GLOBALMARINER OFFSHORE SERVICES SDN. BHD. 1. ) TH HEAVY ENGINEERING BERHAD [Digulungkan secara sukarela pada 08.09.2023] 2. ) XXXX 3. ) Nor Badli Munawir Bin Mohamad Alias Lafti

GLOBALMARINER OFFSHORE SERVICES SDN. BHD. 1. ) TH HEAVY ENGINEERING BERHAD [Digulungkan secara sukarela pada 08.09.2023] 2. ) XXXX 3. ) Nor Badli Munawir Bin Mohamad Alias Lafti

On the facts the court found THHE was unable to pay its debts at the time the Default Notice was issued (20 July 2016); consequently GMOS validly issued the Default Notice and Default Sale Notice under clauses 8.6(d) and 8.7; THHE breached the SHA by refusing to sell its 80% stake; clauses 8.6(d) and 8.7 do not contravene the pari passu or anti-deprivation rules as THHE was not in liquidation and the clauses were commercially justifiable; THHE failed to prove negligent misrepresentation, breach of fiduciary duty, or that associated entities formed a single commercial unit warranting veil lifting; GMOS was not obliged to make the contested shareholder advances because the SHA required...

Citation
WA-22NCC-374-11/2016 (Mahkamah Tinggi)
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): Globalmariner Offshore Services Sdn Bhd; 1st Defendant (original Action); Plaintiff (counterclaim): TH Heavy Engineering Berhad; 2nd Defendant (original Action): Floatech (L) Ltd; 2nd Defendant (counterclaim): Zahar Mohd Hashim bin Zainuddin; 3rd Defendant (counterclaim): Abdul Rahman bin Mohamed Shariff; 4th Defendant (counterclaim): Nor Badli Munawir bin Mohamad Alias Latfi; 5th Defendant (counterclaim): Globalmariner Offshore Services (L) Ltd; 6th Defendant (counterclaim): Dynac Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 July 2023
Case Number
WA-22NCC-374-11/2016 (Mahkamah Tinggi)
Procedural Posture
Civil Commercial (breach of Shareholders' Agreement and Related Counterclaims) / Judgment After Full Trial (final Determination)
Outcome
Original claim by GMOS allowed; THHE's counterclaim dismissed in full
Legal Topics
Shareholders' Agreement, Specific Performance and Alternative Damages, Default Notice Mechanism, Pari Passu Rule, Anti Deprivation Rule, Negligent Misrepresentation, Breach of Fiduciary Duty, Lifting Corporate Veil, Shareholder Financing Obligations, Valuation of Shares
Source Language
Malay/English
Company Law Contract Law Insolvency Law Tort (negligent Misstatement) Equity/fiduciary Duties Shareholders' Agreement Specific Performance and Alternative Damages Default Notice Mechanism +7 more

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Parties

Globalmariner Offshore Services Sdn Bhd

Plaintiff (original Action); 1st Defendant (counterclaim)

TH Heavy Engineering Berhad

1st Defendant (original Action); Plaintiff (counterclaim)

Floatech (L) Ltd

2nd Defendant (original Action)

Zahar Mohd Hashim bin Zainuddin

2nd Defendant (counterclaim)

Abdul Rahman bin Mohamed Shariff

3rd Defendant (counterclaim)

Nor Badli Munawir bin Mohamad Alias Latfi

4th Defendant (counterclaim)

Globalmariner Offshore Services (L) Ltd

5th Defendant (counterclaim)

Dynac Sdn Bhd

6th Defendant (counterclaim)

Procedural Posture

Civil Commercial (breach of Shareholders' Agreement and Related Counterclaims) / Judgment After Full Trial (final Determination)

Legal Issues

  1. 1 Whether Default Notice and Default Sale Notice were validly issued under SHA clauses 8.6(d) and 8.7
  2. 2 Whether THHE breached the SHA by refusing to sell its 80% stake
  3. 3 Whether clauses 8.6(d) and 8.7 offend the pari passu or anti-deprivation rules

Ratio Decidendi

On the facts the court found THHE was unable to pay its debts at the time the Default Notice was issued (20 July 2016); consequently GMOS validly issued the Default Notice and Default Sale Notice under clauses 8.6(d) and 8.7; THHE breached the SHA by refusing to sell its 80% stake; clauses 8.6(d) and 8.7 do not contravene the pari passu or anti-deprivation rules as THHE was not in liquidation and the clauses were commercially justifiable; THHE failed to prove negligent misrepresentation, breach of fiduciary duty, or that associated entities formed a single commercial unit warranting veil lifting; GMOS was not obliged to make the contested shareholder advances because the SHA required...

Court Disposition

Original claim by GMOS allowed; THHE's counterclaim dismissed in full

Orders

  • Damages awarded to Globalmariner Offshore Services Sdn Bhd in lieu of specific performance in the sum of RM288,719,545.45 (equivalent to USD63,419,999 at exchange rate RM4.55=USD1 as at 21 July 2023)
  • Interest on the damages at 5% per annum from date of judgment until full and final settlement