Disputes regarding minority oppression claims under the Companies Act are arbitrable if governed by a shareholders' agreement stipulating arbitration procedures.

Introduction

[1] The Plaintiff, Tune Group Sdn Bhd ("Tune Group") as a minority shareholder of Tune Talk Sdn Bhd ("Tune Talk") filed this Originating Summons ("the OS") grounded on a cause of action under s 346 of the Companies Act 2016 (" CA 2016") for minority oppression.

[2] The shareholders of Tune Talk named as defendants in the OS, namely Celcom Mobile Sdn Bhd ("Celcom Mobile"), Celcom Axiata Berhad ("Celcom Axiata"), Padda Gurtaj Singh ("Gurtaj") and East Pacific Capital Pte Ltd ("EPC") in reliance on the arbitration clause in the Shareholders Agreement dated 23 December 2008 ("SHA") applied for a stay of the OS proceedings pending a reference to arbitration under s 10(1) of the Arbitration Act 2012 ("AA 2005"). The parties' stay applications are in encl 30 (jointly by Celcom Mobile and Celcom Axiata), encl 18 (by Gurtaj) and encl 26 (by EPC).

[3] The non-parties to the SHA who are made defendants in the OS, namely, Axiata Group Berhad ("Axiata Group"), Digi.com Berhad ("Digi"), Mohamad Idham bin Nawawi ("Idham") and Erik Axel Sigurd Marell ("Erik") who are nominee directors of Celcom Mobile in Tune Talk, in turn have applied to strike out the OS and or alternatively to stay the same. The parties' striking out applications are in encl 31 (by Axiata Group), encl 32 (by Digi), encl 28 (by Idham) and encl 29 (by Erik).

[4] Tune Strategic Investments Limited ("TSIL") who is a shareholder of Tune Talk and also made a party to the OS did not file any application. Jason Jonathan Lo ("Jason"), another shareholder of Tune Talk and a party to the OS informed this Court that he is supporting the position taken by Tune Group.?

[5] In opposing the stay applications, Tune Group is contending that the "matter" in the OS does not come within the subject matter of the arbitration agreement and therefore falls outside the scope of the arbitration clause. I did not agree.

[6] I also did not agree that Tune Group has a sustainable cause of action against the non-shareholders of Tune Talk, namely Axiata Group, Digi, Idham and Erik under s 346 of the CA 2016.

[7] I set out below the grounds for the decisions.

Background Facts

Tune Talk - Its Shareholders

[8] Tune Talk was incorporated in 2006 with its primary business being essentially in the provision of communication services to end users covering prepaids and the likes.

[9] The shareholders of Tune Talk are:

(a) Tune Group;

(b) Celcom Mobile;

(c) Gurtaj;

(d) EPC;

(e) TSIL;

(f) Jason Lo;

(g) Lim Kian Onn ("LKO");

(h) Dato Seri Kalimullah bin Masheerul Hassan ("KMH"); and

(i) Christopher Mark Anthony Lankester ("CMAL").

LKO, KMH and CMAL are not made parties to the OS.

[10] The relationship, obligations and duties of all the shareholders of Tune Talk are primarily governed by the SHA. Subsequent shareholders have entered into a Deed of Ratification and Accession to the SHA to ensure that the relationship of the shareholders as well as the affairs of Tune Talk are regulated and governed by the terms of SHA.

[11] At all material times, Celcom Axiata, who is the named 3rd Defendant herein, has been and is the sole shareholder of Celcom Mobile.

[12] Celcom Axiata was a shareholder of Tune Talk from December 2008 up to 18 June 2021, when Celcom Axiata exercised its rights under cl 9.10(b) of the SHA to transfer its entire shareholding in Tune Talk to its wholly-owned subsidiary, Celcom Mobile, the 2nd Defendant.

[13] Pursuant to a Deed of Ratification and Acc