relief Upon the Alternative Prayer [492] The conclusion that the alternative relief is made out obliges me to address a logically anterior question, namely whether an order winding up the 2nd Defendant may properly be made in an action framed as this one is. The action was commenced by writ and statement of claim, and I have held it to be a personal action to which the oppression jurisdiction under section 346 of the Companies Act 2016 does not apply. A winding up, by contrast, is a remedy affecting the company, its members and its creditors alike, the conduct of which is regulated by the Companies (Winding-Up) Rules 1972. The objection is a substantial one and I do not pass over it. [493] Two matters, each grounded in the pleadings and in the manner in which the parties conducted the trial, satisfy me that the objection does not preclude the relief. First, the winding up of the 2nd Defendant upon the just and equitable ground was not an afterthought. It was expressly pleaded as an alternative prayer in the Statement of Claim, and it was upon that pleaded alternative that the Plaintiff ultimately rested his case in his written submissions in reply, acknowledging (as I have recorded at [489] and [490]) that winding up was the appropriate course should the Court find the substratum of mutual confidence destroyed. The Defendants joined issue upon that prayer and addressed it in their submissions. The relief now granted is thus relief for which the parties contended, and upon which they were fully heard upon the evidence led at trial; it takes neither side by surprise. [494] Secondly, the jurisdiction invoked is one which the statute confers upon the Court at the instance of a member. By section 464 of the Companies Act 2016 a contributory is among those competent to seek a winding up, and by section 465(1)(h) the Court may order a winding up where it is of opinion that to do so is just and equitable. The Plaintiff, being a member and contributory of the 2nd Defendant, is a person upon whom that standing is conferred; and the ground has been established, not upon affidavit, but after a full trial of the evidence. The safeguards which the winding-up procedure exists to secure the orderly protection of the interests of members and creditors in the conduct of the liquidation - are preserved by directing that the winding up be carried into effect in accordance with that procedure, and are not imperilled by the order being made in the present action. [495] I would add this. The objection, at its highest, goes to the form in which relief is granted and not to the Plaintiff's entitlement to it. Were the objection to be acceded to, the proper course would not be to refuse relief but to declare that the just and equitable ground is established and to grant the Plaintiff liberty to present a petition to wind up the 2nd Defendant. I do not consider that additional step necessary; but I record that the substantive finding under section 465(1)(h), which for the reasons given at [489] I have made, stands independently of the procedural vehicle by which it is carried into effect. The consequential directions I make below are framed accordingly. That course is consonant with Order 1A and Order 2 rule 1(1) of the Rules of Court 2012, by which the Court is enjoined to have regard to the substantive justice of the case, and by which non-compliance as to form is treated as an irregularity which does not nullify the proceedings; the objection going, as I have said, to form and not to entitlement, it furnishes no ground for withholding relief which has been established upon a fully tried record. CONCLUSION [496] For the reasons set out above, I find that the Plaintiff has succeeded in establishing, on the balance of probabilities, significant aspects of his pleaded case concerning the nature of the parties' relationship, the existence of an underlying understanding governing the management of the 2nd Defendant and the subsequent departure from that relationship by the 1st Defendant. [497] However, the Plaintiff has not succeeded in proving every allegation advanced in the Statement of Claim. [498] The relief granted must therefore reflect only those matters established upon the evidence. [499] Accordingly, the specific declaratory and consequential prayers which have not been made out, or which concern losses properly belonging to the 2nd Defendant, are declined; and the relief sought in the alternative is granted. ORDERS OF THE COURT [500] For completeness, and reflecting the relief as finally framed by the Plaintiff, I record that prayers 40(18) to 40(21) of the Statement of Claim have been withdrawn; and that the primary prayer in paragraph 40(22), seeking an order that the 1st Defendant purchase the Plaintiff's shareholding in the 2nd Defendant, is declined for want of jurisdiction to order a buyout in an action of this character, for the reasons given at [490] and [491]. [501] Drawing together the findings made under each of the issues, I order and declare as follows:

(a) it is declared that the 2nd Defendant, Sung Hock Chan Sdn Bhd, was in its origin and operation a domestic family company in the nature of a quasi-partnership, founded upon the mutual trust and confidence of the Plaintiff and the 1st Defendant and upon their equal participation in its ownership and management, the prayer in paragraph 40(5) of the Statement of Claim being granted in these terms;

(b) it is declared that the single additional share allotted to the 1st Defendant on 29 December 1995 did not displace the equal participation of the Plaintiff and the 1st Defendant in the 2nd Defendant, and did not entitle the 1st Defendant to treat himself as possessed of unilateral majority control of the company or to exclude the Plaintiff from its management the prayers in paragraphs 40(9) and 40(10) of the Statement of Claim, concerning the single share, being disposed of in these declaratory terms and no further, as stated at [244];

(c) the prayers in paragraphs 40(1), (3) and (4) and 40(24) of the Statement of Claim, which seek the amendment of Article 68 and otherwise invite the Court to rewrite the constitution of the 2nd Defendant, are dismissed, the alteration of the constitution being a matter for the members by special resolution under section 36 of the Companies Act 2016 and the conditions for the Court's intervention under section 37(1) of that Act not being satisfied; in so far as paragraph 40(24) additionally seeks damages, the prayer is refused, this not having been a bifurcated trial and no loss having been proved: Kemajuan Masteron Sdn Bhd v Chong Nge Wei & Ors [2020] MLJU 547;

(d) the prayers in paragraphs 40(11) and 40(12) of the Statement of Claim concerning the bank mandate are dismissed as matters of the internal management of the 2nd Defendant;

(e) the prayer in paragraph 40(2) of the Statement of Claim, that the notice dated 28 June 2019 convening the 33rd Annual General Meeting be declared null and void for breach of section 334 of the Companies Act 2016, is dismissed;

(f) the prayer in paragraph 40(17) of the Statement of Claim, that the related corporate Defendants repay sums to the 2nd Defendant, is dismissed, those advances having been repaid and any residual claim belonging to the 2nd Defendant and recoverable, if at all, only by way of a derivative action under section 347 of the Companies Act 2016;

(g) the Plaintiff's claims in respect of the advances pleaded in paragraph 25 of the Statement of Claim are dismissed as claims for reflective loss properly belonging to the 2nd Defendant;

(h) upon the alternative prayer in paragraph 40(23) of the Statement of Claim, and pursuant to section 465(1)(h) of the Companies Act 2016, it is ordered that the 2nd Defendant, Sung Hock Chan Sdn Bhd, be wound up by the Court upon the just and equitable ground, the substratum of mutual confidence upon which the company was founded having been destroyed; and

(i) the parties are at liberty to apply for such consequential and ancillary directions as may be necessary to give effect to order (h), including directions for the appointment of a liquidator of the 2nd Defendant, such winding up to be carried into effect in accordance with the procedure prescribed by the Companies (Winding-Up) Rules 1972; and

(j) save to the extent of the declarations and orders set out above, the remaining prayers in the Statement of Claim are dismissed. COSTS [502] Costs are in the discretion of the Court and ordinarily follow the event, although the Court may depart from that rule where the justice of the case so requires: Order 59 rules 2(2) and 3(2) of the Rules of Court 2012. Success in this action has been divided, and it has been divided differently as against different Defendants. As against the 1st Defendant the Plaintiff has succeeded upon the substance of his case the quasi-partnership character of the 2nd Defendant, the mutual understanding of equal participation, the findings concerning the allotment of 29.12.1995, and the grant of the alternative relief of winding up though he has failed upon damages, the buy-out, Article 68, the notice convening the 33rd Annual General Meeting and the bank mandate. As against the 3rd to 6th Defendants he has wholly failed, the claims founded upon the inter-company advances failing as reflective loss belonging to the 2nd Defendant. The 2nd Defendant stands apart from both: it is not a contradictor but the company which is the subject of the winding up. [503] As between the Plaintiff and the 1st Defendant, the Plaintiff being the substantially successful party, and in order to spare the parties the further delay and contention of taxation, I assess his costs globally and order that the 1st Defendant pay the Plaintiff the sum of RM100,000.00. That sum reflects the Plaintiff's substantial but partial success in a lengthy and documentarily complex trial, and is consonant with the costs reasonably incurred in this litigation. [504] As between the Plaintiff and the 2nd Defendant, there shall be no order as to costs. The 2nd Defendant is not a party adverse to the Plaintiff in any true sense but the company ordered to be wound up, whose assets now fall to be administered for the contributories, the Plaintiff among them. A costs order against it would fall in substance upon the estate in which the Plaintiff himself shares, and would not serve the justice of the case. [505] As between the Plaintiff and the 3rd to 6th Defendants, the claims against those Defendants having failed in their entirety, costs follow the event and the Plaintiff shall pay their costs. Assessed individually, the costs of each of the 3rd, 4th, 5th and 6th Defendants would be fixed at RM40,000.00, amounting to RM160,000.00 in aggregate. But those Defendants were represented by the same solicitors as the 1st and 2nd Defendants, and the defence which defeated the claims against them was in substance common to the whole; to allow the full aggregate would compensate the same work four times over. I accordingly moderate the aggregate and order that the Plaintiff pay the 3rd to 6th Defendants the sum of RM100,000.00 in aggregate. The 3rd to 6th Defendants and the 1st Defendant being represented by the same solicitors, the parties are at liberty to set off this sum against the sum of RM100,000.00 payable to the Plaintiff under [503], the practical effect of which is that the two awards extinguish one another and no payment passes between them. CONCLUDING WORDS [506] I record my appreciation to learned counsel on both sides for their comprehensive submissions, for the meticulous preparation of the documentary record, and for the considerable assistance rendered to the Court throughout what has been an unusually lengthy and factually intricate commercial dispute. Dated: 15 July 2026 Anniim (YA Dato' Sri Raja Segaran A/L S. Krishnan) Judicial Commisioner High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Encik Mogan a/l Karupiah bersama Encik Anand Kumaar a/l Philip Shunmuga Nathan Tetuan Mogan Karupiah Peguambela dan Peguamcara 380 C, Sin Hoe Garden, Bukit Baru, 75150 Melaka. Lawyer For Defendants : Encik Rajpal Singh Ghai Tetuan Amir & Rajpal Ghai Peguambela dan Peguamcara Suite 2012, Level 20, Plaza Pengkalan, Jalan Tiong, Off Jalan Sultan Azlan Shah, 51100 Kuala Lumpur.