in the court of appeal malaysia (appellate jurisdiction)

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Young on the same day to ascertain the valuation of the Fair and Commercial Price of the shares. 5. That your client has further consumed the sale of their 30% shares in the joint venture company via your letter dated 11 th May 2001. 6. That in view of the contract concluded between the parties, your letter dated 17 th May 2001 purporting to withdraw your client’s offer is not valid. Under the circumstances, we have been instructed by our client to inform you that our client shall proceed with the purchase of the 30% shares as agreed between the parties. Take note, that our client shall hold your client responsible for any failure on their part to sell their 30% shares in the joint venture company to our client.” The response to this letter was a letter from the petitioner’s solicitors dated 29.5.2001: “Paul Cheah & Associates Advocates & Solicitors Unit A-11-8, 11 th Floor Megan Phileo Promenade No. l89 JalanTun Razak 50400 Kuala Lumpur Dear Sirs Re Joint Venture Agreement Dated 10/07/98 Between Pan-Pacific Construction Holdings Sdn Bhd & Ngiu Kee Corporation (M) Bhd Notice of Termination We are instructed by Pan-Pacific Construction Holdings Sdn Bhd to refer to your faxed letter of 23 May 2001. 58
Our client confirms that they will insist on their rights to purchase Ngiu Kee Corporation (M) Bhd’s 70% shares in Pacific-Ngiu Kee Sdn Bhd as per terms of our Notice of Termination of 17 April 2001. We do not agree that the events set out in your said letter gave rise to concluded contract between the parties for the sale of our client’s 30% shares in Pacific-Ngiu Kee Sdn Bhd. These events: (1) Mr. Andrew Lo “had indicated” that our client has agreed to sell their 30%; (2) Your client “orally” accepted the offer to purchase our client’s 30% shares and confirmed in writing; (3) Your client “orally” instructed Messrs Ernst & Young to ascertain the valuation of the Fair and Commercial Price of the shares; and (4) Our client “confirmed the sale of their 30% shares in the joint venture company via [our] letter of 11 May 2001; were nothing more than a series of offers and counteroffers to sell the shares subject to contract and the offered terms set out in our letter of 11 May 2001 were made expressly without prejudice to the rights of our client under the Notice of Termination of 17 April 2001. These offered terms were withdrawn vide our letter of 17 May 2001 before your client accepted them. Unless the parties can reach agreement as to the Fair and Commercial Price for the sale of your client’s 70% shares in Pacific-Ngiu Kee Sdn Bhd within thirty days from the date of this letter, our client is agreeable to the appointment of Messrs Ernst & Young to determine the Fair and Commercial Price in accordance with the provisions of clause 7.4 of the Joint Venture Agreement, which provides inter alia - “If the Offerer and the Offeree fail to reach agreement as to the Fair and Commercial Price within the thirty-day period referred to in Clause 7.3 then the matter may be 59
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 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: The response to the last two letter
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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