Directors may be deemed retired under company articles if no AGM is held, distinct from removal, which requires active steps.

Mohd Radzi Harun J:

Introduction

[1] As set out above, there were altogether five (5) Originating Summonses before this Court:

(i) WA-24NCC-574-10/2019 (OS 574)

(ii) WA-24NCC-577-10/2019 (OS 577)

(iii) WA-24NCC-579-10/2019 (OS 579)

(iv) WA-24NCC-609-11/2019 (OS 609)

(v) WA-24NCC-642-11/2019 (OS 642)

[2] In OS 574, OS 609, and OS 642 the Plaintiffs applied that the Defendant, Dato' Sri Andrew Kam Tai Yeow, to be declared retired as a director in those Plaintiff companies pursuant to the relevant provisions of the companies' Articles of Association ("AA"), and consequential injunction. The specific declarations were as follows:

[3] It is evident from the above matrix that the central theme in the 1st and 5th prayers in OS 574 and OS 609 are identical. Therefore the arguments and findings in both OS for those 2 prayers would be similar. The 2nd, 3rd and 4th prayers in OS 609 and OS 642 are not found in OS 574 simply because there was no appointment of a new director in place of DS Andrew in Raub Mining & Development Sdn Bhd and Raub Oil Mill Sdn Bhd. Therefore the said 2nd, 3rd and 4th prayers in OS 609 were not relevant in OS 574. Nothwithstanding that, for purpose of completeness, I had set out the brief reasons in allowing the 2nd, 3rd and 4th prayers in OS 609 and OS 642 in paragraphs [71] - [73] below.

[4] In OS 577 and OS 579, the Plaintiff, Dato' Sri Andrew, applied to procure, inter alia, access to the monthly bank statements for June 2016- October 2019, general ledgers, audited financial statements and management accounts until June 2019, and copies of contracts since July 2016 involving the Defendants, Raub Mining & Development Sdn Bhd and Raub Oil Mill Sdn Bhd.

[5] All five Originating Summonses were heard together. All parties agreed that this Court will only hear arguments by counsels of both parties on OS 574, and their respective arguments therein will apply mutatis mutandis to OS 609 and OS 642. The counsels of both parties also agreed that the outcome of the OS 577 and OS 579 will hinge upon the decision of this Court on OS 574, OS 609 and OS 642.?

[6] As the main substance of the prayers in OS 574 are fundamentally similar in its nature, effect and purpose with the prayers in OS 69 and 642, this Court had ruled that the decision in OS 574 would apply, mutatis mutandis, to OS 609 and OS 642

[7] This Court had allowed OS 574, OS 609 and OS 642 and dismissed OS 577 and OS 579.

[8] Dato' Sri Andrew Kam Tai Yeow (Plaintiff in OS 577 and OS 579, and Defendant in OS 574, OS 609 and OS 642) appealed against the above decision.

[9] This Grounds of Judgment shall apply to all five (5) appeals.

Background

Brief Facts In OS 574

[10] The first plaintiff, Raub Mining & Development Sdn Bhd ('RMDC'), was incorporated on 18 June 1962. It operates an oil palm plantation at Raub, Pahang.

[11] RMDC's directors as of early September 2017 were:

(a) Tan Sri Dato' Kam Woon Wah ("Tan Sri Kam");

(b) Chew Tee Beng;

(c) Linda Kam Thai Eng;

(d) Edward Kam Tai Keong; and

(e) Dato' Sri Andrew Kam Tai Yeow ("DS Andrew").

[12] The second plaintiff, Raub Oil Mill Sdn Bhd ('ROM'), is a wholly owned subsidiary of RMDC. It was incorporated on 12 February 1976. It operates a palm oil mill at Raub, Pahang.

[13] ROM's directors as of early September 2017 were:

(a) Chew Tee Beng;

(b) Linda Kam Thai Eng;

(c) Edward Kam Tai Keong;

(c) Tai Swe Chong; and

(d) DS Andrew.

[14] On 7 August 2017, the plaintiffs each issued a notice to convene their respective extraordinary general meetings (EGM) to be held on 6 September 2017 to consider and vote on, inter alia, a motion to remove DS Andrew as their director.

[15] On 5 September 2017, DS Andrew filed a writ vide Kuala Lumpur High Court Civil Suit No: WA-22NCC-352-09/2017 ("Suit 352") against, inter alia, RMDC, ROM and Tan