AGESON BERHAD 1. ) DATO' FOO CHU JONG 2. ) FOO CHU PAK 3. ) MH MAJU HOLDINGS SDN BHD 4. ) FAB BUILDERS SDN BHD 5. ) RAPI MULIA SDN BHD 6. ) FATIMAH BINTI KAMALUDDIN 7. ) ZAIRUL HASNAN BIN MD ARIFFIN

AGESON BERHAD 1. ) DATO' FOO CHU JONG 2. ) FOO CHU PAK 3. ) MH MAJU HOLDINGS SDN BHD 4. ) FAB BUILDERS SDN BHD 5. ) RAPI MULIA SDN BHD 6. ) FATIMAH BINTI KAMALUDDIN 7. ) ZAIRUL HASNAN BIN MD ARIFFIN

The plaintiff, a holding company, lacked locus standi because the alleged wrongs were committed against PMSB (a separate legal entity), PMSB had been wound up so derivative relief was unavailable and any recovery belongs to PMSB via its liquidator, and conspiracy allegations could not cure the lack of capacity; the...

Source-derived case information.

Citation
WA-22NCC-116-03/2021 (Mahkamah Tinggi)
Parties
Plaintiff: Ageson Berhad; 1st Defendant: Dato' Foo Chu Jong; 2nd Defendant: Foo Chu Pak; 3rd Defendant: MH Maju Holdings Sdn Bhd; 4th Defendant: FAB Builders Sdn Bhd; 5th Defendant: Rapi Mulia Sdn Bhd; 6th Defendant: Fatimah binti Kamaluddin; 7th Defendant: Zairul Hasnan bin Md Ariffin
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 January 2022
Case Number
WA-22NCC-116-03/2021 (Mahkamah Tinggi)
Procedural Posture
Commercial Division Civil Suit (company/fiduciary/conspiracy) / Strike Out Application Under Order 18 Rule 19 and Order 92 Rule 4; Grounds of Judgment Delivered
Outcome
Claim struck out
Legal Topics
Locus Standi, Separate Legal Personality, Derivative Action, Fiduciary Duties, Dishonest Assistance, Conspiracy Tort, Striking Out Test 'obviously Unsustainable', Corporate Guarantee
Company Law Civil Procedure Equity and Trusts Tort (conspiracy) Insolvency/winding Up Locus Standi Separate Legal Personality Derivative Action +5 more

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Summary, issues, holding and outcome

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Parties

Ageson Berhad

Plaintiff

Dato' Foo Chu Jong

1st Defendant

Foo Chu Pak

2nd Defendant

MH Maju Holdings Sdn Bhd

3rd Defendant

FAB Builders Sdn Bhd

4th Defendant

Rapi Mulia Sdn Bhd

5th Defendant

Fatimah binti Kamaluddin

6th Defendant

Zairul Hasnan bin Md Ariffin

7th Defendant

Procedural Posture

Commercial Division Civil Suit (company/fiduciary/conspiracy) / Strike Out Application Under Order 18 Rule 19 and Order 92 Rule 4; Grounds of Judgment Delivered

Legal Issues

  1. 1 Whether the holding company plaintiff has locus standi to sue for wrongs alleged to have been done to its subsidiary
  2. 2 Whether conspiracy or dishonest assistance allegations can confer locus standi
  3. 3 Whether a derivative action is available once the subsidiary has been wound up

Ratio Decidendi

The plaintiff, a holding company, lacked locus standi because the alleged wrongs were committed against PMSB (a separate legal entity), PMSB had been wound up so derivative relief was unavailable and any recovery belongs to PMSB via its liquidator, and conspiracy allegations could not cure the lack of capacity; the claim was therefore obviously unsustainable and was struck out with costs.

Court Disposition

Claim struck out

Orders

  • Applications in Enclosures 33, 35 and 37 allowed with costs
  • Writ and Statement of Claim struck out pursuant to Order 18 Rule 19(1)(a) and (d) of the Rules of Court 2012 and/or Order 92 Rule 4; claim dismissed with costs