Ter Thian Tin v 1. Ter Wei Hong (WA-22NCC-256-06/2020)

TER WEI HONG (NRIC No: 960916-56-5473)

LEE SAIK CHOO (NRIC No: 550818-10-6466)

TER SIEW LAN (NRIC No: 710430-10-5678)

LIM SUK YEE (NRIC No: 810113-10-5592)

TER CHIN HENG (NRIC No: 601208-10-5359) … DEFENDANTS GROUNDS OF JUDGMENT [1] There are three applications before the Court – Enc. 4 made by the Plaintiff for injunctive reliefs; Enc. 23 made by the 1st, 2nd and 4th Defendants pursuant to Order 18 Rule 19 (1) (a), (b), (c) and/or (d) Rules of Court 2012 (ROC 2012) and/or under O. 92 ROC 2012 under the 2 inherent jurisdiction of the Court for striking out the Plaintiff’s claim and Enc. 65 made by the 3rd and 5th Defendants pursuant to Order 18 Rule 19

(a), (b), (c) and/or (d) ROC 2012 and/or under the inherent jurisdiction of the Court for striking out the Plaintiff’s claim. [2] On 24 November 2020, I heard all 3 enclosures and then stood the matter down for decision on the same day. I dismissed Enc. 4 with costs and allowed Enc. 23 and 65 for striking out with costs. [3] As the matters were related, it is convenient to deal with all the 3 enclosures in one judgment. This judgment as such contains the full reasons in amplification of the grounds delivered on 24 November 2020 for dismissal of Enc. 4 and why Enc. 23 and 65 were allowed. BACKGROUND [4] The Yu Chai @ Ter Swee Leong (“TSL”) was the governing will and mind of Chiptar Holding Sdn Bhd (“the Company”) until his demise on 1.2.2020. [5] The shareholders and directors of the Company were always subservient and accustomed to acting on TSL’s instructions. [6] The Company is a family owned investment company with its prime asset being the shareholding in Thai Hong Chan (K.L.) Sdn Bhd (“THCSB”). Prior to the demise of TSL, all the shareholders of the Company were also directors (except for the 1st Defendant). 3 [7] TSL married Chia Pek Lim and in his life time had a union with 3 other women, Chang Ngi Mooi (“the 2nd family” also “CNM”), Chan Yin Seng (“the 3rd family”, also “CYS”) and Li Yuhua (“LY”). [8] The Plaintiff is from the 2nd family, whilst the1st Defendant (D1) is from the 3rd family, the 3rd and 5th Defendants (D3 and D5) are sister and brother from the 1st family. [9] The 2nd Defendant (D2) is the former tax agent of the Company, holding a Power of Attorney of 6% shares in the Company for LY and was appointed on 4.3.2020 to be LY’s alternate director whilst the 4th Defendant (D4) was also appointed on 4.3.2020 to be alternate director to D1. [10] Until 5.11.2019, the shareholdings of the Company are as follows: Name Percentage

The Yu Chai @ Ter Swee Leong 54%

Ter Chin Heng (D5) 10%

Ter Thian Tin (Plaintiff) 10%

Ter Wei Hong (D1) 20%

Li Yu Hua 6% [11] The day to day management of the Company and THCSB were entrusted to the Plaintiff. 4 [12] A few months before TSL passed away, 30% of TSL’s shares in the Company were transferred to the Plaintiff on 6.11.2019; this transfer is under dispute and dealt with in separate proceedings. The altered shareholding of the Company is currently as follows: Name Percentage 1.

Ter Chin Heng (D5) 10%

Ter Thian Tin (Plaintiff) 40%

Ter Wei Hong (D1) 20%

Li Yu Hua 6% Enc. 4 [13] In Enc. 4, the Plaintiff sought an interim injunction to:

Prevent the Defendants whether by themselves, servants, representatives, agents, proxies and/or any individual, company, party connected to the Defendants from holding a board of directors meeting of the Company scheduled on 26.6.2020 (“Intended Meeting”) and/or at any adjourned meeting to discuss, approve any of the following resolutions and/or resolutions to similar effect until disposal of the trial:

to review and revamp the entire management of the Company. 5

to review the tenancy agreements and stipulate the terms and conditions of new leases.

to change the authorized persons to operate Public Bank Berhad’s e-banking.

to empower the Corporate Representative Ms. Ter Siew Lan [D3] and or her nominees to conduct due diligence on THCSB’s Accounts.

Costs of application to be costs in the cause;

Such other relief as deemed fit by the Court. The Plaintiff’s Case [14] The Plaintiff claims that the following appointments pursuant to the directors’ circular resolutions (“DCR”) dated 4.3.2020 are null and void as it was done without the Plaintiff’s consent and in breach of Article 90 of the Articles of Association (“AA”):

D1 as a director of the Company (“the 1st resolution”);

(ii) D2 as the alternate director to LY;

(iii) D3 as the alternate director to D5; and

(iv) D4 as alternate director to D1. (the appointments of the D2 to D4 are collectively referred to in this judgment as “the 2nd resolution” whilst the 1st resolution and the 2nd 6 resolution are collectively referred to in this judgment “the 4th March Resolutions”). [15] In summary, the Plaintiff claimed that the Appointments are invalid, as such:

the Intended Meeting and the Intended Agenda must be put on hold pending the outcome of the trial;

(ii) the corporate representative of the Company at THCSB be not allowed to carry out a due diligence on THCSB’s accounts. Defendants’ objections to Enc. [16] In opposing Enc. 4, Learned counsel for D3 and D5, Mr. David Mathews postulated:

The Plaintiff’s claim is unsustainable:

The Plaintiff was fully aware of the board meeting to appoint D1 as a director as: a.1 During the 4th March board meeting, the former company secretary, Zailan, confirmed that the Plaintiff was given notice of the time, venue and agenda of the 4th March board meeting; a.2 Prior to the meeting, D3 reminded the Plaintiff of the intention to appoint D1 as a director. The Plaintiff responded by saying that he could not attend and to 7 speak to ‘Rajindar’. The Plaintiff did not say that the notice was insufficient; a.3 The Plaintiff sent his representative, Rajindar Singh a/l Kaher Singh (“Rajindar”) an advocate and solicitor, to attend the 4th March Board of Directors’ meeting (“BODM”).

The 4th March Resolutions Were Passed At A Physical Meeting Of Directors b.1 The Plaintiff cannot deny that a physical meeting took place; b.2 The 4th March BODM was attended by the majority directors namely D5 and LY and there was a quorum. D5 and LY as the majority of directors, agreed and consented to the 1st resolution. b.3 D1 after being duly appointed as a director was then invited to join the 4th March BODM. D5, LY and D1 comprising the majority of the directors, agreed and consented to the 2nd resolution. Additionally, D3 was appointed as the corporate representative of the Company to THCSB. b.4 Article 80 AA permits questions arising at any meeting of directors to be decided by a majority vote and reads: “80. Subject to these regulations, questions arising at any meeting of directors shall be decided by a majority of votes and 8 a determination by a majority of directors shall for all purposes be deemed a determination of the directors. In case of an equality of votes the chairman of the meeting shall have a second or casting vote.” The minutes of the 3-4 BODM are reproduced below: b.5 Learned counsel pointed out that, the Plaintiff does not challenge the convening of the 4th March BODM or the agenda of the 4th March BODM. The Plaintiff’s only 9 ground is that the 4th March resolutions are in breach of Article 90 AA. The Plaintiff claimed in the Reply, that there was no physical meeting as apparently no formal notice was given to the Plaintiff. b.6 Learned counsel posited that the Plaintiff’s cause of action for breach of Article 90 AA is unfounded and without basis:

the Plaintiff’s allegation in the Reply that the 4th March BODM was unlawfully convened is a new and separate cause of action from a breach of Article 90 AA. As such, a new cause of action cannot be pleaded in the Reply citing:

O. 18 r 10: Departure (O 18 r 10)

A party shall not in any pleading make an allegation of fact, or raise any new ground or claim, inconsistent with a previous pleading of his.

The High Court decision of International Shipcare Sdn Bhd v The owner of and other persons interested in the ships or vessels MV 'EL HADJAR' [2015] 7 MLJ 753 at page 761 which referred to English case of Herbert and another v Vaughan and others [1972] 3 All ER 122 where Goff J said: 10 “that although the statement of claim should not anticipate the defence, if the defence gives reasons for setting up a new cause of action the proper course is to amend the statement of claim and not to deliver a reply.”

(ii) neither the Plaintiff nor Rajindar asked for the 4th March BODM to be postponed. Instead, the Plaintiff claims that Rajindar attended the 4th March BODM to ‘investigate’ the purpose of the meeting. Learned Counsel argued this is a non-issue as there was nothing in fact to ‘investigate’ as the business to be conducted was set out adequately in the agenda accompanying the notice.

(iii) Learned Counsel further argued that as the Appointments were approved at a physical meeting of directors, therefore Article 90 AA does not apply. Instead, Article 80 AA which governs the voting by directors at meetings and Article 82 concerning the appointment of alternate directors are applicable.

(iv) Learned Counsel drew attention that, on the face of the 1st Resolution, it is not a DCR and Article 80 AA should apply instead of Article 90. The 1st resolution reads: 11

Learned Counsel submitted that it is clear from the 1st Resolution 1 that D1’s Appointment was passed at a meeting on 4.3.2020 by a majority vote and not pursuant to Article 90. The 1st Resolution is not reflected and neither does it purport to be a circular resolution. As such, the Plaintiff’s challenge to the 1st Resolution is misconceived and obviously unsustainable on the face of the document itself. There is no need to have to go through a trial for this purpose.

(vi) Learned Counsel then submitted that as regards the 2nd Resolution, whilst Zailan recorded the intention of the board of directors in the form of a DCR, it does not negate the fact that the majority of directors present and voting appointed the alternate directors. The form of expression in the 12 DCR of the board’s intention cannot override the fact that the resolutions were passed at a directors meeting. Learned Counsel emphasized that the law gives effect to substance over form and cited:

Re Japan Leasing (Europe) plc; Wallace and another v Shoa Leasing (Singapore) Pte Ltd [1999] Lexis Citation 3061, whereby it held: “In Re English & American Insurance Co Ltd [1994] 1 BCLC 649 the insurance company had entered into an agreement with an association to provide its members with insurance. It was agreed that the company would keep all sums received in respect of that particular business segregated and these were to be provided solely for the purpose of that business. Harman J held that a trust was created and, at p.653 e-f, said this: “Equity has never been bothered by the absence of words and has always looked at the substance rather than the form of any transaction . . .” The substance, of course, must be established from all the surrounding circumstances including the express terms of any relevant agreement.”

Upmarket Development Sdn Bhd v. Sriera Development Sdn Bhd [2011] 4 MLJ 681 at para 33. 13

(vii) Learned Counsel postulated that it is settled law that a cause of action arises when there is a set of facts that give rise to an enforceable claim - RHB Bank Bhd (previously known as United Malayan Banking Corp Bhd and then as Sime Bank Bhd) v Wong Kok Leong (as executor and trustee of the estate of Wong Kwong Wah, deceased) & Ors [2017] 4 MLJ 281 at para 54.

(viii) Learned Counsel concluded that based on the submissions above, the set of facts presented reveals that Article 90 is not applicable or relevant to the present case.

Prayer 4 c.1 Learned Counsel drew attention that Prayer 4 of the SOC seeks for a permanent injunction to restrain the Corporate Representative of the Company from carrying out a due diligence on THCSB. c.2 Section 52 of the Specific Relief Act 1950 provides that a perpetual injunction may be granted to prevent a breach of an existing right in favour of the applicant. c.3 Learned Counsel argued that the only right pleaded by the Plaintiff is his right to approve a DCR. Counsel fail to see how that relates to the mandatory injunction sought. 14 c.4 Learned Counsel contended that the Plaintiff has failed to plead any matter that allude to any existing right that entitles him to prevent a due diligence from being carried out on the accounts of THCSB for all eternity. c.5 Learned Counsel posited that even if the Appointments are found to be invalid and all acts flowing therefrom are deemed to be consequently invalid, this cannot prevent D5 and LY as the majority of the Directors of the previous Board from voting in favour of fresh appointments and neither can it prevent them from voting afresh at a separate meeting in favour of an inspection of THCSB. c.6 Learned Counsel submitted that the effect of granting a perpetual injunction would be to bind the Company for all eternity even though the Company has not been cited as a party. c.7 In Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen [2008] 2 MLJ 11 scandalous, frivolous or vexatious is defined as follows: “Scandalous" is taken to mean wholly unnecessary and irrelevant. "Frivolous" or "vexatious" means that the pleadings are obviously unsustainable. c.8 Based on the submissions above, Learned Counsel concluded that it is clear that the Plaintiff’s claim is 15 wholly unnecessary, unsustainable and frivolous. Therefore, it is liable to the struck out under Order 18 rule 19 (b) ROC 2012. c.9 It is settled law that an order to strike out a pleading will be made in only ‘plain and obvious cases’ where it can be clearly seen that a claim is, on the face of it, ‘obviously unsustainable’ and cited Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36.

(ii) The Plaintiff had acquiesced to the Appointments:

The Plaintiff received notice of the 4th March BODM and was reminded of the same by D3. Rajindar attended the 4th March BODM as the Plaintiff’s representative. Therefore, it is indisputable that the Plaintiff had knowledge of the 4th March resolutions being passed at a physical meeting.

Prior to the commencement of this Action, on 5.6.2020, the Plaintiff attended a board of directors meeting with D2, D3 and D4 (“5th June BODM”). At this meeting the Plaintiff did not object to the capacity in which D2, D3 and D4 attended. Subsequently to the 5th June BODM, 2 further board of directors’ meetings were held:

On 21.7. 2020 (“21st July BODM”), at the requisition of the Plaintiff; and 16

(ii) On 28.8.2020 (“28th August BODM”), at the requisition of D5.

Both these July and August BODM were attended by the Plaintiff, D5, D2, D4, the Company Secretary and D3 as D5’s translator. The Plaintiff yet again, did not raise issue or object to the attendance or presence of D2 and D4 as alternate directors.

Not only that, further evidence of the Plaintiff’s acquiescence and acknowledgement is in his act of signing the directors’ circular resolution dated 5.6.2020 unanimously with D2, D3 and D4 as alternate directors (“5th June DCR”).

The sequence of events show that up until the Defendants’ receipt of the Letter of Demand dated 23.6.2020, the Plaintiff did not complain about the Appointments or the propriety and validity of the 4th March BODM or the 4th March Resolutions.

Learned Counsel submitted that the Plaintiff’s own conduct is contrary to and inconsistent with his assertions in the SOC and Reply. The Plaintiff has irreparably compromised his pleaded cause of action by his own acts prior to the commencement of this Action and such conduct additionally gives rise to an estoppel.

Learned Counsel further submitted that in addition to the aforesaid meetings, the Plaintiff’s attempt to remove D1 as 17 a director through a shareholders’ meeting by issuing a notice to convene an Extraordinary General Meeting on 29.6.2020 (“Intended EGM”) is an acknowledgement that the said appointment is valid, regular and lawful. D1 cannot be removed by shareholders if he was never appointed in the first place.

Learned Counsel added that on 10.11.2020, the Plaintiff’s solicitors wrote to D5’s solicitors and proposed that in the event D5 calls for an extraordinary general meeting to pass the same agenda as the Plaintiff attempted to in the Intended EGM i.e. to remove D1 and appoint his (plaintiff) mother and wife as directors, the Plaintiff would withdraw this Action and Suit 400. Learned Counsel postulated that this clearly shows that the Plaintiff was aware that there are no merits in this Action but chose to use the offer to withdraw the same as a bargaining chip to have his wife and mother appointed as directors.

Learned Counsel urged upon the Court to note that the aforesaid proposal did not involve the appointments of D2, D3 and D4. In the event D5 accepted the proposal, this whole Action would have been withdrawn and only D1 would have been removed as a director resulting in the Plaintiff, his wife and mother forming the majority on the board.

Learned Counsel submitted, yet again, the Plaintiff has acknowledged and acquiesced to the validity of the Appointments. 18

The Plaintiff’s conduct both before and after the filing of this action render the contention that the Appointments are invalid to be hollow and cited the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where Gopal Sri Ram JCA (as he then was) held that it would be unjust to allow one to insist on his strict legal rights after acting to the contrary.

Learned Counsel concluded that on the facts of the present case, after acknowledging and acquiescing to the Appointments, the Plaintiff should be estopped from asserting otherwise.

(iii) The Plaintiff’s Action and Enc. 4 is an abuse of process to render the Board impotent and a Used As A Tool To Prevent Inspection of the Company’s Accounting Records:

It is to be noted that the Plaintiff had been in charge of the daily operations of both the Company and THCSB.

On 17.6.2020, a notice was issued to convene the 26th June BODM. The Intended Agenda was to be deliberated on at this meeting. The Intended Agenda was principally to deal with the corporate and financial affairs of the Company and for a due diligence to be conducted over its subsidiary, THCSB in which it then held 81% of the shares at that time. 19

In response, the Plaintiff through his solicitors issued the Letter of Demand dated 23.6.2020. By this demand, the complaint regarding the Appointments was raised for the very first time. Despite being challenged, the Plaintiff is unable to explain why it took him some 15 weeks before raising a challenge to the Appointments.

Learned Counsel submitted that the reason for the belated challenge is quite evident from the contents of the Letter of Demand where the Plaintiff sought for an undertaking that the 26th June BODM will not be proceeded with.

Learned Counsel said it is equally glaring that the request for an undertaking was illusory and insincere as the Plaintiff had on the very same day filed this Action together with the Injunction Application (Enc. 4) in an attempt to stop the 26th June BODM which was 3 days away.

Learned Counsel submitted that despite the Injunction Application not being filed under a certificate of urgency, D5 out of deference to the judicial process, through his solicitors informed the Plaintiff that the 26th June BODM will not be proceeded with. This was never a concession to the allegations in the Letter of Demand.

Learned Counsel further submitted that the Plaintiff having achieved his objective of preventing the Intended Agenda from being passed, the Plaintiff then proceeded to call for the 21st July BODM. The BODM was attended by the Plaintiff, D5, D2 and D4. D3 attended as D5’s translator. At 20 this meeting, the Plaintiff sought approval to transfer 1 share each to his mother and wife.

As submitted above, the Plaintiff raised no challenge or protest pertaining to the attendance of D2 and D4.

Apart from this being a further acknowledgement of the validity of the Appointments, the Plaintiff in calling for the 21st July BODM and participating in the meeting without protest or challenge had fatally compromised this Action.

Learned Counsel contended that by the Plaintiff’s own conduct, he has disentitled himself from seeking the reliefs prayed for in the SOC even if there was any merit (which is denied) in his complaint.

Learned Counsel argued that the sequence of events demonstrates that the Plaintiff’s challenge to the Appointments was merely a means by which the Plaintiff could seek an injunction to prevent inter alia a scrutiny on the management and affairs of the Company and the carrying out of a due diligence on the accounts of THCSB.

Learned counsel posited that the collateral motive on the part of the Plaintiff is further evident from his conduct in trying to obstruct D5 from exercising his rights as a director to inspect the accounting records of the Company (“Records”): 21 l.1 On 25.6. 2020, D5 informed the Plaintiff that he would be attending to inspect the Records on 26.6.2020; l.2 On 26.6.2020, the Plaintiff responded by purporting that he did not have sufficient time to prepare the Records and that he would be sending the Records to his solicitors instead; l.3 D5’s attempt to inspect the Records on 26.6.2020 was thwarted as he was prevented from entering the premises; l.4 D5 made another attempt to inspect the Records on 29.6.2020 but this too proved futile; l.5 On the same day, 29.6.2020, a notice of requisition of the Intended EGM which sought to appoint his mother and wife as directors of the Company and remove D1 was served; l.6 Learned Counsel submitted that through affidavits filed in relation to the Injunction Application, it was discovered that on 18.6.2020 the Company’s shares in THCSB had been diluted to 19% and the Plaintiff now held the majority shares of 81% (“the Dilution”). The Dilution took place without notice to the Company or its directors (except for the Plaintiff); l.7 Learned Counsel contended that the events that took place between the period of 5.6.2020 to 29-.6.2020 are relevant to show that this Action and the Injunction 22 Application were not filed for a legitimate purpose but to prevent the other directors of the Company from discovering the Dilution at the material time; l.8 For all the reasons stated above, Learned Counsel submitted that the Plaintiff’s Complaint is merely intended to oppress the board of directors from carrying out their duties and cited in support Malaysian Building Society Bhd v Tan Sri General Ungku Nazaruddin Bin Ungku Mohamed [1998] 2 MLJ 425 which explained that an “abuse of process occurs when the purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be collateral, that is to say, aimed at producing a result not intended by the invocation of the process.”

Learned Counsel postulated that on the facts of the present case, it is evident that in light of the Plaintiff’s acquiescence and acknowledgment of the Appointments, the Plaintiff has no legitimate reason to maintain this Action. Instead, it is evident that this Action and the Injunction Application have been used as a device to render the Board impotent. [17] The 1st, 2nd and 4th Defendants advanced similar grounds and argued that Enc. 4 ought to be dismissed with costs for the following summarised reasons: 23 a) there are no serious questions to be tried as the Plaintiff has failed to demonstrate that the appointments of the Defendants as Director and Alternate Directors are invalid pursuant to the Company’s Memorandum & Articles of Association; b) granting Enc. 4 would enable the Plaintiff to perpetuate his wrongdoings to the detriment of the Company, its members as well as the Company’s subsidiary, THCSB; c) the balance of convenience is weighted in favour of dismissing Enc. 4; d) damages are an adequate remedy and the Defendants are in a financial position to compensate the Plaintiff in the event damages are awarded to him; and e) the Plaintiff had deliberately concealed material facts in seeking injunctive relief from this Honourable Court. Findings and decision on Enc. [18] Having set out the background and the contentions of the parties, I now deal with the issues which arise. I propose, in dealing with these issues, to focus on the main points, and not necessarily to address every point and deal with every authority which were brought up, to avoid a lengthy judgment. It will also make sense so as to provide the parties with written grounds timeously. This does not mean that I have not considered or taken into account each of the parties’ points or authorities submitted to me. 24 [19] As the subject matter of Enc. 4 is for interlocutory injunctive relief, this court need only apply the guidelines of the Court of Appeal in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 in order to decide whether discretion may be exercised to grant the orders sought. Is There a Bona Fide Serious Issue To Be Tried? [20] In my assessment of the parties’ affidavits, I have considered the approach of the Federal Court in Lori Malaysia Bhd v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81, [1999] 2 CLJ 997 at 1005-1006 per Edgar Joseph Jr FCJ: "The Law on the approach of the Court of first instance in evaluating and resolving a conflict of evidence on affidavit was well captured by the Privy Council in Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212 and in Tay Bok Choon v. Tahansan Bhd. [1987] 1 MLJ 433. In the first of these cases - Eng Mee Yong - Lord Diplock delivering the advice of their Lordships of the Board said this (at p. 381 D): Although in the normal way it is not appropriate for a judge to attempt to resolve conflict of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary document or other statements by the same deponent, or inherently improbable itself may be. (emphasis added) In the second of these cases - Tahansan - Lord Templeman put the point more shortly and generally, thus: 25 If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross examination, the judge must ignore the disputed allegation. (emphasis added) The second point to note regarding this part of the case is that, it is an elementary proposition sometimes overlooked with resulting confusion and possible injustice that where statements are made by a deponent, based on information and belief these ought not to be looked at at all, unless the court can ascertain not only the source of the information and belief but also unless the deponent's statement is corroborated by someone who speaks from his own knowledge. (See, In re J.L Young Manufacturing Ltd. Co. [1900] 2 Ch. 753 754 per Lord Alverstone CJ, applied by the old Federal Court in Cantrans Services (1965) Ltd. V. Clifford [1974] 1 LNS 14)." [21] This court has also borne in mind that at this stage of the proceedings, it is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits nor to evaluate the strength of either party's case. This is settled law as pronounced by Lord Diplock in American Cynamid v. Ethicon Ltd [1975] AC 396 at p 407; [1975] 1 All ER 504 at p 510; [1975] 2 WLR 316 at p 323): “… It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature considerations.” [22] In Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1969] 1 MLJ 309, Siti Norma JCA (as her ladyship then was) 26 explained the approach when dealing with an application under O 18 r 19(1) of the Rules of the High Court 1980: “When a question of law becomes an issue, this in itself will not prevent the court from granting the application, for as long as the court is satisfied that the issue of law is unarguable and unsustainable, it may proceed to determine that question. (See Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400) Likewise, where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence.” [23] Based on the materials available before the court, I am of the respectful view that the main ground of the Plaintiff in seeking to impugn the appointment of D1, (the 1st resolution) and D2, D3 and D4 as alternate directors (the 2nd resolution) and all subsequent resolutions passed based on the resolution of 4.3.2020 for not complying with article 90 does not hold any water for the following reasons. [24] Firstly, it is not disputed that there was in fact a physical Board meeting on 4.3.2020 – see exhibit TSL12 Enc. 14. According to D3, the Company secretary Zailan had sent notice of the 4th March BODM to the Plaintiff. At 9.49 am on 4.3.2020, D3 reminded the Plaintiff of the BODM to be held in the afternoon at 2 pm. The Plaintiff responded at 9.53 am stating “I am not around. Can’t attend. Please talk to Rajindar”. See: exhibit TSL-9 Enc. 14. [25] The BODM was called to order as scheduled at 2.00pm on 4.3.2020. LY and D5 were the Directors in attendance. D5 chaired the BODM and 27 the notice of BODM was taken and recorded. The Plaintiff did not attend the BODM personally but sent his representative, Rajindar to attend the meeting on his behalf and record that he was the Plaintiff’s representative. It is of crucial importance to note that neither Rajindar nor the Plaintiff asked for the BODM on 4.3.20 to be postponed. [26] At the conclusion of the BODM, the minutes of meeting at exhibit TSL - 12 Enc. 14 show that the following resolutions were passed: a) That TSL (the father who passed away on 11.2.2020)’s cessation as a Director is accepted; b) The D1 is appointed as Director; c) The following Alternate Directors are appointed, namely:

The D2 as LY’s alternate director;

(ii) The D3 as D5’s alternate director;

(iii) The D4 as D1’s alternate director. d) The 3rd Defendant is appointed as the corporate representative of the Company to Thai Hong Chan (THC). [27] In attempting to impugn the appointments, the Plaintiff posited that exhibit TTT - 3 (1st resolution appointing D1 as director) and exhibit TTT - 4 (2nd resolution appointing the 3 alternate directors) were DCRs approved without his consent, and as such invalid pursuant to article 90. I have examined both exhibits and find it plain that exhibit TTT- 3 on the face of it does not purport to be a DCR contrary to what was alleged by the 28 Plaintiff. As for exhibit TTT - 4, I am of the respectful view that although on the face of it, it is stated to be a DCR, the stark reality is that as alluded to earlier, there was in fact a physical meeting and the resolution was passed by a majority of the Directors in attendance. [28] It is my finding that in a physical BODM, Article 80 and 82 of the M&A of the Company had to be complied with and not Article 90. The 2 articles read as follows: “80. Subject to these regulations, questions arising at any meeting of directors shall be decided by a majority of votes and a determination by a majority of directors shall for all purposes be deemed a determination of the directors. In case of an equality of votes the chairman of the meeting shall have a second or casting vote.

Any director with the approval of the directors may appoint any person (whether a member of the company or not) to be an alternate or substitute director in his place during such period as he thinks fit. Any person while he so holds office as an alternate or substitute director shall be entitled to notice of meetings of the directors and to attend and vote thereat accordingly, and to exercise all the powers of the appointor in his place. An alternate or substitute director shall not require, any share qualification, and shall ipso factor vacate office if the appointor vacates office as a director or removes the appointee from office. Any appointment or removal under this regulation shall be effected by notice in writing under the hand of the director making the same.” [29] In further regard to exhibit TTT - 4, I would also prefer to take the common sense approach of substance over form; that the court is not bound by the labels that parties choose to affix onto the particular 29 document; the label of a document is inconsequential, and at best of secondary importance and in this regard. I am guided by 2 cases:

Gopal Sri Ram JCA (later FCJ) delivering the judgment of the Court of Appeal in Sia Siew Hong & Ors v. Lim Gim Chian & Anor [1996] 3 CLJ 26; [1995] 3 MLJ 141 explained: “At this stage, I digress from the narrative to deal with the nature of this document. No doubt it is described as a guarantee. But in the construction of contracts the court is not bound by the labels that parties choose to affix onto the particular document. In all such cases the duty of the court is clear. And that duty is to construe the document as a whole and to determine from its language and any other admissible evidence its true nature and purport. As Jenkins LJ observed in Addiscombe Garden Estates Ltd v. Crabbe [1958] 1 QB 513 at p 528; [1957] 3 All ER 563 at p 570; [1957] 3 WLR 980 at p 991: … the relationship is determined by the law, and not by the label which the parties choose to put on it, and that it is not necessary to go so far as to find the document a sham. It is simply a matter of ascertaining the true relationship of the parties.” (emphasis added)

(ii) Upmarket Development Sdn Bhd v Sriera Development Sdn Bhd [2011] 4 MLJ 681 where Abdull Hamid Embong FCJ delivering judgment of the Court said: “[33] We are of the view that a liberal and more progressive approach should be taken in the interpretation of caveat forms. The various statutory provisions under the NLC and the RHC which we earlier referred to support this liberal interpretive approach. We may add that even a common sense approach would bring the same conclusion. The accompanying statutory declaration may also be looked at in determining the form's actual purport. 30 The form should not therefore be viewed in isolation. The court should place more weight to the substance rather than form. Dato Davidson of counsel for the appellant had candidly admitted that a wrong form (ie the old version) had been used in the appellant's application but maintained that substantially there had been conformity with the old form. We agree with him.” [30] I therefore find that the Plaintiff’s action in reliance on Article 90 of the M&A to be absolutely misconceived. [31] Following the 4th March Resolutions, the following persons comprised the board of directors and alternate directors of the Company: Directors Alternate Directors 1. Ter Thian Tin (Plaintiff)

Ter Wei Hong (D1)

Li Yu Hua Lee Saik Choo (D2)

Ter Chin Heng (D5) Ter Siew Lan (D3) [32] Secondly, the Plaintiff attended a BODM on 5.6.2020 where part of the agenda of the BODM was to terminate Zailan as Company secretary and to appoint Lee Mooi Yoke as new Company secretary and to change the registered address of the Company. There was not a whisper of protest or complaint raised by the Plaintiff on D2, D3 and D4’s attendance at the BODM in their capacity as alternate Directors and voting too, in that capacity. [33] That is not all. It has been established conclusively that the Plaintiff in fact signed the 5th June DCR (exhibit TSL - 15, pg 116) together with D2, D3 and D4 on the appointment of cheque signatories for the 31 Company. Indubitably, that there is acquiescence to the appointments cannot be any plainer or clearer than that. [34] I am therefore inclined to agree with the Defendants’ assertions that the Plaintiff has irreparably compromised his pleaded cause of action by his own acts of acquiescence prior to the commencement of this Action and such conduct additionally gives rise to an estoppel. [35] The Plaintiff raised the invalidity of the appointments for the 1st time on 23.6.20 through his solicitors’ letter of demand. I am of the view that it is too stunningly late in the day. Counsel for D1 and D4 aptly drew my attention to the Court of Appeal decision of Browne v La Trinidad [1888] 37 Ch D 1 (CA) where Lindley LJ at page 17 pronounced: “.....if the plaintiff had complained that the meeting of directors convened at such a short notice was not duly convened, and had sought the interference of the court to prevent the directors from acting on a resolution passed at it, I can understand that he would have had a plausible case. But he did nothing of the kind. He took no notice of the matter. He did not say that it was inconvenient for him to attend, and he did not ask the directors to adjourn it. He does nothing at all until this notice convening the extraordinary meeting has been issued and circulated, nor until four days before the meeting ... It appears to me that, if we gave effect to such an argument as this, we should be paralysing the whole course of business of these companies..... In such cases the court never interferes. I think it is most important that the court should hold fast to the rule upon which it has always acted, not to interfere for the purpose of forcing companies to conduct their business according to the strictest rules, where the irregularity complained of can be set right at any moment...” [36] The above pronouncements squarely highlight the Plaintiff’s ignominious failure to complain at the 1st opportunity. Additionally, besides 32 acquiescence and estoppel, the Plaintiff’s conduct amounts to approbating and reprobating the appointments which in my view are fatal to the attempt now to invalidate the appointments. That is not all. Even after commencement of action, in both the 21st July BODM requisitioned by the Plaintiff and the 28th August BODM requisitioned by D5, which were attended by the Plaintiff, D5, D2, D4, the Company Secretary and D3 as D5’s translator, the Plaintiff stunningly did not object to the attendance of D2 and D4 as alternate directors. [37] Not only that. I agree with the Defendants and hold the view that the Plaintiff’s attempt to remove D1 as a director through the Intended EGM of 29.6.2020 to be a tacit acknowledgement on the Plaintiff’s part that D1’s appointment as a director is valid, otherwise it is illogical to remove D1. [38] As such, I find the Plaintiff’s complaints that the 4th March Resolutions and appointments are not valid to be pointless. [39] Thirdly, the statement of claim filed on 23.6.2020 does not complain that the BODM of 4th March 2020 is unlawfully convened and that there was short notice. Enc. 4 was filed on the same day as the SOC. As alluded earlier, neither Rajindar nor the Plaintiff asked for the BODM on 4.3.20 to be adjourned. In S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62, the illustrious Abdoolcader FCJ eruditely said: "... any defect or omission in a statement of claim cannot be made good by affidavit evidence: Gold Ores Reduction Co v Parr [1892] 2 QB 14 where Mathew, J., said that ‘it is most important that a defendant should know from the writ what the exact claim against him is’; this case was followed and applied by this court in United Malayan Banking Corporation Berhad v Palm & Vegetable Oils M Sdn Bhd & Ors [1983] 1 MLJ 206, 207." 33 [40] The Plaintiff’s counsel urged upon this court the case of The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under ‘Forest Wood Flooring’) [2017] 4 MLJ 791 at para 35 to support that he did raise in his Reply (dated 26.8.2020) the allegation that the 4th March BODM was unlawfully convened. I find merit however in Learned Counsel for the 3rd and 5th Defendants’ argument that such Plaintiff’s allegation in the Reply that the 4th March BODM was unlawfully convened is a new and separate cause of action from a breach of Article 90 and as such, a new cause of action cannot be pleaded in the Reply. [41] The Singapore High Court in Nirumalan K Pillay & Ors v A Balakrishnan & Ors [1997] 1 SLR 322 explained the function of a statement of reply in these terms: “.... the function of a reply is to answer matters raised in the defence, its contents must relate to matters raised in the defence. What is the same thing, the plaintiffs may not supplement his statement of claim by including in his reply matters which ought to have been included in the statement of claim. In this respect, a reply is analogous to re-examination of a witness which should be confined to matters touched on in cross-examination. Fresh evidence adding to or re-affirming evidence-in-chief is not permitted in re-examination.” [42] There was no endeavor made by the Plaintiff to amend his statement of claim under O 18 r 10(2). With respect, I am of the view that such belated attempt by the Plaintiff to raise the complaint that 4th March BODM was unlawfully convened in the Plaintiff’s Reply to be more ingenious than realistic, and has no teeth as:

it flies in the face of the function of what a Reply is all about; 34

(ii) Article 79 of the M&A provides that “a director may at any time and the secretary shall on the requisition of the director summon a meeting of the directors”. The M&A of the Company is silent on the duration of notice to be given in respect of board of directors’ meetings; and

(iii) Estoppel applies in any case against the Plaintiff due to his acts of acquiescence, approbation and reprobation as alluded to earlier. [43] Second to last, I find that prayer 4 of the SOC and the prayers sought in the injunction are matters within the business judgment of the Directors of the Company and within the remit of the internal management of a company which courts do not interfere with. [44] Given that the appointments are valid, the Plaintiff cannot bring court proceedings to stop such matters for the following reasons:

Courts will not interfere with the internal management of a company. In Burland v Earle [1902] AC 83 at p 93, Lord Davey, when delivering the advice of the Privy Council expressed the proposition in the following words: “It is an elementary principle of the law relating to joint stock companies that the court will not interfere with the internal management of companies acting within their powers, and in fact has no jurisdiction to do so.”

(ii) it is not the business of the Court to manage the affairs of a company. That is for the shareholders and directors - 35 Shuttleworth v Cox Brothers and Company (Maidenhead) Limited [1927] 2 K.B. 9;

(iii) powers of management are vested in directors and the only way shareholders can control the exercise of such powers is to refuse to re-elect the directors - John Shaw and Sons (Salford), Limited v Peter Shaw and John Shaw [1935] 2 K.B. 113, CA, where Greer LJ pithily stated: “If powers of management are vested in the directors, they and they alone can exercise those powers. The only way in which the general body of shareholders can control the exercise of the powers vested in the directors is by altering their (constitution), or by refusing to re-elect the directors of whose actions they disapprove. They cannot themselves usurp the powers which by the (corporation’ constitution is) vested in the directors any more than the directors can usurp the powers vested in the general body of shareholders.” [45] In addition, Section 211 of the Companies Act 2016 provides that “The business and affairs of a company shall be managed by, or under the direction of the Board.” [46] Last but not least, I find that there is no more live issue for Enc. which seeks to injunct the meeting scheduled for 26.6.20 and/or at any adjourned meeting – that meeting was never held, so there is no question as such of any adjourned meeting. In other words, Enc. 4 was rendered academic. There is also no attempt to amend Enc. 4. [47] It is a fundamental feature of our Judicial System that the courts only decide living issues but not those which have become hypothetical or only of academic importance. In Metramac Corp Sdn Bhd v Fawziah Holdings 36 Sdn Bhd [2006] 4 MLJ 113, the Federal Court dealt with the circumstances in which a pending matter may be rendered academic in the following terms: “[8] In dealing with the circumstances in which an appeal will be rendered academic and thereby not appealable, Viscount Simon LC said in Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 at pp 470–471: I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellant hopes to get decided in its favour without in any way affecting the position between the parties. …… I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.” (emphasis added) [48] Sun Life Assurance Co of Canada v Jervis cited in the above Federal Court Judgment concerns private rights. [49] In determining whether a pending matter which has since become academic may still be heard, Lord of Hadley said in R v Secretary of State for the Home Dept; ex parte Salem [1999] 2 All ER 42 at p 47 explained: “My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in r 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships' House) 37 must be read accordingly as limited to disputes concerning private law rights between the parties to the case. The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.” (emphasis added) [50] Lord Slynn of Hadley’s speech was cited approvingly by the Federal Court in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, pencelah) and another case [2018] MLJU 1288; [2018] 10 CLJ 129 and Tan Sri Musa bin Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor and another appeal [2020] 3 MLJ 46. [51] Although the above cases were decided in the context of whether an appeal has become academic, I am of the view that the principles distilled there as to whether there is in existence a matter in actual controversy between the parties which will affect them in some way in my view are applicable to the facts of the present application in Enc. 4. [52] The injunction application in Enc. 4 before this court which was rendered academic is not one concerning public law rights. The injunction sought for by the Plaintiff would be futile. The grant of the injunction to stop the Intended Meeting is in the discretion of this court. It is settled law that a court will not act in vain. This court as such, sees no useful purpose 38 to grant an injunction that is of no utility or has become academic. It was not necessary to hear Enc. 4. [53] In my respectful view, in the final analysis, on the materials before the court and for the reasons stated, the Plaintiff’s cause of action premised on Article 90 is unsustainable - it is misconceived, flawed, perplexing and devoid of merit. [54] A right to obtain an interlocutory injunction is merely ancillary to the pre-existing cause of action - see: 1. Dial Singh a/p Tara Singh v Mann Foong Realty Sdn Bhd [2000] 3 MLJ 153 at 160 CA and 2. The Siskina (Owners of Cargo Lately Laden on Board) And Others v Distos Compania Naviera S.A. [1979] AC 210 where Lord Diplock at page 256 said: "A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction." [55] With no sustainable cause of action, I hold that the first test of showing bona fide serious issues to be tried as laid down in Keet Gerald Francis has not been met by the Plaintiff. [56] The questions of balance of convenience and whether damages is an adequate remedy do not arise for consideration at all as the Plaintiff 39 has failed to show any real prospect of succeeding in his claim. In this context, I refer to Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241 where the Supreme Court cited with approval the dictum of Balcombe LJ in Patel & Ors v WH Smith (Eziot) Ltd & Anor [1987] 2 All ER 569 at p 575; [1987] 1 WLR 853 at p 861D-E: “… If there is no arguable case, as I believe there is not, then questions of balance of convenience, status quo and damages being an adequate remedy do not arise.....” [57] In case I am wrong, that there are issues to be tried, the balance of convenience is in favour of the Defendants as the Plaintiff failed to show what kind of irreparable damage he will suffer. In SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (M) Sdn Bhd [2008] 4 MLJ 187, the Court of Appeal refused to grant an injunction because there was no evidence of irreparable damages. [58] Weighed against not allowing the injunction, I am of the respectful view that if the injunction is allowed:

the Defendants will be hindered from pursuing their lawful obligations, statutory and fiduciary duties as Directors or as alternate Directors as the case may be, to act in the best interests of the Company;

(ii) the court will be fecklessly meddling with the internal management of the Company when it has no jurisdiction to do so and thus ignore a fundamental principle of company law;

(iii) the directors will be prevented from access to the Records; 40

(iv) D3 or any other person will be prevented from carrying out a due diligence on THCSB’s accounts; and

the board of directors will be rendered “impotent” to carry on the Company’s business and commercial operations. Clearly, greater injustice will be occasioned by the grant of the injunction. [59] As such, I have no difficulty in refusing the interlocutory injunction. Accordingly, I dismissed Enc. 4 with costs of RM30,000-00 for each set of solicitors subject to allocator. In awarding costs, I had taken into account as submitted, the matters set out in O 59 r. 16 and recognised the time spent on research, prepare affidavits and submissions, the skill required, seniority of counsel, number and importance of documents. Enc. 23 and 65 [60] These 2 applications are premised on similar grounds. [61] Whilst I recognise that a striking out is draconian, I am however of the view that for the same reasons given earlier, an unsustainable or untenable cause of action does not call for a trial - a trial will not shed any more light on the matter. On this ground alone, the Plaintiff’s claim ought to be struck out. [62] Given the Plaintiff’s acquiescence and acknowledgment of the Appointments, I am of the view the Plaintiff in bringing this action has abused the court process. His prayer 4 of the SOC in my considered view is a telling indictment on him and illuminative of the real purpose he sought 41 to bring this action – to frustrate investigations by the Company into THCSB which is totally at variance with basic company law principles on internal management of a company which courts do not interfere with. [63] It will also be recalled that in the Intended EGM of 29.6.2020 (Enc. 14 exhibit TSL7), he sought to flood the Board and attain majority control of the Board of the Company by removing D1 and appoint his (plaintiff) mother and wife as directors; it being lost on the Plaintiff that firstly, unless D1 was validly appointed, and the Plaintiff recognised such appointment, why seek to remove him in the Intended EGM? Secondly, it has not escaped this court’s attention that despite the Plaintiff having signed the 5th June DCR together with D2, D3 and D4 (who signed in their capacity as alternate directors) and whose appointment he now seeks to impugn, the chronology of events will show that the Plaintiff first decried the Appointments were not valid in his letter of demand dated 23.6.20 which was issued after a notice dated 17.6.20 (exhibit TSL - 6, Enc. 14) was received to convene the 26th June BODM where the Intended Agenda was principally to deal with the corporate and financial affairs of the Company and for a due diligence to be conducted over its subsidiary, THCSB in which it then held 80.8% of the shares. [64] The Plaintiff can hardly dispute that on 18.6.2020, the Company’s shares in THCSB had been diluted to 19.2%. The propriety of this is the subject of separate proceedings and I say no more. [65] On the question whether there was an abuse of process on the part of the Plaintiff, the Defendants had set out the facts and the relevant authorities in lucid detail. I find myself to be in complete agreement with their analysis of the authorities, and persuaded by the force of their 42 submission that on the facts there was abuse of process on the part of the Plaintiff; and I do not propose to burden this judgment with a repetition of the submissions. I only wish to add that on the material before the court, it is not difficult to surmise from the cumulative events of June 2020 including the attempt to get majority Board control, that this Action and the Enc. 4 in essence, were not filed to obtain a vindication of the Plaintiff’s rights or to enforce a just claim but that the Action was filed for an ulterior purpose, as a tactical manoeuvre to put a lid on the Company’s investigations into THCSB and also to prevent and hinder the Directors from carrying out their bounden duties to the Company. [66] When the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, it becomes an abuse of process. 2 notable cases in 1998 often cited by our courts explained what is “abuse of process of the court”:

Gabriel Peter & Partners (suing as a firm) v. Wee Chang Jin [1998] 1 SLR 374 at page 384: "The term 'abuse of the process of the Court', in Order 18 rule 19(1) (d), has been given a wide interpretation by the Courts. It includes considerations of public policy and the interests of justice. This term signifies that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery. It will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed and will depend on all relevant circumstances of the case. A type of conduct which has been judicially acknowledged as an abuse of process is the bringing of an action for a collateral purpose... if an action was not brought bona fide for the purpose of obtaining relief but for some other 43 ulterior or collateral purpose, it might be struck out as an abuse of the process of the Court."(emphasis added)

(ii) In the case of Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, 1998] 2 CLJ 340, Gopal Sri Ram JCA had this to say in regard to the doctrine of abuse of process: "Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process." [67] The categories of abuse are not closed. When abuse is revealed, the court has a duty, not a discretion, to dismiss the action: Hunter v Chief Constable of Midlands Police [1982] AC 529, per Lord Diplock at 536D. Following Lord Diplock’s pronouncement, the inevitable consequence in the instant action must be a dismissal of the Plaintiff’s claim. [68] I must hasten to add, that I have considered that a striking out order is a draconian order and it will not be lightly made. I am, in this context reminded of the observation of Seah FJ in the Federal Court case of CC Ng & Brothers Sdn Bhd v Government of State of Pahang [1985] 1 CLJ 235; [1985] CLJ (Rep) 45; [1985] 1 MLJ 347: 44 "The inherent power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution [per Lord Diplock in Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved." [69] On balance, I think justice demands that the Action should be dismissed. The instant suit cannot succeed. Neither in my respectful view should the Defendants be put through the costly process of a full trial in the circumstances as obtained here. [70] Accordingly, Enc. 23 and 65 are allowed under O 18 r 19 (b) and (d) ROC 2012 with costs of RM25,000 which I consider as reasonable for each set of solicitors as costs of the respective applications and costs of the action subject to allocator. Dated: 27th January 2021 - Sgd - Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur 45 COUNSEL: For the Plaintiff : Ee Kah Fuk (Messrs. K. F. Ee & Co.) For the 1st and 4th Defendants : Dato’ Prem Ramachandran with Alvin Dev Singh (Messrs. Kumar Partnership) For the 2nd Defendant : Vasanthi Rasathurai with Havinder Singh (Messrs. Vin Law Co.) For the 3rd and 5th Defendants : David Mathews with Tina Francis (Messrs. Mathews Hun Lachimanan) CASES REFERRED: International Shipcare Sdn Bhd v The owner of and other persons interested in the ships or vessels MV 'EL HADJAR' [2015] 7 MLJ 753 Herbert and another v Vaughan and others [1972] 3 All ER 122 Re Japan Leasing (Europe) plc; Wallace and another v Shoa Leasing (Singapore) Pte Ltd [1999] Lexis Citation 3061 Upmarket Development Sdn Bhd v Sriera Development Sdn Bhd [2011] 4 MLJ 681 Browne v La Trinidad [1888] 37 Ch D 1 RHB Bank Bhd (previously known as United Malayan Banking Corp Bhd and then as Sime Bank Bhd) v Wong Kok Leong (as executor and trustee of the estate of Wong Kwong Wah, deceased) & Ors [2017] 4 MLJ 281 Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen [2008] 2 MLJ 11 46 Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 Malaysian Building Society Bhd v Tan Sri General Ungku Nazaruddin Bin Ungku Mohamed [1998] 2 MLJ 425 Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 Lori Malaysia Bhd v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81, [1999] 2 CLJ 997 American Cynamid v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504; [1975] 2 WLR 316 Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1969] 1 MLJ 309 Sia Siew Hong & Ors v Lim Gim Chian & Anor [1996] 3 CLJ 26; [1995] 3 MLJ 141 S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under ‘Forest Wood Flooring’) [2017] 4 MLJ 791 Nirumalan K Pillay & Ors v A Balakrishnan & Ors [1997] 1 SLR 322 Burland v Earle [1902] AC 83 Shuttleworth v Cox Brothers and Company (Maidenhead) Limited [1927] 2 K.B. 9 John Shaw and Sons (Salford), Limited v Peter Shaw and John Shaw [1935] 2 K.B.113 Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 47 Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 R v Secretary of State for the Home Dept; ex parte Salem [1999] 2 All ER 42 Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, pencelah) and another case [2018] MLJU 1288; [2018] 10 CLJ 129 Tan Sri Musa bin Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor and another appeal [2020] 3 MLJ 46 Dial Singh a/p Tara Singh v Mann Foong Realty Sdn Bhd [2000] 3 MLJ 153 The Siskina (Owners of Cargo Lately Laden on Board) And Others v Distos Compania Naviera S.A. [1979] AC 210 Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241 Patel & Ors v WH Smith (Eziot) Ltd & Anor [1987] 2 All ER 569; [1987] 1 WLR 853 SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (M) Sdn Bhd [2008] 4 MLJ 187 Gabriel Peter & Partners (suing as a firm) v Wee Chang Jin [1998] 1 SLR 374 Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, 1998] 2 CLJ 340 Hunter v Chief Constable of Midlands Police [1982] AC 529 CC Ng & Brothers Sdn Bhd v Government of State of Pahang [1985] 1 CLJ 235; [1985] CLJ (Rep) 45; [1985] 1 MLJ 347 48 STATUTE/LEGISLATION REFERRED: Order 59 r. 16, Order 18 Rule 10, Order 18 Rule 19 (1) (a), (b), (c) (d), Order 92 Rules of Court 2012 Section 52 of the Specific Relief Act 1950 Section 211 of the Companies Act 2016