12.safari Alliance SDN BHD V Tan Lee Chin & Ors

Safari Alliance Sdn Bhd v Tan Lee Chin & Ors
[2022] 7 MLJ (Wan Muhammad Amin JC) 27
A
HIGH COURT (KUALA LUMPUR) — ORIGINATING SUMMONS

B
NO WA-24NCC-229–06 OF 2020
WAN MUHAMMAD AMIN JC
25 AUGUST 2021
C Companies and Corporations — Oppression suit — Members’ rights — annual

general meeting — Rejection of proxy forms (proxy rulings) by director acting as
chairman of annual general meeting — Whether proxy forms defective
— Re-election of directors — Whether conduct of director as chairman of annual
general meeting constituted ‘affairs of the company’ or ‘powers of directors’ within
D meaning of s 346 of Companies Act 2016 — Whether plaintiff had locus standi to
complain about Proxy Ruling — Whether proxy ruling affected rights of plaintiff
as shareholder — Whether proxy forms wrongly rejected — Whether there was
existence of improper motive
E This was an action by plaintiff against the defendants for oppression pursuant
to s 346 of the Companies Act 2016 (‘the CA 2016’) (‘originating summons’).
This originating summons concerned the decisions made and resolutions
passed at the annual general meeting of the eighth defendant (‘AGM’). The
plaintiff was the substantial shareholder of the eighth defendant and the first
F defendant was a director of the eighth defendant. The second and third
defendants were former directors of the eighth defendant. The fifth, sixth and
seventh defendants were also directors of the eighth defendant. The eighth
defendant gave notice of its 24th annual general meeting to be held on 9 June
2020 (‘first AGM notice’). The plaintiff exercised its right to nominate five
G persons as candidates for directors. In this regard, the plaintiff issued a notice of
intention to propose director(s) for election (‘notice of election’). The notice of
intention, however, contained an error. Therefore, the plaintiff was required to
issue a revised notice of intention, together with the payment of RM59,150.
Subsequent thereto, the eighth defendant announced that new resolutions
H would be added to the AGM. By the same announcement, the eighth
defendant attached a revised notice of AGM and a revised proxy form (‘second
AGM notice’). The second AGM Notice was issued as a result of the plaintiff ’s
notice of intention, as subsequently rectified upon the eight defendant’s
notification that the said notice contains an error as to the time of the AGM. At
I the commencement of the AGM of the eighth defendant, the first defendant,
as the Deputy Chairman of the Board of Directors of the eighth defendant,
presided as Chairman of the AGM in accordance with article 54 of the eighth
defendant’s articles of association (‘eighth defendant’s articles’), as the second
defendant, as chairman of the eighth defendant’s board of directors, did not act
28 Malayan Law Journal [2022] 7 MLJ
as the chairman of the AGM. The first defendant then immediately announced A
that five proxy forms were rejected (‘impugned proxy forms’) as they were said
to be ‘defective’ in that no individuals were named as proxy nor was the
Chairman of the meeting named as the proxy in the impugned proxy forms. As
a result of the rejection of the impugned proxy forms, the votes of the affected
shareholders were removed. The result of the AGM in respect of resolutions B
and special resolution tabled and voted at the AGM, inter alia, were: (a) to
re-elect the second defendant and the third defendant as directors of the eighth
defendant; and (b) to retain the fourth defendant as the independent director
of the eighth defendant. In this originating summons, the plaintiff sought to
C
invalidate the re-election of the second and third defendants and the retention
of the fourth defendant. The plaintiff also complained against the conduct of
the first defendant as the chairman of the AGM with regard to the two rulings
that were made, namely the: (i) rejection of the five impugned proxy forms
involving five different shareholders of the eight defendant (‘proxy ruling’); and D
(ii) withdrawal of six resolutions (Proposed Resolutions No 6 to 11) which
were proposed by the plaintiff (‘plaintiff ’s resolutions’) for the appointment of
six additional directors to the Board of the eight defendant (‘directors’
resolutions ruling). The issues that arose for determination, inter alia, were: (1)
whether the conduct of the first defendant as Chairman of the AGM did not E
constitute the ‘affairs of the company’ or the ‘powers of directors’ within the
meaning of s 346 of the CA 2016; (2) whether the plaintiff had locus standi to
complain about the proxy ruling since the proxy ruling did not affect the
plaintiffs rights as a shareholder of the eight defendant; (3) whether there was
improper motive on the part of the first defendant in rejecting the impugned F
proxy forms; (4) since the five shareholders of the impugned proxy forms were
not parties to this originating summons, whether the plaintiff could raise a
complaint on behalf of five shareholders; and (5) whether the impugned proxy
forms were wrongly rejected by the first defendant.
G
Held, dismissing plaintiff ’s originating summons with costs:
(1) The chairman’s rulings were made by the first defendant at the AGM in
her capacity as the chairman of the AGM. Therefore, whilst the first
defendant was also a director of the eighth defendant, the chairman’s
rulings could not be construed as a decision of the eighth defendant’s H
Board. As the chairman of the AGM, the first defendant’s position was
different than that of a director and her conduct at the AGM could not be
equated with the conduct of a director of the eighth defendant or
construed as the exercise of the powers of the directors of eighth
defendant within the meaning of s 346 of the CA 2016. The acts I
complained of must relate to the affairs of the company itself or the
exercise of powers by the directors, not that of an individual. Further and
in any event, there was nothing before the court to show that the first
defendant was not acting in the interest of the eighth defendant or its
A shareholders. The chairman’s rulings were made after obtaining legal

advice. Further, having examined the impugned proxy forms in detail,
the court found that no proxy was properly named or identified by the
five shareholders. Therefore, the first defendant was correct in rejecting
the impugned proxy forms (see paras 64–65, 71, 76–77 & 121).
B
(2) As the chairman of the board of directors did not wish to be chairman of
the AGM, the first defendant, as the deputy chairman of the board of
directors, became the chairman of the AGM by default based on article
54 of the eighth defendant’s articles. Therefore, the first defendant
C became the chairman of the AGM by consent of the members which
included the plaintiff. The first defendant’s ‘appointment’ as Chairman
of the AGM had nothing to do with the directors nor was it their decision
for her to chair the AGM. Thus, the chairman’s rulings made by the first
defendant was within the powers conferred on her as the chairman of the
D AGM pursuant to article 63 of the eighth defendant’s articles. The ‘affairs
of the company’ was ‘the conduct of ‘the company’s affairs’ rather than
the affairs of individuals’ and did not include ‘acts of shareholders acting
in a private capacity’. In the circumstances, the chairman’s rulings could
not be said to fall within the meaning of ‘affairs of the company’ or
E ‘powers of the directors’ under s 346 of the CA 2016 (see paras 84–86 &
89–91).
(3) Since the proxy ruling affected the five shareholders of the impugned
proxy forms, it was, therefore, for them to raise their complaint, if any,
and it was not for the plaintiff to do so. The plaintiff was not entitled to
F raise complaints on behalf the said five shareholders of the impugned
proxy forms. The issue of their proxy votes did not affect the plaintiff ’s
own right to vote. The non-joinder of the five shareholders of the
impugned proxy forms in this originating summons was fatal to the
plaintiff ’s complaint insofar as the proxy ruling was concerned (see paras
G 100–101).
(4) As the Proxy Ruling affected the five shareholders of impugned proxy
forms and not the plaintiff, the court could not be expected to delve into
or examine a complaint in an action for oppression under s 346 of the CA
H 2016 when the aggrieved party was not before the court. The plaintiff
had no locus standi to initiate this action as the chairman’s rulings did not
fall within s 346 of the CA 2016 and hence on the ground on locus standi
alone, it was sufficient for the originating summons to be dismissed (see
paras 104–105 & 108).
I (5) The first defendant accepted that if either the words ‘or failing him/her’
was crossed out or the words ‘CHAIRMAN OF THE MEETING’ was
circled then the impugned proxy forms would have been accepted as was
done by some other shareholders. On the facts of the case, this was not
done by the five Shareholders. In the circumstances, the Proxy Ruling was
correct and the first defendant was right in rejecting the impugned proxy A
forms. Therefore, it was unnecessary for the court to deal with the
allegation of ulterior motive of the first defendant that was raised by the
plaintiff (see paras 129 & 133).
(6) Section 323(2) of the CA 2016 provides for a mandatory obligation on B
the directors to give notice of plaintiff ’s resolutions and therefore it was
incorrect for the plaintiff to suggest that there was somehow any
‘decision’ made by the Board of the eighth defendant in circulating the
same via the second AGM notice. The term ‘right of voting’ set out in
s 323(5) of the CA 2016 relates only to the calculation of the requisite C
shareholding to be held by the member requesting for such notice to be
circulated (as provided in s 323(2)(a) of the CA 2016). As such, this
provision did not in any way show that the validity of the plaintiff ’s
resolutions was in any way determined at the time of requisition, as
contended by the plaintiff. The plaintiff had a mandatory duty to give D
notice of the plaintiff ’s resolutions by operation of the s 323(2) of the CA
2016 and that could not be construed as an acceptance or acquiescence
by the Board of the eight defendants of the validity or correctness of the
plaintiff ’s resolutions.Confronted with such non-compliance with
ss 198 and 199 of the CA 2016, the first defendant was right to have E
withdrawn the plaintiff ’s resolutions (see paras 162–163, 165 & 168).
[Bahasa Malaysia summary

Ini adalah tindakan plaintif terhadap defendan kerana penindasan menurut
s 346 Akta Syarikat 2016 (‘Akta’) (‘saman pemula’). Saman pemula ini F
berkaitan dengan keputusan yang dibuat dan resolusi yang diluluskan pada
mesyuarat agung tahunan defendan kelapan (‘AGM’). Plaintif merupakan
pemegang saham utama defendan kelapan dan defendan pertama ialah
pengarah defendan kelapan. Defendan kedua dan ketiga adalah bekas
pengarah defendan kelapan. Defendan kelima, keenam dan ketujuh juga G
merupakan pengarah kepada defendan kelapan. Defendan kelapan memberi
notis mengenai Mesyuarat Agung Tahunan ke-24 yang akan diadakan pada 9
Jun 2020 (‘notis AGM pertama’). Plaintif menggunakan haknya untuk
menamakan lima orang sebagai calon pengarah. Dalam hal ini, plaintif
mengeluarkan notis niat untuk mencadangkan pengarah untuk pemilihan H
(‘notis pemilihan’). Notis niat tersebut, bagaimanapun, mengandungi
kesilapan. Oleh itu, plaintif dikehendaki mengeluarkan notis niat pindaan,
bersama-sama dengan bayaran RM59,150. Selepas itu, defendan kelapan
mengumumkan bahawa resolusi baharu akan ditambah kepada AGM. Dengan
pengumuman yang sama, defendan kelapan melampirkan notis AGM pindaan I
dan borang proksi yang disemak (‘notis AGM kedua’). Notis AGM kedua telah
dikeluarkan hasil daripada notis niat plaintif, yang kemudiannya dipindan
selepas pemberitahuan defendan kelapan bahawa notis tersebut mengandungi
ralat mengenai masa AGM. Pada permulaan AGM defendan kelapan,
A defendan pertama, sebagai Timbalan Pengerusi Lembaga Pengarah defendan

kelapan, sebagai Pengerusi AGM mempengerusikan mengikut artikel 54
artikel persatuan defendan kelapan (‘artikel defendan kelapan), kerana
defendan kedua, sebagai Pengerusi Lembaga Pengarah defendan kelapan, tidak
bertindak sebagai Pengerusi AGM. Defendan pertama kemudian dengan
B serta-merta mengumumkan bahawa lima borang proksi telah ditolak (‘borang
proksi dipersoal’) kerana ia dikatakan ‘cacat’ kerana tiada individu dinamakan
sebagai proksi mahupun pengerusi mesyuarat tersebut dinamakan dalam
borang proksi diipersoal. Hasil daripada penolakan borang proksi diipersoal,
undi pemegang saham yang terjejas telah dibuang keluar. Keputusan AGM
C
berkenaan dengan resolusi dan resolusi khas yang dibentangkan dan diundi
pada AGM, antara lain, adalah: (a) untuk memilih semula defendan kedua dan
defendan ketiga sebagai pengarah defendan kelapan; dan (b) untuk
mengekalkan defendan keempat sebagai pengarah bebas defendan kelapan.
D Dalam saman pemula ini, plaintif memohon untuk membatalkan pemilihan
semula defendan kedua dan ketiga dan pengekalan defendan keempat. Plaintif
juga mengadu terhadap tindakan defendan pertama sebagai Pengerusi AGM
berkenaan dengan dua keputusan yang telah dibuat iaitu: (i) penolakan ke atas
lima borang proksi diipersoal yang melibatkan lima pemegang saham berbeza
E defendan kelapan (‘keputusan proksi’); dan (ii) penarikan balik enam resolusi
(cadangan resolusi No 6 hingga 11) yang telah dicadangkan oleh plaintif
(‘resolusi plaintif ’) bagi pelantikan enam pengarah tambahan kepada Lembaga
defendan kelapan (keputusan resolusi ‘pengarah’). Isu-isu yang timbul untuk
ditentukan, antara lain, adalah: (1) sama ada tindakan defendan pertama
F sebagai Pengerusi AGM tidak membentuk ‘hal ehwal syarikat’ atau ‘kuasa
pengarah’ dalam pengertian s 346 Akta; (2) sama ada plaintif mempunyai locus
standi untuk mengadu tentang keputusan proksi kerana keputusan proksi
tidak menjejaskan hak plaintif sebagai pemegang saham defendan kelapan;
(3) sama ada terdapat motif yang tidak wajar di pihak defendan pertama dalam
G menolak borang proksi yang dipersoal; (4) memandangkan lima pemegang
saham dalam borang proksi yang dipersoal bukanlah pihak dalam saman
pemula ini, sama ada plaintif boleh mengemukakan aduan bagi pihak lima
pemegang saham; dan (5) sama ada borang proksi yang dipersoal telah ditolak
secara salah oleh defendan pertama.
H
Diputuskan, menolak saman pemula plaintif dengan kos:
(1) Keputusan Pengerusi telah dibuat oleh defendan pertama pada AGM
atas kapasitinya sebagai pengerusi AGM. Oleh itu, walaupun defendan
pertama juga merupakan pengarah defendan kelapan, keputusan
I Pengerusi tidak boleh ditafsirkan sebagai keputusan lembaga defendan
kelapan. Sebagai pengerusi AGM, kedudukan defendan pertama adalah
berbeza daripada seorang pengarah dan tindakannya di AGM tidak boleh
disamakan dengan tindakan seorang pengarah defendan kelapan atau
ditafsirkan sebagai menjalankan kuasa pengarah defendan kelapan dalam
pengertian s 346 Akta. Tindakan yang diadukan mestilah berkaitan A

dengan hal ehwal syarikat tersebut sendiri atau pelaksanaan kuasa oleh
pengarah, bukannya individu. Selanjutnya dan dalam apa jua keadaan,
tiada apa-apa di hadapan mahkamah untuk menunjukkan bahawa
defendan pertama tidak bertindak demi kepentingan defendan kelapan
atau pemegang sahamnya. Keputusan Pengerusi dibuat selepas mendapat B
nasihat undang-undang. Selanjutnya, setelah meneliti borang proksi
yang dipersoal secara terperinci, mahkamah mendapati tiada proksi yang
dinamakan atau dikenal pasti dengan betul oleh lima pemegang saham.
Oleh itu, defendan pertama adalah betul dalam menolak borang proksi
C
yang dipersoal (lihat perenggan 64–65, 71, 76–77 & 121).
(2) Memandangkan pengerusi lembaga pengarah tidak mahu menjadi
pengerusi AGM, defendan pertama, sebagai timbalan pengerusi lembaga
pengarah, menjadi Pengerusi AGM secara terus berdasarkan artikel 54
artikel persatuan defendan kelapan. Oleh itu, defendan pertama menjadi D
Pengerusi AGM atas persetujuan ahli termasuk plaintif. ‘Pelantikan’
defendan pertama sebagai Pengerusi AGM tiada kaitan dengan pengarah
mahupun keputusan mereka untuk beliau mempengerusikan AGM.
Oleh itu, keputusan Pengerusi yang dibuat oleh defendan pertama
adalah dalam kuasa yang diberikan kepadanya sebagai pengerusi AGM E
menurut artikel 63 artikel persatuan defendan kelapan. ‘Hal ehwal
syarikat’ ialah ‘tindakan ‘urusan syarikat’ dan bukannya hal ehwal
individu dan tidak termasuk ‘tindakan pemegang saham yang bertindak
atas kapasiti persendirian’. Dalam keadaan tersebut, Keputusan
Pengerusi tidak boleh dikatakan termasuk dalam pengertian ‘hal ehwal F
syarikat’ atau ‘kuasa pengarah’ di bawah s 346 Akta (lihat perenggan
84–86 & 89–91).
(3) Memandangkan keputusan proksi tersebut menjejaskan lima pemegang
saham terhadap borang proksi yang dipersoal, oleh itu, mereka harus G
membangkitkan aduan mereka, sekiranya ada, dan bukannya untuk
plaintif berbuat demikian. Plaintif tidak berhak untuk mengemukakan
aduan bagi pihak lima pemegang saham borang proksi yang dipersoal
tersebut. Isu undi proksi mereka tidak menjejaskan hak plaintif sendiri
untuk mengundi. Ketidaksertaan lima pemegang saham borang proksi H
yang dipersoal dalam saman pemula ini adalah fatal kepada aduan
plaintif setakat keputusan proksi berkenaan (lihat perenggan 100–101).
(4) Memandangkan keputusan proksi menjejaskan lima pemegang saham
pada borang proksi diipersoal dan bukannya plaintif, mahkamah tidak
boleh dijangka untuk menyelidik atau meneliti aduan dalam tindakan I
penindasan di bawah s 346 Akta apabila pihak yang terkilan tidak berada
di hadapan mahkamah. Plaintif tidak mempunyai locus standi untuk
memulakan tindakan ini kerana keputusan pengerusi tidak termasuk
dalam s 346 Akta dan oleh itu berdasarkan locus standi sahaja, ia adalah
A memadai untuk saman pemula ditolak (lihat perenggan 104–105 &

108).
(5) Defendan pertama menerima bahawa sekiranya sama ada perkataan ‘or
failing him/her’ dipadam atau perkataan ‘PENGERUSI MESYUARAT’
B dibulatkan maka borang proksi diipersoal akan diterima seperti yang
dilakukan oleh beberapa pemegang saham lain. Mengenai fakta kes, ini
tidak dilakukan oleh lima pemegang saham. Dalam keadaan itu,
keputusan proksi adalah betul dan defendan pertama adalah betul dalam
menolak borang proksi diipersoal. Oleh itu, adalah tidak perlu bagi
C mahkamah untuk menangani dakwaan motif tersembunyi defendan
pertama yang dibangkitkan oleh plaintif (lihat perenggan 129 & 133).
(6) Seksyen 323(2) Akta memperuntukkan kewajipan mandatori kepada
para pengarah untuk memberi notis mengenai resolusi plaintif dan oleh
D
itu adalah tidak betul bagi plaintif untuk mencadangkan bahawa
terdapat sebarang ‘keputusan’ yang dibuat oleh Lembaga Pengarah
defendan kelapan dalam mengedarkan artikel yang sama melalui notis
AGM kedua. Istilah ‘hak mengundi’ yang dinyatakan dalam s 323(5)
Akta hanya berkaitan dengan pengiraan pegangan saham yang
E diperlukan untuk dipegang oleh ahli yang meminta notis sedemikian
diedarkan (seperti yang diperuntukkan dalam s 323(2)(a) Akta). Oleh
itu, peruntukan ini tidak dalam apa-apa cara menunjukkan bahawa
kesahihan resolusi plaintif dalam apa-apa cara ditentukan pada masa
rekuisisi, seperti yang dipertikaikan oleh plaintif. Plaintif mempunyai
F kewajipan mandatori untuk memberi notis mengenai resolusi plaintif
melalui penggunaan s 323(2) Akta dan itu tidak boleh ditafsirkan sebagai
penerimaan atau persetujuan oleh Lembaga terhadap defendan kelapan
tentang kesahihan atau ketepatan keputusan resolusi plaintif.
Berhadapan dengan ketidakpatuhan ss 198 dan 199 Akta, defendan
G pertama berhak untuk menarik balik resolusi plaintif (lihat perenggan
162–163, 165 & 168).]
Cases referred to
Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn Bhd [1995] 3
H MLJ 417, CA (refd)
Al Baik Fast Food Distribution Co SAE v El Baik Food Systems Co SA [2016] 5
MLJ 768, CA (refd)
Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank [1995] 3
MLJ 331, FC (refd)
I Coroin Ltd (No 2); McRillen v Misland (Cyprus) Investments Ltd and others, Re
[2013] 2 BCLC 583, CA (refd)
Cumberland Holdings Ltd, Re (1976) 1 ACLR 361, SC (refd)
Goldbelt Mines Inc Goldbelt Mines Inc (NPL) v New Beginnings Resources Inc
[1984] BCJ No 2730, CA (refd)
Jaber and others v Science and Information Technology Ltd and others [1992] A
BCLC 764, Ch D (refd)
Jet-Tech Materials Sdn Bhd v Yushiro Chemical Industry Co Ltd [2013] 2 MLJ
297, FC (refd)
Khor Lye Hock Anor Tan Soon Keh v Makassar Engineering & Construction Sdn
Bhd & Ors [2010] MLJU 18; [2011] 8 CLJ 476, HC (refd) B
Koh Jui Hiong v Ki Tak Sang [2009] 8 MLJ 818, HC (refd)
Kong Thai Sawmill (Miri) Sdn Bhd & Ors v King Beng Sung, Re [1978] 2 MLJ
227, PC (refd)
Kumaraisen Subachandragopal v Prabagar Segadevan & Ors [2019] MLJU
327; [2019] MLRHU 333, HC (refd) C
Lee Eng Hock, Ho Kok Leong, Khoo Hoot How (on behalf of themselves and other
shareholders) v Malay-Siamese Prospecting Company, Limited [1935] 1 MLJ
63 (refd)
Legal Costs Negotiators Ltd, Re [1999] 2 BCLC 171, CA (refd)
Lim Choon Seng v Lim Poh Kwee [2020] MLJU 1155, FC (refd) D
London Passenger Transport Board v Moscrop [1942] 1 All ER 97, HL (refd)
Macdonald v EPS 522 [2019] BCJ No 986, SC (refd)
Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah
[2015] 5 MLJ 619, FC (refd)
Mosely v Koffyfontein Mindes, Limited [1911] 1 Ch 73, CA (refd) E
Neath Rugby Ltd (No 2) Hawkes v Cuddy and others (No 2), Re [2009] 2 BCLC
427, CA (refd)
Norihan bt Talib v Mohd Nassir bin Hassan [2018] 3 MLJ 670, CA (refd)
Pan-Pacific Construction Holdings Sdn Bhd v Ngiu-Kee Corp (M) Bhd & Anor
[2010] MLJU 269; [2010] 6 CLJ 7218, FC (refd) F
Pintaran Timur (M) Sdn Bhd & Ors v Small Medium Enterprise Development
and another appeal [2020] MLJU 457, HC (refd)
Sun Hung Kai Investment Services Ltd v Metals X Ltd [2019] FCA 1673, FC
(refd)
Tan Boon Thien & Anor v Tan Poh Lee & Ors [2021] 3 MLJ 61; [2020] 3 CLJ G
28, CA (refd)
Tenaga Nasional Berhad v Irham Niaga Sdn Bhd & Anor [2011] 1 MLJ 752,
CA (refd)
Unisoft Group Ltd (No 3), Re [1994] 1 BCLC 609, HC (refd)
United Malayan Banking Corporation Bhd v Syarikat Perumahan Luas Sdn Bhd H
[1988] 3 MLJ 352b, HC (refd)
Veto Insurance Ltd v Kassem and Others [2010] NSWSC 838, SC (refd)
Whitlam v Australian Securities and Investments Commission [2003] NSWCA
183; (2003) 57 NSWLR 559, CA (refd)
I
Legislation referred to
Companies Act 1965 (repealed by Companies Act 2016) s 181
Companies Act 1985 [UK] s 459
Companies Act 2006 [UK] s 994, 994(1)
A Companies Act 2016 ss 75(1), 147, 198, 199, 201, 311, 311(6), 323,
323(2), (2)(a), (5), 346, 346(1), 347, 591(2)
Mak Lin Kum (Himahlini Ramalingam and Jesselyn Tham with him) (Himahlini
& Co) for the plaintiff.
B Ranjit Singh (Owee Chia Ming and Shermaljit Singh with him) (Owee & Co) for
the first and eighth defendant.
Alvin Tang Wye Keet (Ponnie Govindasamy with him) (Bodipalar Ponnudurai De
Silva) for the second to seventh defendant.
C Wan Muhammad Amin JC:
[1] This was an action by plaintiff against the defendants via originating
summons dated 23 June 2020 for oppression pursuant to s 346 of the
Companies Act 2016 (‘the CA 2016’) (‘originating summons’).
D
[2] In its originating summons the plaintiff sought for a total of 20
declaratory orders and ten orders consequential to the declarations, not
including the sub-prayers, covering about 13 pages of the English version of the
E originating summons.
[3] This originating summons essentially concerns the decisions made and
resolutions passed at the annual general meeting of the eighth defendant held
on 9 June 2020 at 11am (‘AGM’).
F
[4] The main declarations sought in this originating summons are as follows:
1. A declaration that the affairs of the 8th Defendant are being conducted in a
manner oppressive to the members of the 8th Defendant;
G 2. A declaration that the following rulings made by the first defendant during the
annual general meeting (‘AGM’) of the 8th Defendant held on 9.6.2020 at 11.00
a.m. whereby the first defendant had:
2.1 rejected the proxy form of Tan Say Cheong appointing the Chairman of the
meeting to vote on his behalf and carrying the votes for 69,523,800 shares in the
H 8th Defendant;
2.2 rejected the proxy form of Lau Teng Fun & Sons Sdn Bhd appointing the
Chairman to vote on its behalf and carrying the votes for 55,400,000 shares in
the 8th Defendant;
2.3 rejected the proxy form of Koh Pee Seng appointing the Chairman to vote on
I
his behalf and carrying the votes for 1,000,000 shares in the 8th Defendant;
2.4 rejected the proxy form of Foo Meng Ju appointing the Chairman to vote on
her behalf and carrying the votes for 500,000 shares in the 8th Defendant;
2.5 rejected the proxy form of Wong Guang Seng appointing the Chairman to
vote on his behalf and carrying the votes for 30,010,000 shares in the 8th A
Defendant.
are null and void and of no effect whatsoever.
[5] The other declarations that were sought are substantially consequential B
to and arises from the reliefs sought in the above prayers 1 and 2 of this
originating summons while the other orders sought are essentially a revision of
the results of the AGM by reversing their outcome.
[6] By way of notice of application dated 23 June 2020 (‘encl 3’) the plaintiff C
sought, inter alia, the following interim reliefs against the defendants:
(1) An order that the 1st to 7th Defendants be prohibited from using the
funds of the 8th Defendant in defending this suit and/or any other suit
arising therefrom; D
(2) An order that the 8th Defendant be prohibited from issuing and/or
allotting new shares pending the disposal of this Originating Summons;
[7] By way of notice of application dated 25 June 2020 (‘encl 16’) the
E
plaintiff sought, inter alia, the following interim reliefs against the second and
third defendants:
(1) That the 2nd and 3rd Defendants be and is hereby restrained from acting
as or otherwise holding themselves as directors of the 8th Defendant;
F
(2) That the 2nd and 3rd Defendants be and is hereby restrained from
attending or participating in any board meetings and/or any other affairs
of the 8th Defendant;
(3) An order that the 8th Defendant publish via an announcement made on
Bursa Malaysia Securities’ website for the making of announcements that G
the Inter-partes Interim Injunction has been granted within 24 hours
from when the Order is pronounced by this Honourable Court;
[8] An ex parte injunction order was granted substantially in respect of

prayer 1 of encl 3 on 25 June 2020 to restrain the eighth defendant from issuing H
and allotting new shares pursuant to Resolution No 5 passed at the AGM. By
consent of parties an ad interim injunction order was then granted on 7 July
2021 upon essentially the same terms as the ex parte injunction save for
reference to Resolution No 4 instead of 5, until the disposal of encl 3.
I
[9] This originating summons was heard together with encls 3 and 16 and
the hearing took two days to complete. Parties primarily submitted on this
originating summons as the decision thereof would also dispose of encls 3 and
16.
A [10] After the conclusion of the hearing I reserved my decision which was
then delivered on 9 June 2021 where I dismissed this originating summons and
accordingly encls 3 and 16. Below are the grounds of my decisions.
SALIENT BACKGROUND FACTS

B
[11] The background facts leading to the AGM and what transpired at the
AGM are generally not in dispute.
[12] The plaintiff is substantial shareholder of the eighth defendant. As at

C 17 April 2020 to the date this originating summons was filed the plaintiff held
10.922% interest in the eighth defendant.
[13] The first defendant is a director of the eighth defendant.

D
[14] The second and third defendants were former directors of the eighth
defendant and were re-elected as directors of the eighth defendant at the AGM
whereas the fourth defendant was retained as the independent director of the
eighth defendant at the AGM. The plaintiff sought to invalidate the re-election
E
of the second and third defendants and the retention of the fourth defendant in
this originating summons.
[15] The fifth, sixth and seventh defendants are also directors of the eighth
defendant.
F
EVENTS PRIOR TO THE AGM
[16] By a notice dated 15 May 2020 the eighth defendant gave notice of the
AGM that is its 24th annual general meeting to be held on 9 June 2020 at
G 11am (‘first AGM notice’)
[17] The AGM was to be held as a ‘fully virtual meeting’ due to the
limitations on physical gatherings as a result of the Conditional Movement
Control Order (‘CMCO’).
H
[18] The plaintiff exercised its right to nominate five persons as candidates
for directors. In this regard, the plaintiff issued a notice of intention to propose
director(s) for election pursuant to para 7.28 of the Main Market Listing
Requirements and the Constitution of Tiger Synergy Bhd dated 21 May 2020
I (eighth defendant) (‘plaintiff ’s notice of intention’) which was left at the
registered address of the eighth defendant.
[19] The individuals nominated by the plaintiff as candidates for

appointment as directors at the AGM were also recently put up for election by
the plaintiff third months prior, during an Extraordinary General Meeting A

convened by the plaintiff on 2 March 2020 (‘Safari EGM’). During the Safari
EGM, the shareholders of the eighth defendant also voted against and rejected
the appointment of these proposed individuals as directors of the eighth
defendant.
B
[20] By a letter dated 27 May 2020 to the plaintiff, the eighth defendant
replied stating that there was an error in the plaintiff ’s notice of intention and
also required a sum of RM59,150 to be paid.
C
[21] By another letter dated 28 May 2020, the eighth defendant wrote to the
plaintiff requesting that the plaintiff issue the revised plaintiff ’s notice of
intention by 5pm, 28 May 2020. This letter was received by the plaintiff via
email at 1.16pm on 28 May 2020.
D
[22] By a letter dated 28 May 2020, the plaintiff replied to the eighth
defendant stating that there was an inadvertent typographical error in the sixth
line of para 1 of the plaintiff ’s notice of intention, wherein the time of the
AGM should read as 11am and not 10am as inadvertently stated.
E
[23] The eighth defendant had required the payment of RM59,150
pursuant to article 72A of the articles of association of the eighth defendant.
[24] The plaintiff replied and forwarded a Malayan Banking Bhd Banker’s F
Cheque No (033445) dated 29 May 2020 for the sum of RM59,150 and
reserved its right to require the eighth defendant to account for the cost of
printing, mailing, postage, label and the insertion costs in respect of the
plaintiff ’s notice of intention.
G
[25] By an announcement dated 29 May 2020, the eighth defendant
announced that new resolutions will be added to the AGM. By the same
announcement, the eighth defendant attached a revised notice of AGM and a
revised proxy form (‘second AGM notice’). The second AGM notice and
revised proxy form was also circulated by post to shareholders. H
[26] The second AGM notice was issued as a result of the plaintiff ’s notice of
intention, as subsequently rectified upon the eighth defendant’s notification
that the said notice contains an error as to the time of the AGM.
I
The plaintiff ’s request to appoint its own additional scrutineer
[27] By a notice dated 22 May 2020, the plaintiff requested that it be allowed
to appoint a scrutineer.
A [28] By a letter dated 28 May 2020, the eighth defendant declined the
plaintiff ’s request to appoint an additional independent scrutineer for the
AGM.
[29] By Kuala Lumpur High Court Originating Summons

B WA-24NCC-194–06 of 2020 (‘OS 194’) dated 29 May 2020, the plaintiff
amongst others, applied to appoint an independent scrutineer to inquire into
and to verify the processes of AGM of the eighth defendant on 9 June 2020.
[30] OS 194 was dismissed with costs on 4 June 2020.

C
The digital ballot form (‘DBF’)
[31] Shareholders who wish to attend the AGM were directed to register
online. An addendum to the notice of AGM sets out the administrative details
D
of the meeting.
[32] Shareholders who wish to appoint a proxy are required to physically

submit a proxy form at the registered office of the eighth defendant.
E
[33] Shareholders and proxies of shareholders who wish to attend the virtual
meeting are required to register for the digital ballot form (‘DBF’). Instructions
will be given via email to shareholder or the shareholder’s proxy.
F [34] Proxies are given a PDF document that contains links to join the
webinar or the video footage and participation of the AGM and a link to the
voting page. The link will take the proxy to a pre-filled in ballot form where the
voting direction of the shareholder had already been followed. This is the DBF.
The proxy’s only task is to electronically submit the DBF and the proxy has no
G discretion or liberty to amend the voting directions contained in the form.
[35] Mega Corporate Services Sdn Bhd (‘Mega’) was appointed as the poll
administrator (‘poll administrator’) for the AGM and the DBF was operated by
Mega at the AGM.
H
The AGM on 9 June 2020
[36] At the commencement of the AGM of the eighth defendant on 9 June

2020, the first defendant announced that she was the chairman of the meeting.
I The first defendant, as the Deputy Chairman of the Board of Directors of the
eighth defendant, presided as Chairman of the AGM in accordance with article
54 of the eighth defendant’s articles of association (‘eighth defendant’s
articles’), as the second defendant, as Chairman of the eighth defendant’s board
of directors, did not act as the chairman of the AGM.
[37] The first defendant then immediately announced that five proxy forms A
were rejected (‘impugned proxy forms’), the brief details of which are as
follows:
Name of Shareholder No of Shares
Tan Say Cheong 69,523,800
B
Lau Teng Fun & Sons Sdn Bhd 55,400,000
Koh Pee Seng 1,000,000
Foo Meng Ju 500,000
Wong Guang Seng 30,010,000
156,433,800 C
[38] The impugned proxy forms were rejected by the first defendant as they
were said to be ‘defective’ in that no individuals were named as proxy nor was
the chairman of the meeting named as the proxy in the impugned proxy forms.
This decision by the first defendant is a one of the grounds raised by the D
plaintiff in this originating summons and will be dealt with in greater detail
later in this judgment.
[39] The eighth defendant has a total of 1,464,710,583 issued shares, which E
is referred to at p 155 of its 2019 Annual Report. The rejected proxy forms
carried with them 156,433,800 shares, which represents around 10.68% of the
total voting rights of the eighth defendant.
[40] The eighth defendant has a total of 1,398,460,584 issued shares, which F
is referred to at p 122 of the 2019 Annual Report. The rejected proxy forms
carried with them 156,433,800 shares, which represents around 11.186% of
the total voting rights of the eighth defendant according to this total.
[41] As at 5 May 2020, the total issued shares of the eighth defendant G
amounts to 1,464,710,583 ordinary shares.
[42] As a result of the rejection of the impugned proxy forms, the votes of the
affected shareholders were removed. These shareholders were not parties to this
H
originating summons.
[43] The brief result of the AGM in respect of Resolutions No 1 to 5 and

special resolution tabled and voted at the AGM are as follows:
(a) Resolution No 1: to approve the payment of directors’ meeting I
allowance — carried;
(b) Resolution No 2: to re-elect the second defendant — carried;
(c) Resolution No 3: to re-elect the third defendant — carried;
A (d) Resolution No 4: authority to allot shares pursuant to s 75(1) of the CA

2016 — carried;
(e) Resolution No 5: to retain the fourth defendant as the independent
director of the eighth defendant — carried; and
B (f) Special Resolution: to adopt a new constitution — not carried.
[44] The plaintiff ’s votes were taken into account in respect of Resolutions
Nos 1 to 5 above.
C
[45] During the progress of the AGM on 9 June 2020, the first defendant
unilaterally withdrew Proposed Resolutions Nos 6 to 11, which are resolutions
for the election of the following persons as directors:
(a) Goh Ching Mun;
D
(b) Tan Say Cheong;
(c) Leong Keng Wai;
(d) Ng Leong Teck;
E
(e) Azmi bin Osman; and
(f) Yeoh Lam Huat.
[46] The first defendant had during the course of the AGM on 9 June 2020
F answered that the decision to withdraw Proposed Resolutions Nos 6 to 11 was
made on 8 June 2020. The first defendant did so based on the advice of Messrs
Sanjay Mohan and exercised her discretion as the chairman of the meeting.
[47] The first defendant withdrew and did not allow for Proposed
G
Resolutions Nos 6 to 11 to be put to a vote at the AGM as they did not comply
with s 201 of the CA 2016. This is another matter of contention.
LEGAL PRINCIPLES ON OPPRESSION UNDER S 346 OF THE CA

2016
H
[48] This originating summons is premised on s 346 of the CA 2016 which
is in pari materia with s 181 of the Companies Act 1965. Section 346 of the CA
2016 provides as follows:
I (1) Any member or debenture holder of a company may apply to the Court
for an order under this section on the ground —
(a) 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 A

holders of the company; or
(b) 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 unfairly discriminates
against or is otherwise prejudicial to one or more of the members or B
debenture holders, including himself. (Emphasis added.)
[49] In the locus classicus case of Re Kong Thai Sawmill (Miri) Sdn Bhd &
Ors v King Beng Sung [1978] 2 MLJ 227, a case commonly cited in cases C
involving oppression, the Privy Council speaking through Lord Wilberforce
held as follows:
Secondly, for the case to be brought within section 181(1)(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 D
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
E
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 F
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.) G
[50] Therefore, based on Re Kong Thai the plaintiff must prove that the
affairs of the eighth defendant (company) are being conducted in a manner
oppressive to and/or in disregard of the plaintiff ’s interest qua shareholder.
H
[51] In this regard, the principle of oppression qua shareholder or member is
further explained in the case of Khor Lye Hock Anor Tan Soon Keh v Makassar
Engineering & Construction Sdn Bhd & Ors [2010] MLJU 18; [2011] 8 CLJ
476 where it was held:
I
[10] It is a principle of the law relating to the grant of relief under s 181 that
mismanagement in itself is not actionable. Disputes relating to policy or management
do not entitle a member to relief under the section. More significantly the oppression
in question must affect the petitioning member qua member. The acts complained of
must affect the member in his capacity as a member, (see Re Chi Liung & Son Ltd Tong
A Chong Fah v Tong Lee Hwa & Ors [1968] 1 MLJ 97; [1967] 1 LNS 145 and Re Tong
Eng Sdn Bhd (Loh Loon Keng, petitioner) [1994] 1 MLJ 451; [1994] 2 CLJ 775 per
Selventhiranathan J Prayer (a): This prayer relates to the removal of P1 as a
Managing Director. It seeks to cancel the resolution dated 15 May 2009 that
removed P1 as Managing Director. The complaint here and relief sought relates to
B P1’s contractual position as Managing Director. It does not relate to his rights as a
member. The board of directors, moreover is empowered under art. 91 of Table A to
remove P1. It is significant that he has not been removed as a director nor has any
attempt been made to adversely affect his shareholding … (Emphasis added.)
C [52] In Pan-Pacific Construction Holdings Sdn Bhd v Ngiu-Kee Corp (M) Bhd
& Anor [2010] MLJU 269; [2010] 6 CLJ 7218, the Federal Court
summarised the position of the law on oppression based on s 181 of the CA
1965 and identified four categories of conduct and how they corelated to the
concept of ‘unfairness’ as the basic theme:
D
[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
E
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
F 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
G 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).
[28] In Re Saul D Harrison & Sons plc [1995] 1 BCLC it was explained (Hoffmann
LJ (as he then was)) that in ‘deciding what is fair or unfair for the purposes of s 459,
it is important to have in mind that fairness is being used in the context of a commercial
H relationship. The articles of association are just what their name implies: the
contractual terms which govern the relationships of the shareholders with the
company and each other. They determine the powers of the board and the company
in general meeting and everyone who becomes a member of a company is taken to
have agreed to them. Since keeping promises and honouring agreements is probably
I the most important element of commercial fairness, the starting point in any case
under s 459 will be to ask whether the conduct of which the shareholder complains
was in accordance with the articles of association … The answer to this question
often turns on the fact that the powers which the shareholders have entrusted to the
board are fiduciary powers, which must be exercised for the benefit of the company
as a whole … But the fact that the board are protected by the principle of majority
rule does not necessarily prevent their conduct from being unfair within the A
meaning of s 459’.
[29] Thus, in Re Kong Thai Sawmill (Miri) Sdn Bhd; Kong Thai Sawmill (Miri) Sdn
Bhd & Ors v Ling Beng Sung [1978] 2 MLJ 227; [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 B
‘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’. C
(See: Re Saul D Harrison & Sons Plc (Emphasis added.)
[53] Having laid out the position of the law on oppression under s 346 of the
CA 2016, I will now address the complaints raised by the plaintiff against the
D
defendants which is said to be oppressive.
THE OPPRESSIVE CONDUCT COMPLAINED OF AND THE

RELIEFS SOUGHT BY THE PLAINTIFF
E
[54] The principle complaint of the plaintiff is in respect of the conduct of
the first defendant as the chairman of the AGM with regard to the two rulings
that she made which are essentially as follows:
(a) rejection of the five impugned proxy forms involving five different
shareholders of the eighth defendant (‘proxy ruling’); and F
(b) withdrawal of the six resolutions (Proposed Resolutions Nos 6–11)

which were proposed by the plaintiff (‘plaintiff ’s resolutions’) for the
appointment of six additional directors to the Board of the eighth
defendant (‘directors’ resolutions ruling’). G
(both the proxy ruling and directors’ resolutions ruling collectively referred to
as the ‘Chairman’s Rulings’)
H
[55] Based on the above complaints the reliefs sought by the plaintiff can be
summarised as follows:
(a) to invalidate the chairman’s rulings;
(b) to invalidate the results of the AGM and to substitute the actual outcome I
of AGM with an outcome which the plaintiff claims as the inevitable
outcome of the AGM if the chairman’s ruling were invalidated; and
(c) consequential orders arising from the above.
A THE DEFENDANTS’ POSITION
[56] All the defendants’ generally took the same position in response to the
plaintiff ’s allegations and can be divided into two categories as follows:
B (a) the plaintiff has not crossed the requisite threshold under s 346 of the CA
2016 to file this originating summons or oppression action and/or to
obtain the reliefs sought; and
(b) that in any event the chairman’s rulings were correctly made.
C
[57] On the issue of whether the plaintiff has not crossed the threshold of s
346 of the CA 2016, both learned counsels for the first and eighth defendants,
Mr Ranjit Singh, as well as for the second to seventh defendants, Mr Alvin
Tang, argued that:
D (a) the conduct of the first defendant as Chairman of the AGM does not
constitute the ‘affairs of the company’ or the ‘powers of directors’ within
the meaning of s 346 of the CA 2016;
(b) the plaintiff has no locus standi to complain about the proxy ruling since
E the proxy ruling does not affect the plaintiffs rights as a shareholder of the
eighth defendant. The impugned proxy forms were not the plaintiff ’s;
and
(c) the plaintiff has no interest in the rights of other members bearing in
F mind that the five shareholders of the impugned proxy form are not
parties to this action.
[58] Regarding the correctness of the chairman’s rulings it was argued on

behalf of the defendants that:
G
(a) the impugned proxy forms were defective and correctly rejected because
no proxy was named and/or appointed in the said proxy forms; and
(b) the plaintiff ’s resolutions for the appointment of six additional directors
to the eighth defendant’s board of directors could not be tabled because
H the individuals nominated for election as directors failed to make the
requisite declarations in compliance with s 201 of the CA 2016, and
consequently cannot in law be appointed as directors.
LOCUS STANDI — WHETHER THE CHAIRMAN’S RULINGS FALL

I WITHIN THE MEANING OF S 346 OF THE CA 2016
[59] It was argued on behalf of the defendants that the chairman’s rulings
must relate to the affairs of the eighth defendant or the exercise of powers by the
directors, not that of an individual.
[60] In response to this argument it was essentially submitted on behalf of A

the plaintiff that:
(a) the conduct of the chairman of the meeting and the determination as to
who may be directors by shareholders at a meeting fall within ‘affairs of
the company’;
B
(b) results of a meeting are binding on shareholders and every shareholder is
entitled to challenge the results of a meeting and the conduct of a
chairman of that meeting; and
(c) the chairman’s rulings are a departure from the standards of dealing and
C
violation of fair play. It is alleged that the chairman’s rulings were planned
and/or done in bad faith.
[61] Before dealing with the plaintiff ’s allegations of wrongdoing and more
so the issue of the correctness of the chairman’s rulings, there is a threshold test D
on a point of law which has to be determined first and that is whether the
chairman’s rulings come within the meaning of s 346(1) of the CA 2016.
[62] This issue turns upon two legal questions:

(a) do the chairman’s rulings come under the ‘affairs of the company’ under E
s 346(1) of the CA 2016? and
(b) do the chairman’s rulings come under the exercise of the ‘powers of the
directors’ under s 346(1) of the CA 2016?
F
[63] First and foremost, it must be made clear that the plaintiff ’s complaints
are against the conduct of the first defendant in respect of the chairman’s rulings.
Powers of the directors

G
[64] The chairman’s rulings were in fact made by the first defendant at the
AGM. The first defendant averred on affidavit and at the AGM that the
chairman’s rulings were made in her capacity as the chairman of the AGM.
[65] Therefore, whilst the first defendant is also a director of the eighth H
defendant, the chairman’s rulings cannot be construed as a decision of the
eighth defendant’s board. In this connection it was held in Kumaraisen
Subachandragopal v Prabagar Segadevan & Ors [2019] MLJU 327; [2019]
MLRHU 333 as follows:
I
[25] Did this refusal to sign the draft accounts amount to conduct of the affairs of
the company or the exercise of the powers of a director? To my mind, it cannot be
said to be conduct of the affairs of the third defendant as such. Rather, it was the
refusal of a single director to sign the draft accounts because he could not verify
them. Equally, it was also not the exercise of ‘the powers of the directors’. Powers of
A the directors of a company are exercised as a board. Here, however and again, is the case
of a single director refusing to sign draft accounts which he had no opportunity to
verify. (Emphasis added.)
Affairs of the company

B
[66] In respect of the meaning and effect of the term ‘affairs of the company’
under s 346 of the CA 2016 to the present case, learned counsel for the first and
eighth defendants as well as learned counsel for the second to seventh
defendants both cited and heavily relied on the case of Sun Hung Kai Investment
C Services Ltd v Metals X Ltd [2019] FCA 1673 where the Federal Court of
Australia held as follow:
30. Section 230B requires proxy documents to be received by the company at least
48 hours prior to the meeting. For listed companies, the company must specify in
D the notice of meeting a place and fax number for receipt of proxies and may specify
an electronic address for such receipt. However, receipt of such documents in
accordance with those provisions does not give proxy forms the character of
documents that belong to the company. They are notifications to the company for
the purposes of the meeting of members. They are provided for the purpose of
exercise by the member of the private right to vote at the general meeting. The
E separate legal person that is the company does not participate in the meeting or have
any power or authority to exercise concerning the proxies. The company is
performing a secretarial role, imposed by statute, for the purposes of its members
being able to participate in a general meeting by proxy. Indeed, it was once the case
that articles provided for proxies to be simply ‘deposited’ with the company for later
F use at the meeting of members: see, for example, McLaren v Thomson [1917] 2 Ch
261.
…
32. The company itself has no part to play in the shareholders meeting. The meeting is
G constituted only by the members. When exercising their individual votes as members
of the company they do not embody the corporate character of the company.
33. It is not for the company to consider and decide upon the validity of the proxies.
Rather, they are to be provided to the chairman of the meeting of shareholders (who may
or may not be the chairman of the board of directors of the company and who, in any case,
H acts in a different capacity) for the purposes of conducting the meeting. Therefore, if the
chairman is a member of the board then the duties owed in relation to dealings with
proxies in favour of the chairman are not directors duties, they are duties owed as
chairman to the party who appointed the chairman as proxy: Whitlam v Australian
Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR
559. (Emphasis added.)
I
[67] On the other hand, learned counsel for the plaintiff, Mr Mak Lin Kum,
submitted that the term ‘affairs of the company’ under s 346 of the CA 2016
should be given wide meaning and cited several cases. I do not propose to deal A
with all the cases learned counsel for the plaintiff cited save for the main few as
follows:
(a) the English case of Re Cumberland Holdings Ltd (1976) 1 ACLR 361
where the words ‘affairs of the company’ were defined as: B
The words ‘the affairs of the company’ are as wide as one could well have.
They are not limited to business or trade matters, but encompass capital
structure, dividend policy, voting rights, considerations of take-over offers, and
indeed, all matters which may come before the board for consideration.
(Emphasis added.) C
(b) the English Court of Appeal in Re Neath Rugby Ltd (No 2) Hawkes v
Cuddy and others (No 2) [2009] 2 BCLC 427 which also decided on the
definition of ‘affairs of a company’ under s 994 of the English
Companies Act 2006:
D
[48] I entirely accept that the affairs of a company are to be liberally
determined for the purposes of s 994 …
…
[50] The judge cited the observations of Powell J in Re Dernacourt E
Investments Pty Ltd (1990) 2 ACSR 553 at 556:
The words ‘affairs of a company’ are extremely wide and should be
construed liberally: (a) in determining the ambit of the ‘affairs’ of a parent
company for the purposes of s 320, the court looks at the business realities
of a situation and does not confine them to a narrow legalistic view; (b) F
‘affairs’ of a company encompass all matters which may come before its board
for consideration; (c) conduct of the ‘affairs’ of a parent company includes
refraining from procuring a subsidiary to do. something or condoning by
inaction an act of a subsidiary, particularly when the directors of the
parent and the subsidiary are the same … G
I would accept these propositions, but with some qualification. Proposition (b)
may extend to matters which are capable of coming before the board for its
consideration, and may not be limited to those that actually come before the
board: I do not accept that matters that are not considered by the board are not
capable of being part of its affairs. Nonetheless, like the judge, I am unable H
to see how it can be said that the affairs of Neath and of Osprey were so
intermingled that all of the affairs of the latter were the affairs of the
former. It would, for example, be quite irrational to suggest that Mr Blyth,
when acting as a director of Osprey, was conducting the affairs of Neath.
(Emphasis added.)
I
(c) the English Court of Appeal case of Re Coroin Ltd (No 2); McRillen v
Misland (Cyprus) Investments Ltd and others [2013] 2 BCLC 583
applied and quoted the above passage in para 50 of Re Neath and
concluded after reference to the said passage:
A It no doubt goes without saying that the affairs of the company will also
encompass matters which must go to the company in general meeting, rather
than the board, for consideration. (Emphasis added.)
It was also held in Re Coroin as follow:
B [48] I entirely accept that the affairs of a company are to be liberally
determined for the purposes of s 994. (Emphasis added.)
(d) the English High Court case of Re Unisoft Group Ltd (No 3) [1994] 1
BCLC 609 which involved an application to strike out parts of a
C petition under the previous s 459 of the English Companies Act 1985
for minority oppression petition held:
It is of course obvious that a company may act or conduct itself in a manner
affecting a shareholder’s rights in respect of his shares, for example the board
may refuse to sanction a transfer of shares for improper reasons. The action of
D the board is conduct of the affairs of the company and so, if damage is alleged,
may raise the ground of ‘unfair’ prejudice, and a petition under s 459 may be
presented to the court. Further, a shareholder by exercising his own private
right to vote his shares may cause the company to act, by the passing of some
resolution in general meeting, in a matter alleged to be unfairly prejudicial to
E some members. Again it is not the act of the shareholder in voting that will found
a petition but the result of that act if it produces action, or inaction, by the
company. In my judgment the vital distinction between acts or conduct of the
company and the acts or conduct of the shareholder in his private capacity must be
kept clear. The first type of act will found a petition under s 459; the second type
of act will not. (Emphasis added.)
F
(e) in English Court of Appeal in Re Legal Costs Negotiators Ltd [1999] 2
BCLC 171, a case which was also based on s 459 of the English
Companies Act 1985, it was held as follows:
Secondly, that the essence of the powers under s 459 is to give a remedy where
G there is complaint about the way the company’s affairs are being conducted
through the use (or failure to use) powers in relation to the conduct of the
company’s affairs provided by the company’s constitution. Examples will be
cases which concern the powers of the board to run the business, to dismiss
employees (eg the petitioner himself who finds himself excluded from the
H company) etc or powers in relation to the declaration of dividends or disposal
of the company’s assets or the making of other corporate decisions. It is
concerned with ‘standards of corporate behaviour’ to use the expression used by
Arden J in Re BSB Holdings Ltd (No 2) [1996] 1 BCLC 155 at p 243. That
I think emerges especially from the passages I have emphasised. It seems to me
further to follow from the fact that the section is concerned with the conduct
I
of ‘the company’s affairs’ rather than the affairs of individuals. Moreover, the
concluding words of the section require the demonstration of actual or
proposed acts or omissions ‘of the company’ which includes acts or omissions on its
behalf. Those words indicate that such part of the section is concerned with
acts done by the company or by those authorised to act as its organs. It would be
odd if the other part of the section was not directed to that sort of corporate A
behaviour. It would also explain why, as I note below, the cases show a
reluctance to act where the petitioner is able to control the relevant conduct
by his own powers. Rather the cases are concerned with cases in which the
petitioner is otherwise powerless to stop the conduct by powers he has under
the company’s constitution. This approach to the purpose of the section is B
also consistent with the section being generally regarded as a section for the
protection of minorities, with the historical background to the section to
which I have referred above and explains why the textbook writers, whilst
allowing of the possibility that majority shareholders might be able to use the
section, give as examples cases where the majority is not in fact in control of
the relevant aspect of the company because another has a power to stop them C
doing what they would like to do. Whilst I would not presume to suggest that
there can never be a case which does not have the characteristics 1 have
attempted to identify, and recognising the deliberate flexibility of the remedy
provided by the section, I would imagine such cases to be exceptional.
(Emphasis added.) D
[68] Section 459 of the English Companies Act 1985 which was referred to
in some of the above English cases was replaced by s 994 of the English
Companies Act 2006 which is similar but not identical with our s 346 of the CA
2016. Section 459 of the English Companies Act 1985 and s 994 of the English E
Companies Act 2006 are reproduced below:
Section 459 of the English Companies Act 1985
A member of a company may apply to the court by petition for an order under this
Part on the ground that the company’s affairs are being or have been conducted in a F
manner which is unfairly prejudicial to the interests of its members generally or of
some part of its member; (including at least himself ) or that any actual or proposed
act or omission of the company (including an act or omission on its behalf) is or would
be so prejudicial. (Emphasis added.)
Section 994(1) of the English Companies Act 2006 G
(a) that the company’s affairs are being or have been conducted in a manner that is
unfairly prejudicial to the interests of members generally or of some part of its
members (including at least himself ), or (b) that an actual or proposed act or omission
of the company (including an act or omission on its behalf ) is or would be so
prejudicial. (Emphasis added.) H
[69] Firstly, based on the highlighted difference in the wordings of the

English s 459 of its Companies Act 1985 and s 994(1) of its Companies Act
2006 with our s 346 of the CA 2016, I am of the considered view that one must
be careful in applying the principles in these English cases to our s 346 of the I
CA 2016. This is because the English s 459 of its Companies Act 1985 and
s 994(1) of its Companies Act 2006 uses the words ‘proposed act or omission
of the company (including an act or omission on its behalf )’ which do not
appear or have similar equivalent words in our s 346 of the CA 2016.
A [70] Secondly, whilst I would agree with learned counsel for the plaintiff that
the definition of ‘affairs of the company’ should be given wide meaning,
however, it cannot be without limitation and must be within the ambits of s
346 CA of the 2016.
B [71] In connection to this, I agree with learned counsel for the first and
eighth defendants that the acts complained of must relate to the affairs of the
company itself or the exercise of powers by the directors, not that of an
individual. Learned counsel cited the following cases:
C (a) Jet-Tech Materials Sdn Bhd v Yushiro Chemical Industry Co Ltd [2013] 2
MLJ 297 (FC) at p 318:
[37] … In this regard we are in agreement with the submission of learned
counsel for the respondents that breaches of a shareholders agreement cannot
be a basis for bringing a petition under s 181. A complaint under s 181 of the
D CA must be confined to matters relating to the affairs of the company.
Shareholders’ agreement and breach of the same clearly are not matters relating to
the affairs of the company. They are private matters enforceable by the parties
to the shareholders agreement … (Emphasis added.)
(b) Koh Jui Hiong v Ki Tak Sang [2009] 8 MLJ 818 at pp 828–829:
E
[25] Section 181(1)(a) sets out three essential elements which the petitioners
have to establish, viz:
(1) oppressive conduct or conduct in disregard of interests;
F (2) the conduct must relate to the affairs of the company, or the exercise of
powers by the director(s); and
(3) the conduct affects one or more of the members of the company including the
petitioner(s). (Emphasis added.)
G [72] Regarding the earlier mentioned cases cited by learned counsel for the
plaintiff, it is observed that:
(a) none of those cases are in respect of a decision or decisions made by a
chairman of a company at a meeting of its members or whether the acts
H of the chairman at such a meeting constitutes ‘affairs of the company’;
(b) the case of Re Cumberland is regarding the breach of directors’ duties
when they act in the interests of another company of which they are also
directors and shareholders. In such a situation, the directors were held to
be acting in their own interests.
I
(c) the case of Re Neath is regarding the decision of a director towards the
shareholder (person or company) that nominated him as a director.
(d) the case of Re Coroin is regarding an allegation of breach of a
shareholders’ agreement.
(e) both Re Neath and Re Coroin involve the interpretation of ‘affairs of the A
company’ to include decisions made by the board of directors and
matters which may not come before the board;
(f) in Re Unisoft, in striking out parts of the petition, the High Court held:
… the court should be extremely careful to ensure that oppression is not caused B
to the parties to a s 459 petition by allowing the parties to trawl through facts
which have given rise to grievances but which do not constitute the conduct of
affairs of the company and therefore cannot found a petition. Large parts of the
amended points of a claim would be struck out on the grounds that they either
disclosed no cause of action as the conduct alleged was not conduct of the affairs of C
the company or did not affect the petitioner qua member …
(g) it was further held in Re Unisoft:
Nothing was done by the board or by any officer of the company. In my view this
is not a matter which can be maintained in this petition. (Emphasis added.) D
(h) I must highlight here that the words ‘or by any officer of the company’
is not applicable in the instant case as they do not fall under the
definition of the ‘powers of the directors’ under s 346 of the CA 2016
(Kumaraisen). Further Re Unisoft was based on s 459 of the English E
Companies Act 1985 where the following words appear ‘proposed act or
omission of the company (including an act or omission on its behalf )’
which are not in our s 346 of the CA 2016;
(i) the case of Re Legal Costs Negotiators involved the oppression of the
F
majority (not the minority) which was in control of the company. The
petition was struck out and the following decision of the English High
Court was upheld:
(3) The meaning of conduct of the company’s affairs under s 459 was limited and
should not include the acts of shareholders acting in a private capacity. The G
essence of s 459 was to provide a remedy where a complaint existed
concerning the way in which a company’s affairs were being conducted
through the use of, or failure to use, corporate powers in relation to the
conduct of the company’s affairs, as provided by the company’s constitution.
The respondent’s refusal to sell his shareholding was a private matter and did
not involve company affairs. The respondent’s conduct was not derived from the H
exercise or failure to exercise any power by the respondent given to him by the
company’s constitution. As regards the alleged previous conduct of the
respondent, the petitioners had already been able to remedy this wrong by
terminating the respondent’s employment and producing his resignation as
director. The petition must therefore fail. (Emphasis added.) I
[73] In his written submissions, learned counsel of the plaintiff, inter alia,
attempted to equate t he chairman’s rulings, in particular the proxy ruling, to a
decision by the eighth defendant through its board of directors (para 12 of encl
A 53) which was made based on the legal advice obtained prior to the AGM, paid
by the eighth defendant. Taking this argument at its highest and even if it is
taken further to say that the first defendant consulted the eighth defendant’s
board of directors before she made the chairman’s rulings, the principle in the
case of Re Neath relied on by the learned counsel for the plaintiff himself does
B not make this conduct wrongful that it would constitute oppression.
[74] Re Neath involved the issue of whether a director nominated by a

particular shareholder owed a duty to the said shareholder who nominated
him. The issue also arose regarding the said director consulting with the
C shareholder that nominated him. Stanley Burton LJ speaking on behalf of the
English Court of Appeal answered these issues as follows:
[45] In these circumstances, I consider that the judge’s finding that the only effective
duty of Mr Cuddy when acting as a director of Osprey was to consult with Mr Hawkes
was justified. The purpose of such consultation would have been for Mr Cuddy to be
D
better informed when deciding what was, in his view, in the best interests of Osprey.
[46] The fact that there were occasions when Mr Cuddy when acting as a director of
Osprey did in fact seek to advance Neath’s interests is not inconsistent with this
conclusion: it does not show that Mr Cuddy was under a legal duty to do so. Nor does
it show that Mr Cuddy acted in what he did not see were the interests of Osprey.
E (Emphasis added.)
[75] It must be borne in mind that Re Neath involved the conduct of a

director of the company whereas in the instant case the eighth defendant (whilst
F also a director of the eighth defendant) was acting in her capacity as the
chairman of the AGM.
[76] As the chairman of the AGM, the first defendant’s position is different
than that of a director and her conduct at the AGM cannot be equated with the
G conduct of a director of the eighth defendant or construed as the exercise of the
powers of the directors of eighth defendant within the meaning of s 346 of the
CA 2016.
[77] Further and in any event, similar to Re Neath there is nothing before the
H court to show that the first defendant was not acting in the interest of the eighth
defendant or its shareholders. The chairman’s rulings were made after
obtaining legal advice. There is nothing wrong with that and it is prudent to do
so.
I [78] Having reviewed the cases submitted by both learned counsel for the
plaintiff and the defendants, I find that the case of Sun Hung Kai is more
relevant to the issue at hand on whether the first defendant’s conduct as
chairman of the AGM constitute ‘affairs of the company’ or the exercise of the
‘powers of the directors’ under s 346 of the CA 2016.
[79] I accept that Sun Hung Kai is not an oppression action, however, it dealt A
with the different roles and capacities between:
(a) a member or shareholder of a company;
(b) the directors of a company;
B
(c) the company itself; and
(d) the chairman of a meeting of members of a company.
[80] Sun Hung Kai referred to the Australia Court of Appeal case of Whitlam
C
v Australian Securities and Investments Commission [2003] NSWCA 183;
(2003) 57 NSWLR 559; in concluding that ‘if the chairman is a member of the
board then the duties owed in relation to dealings with proxies in favour of the
chairman are not directors duties, they are duties owed as chairman to the party
who appointed the chairman as proxy’. D
[81] In Whitlam the defendant failed to vote against the resolution as

instructed by the shareholder who appointed him as proxy. Interestingly, a
similar issue was dealt with in the English Court of Appeal case of Re Neath.
E
[82] The above quoted passage by Colvin J in Sun Hung Kai is in relation to
a chairman of a meeting of members acting as a proxy of a shareholder at the
meeting. There, it was held that the chairman owed a duty to the proxy
shareholder he or she represents, it is not directors duties.
F
[83] In the case of the first defendant, she became the chairman of the AGM
by virtue of article 54 of the eighth defendant’s articles which states:
The Chairman (if any) of the board of directors shall preside at every General Meeting
but if there be no Chairman, or if at any meeting he shall not be present within G
fifteen (15) minutes after the time appointed for holding the same, or if he shall be
unwilling to act as Chairman, the Deputy Chairman of the Company shall be the
Chairman or if the Deputy Chairman be not present or shall be unwilling to act as
Chairman, the Members present shall choose some Directors, or if no Director be
present or if all the Directors present decline to take the Chair, they shall choose H
some Member present to be Chairman of the meeting. (Emphasis added.)
[84] As previously stated, as the chairman of the board of directors did not
wish to be chairman of the AGM, the first defendant, as the deputy chairman
of the board of directors, became the chairman of the AGM by default based on I
article 54 of the eighth defendant’s articles.
A [85] Therefore, it could be said that the first defendant became the chairman
of the AGM by consent of the members which includes the plaintiff. All
shareholders of the eighth defendant are bound by the eighth defendant’s
articles.
B [86] It is important to note that the first defendant’s ‘appointment’ as
Chairman of the AGM has nothing to do with the directors nor was it their
decision for her to chair the AGM.
C [87] In this regard, it was further submitted on behalf of the first and eighth
defendants that the chairman’s rulings made by the first defendant were within
the purview of her powers and duties as chair of the AGM as such powers
included:
(a) determining the qualification of voters;
D
(b) deciding whether proposed motions are in order; and
(c) deciding points of order and other incidental matters.
E [88] I agree with this submission and it is in line with article 63 of the eighth
defendant’s articles which states:
63. No objection shall be raised to the qualification of any voter except at the meeting
or adjourned meeting at which the vote objected to is given or tendered and every
vote not disallowed at such meeting shall be valid for all purposes. Any such objection
F made in due time shall be referred to the Chairman of the meeting whose decision shall
be final and conclusive. (Emphasis added.)
[89] Thus, the chairman’s rulings made by the first defendant is within the
powers conferred on her as the chairman of the AGM pursuant to article 63 of
G the eighth defendant’s articles.
[90] It must further be emphasised that the ‘affairs of the company’ is ‘the
conduct of ‘the company’s affairs’ rather than the affairs of individuals’ and does
H
not include ‘acts of shareholders acting in a private capacity’ (Re Legal Costs
Negotiators). Disputes in respect of a shareholders’ agreement also do not fall
within the meaning of ‘affairs of the company’ (Jet-Tech).
[91] In the circumstances, the chairman’s rulings cannot be said to fall within
I the meaning of ‘affairs of the company’ or ‘powers of the directors’ under s 346
of the CA 2016.
The plaintiff has no interest in rights of other members

[92] The five shareholders of the impugned proxy forms are not parties to A
this originating summons and this brings about a very important question and
that is whether the plaintiff can raise a complaint on behalf of other
shareholders.
[93] More so, whether the plaintiff can raise a complaint when the act B
complained of does not affect the plaintiff in its capacity as a member of the
eighth defendant.
[94] In this regard, it must be highlighted that the plaintiff was not precluded C
from voting at the AGM.
[95] In the case of Jet-Tech the Federal Court held at para 38, pp 318–319 as
follows:
We agree with the above view. In any event Yushiro’s request to Chen to retire as a D
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: E
If the petitioners relies on sub-s (1)(a) of s181, 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 … F
We endorse the above view. (Emphasis added.)
[96] The case of Goldbelt Mines Inc Goldbelt Mines Inc (NPL) v New
Beginnings Resources Inc [1984] BCJ No 2730, involves a decision of the G
British Columbia Court of Appeal where the complaint was of an alleged
oppression to warrant holders by the applicant who was not a warrant holder
though a member of the company. While the facts are slightly different to the
present case the issue was whether it was open to the applicant to invoke the
prejudice to other members of the company as a basis for relief in cases of H
oppression:
We asked counsel for Goldbelt whether or not Goldbelt must be one of the
members who was oppressed or unfairly prejudiced within the meaning of s 224(1).
Mr. Hunter indicated that in his view Goldbelt must be one of the members that was
oppressed or unfairly prejudiced and, with re(s)pect, I share that view. On the evidence I
before the Court I am not persuaded that Goldbelt suffers from any oppression or unfair
prejudice by virtue of the meeting being held on October 16, 1984. In those
circumstances I do not think that it is open to Goldbelt to invoke the prejudice to other
members of the company as a basis for relief under s 224 of the Company Act. That being
so, it seems to me that the learned Chambers Judge made a fundamental error in
A principle in granting the relief which he granted in the course of making the order.
(Emphasis added.)
[97] It was submitted on behalf of the defendants that the plaintiff has no
interest in the voting rights of other members of the eighth defendant and the
B case of Jaber and others v Science and Information Technology Ltd and others
[1992] BCLC 764 was cited as authority for this in particular where it was held
as follows:
It is not alleged in the petition, and could not be so alleged, that Ramadani’s right
C to vote at general meetings of Diwan in accordance with the articles of Diwan
(including art 19 under which it is expressly provided that no member shall have
more than one vote) has been denied. In my judgment it cannot be said that
Ramadani has, in relation to voting rights, any interest more extensive than this. In
particular I decline to accept that a member, has in his capacity as member, any interest
in the recognition of the voting rights of other persons claiming to be members.
D
Accordingly, I reject the first way in which Miss Stockton concluded that
Ramadani’s interests are being prejudiced. The facts alleged, even if proved, could
not bring the case within s 459 in this respect. (Emphasis added.)
E [98] In response to this issue raised by the defendants, learned counsel for the
plaintiff argued that the results of a meeting are binding on shareholders that
every shareholder is entitled to challenge the results of a meeting and the
conduct of a chairman of that meeting. Learned counsel then went on to cite
the following cases in support of his argument:
F
(a) Lee Eng Hock, Ho Kok Leong, Khoo Hoot How (on behalf of themselves and
other shareholders) v Malay-Siamese Prospecting Company, Limited
[1935] 1 MLJ 63 regarding the wrongful rejection of proxies by the
chairman of the meeting, where it was held:
G Since the cause of the common grievance of all the plaintiffs is that the
resolution was wrongly passed, on the same ground (vis that proxies had been
wrongly rejected) I am satisfied that they were entitled to join in suing the
company on behalf of themselves and all other shareholders who voted against or
were opposed to the resolutions in question, and, in this respect, had a common
H interest. (Emphasis added.)
(b) Mosely v Koffyfontein Mindes, Limited [1911] 1 Ch 73 a case where the

shareholders claimed the company had acted ultra vires when it
attempted to increase its share capital and where it was held as follows:
I He might have sued on behalf of himself alone, but in an action in which he
is suing on behalf of himself I cannot see any objection to his joining with him
all the rest of the shareholders who have like rights with him by reason of their
being shareholders, and suing not only in his individual right, but also in a
representative character. (Emphasis added.)
[99] With respect to learned counsel for the plaintiff, I do not find the above A
authorities helpful for the following reasons:
(a) they are not cases on oppression;
(b) they are representative actions or otherwise later known as derivative
actions (equivalent to s 347 of the CA 2016). In this regard the Court of B
Appeal in Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn
Bhd [1995] 3 MLJ 417 at p 426 held as follows:
The second limb of the rule is of much wider purport and is universal in its
application. It is based upon the doctrine that only he who has been injured C
may sue. Translated into company law, the proposition may be stated thus. If
a wrong has been done to a company, then it is the company which is the proper
plaintiff in an action brought to redress the injury. An individual shareholder or
even a group of shareholders forming a minority on the floor of a general meeting
of the company have no locus standi to bring an action to remedy a wrong done
D
to a company. See Prudential Assurance Co Ltd v Newman Industries Ltd (No
2) [1982] Ch 204; [1982] 1 All ER 354; [1982] 2 WLR 31. (Emphasis
added.)
(c) in Lee Eng Hock the shareholder whose proxy’s vote was rejected was
made co-plaintiff in the suit unlike in the present case where the five E
shareholders of the impugned proxy forms were not made parties to this
originating summons; and
(d) in Mosely the complaint there related to the alteration of the company’s
articles of association which affected the plaintiff personally. In the F
instant case there is no injury suffered by the plaintiff as the plaintiff was
allowed to and did in fact vote at the AGM.
[100] Since the proxy ruling affects the five shareholders of the impugned
proxy forms therefore it is for them to raise their complaint, if any, and it is not G
for the plaintiff to do so. The plaintiff is not entitled to raise complaints on
behalf the said five shareholders of the impugned proxy forms. The issue of
their proxy votes did not affect the plaintiff ’s own right to vote.
[101] Therefore, I find that the non-joinder of the five shareholders of the H
impugned proxy forms in this originating summons is fatal to the plaintiff ’s
complaint insofar as the proxy ruling is concerned.
[102] On this issue, in London Passenger Transport Board v Moscrop [1942] 1

All ER 97 at p 104 it was held: I
… The present appellants were not directly prejudiced by the declaration and it
might even have been thought to be an advantage to them to submit to the
declaration, but, on the other hand, the persons really interested were not before the court
… the courts have always recognised that persons interested are or may be indirectly
A prejudiced by a declaration made by the court in their absence, and that, except in very
special circumstances, all persons interest should be made parties, whether by
representation orders or otherwise, before a declaration by its terms affecting their
rights is made … (Emphasis added.)
B [103] Further, the Federal Court in Lim Choon Seng v Lim Poh Kwee [2020]
MLJU 1155, reiterated the general rule that no orders can be made in respect
of the non-party and held:
[70] … the general rule is that the court has no jurisdiction over any person other
C than those brought before it and no order can be made fo or against or bind a
non-party: See Kheng Chwee Idan v Wong Tak Thong [1983] 2 MLJ 320 where Seah
FJ delivering the judgment of the former Federal Court said:
In our judgment, the court below has no jurisdiction inherent or otherwise, over any
person other than those properly brought before it, as parties or as persons treated as if
D they were parties under statutory provisions [Brydges v. Bydges & Wood; Re Shephard
and Coleman]. The terms ‘judgment’ and ‘order’ in the widest sense may be said
to include any decision given by a court on a question or questions at issue between the
parties to a proceeding properly before the court (see para 501 of Halsbury’s Law of
England (4th Ed) Vol 26 at p 237). (Emphasis added.)
E
[104] The court cannot be expected to delve into or examine a complaint in
an action for oppression under s 346 of the CA 2016 when the aggrieved party
is not before the court.
F
[105] At the risk of repetition and for sake of clarity, the proxy ruling affects
the five shareholders of impugned proxy forms, not the plaintiff.
[106] In addition to this the plaintiff is precluded from raising any complaint
G regarding the impugned proxy forms when the five shareholders of those forms
are not before the court.
[107] As a final point on this issue, I would be remiss if I did not consider the
allegation raised by the plaintiff that four out of the five shareholders of the
H impugned proxy forms had written letters of complaint regarding the proxy
ruling. However, having examined the wordings of these letters and apart from
the fact that they all appear to be very similar which in itself raises doubt as to
their authenticity, it still does not change the fact that in the absence of the five
shareholders of the impugned proxy forms in this originating summons or even
I an affidavit affirmed by them to support the plaintiff ’s allegation, these letters
constitute hearsay evidence which are inadmissible in law (Al Baik Fast Food
Distribution Co SAE v El Baik Food Systems Co SA [2016] 5 MLJ 768 (COA)
at pp 780–781).
[108] It is my judgment that the plaintiff has no locus standi to initiate this A
action as the chairman’s rulings do not fall within s 346 of the CA 2016 and
hence on the ground on locus standi alone, it is sufficient for the originating
summons to be dismissed.
[109] Nevertheless, for the purpose of completeness I have also considered the B
other issues regarding the correctness of the chairman’s rulings and will deal
with them specifically below.
THE PROXY RULING

C
[110] As mentioned earlier in the setting out the salient facts of this
originating summons, two AGM notices were issued by the eighth defendant
and with them two separate proxy forms. The first was enclosed together with
the first AGM notice (‘original proxy form’) and the second was enclosed in the D
second AGM notice (‘revised proxy form’). Both the original proxy form and
the revised proxy form are the same except for the plaintiff ’s resolutions that
were included as per the second AGM notice and the addition in the
‘Additional Notes’ to the revised proxy form.
E
[111] The first defendant’s decision in respect of the proxy ruling is essentially
on the basis that no proxy was properly named and/or identified in the
impugned proxy forms by the five shareholders of those forms (‘the five proxy
shareholders’). This resulted in the rejection of the impugned proxy forms.
F
[112] This entire issue revolves around the manner in which the impugned
proxy forms were executed and therefore it is important to review them.
[113] The eighth defendant’s proxy forms are generally governed by article 65
of the eighth defendant’s articles which provides: G
I
A [114] A copy of one of the impugned proxy forms of Tan Say Cheong
[115] The impugned proxy forms were rejected by the first defendant as no
proxy was named or identified as follows:
(a) no proxy was specifically named under the column ‘Proxy 1’ and/or
F
‘Proxy 2’.
(b) the ‘Chairman of the Meeting’ was not named or identified as a proxy
under the column ‘Proxy 1’ or ‘Proxy 2’
(c) the proviso below the table is not activated (and cannot be automatically
G
applied) unless an individual is named/appointed first as a proxy under
the column ‘Proxy 1’ or ‘Proxy 2’. This is because the said Proviso is
merely to safeguard the shareholder’s position in the event the
nominated proxy does not attend the AGM. It is not intended to be an
automatic substitution for the appointment of proxy with the
H
‘Chairman of the Meeting’ unless a proxy or proxies have been named.
The proviso is reproduced below:
‘or failing him/her, the CHAIRMAN OF THE MEETING as my/our proxy
to attend and vote for me/us on my/our behalf at the Twenty-Fourth annual
I general meeting (‘AGM’) of the Company to be conducted fully virtual at
Broadcast Venue, T3-13A-20, Level 13A, Menara 3,3 Towers, Jalan Ampang,
50450 Kuala Lumpur Tuesday, 9 June 2020 at 11:00 a.m. or any
adjournment thereof in the manner as indicated below (Emphasis added.))
(d) as no proxy was specifically named under the column ‘Proxy 1’ or ‘Proxy
2’ the words ‘or failing him/her’ must either be struck out or the words A
‘CHAIRMAN OF THE MEETING’ circled to indicate the Chairman’s
appointment as was done by some of the other shareholders of the 8th
Defendant. Since this was not done, the Proviso is not activated.
(e) as can be seen from the impugned proxy form of Tan Say Cheong which B
is the same with the other four impugned proxy forms, none of the above
were done.
[116] Before I deal with the plaintiff ’s arguments as to the intention of the five
shareholders of the impugned proxy forms when they signed the signed C
impugned proxy forms, I must pause to again highlight that these are highly
speculative arguments. The five shareholders are not before the court and
neither have any of them filed any affidavit to support the plaintiff ’s arguments.
This inevitably goes back to the earlier issue of locus standi. What is the thus
value of the plaintiff ’s allegations in this situation? They are mere conjecture. D
[117] Having said that, I will now address the arguments raised by the
plaintiff regarding the impugned proxy forms.
E
[118] Learned counsel for the plaintiff ’s arguments in respect of the issue of
the defect in the impugned proxy forms can be summarised as follows:
(a) the five shareholders has appointed the chairman of the AGM being the
first defendant as their proxy;
F
(b) there are no terms on the face of the revised proxy form stating that the
proxy, including the chairman, possessing any power, authority or
discretion in revoking the appointment;
(c) it is not open to the named proxy, or to the chairman if named as proxy,
G
to revoke or refuse the proxy;
(d) the first defendant wrongly rejected the impugned proxy forms; and
(e) the first defendant had ‘selectively’ rejected the impugned proxy forms
to allegedly temper with the votes. H
[119] There are two main issues arising from these allegations by the plaintiff
and they are:
(a) whether the impugned proxy forms were wrongly rejected by the first
I
defendant or in other words the proxy ruling was wrong and invalid; and
(b) whether there was improper motive on the part of the first defendant
when she rejected the impugned proxy forms.
A [120] To my mind, if the above first issue is answered in the negative then the
second issue regarding the first defendant’s motive is not relevant, without even
going into the merits of the allegation. This is because if the proxy ruling is
correct in law and in fact then it does not matter whether the first defendant is
said to harbour some ulterior motive towards the plaintiff. In any event, I will
B address the other complaints raised by the plaintiff later in this judgment.
[121] Having examined the impugned proxy forms in detail I find that no
proxy was properly named or identified by the five shareholders and therefore
C
agree with the first defendant’s reasons for rejecting the impugned proxy forms
as stated in para 114 above.
[122] Before I deal with the cases governing proxy forms, I must emphasise
that a shareholder’s right to vote is arguably his most important right as a
D shareholder or member of a company. Hence, when that right is to be exercised
by way of proxy, exceptional care must be taken to ensure that the appointment
of the said shareholder’s proxy was done properly and the proxy clearly
identified.
E [123] A proxy will have to vote according to the wishes of the shareholder who
appointed him and he is an agent of the said shareholder to whom ‘fiduciary
duties are owed to the particular member who appointed’ the proxy (Whitlam).
[124] Such are the duties and obligations of a proxy that are derived from the
F shareholder’s fundamental right to vote.
[125] With such an important duty placed upon the proxy, it is equally
important that he be identified with clarity as a proxy and that is precisely the
reason a company’s proxy form must be properly executed.
G
[126] In the case of the impugned proxy forms it is not in dispute that a proxy
was not named by the five shareholders. This is in fact admitted by the plaintiff
in its affidavit in reply (encl 35) at para 18.2:
H All 5 revised proxy forms which were rejected by the first defendant did not name a
proxy in the proxy rows (please see Exhibits ‘GCM-20’ to ‘GCM-24’, Volume 3 of
the plaintiff s AIS). The proxy rows were blank;’ (Emphasis added.)
[127] The plaintiff claimed that as no proxy was named, the chairman of the
I AGM was appointed as proxy of the five shareholders of the impugned proxy
forms.
[128] It is clear from the wording of the revised proxy form that the proviso
would only apply in the absence of the specifically named proxy which is why
the words ‘or failing him/her’ appear in proviso. Due to the seriousness of the A
issue as stated earlier, the first defendant as the Chairman of the Meeting
cannot be expected to infer from the improperly executed Impugned Proxy
Forms the intention of the five shareholders. That is not only dangerous, but
may also expose the first defendant to liability.
B
[129] The first defendant accepts that if either the words ‘or failing him/her’ is
crossed out or the words ‘CHAIRMAN OF THE MEETING’ is circled then
the impugned proxy forms would have been accepted as was done by some
other shareholders. In this regard the second to seventh defendants have
C
exhibited two Revised Proxy Forms of the second defendant and another
shareholder of the eighth defendant, Affin Hwang Nominees (Tempatan) Sdn
Bhd where the words ‘or failing him/her’ were crossed out (exh ‘DT-6’ of the
first to seventh defendants affidavit in reply in encl 26). However, clearly this
was not done by the five shareholders. D
[130] In Macdonald v EPS 522 [2019] BCJ No 986 A, the British Columbia
Supreme Court considered the validity of proxy forms which did not identify
any individual as a proxy holder and set out the manner in which the proxy
form should be executed, Young J held as follows: E
104. Proxies must be in writing and signed by the person appointing the proxy:
SPA, s 56(2)(a). Blank proxies are invalid.
105. A proxy form must identify an individual as a proxy holder. A proxy which says
‘any council member’ is irregular and should not be certified. F
106. A proxy form with no named appointee is an invalid proxy. The name of the council
member should be written in or typed before the proxy is signed. If a proxy is completed
and then the appointee’s name is crossed out and replaced with a different
appointee’s name, the proxy may or may not be invalid. What is important is that
the appointee’s name was written or rewritten on the form before it was signed by G
the owner. Changes must be initialled by the owner in order for the proxy to be
valid. (Emphasis added.)
[131] The first defendant, as the chairman of the AGM, is entitled to consider
the validity of the impugned proxy forms and make the proxy ruling. In this H
connection, it was held in Veto Insurance Ltd v Kassem and Others [2010]
NSWSC 838 as follows:
[57] Implicit in reg 5.6.28 is the expectation that the person with whom the proxy
is lodged will perform a function of examining it and ascertaining the voting power
is exercisable at the meeting by the person appointed … Part of that task — or, at all I
events, the task of the meeting’s chairman — is to consider the regularity and validity of
instruments of proxy. No one could possibly say that the chairman of the meeting was not
entitled (indeed, bound) to reject and rule out of order proxy purporting to be given by
John Brown on which there appeared no signature at all or the signature of John
A Black, without any evidence of the authority of Black to sign for Brown. (Emphasis
added.)
[132] In Sun Hung Kai, the Federal Court of Australia also acknowledged the
right of the chairman of a meeting to determine the validity of proxy forms and
B that such right is different than his role and capacity as chairman of the board
of directors:
[34] … It is for the chairman of the meeting of members to determine whether a
proxy should be rejected (not the company): Rtf K Wong Holdings Pty Ltd (1983) 1
C HCLC 738 (Needham J, a case concerned with the approval of a scheme of
arrangement); and Cordiant Communications (Australia) Pty Ltd v Communications
Group Holdings Pty Ltd (2005) 55 ACSR 185; [2005] NSWSC 1005 at
[92]–[107] (Palmer J, a case that reviewed a number of authorities concerned with
the effect of an erroneous ruling by a chairman as to acceptance of proxies) …
D [41] … However, for reasons I have given, proxy documents are not provided to the
company for the purpose of any deliberation by the company through its directors
as to the validity of the proxies. The arbiter of the validity of the proxies is the chairman
of the meeting (who may or may not be the chairman of the company and who, in any
case, acts in a different capacity). (Emphasis added.)
E
[133] In the circumstances, I find that the proxy ruling is correct and the first
defendant was right in rejecting the impugned proxy forms. That being the case
it is unnecessary for me to deal with the allegation of ulterior motive of the first
defendant that was raised by the plaintiff.
F
[134] There is, however, another complaint raised by the plaintiff which I
have considered and that is regarding the allegation of different treatment by
the first defendant in respect of other revised proxy forms that are said to have
been completed and executed similar to the impugned proxy forms.
G
The plaintiff ’s allegation of different treatment in respect of other similar revised
proxy forms similar to the impugned proxy forms
H
[135] On this issue the plaintiff exhibited in its affidavit in support two
Revised Proxy Forms which are said to belong to the second defendant and
Affin Hwang Nominees (Tempatan) Sdn Bhd (‘plaintiff ’s two disputed proxy
forms’).
I [136] The plaintiff ’s two disputed proxy forms are different than the ones
exhibited by the second defendant which I had referred to earlier in para 128
above (‘second defendant’s & Affin’s proxy forms’) in that the words ‘or failing
him/her’ were not crossed in the plaintiff ’s two disputed proxy forms.
[137] The plaintiff did not disclose nor explain where or how the plaintiff A
obtained the plaintiff ’s two disputed proxy forms.
[138] As all the revised proxy forms were submitted to the eighth defendant
prior to the AGM, the actual copy must be the one in the eighth defendant’s
possession. B
[139] The eighth defendant confirms the second defendant’s & Affin’s proxy
forms to be the ones actually submitted to it. Also, second defendant has
confirmed the copy the second defendant’s and Affin’s proxy forms are as per C
the ones submitted to the eighth defendant.
[140] Therefore, in the absence the plaintiff ’s explanation on how or where it

obtained the plaintiff ’s two disputed proxy forms and in the absence of any
specific evidence to show that the second defendant’s and Affin’s Proxy Forms D
are not the actual second defendant’s and Affin Hwang Nominees (Tempatan)
Sdn Bhd’s revised proxy forms that were submitted to the eighth defendant, I
accept the defendants arguments that the plaintiff ’s allegations on this issue are
bare allegations (Pintaran Timur (M) Sdn Bhd & Ors v Small Medium Enterprise
Development and another appeal [2020] MLJU 457 at paras 21–23). E
The poll administrator and independent scrutineer
[141] The plaintiff ’s other complaints related to the proxy ruling are as
follows: F
(a) the alleged contrary views of the poll administrator and independent
scrutineer; and
(b) that there is a conflict of interest in the appointment of the independent
G
scrutineer and/or poll administrator.
[142] Firstly, the plaintiff complaints are essentially regarding the acts of the
first defendant in respect of the chairman’s rulings and not with regards to the
acts of the poll administrator and independent scrutineer. H
[143] Secondly, it is ironic that the plaintiff on one hand relies on the poll
administrator and independent scrutineer disagreement with the proxy ruling
but at the same time seek to challenge their appointment and participation in
the AGM. I
[144] Therefore, this seriously undermines the value of the plaintiff ’s

complaint and allegation on this issue.
A [145] Insofar as the alleged contrary views or statements of the poll

administrator and independent scrutineer are concerned, they are hearsay
evidence and are inadmissible (Al Baik). Neither have the poll administrator
and independent scrutineer filed any affidavit in this originating summons to
support the plaintiff ’s allegations.
B
[146] The appointment of scrutineer is as set out in para 8.29A(2) of Bursa’s
Main Market Listing Requirements which states:
A listed issuer must appoint at least 1 scrutineer to validate the votes cast at the
general meeting. Such scrutineer must not be an officer of the listed issuer or its related
C corporation, and must be independent of the person undertaking the polling
process. If such scrutineer is interested in a resolution to be passed at the general
meeting, the scrutineer must refrain from acting as the scrutineer for that
resolution. For this purpose, ‘officer’ has the meaning given in section 2 of the
Companies Act’ (Emphasis added.)
D
[147] There is no non-compliance with para 8.29A(2) of Bursa’s Main Market
Listing Requirements as the Independent Scrutineer, one Eugne Teow from
Cygnus Corporation Services Sdn Bhd is not an officer of the eighth defendant
and is also not related to the person undertaking the polling process, one Alfred
E John from Mega, the Polling Administrator.
[148] In any event the plaintiff is estopped from raising its complaint
regarding the appointment of Independent Scrutineer in view of the fact that
this has been raised and decided in OS 194 (Boustead Trading (1985) Sdn Bhd
F
v Arab-Malaysian Merchant Bank [1995] 3 MLJ 331; Tenaga Nasional Berhad
v Irham Niaga Sdn Bhd & Anor [2011] 1 MLJ 752).
THE DIRECTORS’ RESOLUTIONS RULING

G
[149] The plaintiff ’s resolutions were based on declarations made by each of
the six individuals nominated for the appointment of directors of the eighth
defendant (‘plaintiff ’s proposed directors’).
H [150] These declarations are governed by s 201 of the CA 2016 which

provides as follows:
A person shall not be appointed as a director of a company unless he has consented in
writing to be a director and make a declaration that he is not disqualified from being
appointed or holding office as a director of a company under this Act. (Emphasis
I added.)
[151] Section 201 of the CA 2016 must be read with s 198 of the CA 2016
which provides for instances where a person is disqualified from being a
director:
(1) A person shall not hold office as a director of a company or whether directly A
or indirectly be concerned with or takes part in the management of a
company, if the person —
(a) is an undischarged bankrupt;
(b) has been convicted of an offence relating to the promotion, B
formation or management of a corporation;
(c) has been convicted of an offence involving bribery, fraud or
dishonesty;
(d) has been convicted of an offence under ss 213, 218, 218,228 and C
539; and
(e) has been disqualified by the Court under section 199. (Emphasis
added.)
[152] Section 199 of the CA 2016 provides as follows: D
(1) The Court may, on an application by the Registrar, make an order to

disqualify any person from acting or holding office as a director or
promoter of a company, or be concerned with or taking part in the
management of a company whether directly or indirectly, if —
E
(a) within the last five years, the person has been a director of two or
more companies which went into liquidation resulting from the
company being insolvent due to his conduct as a director which
contributed wholly or partly to the liquidation;
(b) due to his contravention of the duties of a director; or F
(c) due to his habitual contravention of this Act.
[153] Both ss 198 and 201 of the CA 2016 use the word ‘shall’ which makes
them mandatory (Tan Boon Thien & Anor v Tan Poh Lee & Ors [2021] 3 MLJ G
61; [2020] 3 CLJ 28). Therefore, before any individual can be appointed as a
director of a company, he must first make a declaration that he is not
disqualified under all the specific disqualification instances set out in s 198 of
the CA 2016.
H
[154] However, none of the declarations made by plaintiff ’s proposed
directors in the plaintiff resolutions have declared that:
(a) they have not been convicted of an offence involving ‘bribery’ under s 198
of the CA 2016; and/or
I
(b) they have not been disqualified by the court under s 199 CA 2016.
[155] It was submitted by learned counsel for the first and eighth defendants
that s 201 of the CA 2016 is prohibitory in nature. Such non-declarations by
A the plaintiff ’s proposed directors contravened CA 2016 as s 201 of the CA

2016 absolutely prohibited such appointments. Further, it is to be noted that s
591(2) of the CA 2016 imposes a criminal offence if such declarations are false.
[156] Therefore, it was further argued that in the originating summons the
B plaintiff is essentially seeking the assistance of the court to order that the
plaintiff ’s proposed directors be appointed to the board of the eighth defendant
and this would be in breach of ss 198–199 of the CA 2016. In furtherance of
this argument, it is submitted that it is trite that the court cannot grant any
relief on a claim which is founded on illegality (Norihan bt Talib v Mohd Nassir
C
bin Hassan [2018] 3 MLJ 670 at p 681 para 26; Merong Mahawangsa Sdn Bhd
& Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619).
[157] The plaintiff did not deny that the plaintiff ’s Proposed Directors did
D not make the declarations required under ss 198 and 199 of the CA 2016 as
stated above.
[158] Instead, the plaintiff contends that:
E (a) it is submitted that the time for the eighth defendant’s board to decide
whether plaintiff ’s resolutions may be voted on is the date of the
requisition (not at the AGM);
(b) eighth defendant’s board did decide that the plaintiff ’s resolutions may be
voted on by announcing the second AGM notice and did cause to be
F printed and circulated proxy forms containing spaces for filling in the
voting instructions for the plaintiff ’s resolutions; and
(c) the first defendant is estopped from denying the validity of the plaintiff ’s
resolutions given that the eighth defendant’s Board had accepted the
G plaintiff resolutions as the plaintiff had proceeded to circulate them.
[159] The plaintiff then relied on s 311 of the CA 2016 which states:
(1) The members of a company may require the directors to convene a
meeting of members of the company.
H
(2) A requisition under subsection (1) —
(a) shall be in hard copy or electronic form;
(b) shall state the general nature of the business to be dealt with at the
meeting;
I
(c) may include the text of a resolution that may properly be moved and
is intended to be moved at the meeting; and
(d) shall be signed or authenticated by the person making the
requisition.
(3) The directors shall call for a meeting of members once the company has A
received requisition to do so from —
(a) members representing at least ten per centum of the paid up capital
of the company carrying the right of voting at meetings of members
of the company, excluding any paid up capital held as treasury
shares; or B
(b) in the case of a company not having a share capital, members who
represent at least five per centum of the total voting rights of all
members having a right of voting at meetings of members. 302
Laws of Malaysia Act 777
C
(4) Notwithstanding subsection (3), in the case of a private company,
members representing at least five per centum of the paid up capital of the
company carrying the right of voting at meeting of members of the
company may require a meeting of members to be convened if more than
twelve months has elapsed since the end of the last meeting of members
D
convened pursuant to a requisition under this section and the proposed
resolution is not defamatory, vexatious or frivolous.
(5) A resolution may properly be moved at a meeting unless the resolution—
(a) if passed, would be ineffective whether by reason of inconsistency
with any written law or the constitution; (b) is defamatory of any E
person; (c) is frivolous or vexatious; or (d) if passed, would not be in
the best interest of the company.
(6) For the purposes of subsections (3) and (4), the right of voting shall be
determined at the date the requisition is deposited with the company.
(Emphasis added.) F
[160] The defendants response to the plaintiff ’s contention is fairly straight

forward in that s 311 of the CA 2016 is in inapplicable in this case as:
(a) s 311 of the CA 2016 allows for the requisition of a meeting by G
shareholders who hold at least 10% of the shares in a company. This is not
the case here as the AGM was not called upon a requisition by the
plaintiff;
(b) further, s 311(6) of the CA 2016 provides that the voting right shall be
H
determined at the date of the requisition. This refers to the 10% voting
right of the shareholders requisitioning the meeting; and
(c) in respect of the AGM, shareholders could vote therein if their names
appeared on the Record of Depositors of the eighth defendant as at 27
May 2020 pursuant to the 1st AGM Notice read together with s 147 of I
the CA 2016.
[161] In short, the plaintiff is confused between a meeting requisitioned by

shareholders pursuant to s 311 of the CA 2016 and an annual general meeting
A in which the circulation of resolution proposed by shareholder of a public listed

company is governed by s 323 of the CA 2016 which provides as follows:
323. Power of members to require circulation of statements —
(1) The members of a public company may require the company to —
B
…
(b) give notice of a resolution which may be properly moved and is intended to
move at that meeting,
to members of the company entitled to receive notice of a meeting of members.
C
(2) The directors shall be required to circulate the statement referred to in paragraph
(1)(a) or give notice of a resolution referred to in paragraph (1)(b), as the case may be,
once the company received the requisition from —
…
D
(a) members representing at least two and a half per centum of the paid up capital
of the company carrying the right of voting excluding any paid up capital held as
treasure shares;
…
E
(4) Unless the company resolves otherwise —
(a) the expenses of the company in complying with subsection (2) shall be paid by
the members who requested the circulation of the statement; and
(b) it shall not be bound to comply with subsection (2) unless there is deposited
F with or tendered to the company, not later than one week, before the meeting a sum
reasonably sufficient to meet its expenses in doing so.
(5) For the purposes of subsection (2), the right of voting shall be determined at the date
of requisition is deposited with the company. (Emphasis added.)
G
[162] Learned counsel for the second to seventh defendants submitted that
it should be noted that s 323(2) of the CA 2016 provides for a mandatory
obligation on the directors to give notice of plaintiff ’s resolutions and therefore
it’s incorrect for the plaintiff to suggest that there was somehow any ‘decision’
H made by the Board of the eighth defendant in circulating the same via the
Second AGM Notice.
[163] It was further submitted that the term ‘right of voting’ set out in
s 323(5) of the CA 2016 relates only to the calculation of the requisite
I
shareholding to be held by the member requesting for such notice to be
circulated (as provided in s 323(2)(a) of the CA 2016). As such, this provision
does not in any way show that the validity of the plaintiff ’s resolutions was in
any way determined at the time of requisition, as contended by the plaintiff.
[164] I agree with the above submissions of both the learned counsel for the A
first and eighth defendants as well as submissions of learned counsel for the
second to seventh defendants on this point.
[165] The plaintiff has a mandatory duty to give notice of the plaintiff ’s
resolutions by operation of the s 323(2) of the CA 2016 and that cannot be B
construed as an acceptance or acquiescence by the Board of the eighth
defendant of the validity or correctness of the plaintiff ’s resolutions.
[166] As stated in Vero Insurance and Sun Hung Kai, the decision regarding C
the plaintiff ’s resolutions ought to be made by the chairman of the meeting.
[167] In any event, the doctrine of estoppel cannot be invoked by the

plaintiff against the operation of a statute and/or where there is illegality as
stated earlier and as further found in the case of United Malayan Banking D
Corporation Bhd v Syarikat Perumahan Luas Sdn Bhd [1988] 3 MLJ 352 where
it was held as follows:
The defence of estoppel accordingly fails since there cannot be an estoppel to evade the
plain provisions of a statute: Jagabandhu v Radha Krishna ILR 36 Cal 920,
E
particularly when as here, the non-compliance goes to the root of the thing. In other
words, if the terms of a statute are absolute and do not admit of any relaxation or
exemption, anything done in contravention thereof will be ultra vires and no person
can be estopped from putting forward the contention that what was done was illegal
or void: University of Delhi v Ashok Kumar Chopra AIR 1968 Delhi 131. (Emphasis
added.) F
[168] Confronted with such non-compliance with ss 198 and 199 of the CA
2016, the first defendant was right to have withdrawn the plaintiff ’s
resolutions. G
RESULTS OF THE AGM AND THE FIRST DEFENDANT’S
ANNOUNCEMENT
[169] Another complaint raised by the plaintiff is that the results of the AGM H
published onscreen at the AGM is different than that which was officially
announced by the eighth defendant.
[170] However, I find that the defendants have satisfactorily explained and
clarified this as follows: I
(a) the votes of the five shareholders were not taken into account due to the
rejection of the impugned proxy forms by the first defendant at the
AGM;
A (b) the plaintiff ’s resolutions were never voted on as they had been
withdrawn by the first defendant at the AGM;
(c) nevertheless, due to the fact that the AGM was conducted virtually
using the DBF system which is automated, the information regarding
B the votes of the impugned proxy forms and the plaintiff ’s resolution
could not be skipped or removed from the DBF system when the votes
were tabulated. This is a design flaw in the DBF system;
(d) there is nothing sinister or wrong about Impugned Proxy Forms votes
and plaintiff ’s resolutions appearing in the DBF system at the
C
commencement of the AGM;
(e) it was only after the chairman’s rulings were made that the votes of the
impugned proxy forms and the plaintiff ’s resolution should be removed
from the DBF system; and
D
(f) however, it was solely due to the above design flaw in the DBF system
that the plaintiff ’s resolutions were purportedly ‘tabled’ or ‘voted’ with
the live feed continuously tabulating the purported ‘vote’ count on the
plaintiff ’s resolutions.
E (g) the actual and correct results of the AGM are as announced by the first
defendant at the AGM.
[171] Therefore, the ‘DBF system’s AGM Results’ should not and cannot be
F
taken as the actual result of the AGM. Is was simply a mistake which was
rectified by way of, inter alia, an official announcement dated 10 June 2020.
ENCLOSURES 3 AND 16
G [172] As the plaintiff ’s main claim on oppression under s 346 of the CA 2016
had been substantively determined via this originating summons and found to
be without merits, it therefore follows that the plaintiff ’s applications in encls
3 and 16 would also fail.
H [173] As such encls 3 and 16 were accordingly dismissed.
CONCLUSION
[174] As a final point, it is perhaps worth highlighting that the plaintiff had
I previous attempted to appoint the same proposed directors to the eighth
defendant’s Board by way of the Safari EGM three months prior to the AGM.
The plaintiff did not succeed in getting the shareholders to vote in its favour.
[175] The AGM is the plaintiff ’s second attempt to appoint the plaintiff ’s
Proposed Directors to the eighth defendant’s Board in a relatively short span of A

time.
[176] The plaintiff did not succeed in appointing the plaintiff ’s Proposed
Directors at the AGM resulting in this originating summons being filed.
B
[177] Similarly, the plaintiff ’s attempt to appoint its own additional
independent scrutineer for the AGM was also unsuccessful and that too
resulted in the filing of OS 194 which decision was not in the plaintiff ’s favour.
C
[178] Therefore, it would not be unreasonable to conclude that the plaintiff
is already at odds with the eighth defendant and more so with the first to
seventh defendants.
[179] The plaintiff ’s complaint in this originating summons were primarily D

directed at the first defendant and the chairman’s rulings which I have decided
did not fall within the meaning of ‘affairs of the company’ and the exercise of
the ‘powers of the directors’ under s 346 of the CA 2016 based on the facts of
this case. This is because, inter alia, the first defendant made the chairman’s
rulings in her capacity as the chairman of the AGM and not on behalf of the E
eighth defendant’s Board.
[180] Nonetheless, I went further to also consider the validly and correctness
of the chairman’s rulings. As I had decided that the chairman’s rulings were F
correct and that the first defendant was justified in making them, it was not
necessary for me to consider the issue of whether the chairman’s rulings were
made in bad faith.
[181] Having examined the plaintiff ’s complaint in detail there cannot be G

any dispute that it was in respect of the chairman’s rulings which were made by
the first defendant.
[182] The first defendant made the chairman’s rulings in her capacity as the
chairman of the meeting, not on behalf of the eighth defendant’s Board nor in H
her position as a director (Sun Hung Kai).
[183] The acts complained of must relate to the affairs of the company itself
or the exercise of powers by the directors, not that of an individual (Jet- Tech). I
[184] If there was a wrong committed by the first defendant to the plaintiff,
the remedy may lie elsewhere but certainly not be way of an oppression action
under s 346 of the CA 2016.
A [185] Based on the reasons that I have set out above, I dismissed this
originating summons as well as encls 3 and 16 and after hearing arguments on
costs, awarded costs of RM50,000 in favour of the first defendant and
RM50,000 in favour of the second to seventh defendants.
B Plaintiff ’s originating summons dismissed with costs.
Reported by K Selvaraju

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Safari Alliance Sdn Bhd v Tan Lee Chin & Ors

[2022] 7 MLJ (Wan Muhammad Amin JC) 27

HIGH COURT (KUALA LUMPUR) — ORIGINATING SUMMONS

C Companies and Corporations — Oppression suit — Members’ rights — annual

A shareholders. The chairman’s rulings were made after obtaining legal

[Bahasa Malaysia summary

A defendan pertama, sebagai Timbalan Pengerusi Lembaga Pengarah defendan

pengertian s 346 Akta. Tindakan yang diadukan mestilah berkaitan A

A memadai untuk saman pemula ditolak (lihat perenggan 104–105 &

C Wan Muhammad Amin JC:

[8] An ex parte injunction order was granted substantially in respect of

SALIENT BACKGROUND FACTS

[12] The plaintiff is substantial shareholder of the eighth defendant. As at

[13] The first defendant is a director of the eighth defendant.

[19] The individuals nominated by the plaintiff as candidates for

the plaintiff third months prior, during an Extraordinary General Meeting A

[29] By Kuala Lumpur High Court Originating Summons

[30] OS 194 was dismissed with costs on 4 June 2020.

[32] Shareholders who wish to appoint a proxy are required to physically

[36] At the commencement of the AGM of the eighth defendant on 9 June

[43] The brief result of the AGM in respect of Resolutions No 1 to 5 and

A (d) Resolution No 4: authority to allot shares pursuant to s 75(1) of the CA

LEGAL PRINCIPLES ON OPPRESSION UNDER S 346 OF THE CA

disregard of his or their interests as members, shareholders or debenture A

THE OPPRESSIVE CONDUCT COMPLAINED OF AND THE

(b) withdrawal of the six resolutions (Proposed Resolutions Nos 6–11)

A THE DEFENDANTS’ POSITION

[58] Regarding the correctness of the chairman’s rulings it was argued on

LOCUS STANDI — WHETHER THE CHAIRMAN’S RULINGS FALL

[60] In response to this argument it was essentially submitted on behalf of A

[62] This issue turns upon two legal questions:

Powers of the directors

Affairs of the company

[69] Firstly, based on the highlighted difference in the wordings of the

[74] Re Neath involved the issue of whether a director nominated by a

[75] It must be borne in mind that Re Neath involved the conduct of a

[81] In Whitlam the defendant failed to vote against the resolution as

The plaintiff has no interest in rights of other members

(b) Mosely v Koffyfontein Mindes, Limited [1911] 1 Ch 73 a case where the

[102] On this issue, in London Passenger Transport Board v Moscrop [1942] 1

THE PROXY RULING

[140] Therefore, in the absence the plaintiff ’s explanation on how or where it

The poll administrator and independent scrutineer

[144] Therefore, this seriously undermines the value of the plaintiff ’s

A [145] Insofar as the alleged contrary views or statements of the poll

THE DIRECTORS’ RESOLUTIONS RULING

H [150] These declarations are governed by s 201 of the CA 2016 which

[152] Section 199 of the CA 2016 provides as follows: D

(1) The Court may, on an application by the Registrar, make an order to

A the plaintiff ’s proposed directors contravened CA 2016 as s 201 of the CA

[158] Instead, the plaintiff contends that:

[160] The defendants response to the plaintiff ’s contention is fairly straight

[161] In short, the plaintiff is confused between a meeting requisitioned by

A in which the circulation of resolution proposed by shareholder of a public listed

[167] In any event, the doctrine of estoppel cannot be invoked by the

H [173] As such encls 3 and 16 were accordingly dismissed.

Proposed Directors to the eighth defendant’s Board in a relatively short span of A

[179] The plaintiff ’s complaint in this originating summons were primarily D

[181] Having examined the plaintiff ’s complaint in detail there cannot be G