in the court of appeal malaysia (appellate jurisdiction)

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12. Pursuant to the Joint Venture Agreement the Petitioner’s wholly owned subsidiary company, Sunyap Development Sdn Bhd (Co. No. 67231-M) also subleased the Premises at a special rent to the 1 st Respondent. THE FIDUCIARY RELATIONSHIP BETWEEN THE PETITIONER AND THE 2 ND RESPONDENT 13. The joint venture relationship between the Petitioner and the 2 nd Respondent was akin to partners in a joint venture business under the corporate umbrella of the 1 st Respondent. THE AFFAIRS AND CONDUCT OF THE 1 ST RESPONDENT Alleged Advance of RM3.78 million by the 2 nd Respondent and the interests charged. 14. The issue of the alleged advance of RM3.78 was first brought up to the board of directors at its meeting on 18.6.2003 that as at 31.5.2003 the Ngiu Kee Group (of which the 2 nd Respondent is a part of) had advanced an amount of RM3.78 million to the 1 st Respondent for the repayment to its suppliers. This issue was subsequently addressed at the board of directors meeting of the 1 st Respondent on 26.9.2003. 15. It was then unanimously agreed on 17.11.2003 by the entire board of directors of the 1 st Respondent, which included both the representatives of the Petitioner and the 2 nd Respondent that the management of the 1 st Respondent be instructed to request the proposed auditors to include the verification of the said advance of RM3.78 million and the alleged stock losses as part and parcel of the forthcoming annual audit for the financial year ending 31.12.2003 subject to a fee which is acceptable to the board of directors, and if the fee is too high, another independent audit firm to be agreed upon by the parties be appointed. 20
16. Messrs Ernst and Young were appointed to prepare an independent audit report entitled “Report on Verifications of Stock Loss and Advances from Ngiu Kee Sdn Bhd” which was completed on 17.9.2004.” In addition the parties agreed that the issues for the trial are as follows: “AGREED ISSUES FOR TRIAL 1. Whether the matters complained of by the Petitioner constituted a breach or breaches of the fiduciary duty or duties owed to the Petitioner by the 2 nd Respondent in the operation of the 1 st Respondent’s affairs or business? 2. If so, whether such breach or breaches of fiduciary duty falls within the scope of Section 181 (l)(a) or (b) of the Companies Act, 1965, to constitute oppressive conduct or unfair disregard of the Petitioner’s interest as a member and joint venture partner, or is unfairly discriminatory or unfairly prejudicial against the Petitioner? 3. How should the Court bring to an end or remedy the matters complained of? ” Although the agreed issues for trial are as stated above, it is clear to us that the order that the petitioner prayed for is: (1) That the 2 nd Respondent may be ordered to sell all its shares in the 1 st Respondent to the Petitioner at a fair and commercial price to be determined by a firm of auditors namely Messrs Ernst & Young or such other firm of auditors to be appointed by this Honourable Court; OR 21
Page 1 and 2: IN THE COURT OF APPEAL MALAYSIA (AP
Page 3 and 4: 4. The 2 nd Respondent’s group co
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: 9. In accordance with the terms of
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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