KHOO SIEW HUEY 1. ) ABILITY CONSULTANCY SDN BHD 2. ) LIM BOON SIONG 3. ) FLP Realty Sdn Bhd

KHOO SIEW HUEY 1. ) ABILITY CONSULTANCY SDN BHD 2. ) LIM BOON SIONG 3. ) FLP Realty Sdn Bhd

The application for leave was dismissed because the plaintiff could not honestly believe a viable cause of action existed on behalf of the Company (the Company lacked contractual capacity as an unregistered estate agent and the commissions were attributable to the director personally), and the plaintiff pursued the application for a collateral purpose that risked locking company assets and causing hardship; therefore leave under s348 CA 2016 was not in the company's best interest.

Citation
WA-24NCC-342-08/2021 (Mahkamah Tinggi)
Parties
Plaintiff: KHOO SIEW HUEY; 1st Defendant: ABILITY CONSULTANCY SDN BHD; 2nd Defendant: LIM BOON SIONG; 3rd Defendant: FLP REALTY SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 February 2022
Case Number
WA-24NCC-342-08/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons for Leave to Commence Derivative Action Under Companies Act 2016 / Application for Leave Heard and Dismissed
Outcome
Application dismissed with costs
Legal Topics
Leave to Commence Derivative Action, Good Faith Test, Breach of Fiduciary Duty, Dishonest Assistance, Statutory Capacity of Corporate Agents, Section 23 Valuers, Appraisers, Estate Agents and Property Manager Act 1981
Source Language
Malay/English
Company Law Directors' Duties Derivative Actions Estate Agency Law Civil Procedure Leave to Commence Derivative Action Good Faith Test Breach of Fiduciary Duty +3 more

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Parties

KHOO SIEW HUEY

Plaintiff

ABILITY CONSULTANCY SDN BHD

1st Defendant

LIM BOON SIONG

2nd Defendant

FLP REALTY SDN BHD

3rd Defendant

Procedural Posture

Originating Summons for Leave to Commence Derivative Action Under Companies Act 2016 / Application for Leave Heard and Dismissed

Legal Issues

  1. 1 Whether the complainant is acting in good faith to seek leave under s348 CA 2016
  2. 2 Whether it is prima facie in the best interest of the company to grant leave
  3. 3 Whether the Company had contractual capacity/relationship with FLP Realty to claim commissions

Ratio Decidendi

The application for leave was dismissed because the plaintiff could not honestly believe a viable cause of action existed on behalf of the Company (the Company lacked contractual capacity as an unregistered estate agent and the commissions were attributable to the director personally), and the plaintiff pursued the application for a collateral purpose that risked locking company assets and causing hardship; therefore leave under s348 CA 2016 was not in the company's best interest.

Court Disposition

Application dismissed with costs

Orders

  • Enclosure 1 dismissed with costs
  • Leave to commence derivative action denied