Tong Yon Lai v Yon Heng Farm Sdn Bhd (JA-24NCC-7-04/2023)

FONG YUM SANG @ TONG YON SANG

THUNG SING EE … Defendants  GROUNDS OF JUDGMENT  S/N w3IgJkqFW0urmumL4J/yQ INTRODUCTION [1] This is an application by the Plaintiff via Originating Summons (OS - Enclosure 1) commenced legal proceedings against the Second (“D2”) and Third (“D3”) Defendants a shareholder of the First Defendant (“D1”) for remedy in cases of oppression pursuant to section 346 of the Companies Act 2016 [Act 777]. [2] An ex-parte Prohibitory Injunction was granted via Notice of Application (Enclosure 4) on 10.04.2023 and the Order for an Ad Interim Prohibitory Injunction dated 18.04.2023 (Enclosure 22) whereby the Court had granted an interim prohibitory injunction against the enforcement and/or implementation of certain proposals in the meeting agenda which had been passed during the Directors and Shareholders Meeting dated 16.04.2023 [3] After having read the Affidavits, written submissions by both the Plaintiff and the Defendants, and after having heard the oral submissions of the parties, I allowed the Plaintiff’s application as follows:

parties to perform their respective obligations under the Deed of Settlement dated 02.04.2001 Supplementary Deed of Settlement dated 19.08.2004 and Further Supplementary Deed of Settlement dated 26.08.2008 entered into between the parties within six (6) months from the date of this order. Failure to do so, the Plaintiff is at liberty to apply to this Court to wind up the company;

the payment of RM4,470.00 to be paid equally by the Plaintiff, D2 and D3 based on the percentage of shares S/N w3IgJkqFW0urmumL4J/yQ held by them in the company. D2 and D3 to reimburse their portion of shares to the Plaintiff within fourteen (14) days from the date of this Order; and

the interest at 5% on the amount of RM 4,470.00;

each Defendant to pay costs of RM2,000.00 to the Plaintiff, subject to allocator fees. [4] I have dismissed Enclosure 4 and Enclosure 35 with no order as to costs since Enclosure 1 was allowed. [5] Below are the grounds of my decision. BRIEF BACKGROUND [6] The background facts in this case are gathered from the cause papers and submissions filed by the parties and stated in chronological order. [7] Prior to 1981, D2 has commenced the business by using the name of “Yon Heng Farm” as sole proprietor in around 1973. The Plaintiff and D3’s father, Thung Yun Heong (“TYH”) (now deceased) are brothers of D2 and joined the company around 1977. [8] D1 was incorporated under the Companies Act 1965 on 22.09.1981. D1 is a family-owned and ran company and was founded by siblings, one of whom is the Plaintiff. D1 is doing business as an investment holding relating to pig farming. [9] TYH passed away on 08.05.2014, his shares and position of TYH has transferred to his son, D3. S/N w3IgJkqFW0urmumL4J/yQ [10] The current shareholding structure was set as the Plaintiff, D2 and D3 holds the same voting power and shareholding of 33.33% each. [11] As a family-owned and ran company, the shareholders are to abide by the family shareholder’s understanding and agreements, amongst others, to manage the company based on mutual trust and confidence and the shareholders of the company enjoy equal participation and decision-making powers and entitled to board representation, and importantly equal treatment, benefits and remuneration. [12] The assets of D1 consist of tangible and intangible property, as follows:

the plots of lands comprising of Lot 157, Lot 158 and Lot 1090 containing an area of 9A. 2R. 20P, 9A. 2R. 05P and 8A. 3R. 15P in the Mukim of Plentong (“the Plots of

the Department of Veterinary Services of the State of Johor had issued the D1 with the license, in which is held by the D2 on behalf of the D1, to carry out pig farming activities on the Plots of Lands (“the Pig Farming License”). [13] The Plaintiff alleged that the D2 and D3 had amongst others, exercised their powers, conducted affairs, caused to be done acts and proposed resolutions in a manner oppressive and /or unfairly discriminating against the Plaintiff. S/N w3IgJkqFW0urmumL4J/yQ [14] D1 had leased those Plots of Lands together with the Pig Farming License to one Ai Hwa Poultry Sdn. Bhd. (“AHPF”) with an option to renew the lease. However, the D2 and D3 had increased the monthly rental and later by majority board resolution had terminated the lease prematurely. Thereafter, AHPF has successfully obtained specific performance against D1 towards the lease agreement in the Johor Bahru High Court vide case number JA-22NCVC-88-04/2016. [15] The Plaintiff alleged that the termination of the lease agreement has caused the company suffered loss of RM654,236.80 when the judgment sum was awarded against D1 and consequentially, it has resulted the diminution in the value of the Plaintiff’s shares. [16] Further, it was the contention of the Plaintiff that D2 had without any board resolution unlawfully transferred the Pig Farming License to his grandson. In rectification thereto, the Plaintiff incurred legal expenses in the sum of RM4,770.00 to reverse the transfer, which was also claimed by the Plaintiff via this OS. Principles of Law on Oppression under section 346 of Act 777 [17] Section 346 of Act 777 provides as follows:

Any member or debenture holder of a company may apply to the Court for an order under this section on the ground —

that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders including himself or in disregard of his or their interests as members, shareholders or debenture holders of the company; or

that some act of the company has been done or is threatened or that some resolution of the members, debenture holders or any class of them has been passed or is proposed which S/N w3IgJkqFW0urmumL4J/yQ unfairly discriminates against or is otherwise prejudicial to one or more of the members or debenture holders, including himself.”. [Emphasis added] [18] It is to be noted that section 346 of Act 777 was then section 181 of Companies Act 1965 where both are identical in form. [19] In the landmark case of Re Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors v. King Beng Sung [1978] 2 MLJ 227, the Privy Council speaking through Lord Wilberforce held as follows: “Secondly, for the case to be brought within section 181(l)(a) at all, the complaint must identify and prove “oppression” or “disregard”. The mere fact that one or more of those managing the company possess a majority of the voting power and, in reliance upon that power, make policy or executive decisions, with which the complainant does not agree, is not enough. Those who take interests in companies limited by shares have to accept majority rule. It is only when majority rule passes over into rule oppressive of the minority, or in disregard of their interests, that the section can be invoked. As was said in a decision upon the United Kingdom section there must be a visible departure from the standards of fair dealing and a violation of the conditions of fair play which a shareholder is entitled to expect before a case of oppression can be made (Elder v Elder & Watson Ltd 1952 SC 49): their Lordships would place the emphasis on “visible”. And similarly “disregard” involves something more than a failure to take account of the minority’s interest: there must be awareness of that interest and an evident decision to override it or brush it aside or to set at naught the proper company procedure (per Lord Clyde in Thompson v Drysdale 1925 SC 311 315). Neither “oppression” nor “disregard” need be shown by a use of the majority’s voting power to vote down the minority: either may be demonstrated by a course of conduct which in some identifiable respect, or at an identifiable point in time, can be held to have crossed the line.”. [Emphasis added] [20] In Pan-Pacific Construction v. Ngiu Kee Corp. [2010] 6 CLJ 7218, the Federal Court summarised the position of the law on S/N w3IgJkqFW0urmumL4J/yQ oppression and identified 4 categories of conduct and how they corelated to the concept of “unfairness” as the basic theme— “[25] Therefore, in order to succeed in its petition pursuant to s. 181 the petitioner has to establish and ‘must eminently be determined according to the facts’ of this case that the affairs of the company are being conducted or that the powers of the directors are being exercised in an oppressive manner or in disregard of its interests, or to its prejudice some unfairly discriminatory or prejudicial act of the company has been done or threatened, or that some resolutions of the members, debenture holders or any class of them has been passed or is proposed to be passed. [26] In other words s. 181 permits judicial remedy on four categories of conduct, namely, oppressive conduct, conduct in disregard of interests, unfairly discriminatory conduct or prejudicial conduct. [27] It may also be noted that from the wordings of s. 181 its basic theme is ‘unfairness’. However, unfairness ‘does not mean that the court can do whatever the individual judge happens to think fair. The concept of fairness must be applied judicially and the content which it is given by the courts must be based upon rational principles. “The court ... has a very wide discretion, but it does no sit under a palm tree’”. (See: O’Neil v. Philips [1999] 2 All ER 961). ….. [29] Thus, in Re Kong Thai Sawmill (Miri) Sdn Bhd; Kong Thai Sawmill (Miri) Sdn Bhd & Ors v. Ling Beng Sung [1978] 1 LNS 170 the term ‘disregard of interests’ is to be understood to mean ‘unfair disregard’ while ‘oppression’ denotes an ‘unfairly prejudicial conduct’ which means a conduct ‘departing from standards of fair dealing and a violation of conditions of fair play’. But ‘a member of a company will not ordinarily be entitled to complain of unfairness unless there has been some breach of the terms on which he agreed that the affairs of the company should be conducted’. And ‘trivial or technical infringements of the articles were not intended to give rise to petitions under s. 459’. (See: Re Saul D Harrison & Sons Plc (supra).”. [Emphasis added] [21] Therefore, based on these authorities, to succeed in this application, the Plaintiff must prove that the affairs of D1 was S/N w3IgJkqFW0urmumL4J/yQ conducted by D2 and D3 in a manner oppressive to and/or in disregard of the Plaintiff’s interest as a shareholder. ISSUES TO BE DETERMINED [22] The issues for the determination of this Court are as follows:

whether the Plaintiff’s complaint fall within the ambit of section 346 of Act 777; and

whether the action of the D2 and D3 in conducting the affairs of D1 in the manner oppression or disregard the interest of the Plaintiff.

whether the Plaintiff’s complaint fall within the ambit of section 346 of Act 777 [23] The Defendant contended that the OS is nullity as the complaints alleged by the Plaintiff that the D1 has to bear the judgment debt of RM654,236.80 in the suit no. JA-22NCVC-88-04/2016 and the D2 has applied to transfer the Pig Farming License to his grandson, did not fall within the ambit of section 346 of Act 777 and it should be premised on the derivative action under section 347 of Act 777. This is because the person who suffered loss and damages is D1 and not the Plaintiff. [24] The Defendants argued that the failure of D2 and D3 to exercise their voting rights diligently and if it is true, was a breaching of their duty as director which detrimental to the interest of the company and the expenses incurred would have been a loss or damage to the company and not the Plaintiff in his personal capacity. Hence, the action is contravening section 347 of Act 777 where the S/N w3IgJkqFW0urmumL4J/yQ Plaintiff’s right to sue are based on the alleged corporate wrongdoings to D1. Nonetheless, the Plaintiff’s action is to seek indemnity for himself where in fact D1 is an entity who suffered losses. [25] The Defendants also contended that the Plaintiff was the culprit who contributed to the loss and damages of D1 whereby the Plaintiff is seeking an injunction to disable D1 to sue him. [26] The Plaintiff’s averred that the oppression proceedings and derivative proceedings are not mutually exclusive and a single set of circumstances may give rise to both. To support their contentions, the Plaintiff cited the Federal Court decision in the case of Rinota Construction Sdn. Bhd. v Mascon Rinota Construction Sdn. Bhd. & Others [2018]1MLJ 141. [27] The Plaintiff also argued that there is no double recovery by the Plaintiff for the loss and damages suffered by D1 as the Plaintiff was not claiming the loss and damages incurred by D1. Therefore, the case of Prudential Assurance Co. Ltd. V Newman Industries Ltd. & Ors. (No. 2) [1982] Ch 204 is not applicable. [28] The Plaintiff further argued that the High Court in the case of JA- 22NCVC-88-04/2016 (which was affirmed by the Court of Appeal and the Federal Court) had found AHPF had exercise their options to renew the lease agreement and the Plaintiff and the Defendants had agreed to increased rental of RM42,000.00 per month. Therefore, the Plaintiff and the Defendants were bound by the lease agreement and the Defendant’s contentions are bereft the support of both laws and facts. S/N w3IgJkqFW0urmumL4J/yQ [29] In the present case, the Plaintiff does not claim any damages for loss and expense of the D1 for the sum of RM654,236.00 or initiate proceedings against D2 and D3 for breach of fiduciary duties. Therefore, I rule that the contentions of the Defendants the action should be under section 347 of Act 777 devoid of merits and the case of Prudential Assurance Co. Ltd. V Newman Industries Ltd. & Ors. (No. 2) [1982] (supra) is not applicable. [30] Further, I rule that the issues raised by the Defendants had been litigated and decided in the suit of JA-22NCVC-88-04/2016. Hence, the Defendants are estopped to bring up the same issues via this OS. The termination of the lease agreement was due to the decision made by D2 and D3 without the consultation and consent of the Plaintiff. It is clearly breach clause 2 of Further Supplementary Deed of Settlement dated 26.08.2008 entered between the parties. [31] Consequently, the D2 and D3 has conducted the affairs of D1 disregard the interest of the Plaintiff and has caused loss to D1. This has resulted no dividend be declared and paid to the shareholders. Hence, it will eventually be resulting the diminution in the value of the shares of the shareholders. [32] I then rule that D2 and D3 has conducted the affairs of D1 in a manner oppressive to and/or in disregard of the Plaintiff’s interest as a shareholder.

whether the action of the D2 and D3 in conducting the affairs of D1 in the manner oppression or disregard the interest of the Plaintiff S/N w3IgJkqFW0urmumL4J/yQ

General Meeting Held on 16.04.2023 [33] It was the contention of the Plaintiff that the Plaintiff was oppressed in regards to the conduct of the general meeting which was held on 16.04.2023. [34] Vide Notice of Meeting dated 13.02.2023, D2 and D3 had scheduled a general meeting with the agenda, among others, to accept resignation of the company secretary and auditor, to appoint a new company secretary and auditor, to appoint D2’s grandson as an associate director to D2 and to declare a cash dividend of RM600,000.00 to be distributed equally among the shareholders. [35] Upon receiving the same, the Plaintiff had included to the proposed agenda, among others, to remove of D2 and D3 as directors of D1 and to commence legal proceedings against the D2 and D3. [36] As an act of retaliation, D2 and D3 had further included to the proposed agenda, among others, to remove the Plaintiff as a director of D1 and to commence legal proceedings against the Plaintiff and his daughter. D2 and D3 also propose to terminate the tenancy with AHPF. [37] Eventually, the general meeting was held on 16.04.2023 in pursuant to the abovementioned proposed agendas, wherein during the said meeting, all the proposals (except in regards to the removal of the Plaintiff as a director of D1) being passed by majority vote of D2 and D3. S/N w3IgJkqFW0urmumL4J/yQ [38] On this issue, the Defendants’ quoted the Court of Appeal case of Soh Jiun Jen v Advance Colour Laboratory Sdn. Bhd. & Ors [2010] 5 MLJ 342 which was upheld by the Federal Court in the case of Jet-Tech Materials Sdn. Bhd. & Anor. v Yushiro Chemical Industry Co. Ltd. & Ors [2013] 2 MLJ 297 as follows: “In any event Yushiro's request to Chen to retire as a director of the company does not fall within the scope of s 181 of the CA. This complaint is confined to the status of Chen as a managing director, not as a shareholder of the company. Such request cannot be termed as 'oppression' within the meaning of s 181 of the CA. In Soh Jiun Jen v Advance Colour Laboratory Sdn Bhd & Ors [2010] 5 MLJ 342 at p 350, the Court of Appeal held: “If the petitioners relies on sub-s (1)(a) of s 181, there must be shown the element of 'oppression' or 'disregard'. It must involve, at least, an element of lack of probity or fair dealing to a member against his right as member or shareholder. Oppression or disregard of interest of a director of a company clearly does not come under the ambit of s 181 …” We endorse the above view.”. [Emphasis added] [39] Based on the authority above, I find the proposal to remove the Plaintiff as a director of D1 does not amount to oppression as during the meeting, D2 and D3 voted not to remove the Plaintiff as director. This fact was undisputed. [40] Further, the declaration of dividend by D2 and D3 will benefit the Plaintiff as a shareholder. Thus, I rule there is no element of oppression by D2 and D3 against the Plaintiff.

(ii) Termination of Lease Agreement with AHPF [41] The Defendants contended that the right party to initiate legal S/N w3IgJkqFW0urmumL4J/yQ proceedings against D2 and D3 should be D1 and not the Plaintiff as the lease agreement was entered between AHPF with D1. If the conduct of D2 and D3 to vote for the termination of the lease agreement is proven wrong, were the result of breach of duty by the D2 and D3 towards D1. [42] The Defendants also contented that according to clause 2(ii) of the Further Supplementary Deed of Settlement dated 26.08.2008 that no further lease the Plots of Lands to AHPF after the expiry of the renewal option on 28.02.2014. The Defendants argued that the Plaintiff has breached the terms in the Deed of Settlement when he proceeded to renew the lease agreement with AHPF after 28.02.2014. The Defendants also argued that since AHPF has now served the notice of termination on 31.05.2023 to D1 and therefore the issue raised by the Plaintiff became academic. [43] In this regard, it is pertinent to note the Plaintiff, D2 and D3 have executed the lease agreement with AHPF from 2020 to 2021. Clause 5 of the lease agreement provides that AHPF has an option to renew for a further period of 01.04.2021 to 31.03.2024 and 01.04.2024 to 31.03.2027 by notifying D1 three (3) months prior to the expiry of the term of the lease. The D2 and D3 did not take any action against the Plaintiff for breaching the terms of the Deed of Settlement (if it is true) and they continue to receive the share rentals from AHPF without any complaint. The D2 and D3 have in fact condone to the Plaintiff’s action and hence they could not now complain that the Plaintiff has breached the terms of the Deed of Settlement. S/N w3IgJkqFW0urmumL4J/yQ [44] Further, although the issue regarding the notice of termination by AHPF was only brought up through submission of the Defendants’ and it was not stated in any affidavit of the Defendants, I find the notice of termination is relevant for me to decide this issue and I will consider this new evidence in deciding this issue. [45] From the evidences adduced by the parties, it can be seen that there was a dispute between D3 and AHPF in respect of the sale of pigs which led to D2 and D3 further increasing the monthly rental of their lease of Plots of Lands to AHPF in breach of the lease agreement. [46] Subsequently, D3 had proposed, and D2 had seconded to terminate the lease agreement between D1 and AHPF without first discussing and seek the consent of the Plaintiff, who strenuously opposed the proposal upon finding out about this. However, this resolution was passed by majority votes by D2 and D3. [47] From the conduct of the D2 and D3, it can be inferred that D2 and D3 had acted in disregard of the Plaintiff’s interest by not discussing the matters pursuant to the termination of the lease agreement with the Plaintiff, they have breached clause 2 of Further Supplementary Deed of Settlement dated 26.08.2008 whereby the parties had agreed as follows (reproduced briefly): “(a) all parties shall affirm, accept and abide by the Lease Agreement between Yon Sang, Yon Lai and Yun Heong as the Lessors of one part and Ai Hwa Poultry Farm Sdn. Bhd, as the Lessee; and

the transfer of the Plots of Lands shall be withheld until the expiry of the further term pursuant to the option to renew therein.”. [Emphasis added] S/N w3IgJkqFW0urmumL4J/yQ [48] As stated in paragraph 29 above, the Plaintiff is not seeking the reflective loss and damages for the termination of the lease agreement from D2 and D3 vide the suit JA-22NCVC-88-04/2016. What’s the Plaintiff wants via this OS is to refrain D2 and D3 to proceed with the implementation of the decision to terminate the lease agreement with AHPF in order to prevent another legal suit being filed by AHPF. In order to restrain the implementation thereof forthwith and immediately, the Plaintiff sought the ex-parte injunction order injunction and an injunction order. [49] Based on the evidence presented through Affidavits and submissions filed by the parties, I find that although there is some element of oppression towards the Plaintiff when D2 and D3 decided to terminate the lease agreement with AHPF, the issue became non-issue now since the AHPF has served the notice of termination to D1. Hence, there is not necessary to grant the injunction order for this issue.

(iii) Transfer of Pig Farming License to D2’s grandson [50] The Plaintiff contended that there were mismanagements by D2 and D3 when D2 had wrongfully and unlawfully transferred the Pig Farming License to his grandson, Tong Boon Tao without any board resolution and/or knowledge and consent of the Plaintiff, in which D3 had allegedly concealed the same from the Plaintiff. [51] Consequentially, the Plaintiff had incurred legal expenses of RM 4,770.00 in order to reverse the foregoing. Additionally, the Plaintiff have reiterated in the Affidavits that the transfer of Pig Farming License without a proper and full disclosure to the S/N w3IgJkqFW0urmumL4J/yQ Plaintiff. [52] However, the Defendants’ contended that the transferring of the Pig Farming Licence is an internal management of D1 to ensure there is co-dependence in future as the family members are fully aware that D2 is towards the end of his life. There is no breach of the family arrangement as agreed. The grandson is the appropriate person as he is one of the family members and was recently appointed as D1’s associate director. If there is any wrong doing on the part of D2, the proper party to claim any loss is D1 and not the Plaintiff. [53] To support the contention of the Defendants, the Defendants have referred to the case of Choy Yuk Kong & Ors. v Landyork Farming Sdn Bhd & Ors. [2020] 1 MLJ 806 which has decided that this was a decision taken as part and parcel of the company’s internal management and the decision made was not amounted to oppression. Thus, there is no grievance caused to the parties. [54] The Plaintiff on the other hand argued that there is no board resolution passed for the transfer of the Pig Farming Licence to the D2’s grandson and D2’s grandson was not appointed as an associate director when the Pig Farming Licence transfer to him. [55] The Plaintiff contended that the selection of D2’s grandson to be an appropriate person to hold the Pig Farming Licence is an autocratic and arbitrary act of D2 without any consultation and consent by the Plaintiff. The Department of Veterinary Service of Johor has ordered the Pig Farming Licence to be reverted back to D2 as they find that D2 is merely holding the licence as a representative of D1. S/N w3IgJkqFW0urmumL4J/yQ [56] I find that the Pig Farming Licence was registered in the name of D2 through the family agreement and therefore D2 is holding the Pig Farming Licence on trust for D1. Any changes to the name of the register holder for the Pig Farming Licence need the consent of all the shareholders based on the agreement reached by the parties via the Deed of Settlement, Supplementary Deed of Settlement and Further Supplementary Deed of Settlement. [57] The action of D2 by transferring the Pig Farming Licence to his grandson without the board resolution was in breach of Clause 13 of the Deed of Settlement Agreement dated 02.04.2001 which provide that— “(a) all parties shall maintain the status quo of their directorship and shareholdings in the Company and shall support the election/re-election of each other at all times as directors of the Company under Memorandum and Articles of the Association of the Company;

all cheques to the Bank accounts of the company shall be signed jointly by Yon Sang, Yon Lai and Yun Heong; and

the status quo on the management of the Company shall remain.”. [Emphasis added] [58] The Pig Farming Licence is needed for D1 to run the business and to rent the Plots of Lands together with the licence to AHPF. By transferring the Pig Farming Licence to the grandson who is neither the shareholder nor the director of D1 at the time of transfer. This will eventually cause the early termination of the lease agreement by AHPF and loss to D1, if the grandson refuses to give such licence to AHPF. It may lead to another legal proceedings being commenced by AHPF against D1. S/N w3IgJkqFW0urmumL4J/yQ [59] I am of the considered view that had this was consulted with the Plaintiff beforehand, this would have saved all the parties the additional sum of RM 4,770.00. [60] As such, I order that costs and legal expenses incurred by D1 in reversing the transfer of the Pig Farming License amounting to RM 4,770.00 shall be paid equally by the Plaintiff, D2 and D3 according to their percentage of share in the company.D2 and D3 to reimburse the Plaintiff within fourteen (14) days of this Order for their portion of shares. [61] I rule that the action of the D2 and D3 to allow the transfer of the Pig Farming Licence to D2’s son without consent of the Plaintiff, was a blatant disregard towards the interest of the Plaintiff. Conclusions [62] Having said all these, in this case, the most important point to be taken consideration is the conduct of D2 and D3 towards the Plaintiff especially in managing the D1. It can be seen that there is a clear difference of opinions between the Plaintiff and D2 and D3, which may even lead to a breakdown of the family relationship between these two parties. [63] D2 and D3 can be seen to take advantage of the position of the Plaintiff. This conduct, to have established the application of minority oppression against the Plaintiff by D2 and D3. [64] It is of utmost importance that when there were Deeds of Settlements, Supplementary Deeds of Settlement and Further Supplementary Deeds of Settlement between parties to govern S/N w3IgJkqFW0urmumL4J/yQ the management of D1 and obligations of the parties. The parties are bound by it and should not deviate from the terms agreed. [65] The Federal Court in the case of Pan-Pacific Construction v. Ngiu Kee Corp. (supra) decided that the shareholders can only complain of unfairness if there has been breach of the terms of agreement which they have agreed how the affairs of the company should be conducted. [66] As I have decided earlier, D2 and D3 has conducted the affairs of D1 in the oppression manner and disregard the interest of the Plaintiff which in breach the terms of the Deed of Settlements entered between the parties. [67] Clause 5 and 6 of the Deed of Settlement dated 02.04.2001, inter alia, provide the distribution of the company’s assets and Yong Heng Farm by way of the balloting. Clause 3 of the Supplementary Deed of Settlement dated 19.08.2004, amongst others, provide the result of balloting for the landed properties. Clause 3 of Further Supplementary Deed of Settlement dated 26.08.2008, in particular provide the transfer of the landed properties amongst the parties. [68] Since the parties have agreed the manner to manage D1 and to distribute D1 and Yong Heng Farm’s assets, I find there is no necessity for this Court to interfere with such arrangements. [69] I then order the parties to perform their respective obligations under the Deed of Settlement dated 02.04.2001, Supplementary Deed of Settlement dated 19.08.2004 and Further Supplementary S/N w3IgJkqFW0urmumL4J/yQ Deed of Settlement dated 26.08.2008 entered into between the parties to manage D1 and to distribute the assets of D1 and Yong Heng Farm within six (6) months from the date of this order. Failure to do so, the Plaintiff is given liberty to apply to this Court to wind up the D1. [70] At this juncture, I take guidance from the case of Gulf Business Construction (M) Sdn. Bhd. v Israq Holding Sdn. Bhd, [2010] 5 MLJ 34 whereby Court of Appeal had set out a non-exhaustive list illustrating the application of the just and equitable ground in order for the company to be wound up. This position was affirmed by the Federal Court in Tan Keen Keong @ Tan Kean Keong v Tan Eng Hong Paper & Stationery Sdn. Bhd. & Ors. and other Appeals [2021] 3 MLJ 914. Thus, I made no order as to the winding up of D1. I have given six (6) months for the parties to perform their respective obligations under the Deed of Settlements and failure which, D1 will be wound up upon application made by the Plaintiff. [71] Further, I order that costs and legal expenses incurred by the Plaintiff in reversing the transfer of the Pig Farming License amounting to RM 4,770.00 shall be paid equally by the Plaintiff, D2 and D3 according to their percentage of share in the company. D2 and D3 shall reimburse the Plaintiff their portion of share within fourteen (14) days of this Order. I allow the interest of 5% on the amount of RM 4,470.00 to be paid to the Plaintiff by the Defendants. [72] I further order each Defendant to pay the costs of RM2,000 to the Plaintiff subject to allocator fees. S/N w3IgJkqFW0urmumL4J/yQ [73] Enclosure 4 and Enclosure 35 were dismissed with no order as to costs. Dated 30 December 2024 Signed by: …………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor: For the Plaintiff Mr Gurbinder Singh Gill with Ms Au Ching Yi Messrs Manjit Singh Sachdev, Mohammad Radzi & Partners 18-05A, City Square, 106-108, Jalan Wong Ah Fook, Johor Bahru, 80000 Johor Bahru, Johor. For the Defendant: Ms. Vivian Kong Messrs Tay Chambers 28, Jalan Ponderosa 2/1, Taman Ponderosa, 81100 Johor Bahru, Johor. Cases referred to:

Re Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors v. King Beng Sung [1978] 2 MLJ 227 2. Pan-Pacific Construction v. Ngiu Kee Corp [2010] 6 CLJ 7218 S/N w3IgJkqFW0urmumL4J/yQ

Rinota Construction Sdn. Bhd. v Mascon Rinota Construction Sdn. Bhd. & Others [2018]1MLJ 141 4. Prudential Assurance Co. Ltd. V Newman Industries Ltd. & Ors. (No. 2) [1982] Ch 204 5. Soh Jiun Jen v Advance Colour Laboratory Sdn. Bhd. & Ors. [2010] 5 MLJ 342 6. Jet-Tech Materials Sdn. Bhd. & Anor v Yushiro Chemical Industry Co. Ltd & Ors. [2013] 2 MLJ 297 7. Choy Yuk Kong & Ors. v Landyork Farming Sdn. Bhd. & Ors. [2020] 1 MLJ 806 8. Gulf Business Construction (M) Sdn. Bhd. v Israq Holding Sdn. Bhd. [2010] 5 MLJ 34 9. Tan Keen Keong @ Tan Kean Keong v Tan Eng Hong Paper & Stationery Sdn Bhd & Ors. and other Appeals [2021] 3 MLJ 914 Legislation referred to:

Companies Act 2016 [Act 777] S/N w3IgJkqFW0urmumL4J/yQ