in the court of appeal malaysia (appellate jurisdiction)

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JUDGMENT OF THE COURT Pan-Pacific Construction Holdings Sdn Bhd, the petitioner in the court below, took out the present petition praying for an order that Ngiu-Kee Corporation (the 1 st appellant) sell their 70% shareholding in Pacific- Ngiu Kee Sdn Bhd (the 1 st respondent in the court below) at a fair and commercial price or for the company to be wound up. The 1 st appellant was the 2 nd respondent in the court below while the 2 nd appellant was the 3 rd respondent in the court below. To avoid any confusion we will refer to the parties as they were in the court below. The Petition, inter alia, states: “THE RESPONDENTS 1. The 1 st Respondent was incorporated on 24 June 1998 under the Companies Act, 1965 (Act 125) with its registered office at Basement Floor, Centre Point Sabah, No. 1, Jalan Centre Point, 88000 Kota Kinabalu, Sabah, Malaysia. 2. The authorized share capital of the 1 st Respondent is divided into 5,000,000 ordinary shares of RM1.00 each and the issued and fully paid up capital of the 1 st Respondent is divided into 3,000,000 ordinary shares of RMl.00 each. 3. Ngiu Kee Corporation (M) Bhd, the 2 nd Respondent, is a public company listed on the Second Board of the Kuala Lumpur Stock Exchange and has its registered office at Lot LG03, G04B2 & 1.03 Wisma Saberkas, Jalan Tun Abang Haji Openg, 93000 Kuching, Sarawak. 2
4. The 2 nd Respondent’s group corporate structure shows that it has numerous other wholly owned subsidiary companies operating as departmental stores and/or supermarket stores. 5. The 3 rd Respondent, Ms Yong Siew Kat, is the Chief Executive Officer of the 2 nd Respondent and a director of the 1 st Respondent. THE HISTORICAL BACKGROUND OF 1 st RESPONDENT 6. The 1 st Respondent is in essence a joint-venture company and was formed in order for both the Petitioner and the 2 nd Respondent to operate a departmental store and supermarket at the lower ground, ground, first and second floors, measuring altogether approximately 112,577 sq ft, of a multi-purpose complex called Centre Point Sabah (“the Premises”). 7. The formation of the 1 st Respondent was pursuant to a Joint Venture Agreement in writing entered into on 10 July 1998 between the Petitioner and the 2 nd Respondent. 8. The terms and conditions of the Joint Venture Agreement to operate the departmental store and supermarket under corporate umbrella of the 1 st Respondent, inter alia, are as follows: ‘2.1 Joint Venture The parties mutually agree to form the Company to enter into a joint venture: 2.1:1 to set up and operate the Department Store at the Premises; 2.1:2 to enter into the Sublease for the Premises and to purchase the Assets from SUNYAP DEVELOPMENT SDN BHD; and 2.1:3 to carry out the obligations mutually agreed by each party under this agreement. 3
Page 1: IN THE COURT OF APPEAL MALAYSIA (AP
Page 5 and 6: Business of the Company. The chairm
Page 7 and 8: 14. The 1 st Respondent continued t
Page 9 and 10: problems or complaints with regard
Page 11 and 12: 34. This was and is a clear breach
Page 13 and 14: Contributions and any other contrib
Page 15 and 16: 3. costs of and occasioned by this
Page 17 and 18: 2.1:1 to set up and operate the Dep
Page 19 and 20: 9. In accordance with the terms of
Page 21 and 22: 16. Messrs Ernst and Young were app
Page 23 and 24: (b) regulate the conduct of the aff
Page 25 and 26: judge dismissed the application but
Page 27 and 28: directors exercised. These might be
Page 29 and 30: But if a case of “oppression” o
Page 31 and 32: In Kumagai Gumi Co Ltd v. Zenecon-K
Page 33 and 34: sufficient to constitute oppression
Page 35 and 36: emove the petitioner from the compa
Page 37 and 38: the starting point in any case unde
Page 39 and 40: Thus the personal relationship betw
Page 41 and 42: an oppressive manner. The learned a
Page 43 and 44: (ii) that the respondent company ha
Page 45 and 46: another company called Maestro Prod
Page 47 and 48: stores, for eg. Robert Tan, adverti
Page 49 and 50: the staff was also made use of to h
Page 51 and 52: ecognized the expertise of the 2 nd
Page 53 and 54:
Agreement dated 10 July 1998, which
Page 55 and 56:
1.1 Upon the signing of a sale of s
Page 57 and 58:
The response to the last two letter
Page 59 and 60:
Our client confirms that they will
Page 61 and 62:
We have been instructed by our clie
Page 63 and 64:
the change of shareholding in the 2
Page 65 and 66:
In addition to the three issues rai
Page 67 and 68:
follows: Further down the minutes i
Page 69 and 70:
Ms Kat Yong also highlighted the fi
Page 71 and 72:
y demonstrating its ability to pay
Page 73 and 74:
agreement of the Joint-Venture (“
Page 75 and 76:
until all avenues be exhausted befo
Page 77 and 78:
security. For that reason, the bank
Page 79 and 80:
The “Report on Verifications of S
Page 81 and 82:
It is clear to us that the learned
Page 83 and 84:
their staff in the central purchasi
Page 85 and 86:
shareholder in the Company. The lea
Page 87 and 88:
CONCLUSION As stated in the case of
Page 89:
For the Appellants: Counsel: Lim Pi
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in the court of appeal malaysia (appellate jurisdiction)

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