Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd (WA-24NCC-559-10/2025)

This application concerns the cessation of a directorship. The Plaintiff, Dato' Seri Timor Shah Rafiq ("the Plaintiff"), was a non-executive director of the Defendant, Nautilus Tug & Towage Sdn Bhd ("NTT"), a special purpose vehicle incorporated to own and operate tugboats under a Harbour Tug Services Agreement ("HTSA") with Vale Malaysia Minerals Sdn Bhd ("Vale"). The Plaintiff was nominated to the NTT board by Nautical Supreme Sdn Bhd ("NSSB"), the minority shareholder holding 20% of NTT's equity. The majority shareholder, Azimuth Marine Sdn Bhd ("AMSB"), holds the remaining 80%.

By Enclosure 1 and its amendment Enclosure 152, the Plaintiff seeks a declaration that his purported removal and/or the vacation of his directorial office, as resolved, observed, or decided at the Defendant's board of directors' meeting held on 19 September 2025, is unlawful, null, and void. He further seeks injunctive relief restraining the Defendant from giving effect to the vacancy and an order compelling rectification of NTT's register with the Companies Commission of Malaysia.

The Defendant resists both applications. It contends that no removal took place. Rather, the Plaintiff's office became automatically vacant by operation of law under Articles 72(g) and 72(h) of NTT's Constitution, adopted from Table A of the Fourth Schedule of the Companies Act 1965 ("CA 1965"), consequent upon his unauthorised communications with Vale and EXIM Bank Malaysia Berhad ("EXIM Bank") — the company's sole client and principal financier — and his failure to disclose a personal financial interest that compromised his directorial independence.

Having considered the cause papers, affidavits, written submissions, and oral submissions, this Court dismisses Enclosure 1 and Enclosure 152 with costs fixed at RM75,000.00. The Plaintiff's directorship ceased by automatic operation of law. This is a case of vacation, not removal. The reasons follow. II. BACKGROUND FACTS A. The Company and Its Shareholders 5. NTT was incorporated on 7 September 2012 as a joint venture special purpose vehicle. Its business is the ownership and operation of tugboats deployed under the HTSA dated 11 April 2013 with Vale. NTT financed the construction of seven tugboats through a USD 51.8 million facility from EXIM Bank pursuant to a Facility Agreement dated 9 April 2013. The day-to-day management of the tugboats was contracted to Azimuth Ship Management Sdn Bhd ("ASM"), a company owned and controlled by Dato' Sri Captain Suresh ("Suresh"), who is also NTT's Managing Director and CEO and the controlling mind behind AMSB.

The shareholding structure of NTT is governed by the 1st and 2nd Shareholders' Agreements both executed on 15 March

AMSB holds 80% of NTT's equity and NSSB holds the remaining 20%. The Plaintiff was nominated to the NTT board by NSSB as its representative director. Dato' Wan was the second NSSB-nominee director. The "Majority Directors" — Suresh, the Chairman Mak Lin Kum, Ahmad Lutfi, Dato' Sri Abd Rahim, and Jaya Sudhir — were all aligned with or nominated by AMSB. B. The Deed of Indemnity 7. On 15 August 2016, the Plaintiff executed a Deed of Indemnity and Undertaking with NSSB, pursuant to which NSSB agreed to indemnify him against adverse costs orders arising from litigation conducted in the discharge of his directorial duties. This Deed was not disclosed to the NTT Board. As this Court finds below, the concealment of the Deed created an undisclosed personal financial interest that engaged Article 72(h) of the Constitution as a secondary ground of vacation. C. The 2017 Consent Order 8. On 17 February 2017, NSSB filed Originating Summons No. WA-24NCC(ARB)-9-02/2017 seeking an injunction to restrain AMSB and NTT from taking steps to remove the Plaintiff as a director pending the final determination of arbitration proceedings between AMSB and NSSB. The arbitration concerned an alleged wrongful transfer by AMSB of 10% of its NTT equity to a third party, Jaya Sudhir, in breach of a pre-emption clause in the Shareholders' Agreement. By a Consent Order recorded on 31 October 2017, AMSB and NTT were restrained from taking any steps to remove the Plaintiff as a director pending the final determination of that arbitration.

The arbitration commenced in 2016 but remained largely dormant since 2017, its progress having been interrupted by successive court injunctions. The last such injunction lapsed on 28 April 2025. The arbitration therefore remains on foot. D. The Unauthorised Communications with Vale and EXIM Bank 10. On 24 July 2024, Suresh presented to the NTT Board a legal opinion from Messrs Gananathan Loh ("GL Opinion"), advising that NTT was under an obligation to notify Vale and EXIM Bank of a derivative action leave application filed by the Plaintiff in OS

Suresh thereafter, signing on behalf of the Board, issued letters dated 8 August 2024 to both Vale and EXIM Bank notifying them of OS 677.

The Plaintiff took the view that the Board's letters were inaccurate and prejudicial to NTT's commercial relationships. On 23 August 2024, he wrote directly to EXIM Bank and Vale, disclosing the full landscape of NTT's internal litigation, without the authority, approval, or mandate of the Board.

Vale replied on 2 September 2024 stating it did not wish to be involved in internal disputes. On 4 October 2024, Vale formally restricted further communication to a designated HTSA email address. By letter dated 11 September 2024, the NTT Board had already written to the Plaintiff objecting to his communications and demanding that he cease and desist. E. The Preceding Litigation and the 4 September 2025 Order 13. The discord between the Plaintiff and the Majority Directors generated extensive litigation. Of direct relevance to these proceedings: a) On 23 December 2024, the Majority Directors resolved that the Plaintiff's office had automatically become vacant under Articles 72(g) and/or 72(h) ("1st Vacancy Declaration"). b) The Plaintiff filed OS 102 to challenge this declaration. On 24 March 2025, the High Court granted an ad interim injunction restraining NTT from giving effect to the 1st Vacancy Declaration. c) On 4 September 2025, the High Court disposed of OS 102, declaring the 1st Vacancy Declaration invalid on procedural grounds — the agenda for the 23 December 2024 meeting had not given notice that the Plaintiff's vacancy would be deliberated. Crucially, the Court expressly stated that the other directors remained at liberty to convene a fresh meeting with proper notice to deliberate the vacancy issue.

The Plaintiff appealed against the 4 September 2025 order on 11 September 2025 (Appeal 1701). On 12 September 2025, he applied to the Court of Appeal for an Erinford Injunction to restrain the proposed fresh board meeting. The Court of Appeal dismissed that application on 18 September 2025. F. The 19 September 2025 Board Meeting 15. On 8 September 2025, the NTT Company Secretary issued a notice convening a board meeting for 19 September 2025. The agenda expressly identified each ground — Articles 72(g) and 72(h) — and each category of conduct to be deliberated. The Plaintiff attended. The Board posed direct questions to him concerning: (a) the 2016 Deed of Indemnity and its terms; (b) his authority and rationale for communicating directly with Vale and EXIM Bank without board sanction; (c) his directorship in Ayenda Resources Sdn Bhd and related dealings with Vale; and

his immigration and work permit status. The Plaintiff declined to answer the questions posed and left the meeting before its conclusion.

Following the Plaintiff's departure, the Majority Directors concluded that the circumstances constituting an automatic vacancy under Articles 72(g) and (h) had been established, and recorded accordingly that the Plaintiff's directorial office had ceased ("2nd Vacancy Declaration").

By Enclosure 1 filed on 1 October 2025, the Plaintiff seeks to impugn the 2nd Vacancy Declaration as unlawful, null, and void. III. PLEADINGS AND PARTIES' SUBMISSIONS A. The Plaintiff's Position 18. The Plaintiff's principal contentions are as follows.

First, the Plaintiff submits that the 2nd Vacancy Declaration is in substance a removal engineered by the Majority Directors and dressed up as an automatic vacancy to circumvent the 2017 Consent Order. The proper mechanism for removing a director is a shareholder resolution under Section 206 of the Companies Act 2016 ("CA 2016").

Second, the Plaintiff submits that none of his conduct satisfies the legal threshold required to trigger an automatic vacancy under Article 72(g). In particular: a) Article 72(g) is limited to formal remunerative appointments — a second paid role within NTT. The Plaintiff holds no such second role. The Deed of Indemnity is an arrangement between NSSB and the Plaintiff as private persons; it does not constitute an office within NTT nor profit derived from NTT. b) His communications with Vale and EXIM Bank were made in good faith and in NTT's best interests, prompted by and responsive to the GL Opinion. They do not constitute the holding of an office of profit. c) The Defendant has failed to establish any legal or factual nexus between the alleged conduct and the operative words of Article 72(g).

Third, the Plaintiff argues that the 2017 Consent Order remains in full force and binds AMSB and NTT. The declaration of vacancy is an attempt by NTT to do by indirect means what it is directly prohibited from doing.

Fourth, the Plaintiff contends that the 2nd Vacancy Declaration is a tactical manoeuvre designed to destroy his locus standi in the derivative actions and inspection proceedings, thereby shielding the Majority Directors from accountability.

Fifth, on procedural fairness, the Plaintiff argues that the 19 September 2025 board meeting did not accord him a genuine opportunity to be heard, as the outcome had been pre-determined. B. The Defendant's Position 24. The Defendant's contentions are as follows.

First, NTT submits that the Plaintiff fundamentally conflates two distinct and mutually exclusive statutory regimes: a) Removal under Section 206 of the CA 2016, which requires an affirmative act by shareholders through an ordinary resolution at a duly convened general meeting with special notice; and b) Automatic vacation of office under Section 208 of the CA 2016, which occurs by operation of law when the circumstances specified in the company's constitution are satisfied, without any vote, resolution, or adjudicative act.

Second, NTT submits that the Plaintiff's unauthorised communications with Vale and EXIM Bank on 23 August 2024 squarely engage Articles 72(g) and 72(h). By writing directly to NTT's most critical commercial counterparties to air internal disputes without board mandate, the Plaintiff placed himself in a position of conflict and personal advantage irreconcilable with his fiduciary obligations.

Third, NTT submits that the 2017 Consent Order is expressly confined to restraining shareholder removal at a general meeting. It cannot freeze the Constitution or prevent the automatic operation of a constitutional vacancy provision when a director commits the disqualifying conduct.

Fourth, on procedure: the 19 September 2025 meeting was convened strictly in accordance with the liberty granted by the High Court on 4 September 2025. The Plaintiff attended but chose to leave before the deliberation concluded.

Fifth, NTT relies on the internal management rule and Section 211 of the CA 2016. Where the Constitution provides that certain conduct results in automatic vacation of office, the Court's role is to give effect to that bargain, not to rewrite it.

The following issues arise for determination: a) Whether the cessation of the Plaintiff's directorship was a removal governed by Section 206 of the CA 2016, or an automatic vacation of office under Section 208 of the CA 2016 read with Articles 72(g) and 72(h) of the Constitution. b) Whether the Plaintiff's conduct — specifically his unauthorised communications with Vale and EXIM Bank on 23 August 2024 — constitutes a breach of his statutory and fiduciary duties, and whether such conduct engages Article 72(g) of the Constitution. c) Whether, additionally or alternatively, the Plaintiff's conduct and the undisclosed Deed of Indemnity engage Article 72(h) of the Constitution. d) Whether the 2017 Consent Order operates as a bar to the 2nd Vacancy Declaration. e) Whether the 19 September 2025 board meeting was procedurally fair, and whether the Plaintiff's departure from the meeting affects his ability to impugn its outcome. f) Whether the ad interim injunction granted by the arbitrator has any effect on these proceedings. g) Whether this Court ought to intervene in the internal management of NTT. h) The admissibility and weight of Enclosure 177. i) Costs. V. PRINCIPLES OF LAW A. The Statutory Framework: Removal Distinguished from Vacation 31. The distinction between removal and automatic vacation of office is fundamental to these proceedings. The CA 2016 treats them as separate and mutually exclusive regimes.

Section 206(1) of the CA 2016 provides: "A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its constitution or in any agreement between it and him."

Removal under Section 206 is a deliberate act requiring shareholder initiative. It requires special notice, a general meeting, and an affirmative ordinary resolution.

Section 208(1) of the CA 2016 provides, insofar as material: "The office of director shall become vacant if the director — ...

vacates office as provided in the constitution of the company."

Vacation under Section 208 is automatic. It is triggered by the happening of a specified event or the commission of specified conduct defined in the company's constitution. No vote is required. No resolution is needed. The Board's role, upon the happening of such an event, is merely to observe and record a vacancy that has already arisen by force of the Constitution. B. Article 72(g) of the Constitution — Office of Profit 36. Article 72(g) of NTT's Constitution, adopted from Table A of the Fourth Schedule of the CA 1965, provides: "The office of a director shall become vacant if the director — ...

without the consent of the company in general meeting holds any other office of profit under the company except that of managing director or manager."

The concept of "office of profit" in company law connotes a position that carries with it some remuneration, benefit, personal advantage, or material gain flowing from or through the company to the director by reason of that position. The provision is directed at undisclosed self-dealing — a director who exploits his office within the company to secure a personal benefit without the knowledge or sanction of the shareholders in general meeting. It is not confined to a formal second employment contract. It captures any arrangement — formal or otherwise — by which a director obtains a personal pecuniary or material advantage from or through the company without shareholder consent.

The Articles of Association constitute a statutory contract between the company and its members pursuant to Section 33 of the CA 2016. As affirmed by the Federal Court in Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625 and by the Privy Council in Attorney General of Belize v Belize Telecom Ltd [2009] 2 All ER 1127, the Court has no power to improve upon or add terms to the instrument it construes. The Court must give effect to the agreed constitutional bargain. C. Fiduciary Duties of Directors and the Nominee Director's Statutory Duty 39. Section 213(1) of the CA 2016 provides: "A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company."

Section 217(1) of the CA 2016 further provides: "A director who was appointed by virtue of his position as an employee of a company, or who was appointed by or as a representative of a member, employer or debenture holder, shall act in the best interest of the company and in the event of any conflict between his duty to act in the best interest of the company and his duty to his nominator, he shall not subordinate his duty to act in the best interest of the company to his nominator."

The content of the fiduciary duty of loyalty was stated by Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1 at p 18, in terms consistently applied by the Malaysian courts including in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469: "The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal."

A proposition of cardinal importance must be stated plainly: no individual director, acting alone and without a board mandate, has any right whatsoever to communicate on behalf of the company with external parties on contested matters of corporate governance or commercial relationships. Authority to represent and bind the company externally vests in the Board collectively. It does not vest in individual directors by virtue of their office alone. A non-executive director's mandate is supervisory and deliberative — not executive and not unilateral. To act without board authority is not to exercise a directorial power; it is to usurp one. D. The Internal Management Rule, Section 211, and the Division of Powers 43. Section 211(1) of the CA 2016 provides: "The business and affairs of a company shall be managed by, or under, the direction of the Board."

Section 211(2) further provides that subject to the CA 2016 and the constitution of the company, the Board has all the powers necessary for the management of the business and affairs of the company. The Federal Court in Tengku Dato' Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2018] 2 MLJ 177 ("Petra Perdana") affirmed the classical position that powers of management are vested exclusively in the directors, and that shareholders in general meeting cannot control or override those powers except by statute or by altering the company's constitution.

This classical position finds its clearest expression in the seminal decision of John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113 (CA), where Greer LJ stated in terms applied without qualification across the Commonwealth: "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 constitution are vested in the directors any more than the directors can usurp the powers vested in the general body of shareholders."

The application of this principle to the present case is direct. The observing and recording of an automatic constitutional vacancy under Article 72(g) is an act of management that falls squarely within the Board's exclusive domain. The Court's role is to determine whether the constitutional provision was lawfully engaged — not to manage the company in the Board's place. E. Article 72(h) — Undisclosed Interest in Contracts 47. Article 72(h) of the Constitution provides that the office of a director shall become vacant if the director: "is directly or indirectly interested in any contract or proposed contract with the company and fails to declare the nature of his interest in manner required by the Act."

The provision is directed at preventing a director from holding an undisclosed personal interest in transactions or dealings involving the company. The phrase "directly or indirectly interested" is broad and captures beneficial, pecuniary, or competitive interests a director may hold in arrangements to which the company is a party. The critical element is the failure to declare — the mischief being concealment, not the mere existence of an interest. F. Standard and Burden of Proof 49. These are civil proceedings. The burden of proof lies on the Plaintiff who asserts that the 2nd Vacancy Declaration is unlawful. The standard is that of the balance of probabilities, as affirmed in Miller v Minister of Pensions [1947] 2 All ER 372, where Denning J stated that the balance of probabilities requires the Court to be satisfied that the case is more probable than not. VI. ANALYSIS AND FINDINGS Threshold Issue: Locus Standi 50. Before turning to the merits, this Court addresses the question of locus standi, which the Defendant raises as a threshold bar. The Defendant invokes the proper plaintiff rule derived from the decision in Foss v Harbottle (1843) 2 Hare 461, arguing that only the company or the nominating shareholder has standing to challenge a constitutional vacancy.

This Court does not accept that submission. The proper plaintiff rule is directed at wrongs done to the company — it prevents individuals from suing to vindicate a corporate right that properly belongs to the company as a whole. It has no application here. The Plaintiff is not asserting a corporate wrong. He is asserting a personal wrong done directly to him: the unlawful termination of his individual office as director. A director whose directorship is wrongfully declared vacant suffers a direct personal injury separate and distinct from any corporate wrong. Such a claim is personal, not derivative, and falls squarely outside the Foss v Harbottle principle.

The Plaintiff accordingly has locus standi to challenge the lawfulness of the 19 September 2025 vacancy declaration. His standing is, however, confined to that issue. This OS cannot serve as a vehicle to relitigate the corporate governance disputes that are the subject of the pending derivative and inspection proceedings.

Having confirmed locus standi, this Court turns to the merits. Issue (a): Removal or Vacation?

The Plaintiff's Originating Summons is framed in terms of removal. However, a careful analysis of the facts discloses that what occurred on 19 September 2025 was not a removal within the meaning of Section 206 of the CA 2016. There was no extraordinary general meeting. No shareholders convened. No ordinary resolution was passed. No special notice was served. The machinery of Section 206 was not engaged at any point.

What the Board did on 19 September 2025 was to deliberate, in accordance with proper notice, whether the facts and conduct before it engaged Articles 72(g) and 72(h) of the Constitution so as to give rise to an automatic vacancy. Having concluded that they did, the Board recorded that the Plaintiff's office had become vacant. This is precisely the Board's function under Section 208(1)(g) of the CA 2016 — to observe and record a vacancy that has arisen by operation of the Constitution, not to bring one about by the exercise of a discretion.

The Plaintiff invites this Court to treat substance over form and to look behind the label of vacation to find a removal in disguise. This Court declines that invitation. The distinction between removal and vacation is not merely formal — it reflects two entirely different constitutional mechanisms operating on different parties, requiring different procedural prerequisites, and producing different legal consequences. What must be examined is whether the constitutional conditions for vacation were in fact engaged. That is the real question.

On the balance of probabilities, this Court finds that no removal within the meaning of Section 206 occurred on 19 September

Issue (a) is resolved in favour of the Defendant. Issue (b): Breach of Fiduciary Duty and the Vacation of Office under Article 72(g)

This is the heart of the case. This Court approaches it in three stages, each of which is a self-standing and independent ground of decision. First, this Court finds that the Plaintiff committed a clear and serious breach of his statutory and fiduciary duties as a director under the CA 2016. Second, this Court finds that the same conduct, read with the aggravating context of his concurrent derivative actions against the Board, demonstrates a complete and irreversible collapse of directorial loyalty rendering him unfit to remain on the Board. Third, this Court finds that the same conduct constitutes the constitutional trigger for an automatic vacation of office under Article 72(g) of the Constitution. Each ground is independently sufficient to dispose of Enclosure 1. All three are stated because all three are made out.

The Factual Foundation 59. The primary factual finding is this. On 23 August 2024, the Plaintiff wrote directly and unilaterally to Vale and EXIM Bank — NTT's sole client and principal financier respectively — disclosing the full landscape of NTT's internal litigation, including the derivative actions, the shareholder disputes, and allegations against the Majority Directors. He did so without the knowledge, authority, approval, or mandate of the NTT Board. No board resolution authorised him. No standing delegation existed. No emergency or exigency justified unilateral action. He acted entirely of his own initiative, for reasons that served NSSB's interests in the arbitration rather than NTT's interests as a company.

Vale and EXIM Bank are not peripheral parties. Vale is NTT's sole client — the counterparty to the HTSA which is the very commercial foundation of NTT's existence. EXIM Bank is NTT's principal financier under the USD 51.8 million Facility Agreement. Communications with these entities touching on NTT's internal disputes carry direct, immediate, and potentially irreversible commercial consequences. Vale's response — formally restricting further communication to a designated channel — demonstrates that the consequences were not theoretical. They were real and immediate.

The Plaintiff's response — that his communications were prompted by the GL Opinion and made in good faith — does not withstand scrutiny. The GL Opinion was addressed to the Board collectively and addressed the Board's disclosure obligations. It did not authorise, expressly or by implication, any individual director to write independently to NTT's clients and financiers with a different narrative. Good faith, even if present, does not confer authority that the Constitution does not grant. A director acting without board mandate acts without authority. The motivation for that unauthorised act is irrelevant to whether it constitutes a breach. It does.

(ii) The Primary Ground: Breach of Statutory and Fiduciary Duty 62. This Court finds, as its primary and independent ground of decision, that the Plaintiff's conduct constituted a serious breach of his statutory duties as a director under the CA 2016 and his fiduciary duties at common law. This finding stands entirely on its own. It does not depend on Article 72(g) or any constitutional provision.

Section 213(1) of the CA 2016 imposes a mandatory duty to act in good faith in the best interest of the company. The Plaintiff did not act in the best interest of NTT on 23 August 2024. He acted in the interest of NSSB. He used his directorial status — his access, his title, his apparent authority as a board member — to communicate with NTT's most critical commercial counterparties in a manner calculated to advance the minority shareholder's arbitration agenda. That is not acting in NTT's best interest. It is its antithesis.

Section 217(1) of the CA 2016 speaks directly to the Plaintiff's position. He was a nominee director appointed by and as a representative of NSSB. When conflict arose — NTT's interest being to preserve its client and banker relationships, NSSB's interest being to ventilate the disputes — Section 217(1) prohibited him without qualification from subordinating NTT's interest to NSSB's. He did the opposite. That is a statutory breach carrying criminal liability under Section 217(2) of the CA

2016.

It is a proposition of fundamental importance, plainly stated: no individual director, acting alone and without a board mandate, has any right whatsoever to communicate on behalf of the company with external parties on contested matters of corporate governance, internal disputes, or commercial relationships. This right does not exist. It has never existed. It cannot be created by good faith, by urgency, by perceived inaccuracy in the Board's own communications, or by any other circumstance. Authority to represent the company externally vests in the Board collectively. A non-executive director's mandate is supervisory and deliberative — not executive and not unilateral. The Plaintiff usurped an authority that was never his.

The consequences of the Plaintiff's breach are not theoretical. Vale restricted further communication to a designated email channel. The commercial relationship with NTT's most critical counterparty was strained by the actions of a director who had no authority to take them. This is precisely the kind of conduct that fiduciary law exists to prevent.

(iii) The Aggravating Dimension: Concurrent Derivative Actions 67. The breach of fiduciary duty identified above does not stand in isolation. It must be understood against the full picture of the Plaintiff's position at the material time.

At the time he sent those communications, the Plaintiff was simultaneously conducting derivative actions against the very board on which he sat. He had obtained leave to commence a derivative action in respect of a RM75.5 million shareholders' advance — a matter litigated all the way to the Federal Court. He had filed OS 677 seeking leave for a further derivative action on operational expenditure. He had filed Suit 403, the Management Fee Suit, against AMSB nominees. He was, in short, suing the Board from within the Board.

This creates an acute and irreconcilable structural conflict of interest that compounds the breach already identified. A director who litigates against the board of which he is a member is simultaneously a fiduciary of the company — obliged to act in NTT's best interests — and an adversary of its majority directors. These two positions cannot be reconciled. A director in that position must be more scrupulous about acting within his authority — not less. The Plaintiff was less.

This Court is careful to note that the existence of lawfully sanctioned derivative actions is not itself a breach of duty. What constitutes a breach is the exploitation of directorial status to advance the litigation agenda through unauthorised external communications that the Board has not sanctioned.

Taken together, the unauthorised communications and the concurrent derivative actions paint a complete and unambiguous picture. By August 2024, the Plaintiff's loyalty to NTT had wholly transferred to NSSB. He was no longer acting as a director of NTT. He was acting as NSSB's agent within NTT, using his directorial position as a platform from which to prosecute NSSB's commercial and litigation agenda. That is the antithesis of the single-minded loyalty that the law demands. This Court finds that the Plaintiff lacked the fundamental quality of loyalty that directorial office requires. His continued presence on the Board was untenable.

(iv) The Constitutional Consequence: Article 72(g)

The same conduct that constitutes a breach of fiduciary duty and statutory duty also constitutes the trigger for an automatic vacation of office under Article 72(g) of the Constitution. This Court treats Article 72(g) as the constitutional consequence of the fiduciary breach already established.

Article 72(g) renders a director's office automatically vacant if he holds, without shareholder consent, any office of profit under the company. This Court construes the provision purposively. Its mischief is the prevention of a director from exploiting his directorial office to secure personal advantage — whether financial, positional, or strategic — for himself or for a third party, without shareholder sanction. A director who uses his directorial status to perform an executive function he has not been granted — who communicates with the company's clients and financiers as though he were authorised to do so, advancing a third party's agenda under colour of his directorial office — has assumed an unauthorised role and derived from it an unauthorised benefit. That is the substance of holding an office of profit under the company without consent.

The Plaintiff's narrow construction — that Article 72(g) is confined to formal second employment contracts — is rejected. It would render the provision meaningless in precisely the circumstances where it is most needed: where a director exploits his office through assumed authority exercised unilaterally and without disclosure. The purposive construction preferred by this Court is grounded in the approach affirmed in Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625 and Attorney General of Belize v Belize Telecom Ltd [2009] 2 All ER 1127.

This Court accordingly finds that the Plaintiff's conduct engaged Article 72(g) and that his directorial office became automatically vacant upon the commission of that conduct. The Board's recording of that vacancy on 19 September 2025 was an acknowledgment of a legal fact that had already occurred — not the creation of a new one.

Issue (b) is resolved in favour of the Defendant on all three bases: statutory breach, fiduciary breach, and Article 72(g) vacation. Issue (c): Article 72(h) — Secondary and Additional Finding 77. This Court made clear at the hearing that the litmus test for these proceedings is whether there is a trigger event under Articles 72(g) and/or 72(h). Having found Article 72(g) engaged as the primary ratio, this Court proceeds to consider Article 72(h) as a secondary and additional — though not independently necessary — ground.

Article 72(h) is additionally engaged on the facts. The analysis proceeds at two levels.

First, the Deed of Indemnity. The Deed is an arrangement pursuant to which NSSB agreed to indemnify the Plaintiff against adverse costs in litigation arising from his directorial duties. The litigation in question — the derivative actions and inspection suits — are proceedings brought in NTT's name or in relation to NTT's affairs, to which NTT is either a party or is directly affected. The Plaintiff thus held, through the Deed, a financial interest in the conduct and outcome of those proceedings — his personal insulation from adverse costs — without disclosing it to the NTT Board. A director who conceals from the board that he is financially protected against adverse costs in proceedings involving the company cannot exercise independent judgment on those proceedings. He has an undisclosed personal stake in their outcome. That is precisely the conflict Article 72(h) is designed to prevent.

Second, the external communications. The Plaintiff's letters to Vale and EXIM Bank on 23 August 2024 were communications that disclosed and ventilated the very disputes in which he had a concealed financial interest under the Deed. By writing to NTT's client and banker without disclosing that he was personally indemnified against costs in the related proceedings, the Plaintiff engaged with the company's most critical commercial relationships in a manner that served his undisclosed interest. The failure to declare his interest under the Deed, in the context of conduct materially affected by that interest, engages Article 72(h).

The Plaintiff's submission that Article 72(h) requires identification of a specific formal contract to which NTT is a party is too narrow. The phrase "directly or indirectly interested" encompasses indirect financial interests in proceedings and dealings to which the company is a party.

This Court finds that Article 72(h) is engaged as a secondary and additional ground. It fortifies, but does not replace, the primary ratio on Article 72(g) and the fiduciary duty findings. Issue (c) is resolved in favour of the Defendant. Issue (d): Does the 2017 Consent Order Bar the 2nd Vacancy Declaration?

The 2017 Consent Order expressly restrains AMSB and NTT from "taking any steps to remove" the Plaintiff as a director of NTT pending the final determination of the arbitration. The question is whether those words, properly construed in context, are wide enough to encompass a Board declaration of automatic vacancy under Article 72(g).

The Consent Order was made in the context of NSSB's application to restrain an EGM at which a shareholder resolution to remove the Plaintiff was to be passed. The entire context was the threat of shareholder-driven removal. The injunction was crafted to prevent that specific threat. It was not crafted to freeze the Constitution or to immunise the Plaintiff against the automatic constitutional consequences of his own future misconduct.

The Consent Order must be construed in accordance with the intent of the parties at the time it was made. In October 2017, the parties were not contemplating the possibility that the Plaintiff would, years later, write unilaterally to NTT's client and banker in the manner that he did. To construe the Consent Order as a perpetual bar against any determination of vacancy, however caused and however justified, would give it an effect that no reasonable party could have intended.

Furthermore, the mechanism by which the Plaintiff's office became vacant is not the act of NTT or AMSB. It is the act of the Plaintiff himself. The vacancy was triggered by his own conduct. The Consent Order restrains AMSB and NTT from taking steps to remove the Plaintiff. It cannot restrain the Plaintiff from committing acts that automatically vacate his own office. A court order cannot immunise a director against the legal consequences of his own future misconduct.

Issue (d) is resolved in favour of the Defendant. The 2017 Consent Order was not breached.

By way of observation only and not forming part of this Court's ratio: even if this Court were wrong in its primary construction of the Consent Order, equity would not assist the Plaintiff. A party who seeks equitable relief must come with clean hands. The Plaintiff, having committed the very conduct that triggered Articles 72(g) and 72(h), cannot invoke equity to reverse the constitutional consequence of his own breach of duty. This is obiter and forms no part of the ratio. Issue (e): Procedural Fairness and the Walkout — Strategic Election, Not Mere Absence 89. The Plaintiff submits that the 19 September 2025 meeting was procedurally unfair and that the outcome was pre-determined. This Court emphatically rejects those submissions.

The meeting was convened strictly in accordance with the liberty granted by the High Court on 4 September 2025 — an order made in OS 102, which the Plaintiff himself had filed. The notice issued on 8 September 2025 identified, in specific terms, each ground and each category of conduct to be deliberated. The Plaintiff had eleven days' advance notice of the precise questions that would be put to him.

The Plaintiff attended the meeting. He heard the Board's questions. He chose not to answer them. He then left. The right to be heard is a right to a genuine opportunity, not a guarantee of a favourable outcome. The opportunity was provided. The Plaintiff declined it.

This Court goes further. The Plaintiff filed Appeal 1701 against the 4 September 2025 order on 11 September 2025 — three days after the notice for the 19 September meeting was issued and eight days before the meeting. He then applied to the Court of Appeal for an Erinford Injunction on 12 September 2025 to restrain the very meeting he was about to attend. That application was dismissed on 18 September 2025 — the day before the meeting.

This chronology demonstrates that the Plaintiff had, before he walked into the 19 September 2025 meeting, made a considered and deliberate decision to challenge the Board's jurisdiction to make any declaration at all. He had elected to litigate rather than engage. His departure from the meeting was the execution of a pre-formed strategy. A party who elects in advance to reject the forum cannot claim he was denied a hearing. He denied it to himself.

The Plaintiff's departure was also itself a breach of his directorial duty. As a director, he was obliged to engage with the Board on matters of governance that directly concerned his conduct. His refusal to answer questions about his communications with Vale and EXIM Bank was a dereliction of the duty of engagement that his office imposed. Issue (e) is resolved in favour of the Defendant. Issue (f): The Arbitrator's Ad Interim Injunction — No Effect on These Proceedings 95. At the hearing, Plaintiff's counsel disclosed that the arbitrator had granted an ad interim injunction. This Court finds that the arbitrator's ad interim injunction has no effect whatsoever on these proceedings. This finding rests on four independent grounds.

First — jurisdiction. The arbitration is between NSSB and AMSB and NTT. The Plaintiff is not a party to the arbitration. The Federal Court in Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1 — a case arising from the very same joint venture and shareholders' agreement as the present dispute — confirmed that the Arbitration Act 2005 does not apply to persons who are not parties to the arbitration agreement. The Plaintiff filed this OS in his personal capacity. He is not a signatory to the Shareholders' Agreement. An arbitral tribunal cannot bind a non-party's individual rights or restrain court proceedings in which that non-party participates in his personal capacity.

Second — subject matter. The arbitration concerns the alleged wrongful transfer of AMSB's shares and consequential buy-out claims between shareholders. It does not concern the internal constitutional validity of a board-declared vacancy under Article 72(g). An arbitral interim measure granted in connection with shareholder buy-out claims cannot reach across to determine the constitutional validity of a director's vacation of office — a matter of company law within this Court's exclusive jurisdiction.

Third — enforcement mechanism. Under Section 19H of the Arbitration Act 2005, an interim measure issued by an arbitral tribunal is recognised as binding and may be enforced upon application to the competent court. It is not self-executing. No application has been made to this Court for recognition or enforcement of the arbitral injunction. It therefore has no direct legal effect in these proceedings.

Fourth — priority of court proceedings. This Court was seised of these proceedings and had received full submissions from both parties before the arbitrator's ad interim injunction was granted. As confirmed in Jaya Sudhir [2019] 5 MLJ 1, where there are parallel proceedings in courts and in arbitration involving overlapping issues, Malaysian law recognises the primacy of court jurisdiction on matters properly before the court. An arbitral measure granted after full submissions had been taken cannot unilaterally suspend this Court's jurisdiction.

Issue (f) is resolved in favour of the Defendant. The arbitrator's ad interim injunction has no effect on these proceedings. Issue (g): Internal Management — Should This Court Intervene?

The Plaintiff invites this Court to intervene in the internal management of NTT on the basis that the 2nd Vacancy Declaration is unlawful. Having found that the declaration is not unlawful, this Court's application of the internal management principle is confirmatory rather than dispositive.

Section 211(1) of the CA 2016 vests the management of the business and affairs of NTT exclusively in its Board. The Federal Court in Petra Perdana [2018] 2 MLJ 177 and the Court of Appeal in John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113 confirm that powers of management are vested exclusively in the directors and cannot be overridden or usurped — whether by shareholders or by the court. Judicial intervention in the Board's management functions, absent fraud, oppression, or illegality, would render Section 211 an impotent provision.

There is no basis for intervention. The Board gave effect to a constitutional provision the shareholders had adopted. Issue (g) is resolved in favour of the Defendant.

Issue (h): Enclosure 177 — The Late Affidavit on Confidentiality The Defendant filed Enclosure 177 shortly before the hearing, alleging breach of confidentiality arising from a meeting between the Plaintiff and the company's former General Manager, attended also by Dato' Choo, a fellow minority- nominee director who remains a validly constituted director of NTT. The Plaintiff applied to expunge it.

This Court declines to expunge Enclosure 177 — it is part of the record. However, this Court makes clear that it does not assist the Defendant in the determination of the central questions. The litmus test is whether Articles 72(g) and 72(h) are triggered. Alleged confidentiality breaches arising from a meeting between an ex-employee and a sitting director do not constitute the holding of an office of profit under Article 72(g), nor do they establish an undisclosed interest in a contract with NTT under Article 72(h). If the conduct in Enclosure 177 is actionable, the appropriate venue is the Defendant's pending suits for breach of directors' duties — not this OS. Enclosure 177 carries no weight in this Court's determination.

Issue (i): Costs This Court has dismissed Enclosure 1 and Enclosure 152 in their entirety. The Defendant succeeds completely. Costs follow the event. After hearing both parties on costs and taking into account the complexity of the proceedings, the volume of cause papers, the multiple interlocutory applications — Enclosure 19 (injunction), Enclosure 97 (discovery), and Enclosure 152 (amendment) — and the overall conduct of the litigation, this Court orders a global award of costs. The costs of the discovery application under Enclosure 97 are costs in the cause and are subsumed within the global award. The Plaintiff shall pay the Defendant costs fixed at RM75,000.00, inclusive of all applications before this Court.

VII. CONCLUSION AND ORDERS For all the foregoing reasons, this Court concludes as follows:

The cessation of the Plaintiff's directorship was not a removal under Section 206 of the CA 2016. It was an automatic vacation of office under Section 208 read with Articles 72(g) and 72(h) of NTT's Constitution.

The Plaintiff's conduct — particularly his unauthorised communications with Vale and EXIM Bank on 23 August 2024 — constituted a serious and standalone breach of his statutory duties under Sections 213(1) and 217(1) of the CA 2016 and his fiduciary duty of loyalty at common law. That same conduct engaged Article 72(g) of the Constitution as the primary ratio. Article 72(h) is additionally engaged as a secondary ground by reason of the undisclosed Deed of Indemnity.

The 2017 Consent Order does not bar the 2nd Vacancy Declaration. It restrains shareholder removal under Section 206 and cannot arrest an automatic constitutional vacancy triggered by the Plaintiff's own misconduct.

The 19 September 2025 board meeting was procedurally fair. The Plaintiff's departure was a pre-meditated strategic election, not the denial of a right to be heard.

The arbitrator's ad interim injunction has no effect on these proceedings. The Plaintiff is not a party to the arbitration. The measure is not self-executing in this Court.

There is no basis for judicial intervention in the internal management of NTT.

Enclosure 177 is not expunged but carries no weight in this Court's determination.

This Court accordingly makes the following orders: a) Enclosure 1 (the Originating Summons) is hereby dismissed. b) Enclosure 152 (the amended Originating Summons) is hereby dismissed. c) Enclosure 70 (the injunction pending determination of Enclosure 1) is dismissed, rendered academic by the dismissal of Enclosure 1. d) Enclosure 19 (the injunction application) is dismissed, rendered academic by the dismissal of Enclosure 1. e) The Plaintiff shall pay the Defendant costs fixed at RM75,000.00, inclusive of all applications before this Court including Enclosures 1, 19, 97, and 152. f) All further consequential directions, if required, are to be taken out within fourteen (14) days from the date of this order.

Obiter observation on Articles 68A and 72(i): This Court notes that the shareholders of NTT have, by resolution passed on 21 March 2026, amended the company's Constitution to insert Articles 68A and 72(i), which require directors to possess the necessary work permits to act in that capacity in Malaysia. These provisions now form part of NTT's statutory contract. Whilst these amended articles do not fall for determination in these proceedings — the 2nd Vacancy Declaration having been made on 19 September 2025, before their adoption — this Court observes that their effect on the future administration and governance of NTT, including the eligibility of any person to serve as a director, will be of considerable significance going forward. This observation is made by way of guidance only and forms no part of the ratio of this judgment.

VIII. APPRECIATION This Court records its appreciation to learned counsel for both parties for their thorough and well-researched written submissions, which greatly assisted the Court in navigating a legally complex and factually dense set of proceedings. Dated 12hb June 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: Dato’ Lim Chee Wei, Pang Kong Leng, Samatha Siow San, Michella Chin Zi Shan & Luther Cheong (Cheah Teh Su (Kuala Lumpur)) For the Defendant: Dato Sri Rajan Navaratnam, Sheena Sebastian, Maurice Ernest Scully, Tan Wee Jiun & Sivashangary (M Scully (Kuala Lumpur))

Miller v Minister of Pensions [1947] 2 All ER 372 2. Foss v Harbottle (1843) 2 Hare 461 3. John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113 (Court of Appeal, England and Wales)

Bristol and West Building Society v Mothew [1998] Ch 1 (Court of Appeal, England and Wales)

Attorney General of Belize v Belize Telecom Ltd [2009] 2 All ER 1127 (Privy Council)

Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625 (Federal Court, Malaysia)

Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469; [2008] 3 CLJ 221 (Federal Court, Malaysia)

Tengku Dato' Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2018] 2 MLJ 177 (Federal Court, Malaysia)

Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd & Ors [2019] 5 MLJ 1 (Federal Court, Malaysia)

Companies Act 2016 (Act 777) — Sections 33, 206, 208, 211, 213, 217 2. Companies Act 1965 (Act 125) — Fourth Schedule, Table A, Articles 72(g) and 72(h)

Arbitration Act 2005 (Act 646) — Sections 19, 19H