in the court of appeal malaysia (appellate jurisdiction)

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products and accessories for textiles, all kinds of leather goods, toys, real and imitation jewellery and all kinds of cosmetics, costumes, clothing, lingeries, hats, boots, shoes, home appliances, kitchen wares, perfumes, artificial and natural flowers and all kinds of goods, wares and merchandise which can be displayed and sold in departmental stores. (B) To carry on the business of supermarket owners, cold-storage keepers, general merchants and dealers in canned goods, foodstuffs, provisions, rice, sugar, salt, cereals, fruits, vegetables, fish, meats, produces, goods and articles of every kind and description whether raw, fresh, preserved or manufactured and to barter, exchange, manipulate and prepare for market or otherwise deal in such products and goods’ and other objects stated in the Memorandum of Association of the 1 st Respondent. 10. In accordance with the Joint Venture Agreement the Petitioner was issued and allotted 900,000 shares of RMl.00 each comprising 30% of the total shareholding and the 2 nd Respondent was issued and allotted 2,100,000 shares of RM1.00 each comprising 70% of the total shareholding in the 1 st Respondent. 11. The appointments to the board of directors of the 1 st Respondent were also duly made. 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. 13. The 1 st Respondent started trading in the year 1998 and for the seven (7) months of trading before year end in December had made a profit. 6
14. The 1 st Respondent continued to be profitable for year 1999. 15. There was a material change in the management of the 1 st Respondent in the first quarter of year 2001. The controlling members of the 2 nd Respondent sold their shares to another group. 16. A dispute arose between the Petitioner and the 2 nd Respondent under the Joint Venture Agreement under clause 8.2:3 of the Joint Venture Agreement, for there was a change in the control or ownership of a party to the joint venture without prior consent from the other party. The Petitioner issued a notice to terminate the Joint Venture Agreement and to buy over the shares in the 1 st Respondent from the 2 nd Respondent as provided under clause 8.3:1 of the Joint Venture Agreement. 17. There then arose offers and counteroffers to sell and buy their respective shares in the 1 st Respondent between the Petitioner and the 2 nd Respondent. An originating summons No. K24-205 of 2001 was filed with the High Court at Kota Kinabalu to determine whether there was a legally binding agreement for the sale of the shares. 18. Eventually the dispute was settled amicably out of court and the originating summons was discontinued. 19. The settlement between the Petitioner and the 2 nd Respondent was concluded on 17 August 2001, which agreed intention was for the Joint Venture between them to continue upon additional terms and conditions contained in the minutes of meeting. The important additional terms and conditions, inter alia, were as follows: (1) The equity of the Petitioner and 2 nd Respondent will remain in the same proportion, 30% and 70% respectively, in the 1 st Respondent. (2) With effect from 1 July 2001 the rental rate for the Premises shall be fixed at RM202,638.60 per 7
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: Business of the Company. The chairm
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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