Goh Choon Kim PENCELAH 1. ) Chan Eng Leong 2. ) Chong Bee Choo

Goh Choon Kim PENCELAH 1. ) Chan Eng Leong 2. ) Chong Bee Choo

The court held that the Proposed Interveners possess a sufficient legal interest as directors/shareholders and were entitled to intervene; ex‑parte leave dated 24.11.2021 could be set aside because ex‑parte orders are revisable and material facts were not disclosed and the Applicant breached the Ad‑Interim Injunction; accordingly the intervention application was allowed in part and the ex‑parte order set aside; costs awarded to Proposed Interveners.

Citation
PA-24NCvC-359-06/2020 (Mahkamah Tinggi)
Parties
Applicant/appellant: Goh Choon Kim; Proposed Intervener/respondent: Chan Eng Leong; Proposed Intervener/respondent: Chong Bee Choo
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 August 2022
Case Number
PA-24NCvC-359-06/2020 (Mahkamah Tinggi)
Procedural Posture
Application for Leave to Commence Derivative Proceedings Under Companies Act S347/s348 and Application to Intervene Under O15 R6 ROC / High Court Determination on Intervention Application and Challenge to Ex‑parte Leave Order; Appeal to Court of Appeal Noted
Outcome
Enclosure 8 (application to intervene) allowed in part; Proposed Interveners granted leave to intervene; ex‑parte Order dated 24.11.2021 set aside in respect of the matters challenged; costs awarded to Proposed Interveners.
Legal Topics
Intervention, Derivative Proceedings, Ex‑parte Orders, Non‑disclosure (uberrimae Fidei), Functus Officio, Good Faith in Derivative Claims
Source Language
Malay/English
Company Law Civil Procedure Injunctions Contempt of Court Equity and Fiduciary Duties Intervention Derivative Proceedings Ex‑parte Orders +3 more

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Parties

Goh Choon Kim

Applicant/appellant

Chan Eng Leong

Proposed Intervener/respondent

Chong Bee Choo

Proposed Intervener/respondent

Procedural Posture

Application for Leave to Commence Derivative Proceedings Under Companies Act S347/s348 and Application to Intervene Under O15 R6 ROC / High Court Determination on Intervention Application and Challenge to Ex‑parte Leave Order; Appeal to Court of Appeal Noted

Legal Issues

  1. 1 Whether the court is functus officio in relation to an ex‑parte order (is the ex‑parte leave final)
  2. 2 Whether the Applicant breached the Ad‑Interim Injunction and failed to make full and frank disclosure in the ex‑parte application
  3. 3 Whether the Applicant acted in good faith and in the best interests of the company when seeking derivative leave

Ratio Decidendi

The court held that the Proposed Interveners possess a sufficient legal interest as directors/shareholders and were entitled to intervene; ex‑parte leave dated 24.11.2021 could be set aside because ex‑parte orders are revisable and material facts were not disclosed and the Applicant breached the Ad‑Interim Injunction; accordingly the intervention application was allowed in part and the ex‑parte order set aside; costs awarded to Proposed Interveners.

Court Disposition

Enclosure 8 (application to intervene) allowed in part; Proposed Interveners granted leave to intervene; ex‑parte Order dated 24.11.2021 set aside in respect of the matters challenged; costs awarded to Proposed Interveners.

Orders

  • Extension of time (if necessary) granted to Proposed Interveners to make the application
  • Proposed Interveners are granted leave to intervene and be added as parties to the proceedings