PEMPETISYEN TER CHIN HENG 1. ) CHIPTAR HOLDINGS SDN BHD 2. ) TER THIAN TIN 3. ) TER WEI HONG 4. ) LI YUHUA 5. ) The Personal Representative of The Estate of The Yu Chai @ Ter Swee Leong

PEMPETISYEN TER CHIN HENG 1. ) CHIPTAR HOLDINGS SDN BHD 2. ) TER THIAN TIN 3. ) TER WEI HONG 4. ) LI YUHUA 5. ) The Personal Representative of The Estate of The Yu Chai @ Ter Swee Leong

The OS for a Fortuna injunction was dismissed because the petition had been advertised/gazetted, there was no status quo to preserve, no prima facie irreparable harm was shown and the OS was an abuse aimed at changing board composition; however, on the Petition the court found a complete breakdown in mutual trust and confidence among shareholders/directors such that it was just and equitable to wind up the Company under s465(1)(h); accordingly the petition was allowed, R.R. Ratnaswany (Ralph Ravin Ratnaswany) was appointed liquidator and costs were awarded to the petitioner as set out in the judgment.

Citation
WA-28NCC-445-07/2021 (Mahkamah Tinggi)
Parties
Petitioner: Ter Chin Heng; 1st Respondent: Chiptar Holdings Sdn Bhd; 2nd Respondent / Plaintiff (originating Summons): 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 (Amanah Raya Berhad)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 March 2022
Case Number
WA-28NCC-445-07/2021 (Mahkamah Tinggi)
Procedural Posture
Companies (winding Up) Petition WA 28 NCC 445 07/2021 Heard With Originating Summons WA 24 NCC 387 09/2021 / Heard and Judgment Delivered
Outcome
Winding-up order granted; OS dismissed
Legal Topics
Just and Equitable Winding Up, Fortuna Injunction, Abuse of Process, Breakdown of Mutual Trust and Confidence, Appointment of Liquidator, EGM Requisition Disputes, Costs Awards
Source Language
Malay/English
Company Law Insolvency and Winding Up Civil Procedure Injunctions Shareholder Disputes Fiduciary Duties Just and Equitable Winding Up Fortuna Injunction +5 more

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Parties

Ter Chin Heng

Petitioner

Chiptar Holdings Sdn Bhd

1st Respondent

Ter Thian Tin

2nd Respondent / Plaintiff (originating Summons)

Ter Wei Hong

3rd Respondent

Li Yuhua

4th Respondent

Personal Representative of the Estate of Teh Yu Chai @ Ter Swee Leong (Amanah Raya Berhad)

5th Respondent

Procedural Posture

Companies (winding Up) Petition WA 28 NCC 445 07/2021 Heard With Originating Summons WA 24 NCC 387 09/2021 / Heard and Judgment Delivered

Legal Issues

  1. 1 Whether a Fortuna injunction should restrain the presentation/publication of the winding up petition
  2. 2 Whether the Company should be wound up on just and equitable grounds under s465(1)(h) Companies Act 2016 due to breakdown of mutual trust and confidence
  3. 3 Whether alternative remedies (rights issue suit and fiduciary suit) render injunctive relief appropriate or render winding up inappropriate

Ratio Decidendi

The OS for a Fortuna injunction was dismissed because the petition had been advertised/gazetted, there was no status quo to preserve, no prima facie irreparable harm was shown and the OS was an abuse aimed at changing board composition; however, on the Petition the court found a complete breakdown in mutual trust and confidence among shareholders/directors such that it was just and equitable to wind up the Company under s465(1)(h); accordingly the petition was allowed, R.R. Ratnaswany (Ralph Ravin Ratnaswany) was appointed liquidator and costs were awarded to the petitioner as set out in the judgment.

Court Disposition

Winding-up order granted; OS dismissed

Orders

  • Company Chiptar Holdings Sdn Bhd to be wound up pursuant to section 465(1)(h) Companies Act 2016
  • Ralph Ravin Ratnaswany appointed as liquidator for Chiptar Holdings Sdn Bhd