David Thomas Matthews, Tina Ann Francis and Jason Tan Jen Hua for the Petitioner in the Petition and the 1st Defendant in the Originating Summons and mentioning on behalf of Amanah Raya Berhad as personal presentative representing the 5th R

David Thomas Matthews, Tina Ann Francis and Jason Tan Jen Hua for the Petitioner in the Petition and the 1st Defendant in the Originating Summons and mentioning on behalf of Amanah Raya Berhad as personal presentative representing the 5th R

The OS for a Fortuna injunction was dismissed because the petition had already been advertised/gazetted and no preservable status quo or irreparable harm was established, and the OS was an abuse aimed at altering board composition; conversely the petition for winding up succeeded on just and equitable grounds because there was a complete and irretrievable breakdown of trust and confidence among key shareholders and directors making continued co-existence impossible, therefore winding up and appointment of a liquidator was ordered with specified costs.

Citation
SAMAN PEMULA NO. WA-24NCC-387-09/202 (Mahkamah Tinggi)
Parties
Petitioner: TER CHIN HENG; 1st Respondent: CHIPTAR HOLDINGS SDN BHD; 2nd Respondent / Plaintiff (os): TER THIAN TIN; 3rd Respondent: TER WEI HONG; 4th Respondent: LI YUHUA; 5th Respondent: PERSONAL REPRESENTATIVE OF THE ESTATE OF TEH YU CHAI @ TER SWEE LEONG
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 March 2022
Case Number
SAMAN PEMULA NO. WA-24NCC-387-09/202 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition and Originating Summons / Heard Together and Final Judgment on Petition and OS
Outcome
Originating Summons dismissed; Companies (Winding-Up) Petition allowed and Company ordered to be wound up
Legal Topics
Winding Up (just and Equitable), Fortuna Injunction (restraint on Presentation/advertisement of Winding Up Petition), Abuse of Court Process, Breakdown of Mutual Trust and Confidence, Appointment of Liquidator, Costs Orders
Source Language
Malay/English
Company Law Civil Procedure Equity and Trusts Injunctions Winding Up (just and Equitable) Fortuna Injunction (restraint on Presentation/advertisement of Winding Up Petition) Abuse of Court Process Breakdown of Mutual Trust and Confidence +2 more

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Parties

TER CHIN HENG

Petitioner

CHIPTAR HOLDINGS SDN BHD

1st Respondent

TER THIAN TIN

2nd Respondent / Plaintiff (os)

TER WEI HONG

3rd Respondent

LI YUHUA

4th Respondent

PERSONAL REPRESENTATIVE OF THE ESTATE OF TEH YU CHAI @ TER SWEE LEONG

5th Respondent

Procedural Posture

Companies (winding Up) Petition and Originating Summons / Heard Together and Final Judgment on Petition and OS

Legal Issues

  1. 1 Whether a Fortuna injunction should be granted to restrain the winding-up petition and its advertisement/gazette
  2. 2 Whether alternative remedies (Rights Issue Suit and Fiduciary Suit) render injunctive relief appropriate
  3. 3 Whether there is just and equitable ground to wind up the company due to breakdown of mutual trust and confidence

Ratio Decidendi

The OS for a Fortuna injunction was dismissed because the petition had already been advertised/gazetted and no preservable status quo or irreparable harm was established, and the OS was an abuse aimed at altering board composition; conversely the petition for winding up succeeded on just and equitable grounds because there was a complete and irretrievable breakdown of trust and confidence among key shareholders and directors making continued co-existence impossible, therefore winding up and appointment of a liquidator was ordered with specified costs.

Court Disposition

Originating Summons dismissed; Companies (Winding-Up) Petition allowed and Company ordered to be wound up

Orders

  • Winding up order granted in terms of paragraph 1 of Enclosure 1: Chiptar Holdings Sdn Bhd to be wound up
  • Ralph Ravin Ratnaswany appointed as liquidator of Chiptar Holdings Sdn Bhd