in the court of appeal malaysia (appellate jurisdiction)

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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 letter of 1 June 2001. Our client has instructed us to seek a declaration from the High Court at Kota Kinabalu on the issue whether there was a legal and binding offer and acceptance of the sale of their 70% shares in Pacific-Ngiu Kee Sdn Bhd as contended by your client.” Pursuant to that letter the petitioner filed an Originating Summons dated 27.6.2001 against the 2 nd respondent seeking a declaration that the petitioner has the right to purchase the 70% shares of the 2 nd respondent in Pacific Ngiu Kee Sdn Bhd. The above Originating Summons was eventually withdrawn with the consent of both parties. From the above sequence of events it could be seen that the intention of the petitioner was to take over the 1 st respondent. Even after agreeing to sell its 30% holding and imposing several conditions which the 2 nd respondent was willing to accept, the petitioner reneged on the offer. Instead it insisted on buying the 70% holding of the 2 nd respondent. When the 2 nd respondent refused, the petitioner filed the OS seeking a declaration that the 2 nd respondent had breached the JV Agreement and as such should sell its 70% holding to the petitioner. The breach cited by the petitioner was 62
the change of shareholding in the 2 nd respondent. As we have stated earlier, the 2 nd respondent being a public listed company, the shareholding in the 2 nd respondent is bound to change. For that reason, we are of the view that the reasons given by the petitioner were rather flimsy. The whole idea of the petitioner was to take over the 1 st respondent from the 2 nd respondent and run the supermarket by itself. We believe the second reason given by the petitioner was the appointment of the 3 rd respondent. We noted that from the minutes of the management committee meeting that the Chairman of the Board of Directors was the Deputy Managing Director of the 1 st respondent before the appointment of the 3 rd respondent as the Managing Director in accordance with the JV Agreement. It would not be wrong for us to say that the Chairman (Dato’ Lo) was not happy with the appointment of the 3 rd respondent as the Managing Director. The evidence shows that before the appointment of the 3 rd respondent, the Chairman was the Deputy Managing Director of the 1 st respondent and was running the supermarket. With the appointment of the 3 rd respondent, his appointment as Chief Executive expired. Taking the above as a whole we are of the view that the learned judge was in error when he came to the conclusion that the contention of the 63
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 and 58: The response to the last two letter
Page 59 and 60: Our client confirms that they will
Page 61: We have been instructed by our clie
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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