LOH TECK WAH 1. ) LIM PANG KIAM 2. ) YAP CHEE KHENG 3. ) PNL CAPITAL SDN BHD 4. ) BDO GOVERNANCE ADVISORY SDN BHD

LOH TECK WAH 1. ) LIM PANG KIAM 2. ) YAP CHEE KHENG 3. ) PNL CAPITAL SDN BHD 4. ) BDO GOVERNANCE ADVISORY SDN BHD

The court held the appointments and commencement of Suit 623 were authorised management decisions within the directors' powers under s.211 and the companies' articles, taken to protect the companies' interests (including justified confidentiality for Anton Piller relief); these actions did not constitute a visible departure from standards of fair dealing or commercial unfairness and therefore did not amount to oppression under s.346 Companies Act 2016.

Citation
WA-24NCC-246-05/2021 (Mahkamah Tinggi)
Parties
Plaintiff: Loh Teck Wah; 1st Defendant: Lim Pang Kiam; 2nd Defendant: Yap Chee Kheng; 3rd Defendant (os 228): PNL Trading Sdn Bhd; 4th Defendant (os 228): Subang Industry Park Sdn Bhd; 5th Defendant (os 228); 4th Defendant (os 245, OS 246, OS 247): BDO Governance Advisory Sdn Bhd; 3rd Defendant (os 245): PNL Business Services Sdn Bhd; 3rd Defendant (os 246): PNL Capital Sdn Bhd; 3rd Defendant (os 247): Tian An Trading Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 January 2022
Case Number
WA-24NCC-246-05/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Under Companies Act 2016 (oppression) Consolidated / Judgment (dismissal of Originating Summonses)
Outcome
Originating summonses dismissed
Legal Topics
Oppression, Directors' Powers, Shareholder Minority Protection, Appointment of Counsel and Experts, Anton Piller Orders, Agency of Necessity
Source Language
Malay/English
Company Law Commercial Litigation Civil Procedure Oppression Directors' Powers Shareholder Minority Protection Appointment of Counsel and Experts Anton Piller Orders +1 more

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Parties

Loh Teck Wah

Plaintiff

Lim Pang Kiam

1st Defendant

Yap Chee Kheng

2nd Defendant

PNL Trading Sdn Bhd

3rd Defendant (os 228)

Subang Industry Park Sdn Bhd

4th Defendant (os 228)

BDO Governance Advisory Sdn Bhd

5th Defendant (os 228); 4th Defendant (os 245, OS 246, OS 247)

PNL Business Services Sdn Bhd

3rd Defendant (os 245)

PNL Capital Sdn Bhd

3rd Defendant (os 246)

Tian An Trading Sdn Bhd

3rd Defendant (os 247)

Procedural Posture

Originating Summons Under Companies Act 2016 (oppression) Consolidated / Judgment (dismissal of Originating Summonses)

Legal Issues

  1. 1 Whether appointment of external solicitors (INYK) and expert (BDO) and commencement of Suit 623 constituted oppressive conduct under s.346 Companies Act 2016
  2. 2 Whether the directors had authority to commence litigation and appoint advisors without a prior general meeting or full board meeting given confidentiality requirements
  3. 3 Whether the acts were a visible departure from standards of fair dealing or commercial unfairness

Ratio Decidendi

The court held the appointments and commencement of Suit 623 were authorised management decisions within the directors' powers under s.211 and the companies' articles, taken to protect the companies' interests (including justified confidentiality for Anton Piller relief); these actions did not constitute a visible departure from standards of fair dealing or commercial unfairness and therefore did not amount to oppression under s.346 Companies Act 2016.

Court Disposition

Originating summonses dismissed

Orders

  • Originating summons in OS 228, OS 245, OS 246 and OS 247 dismissed with costs