A judicial review stay order obtained ex parte is injunctive, and if flawed, may not curtail shareholder rights.

Introduction

[1] On 13 June 2022, this Honourable Court granted the Applicant leave for Judicial Review. The relevant cause papers, including Order dated 13 June 2022 duly served on the 2nd Respondent.

[2] On 9 September 2022, the 2nd Respondent filed a Notice of Application (encl 42) under O 92 r 4 of the Rules of 2012 ( ROC ) and/or inherent powers of the Court to seek the following reliefs:

1. For an Order to discharge, vary and set aside that part of the High Court Order dated 13 June 2022 restraining the 2nd Respondent from submitting its application to the Securities Commission pursuant to para 15.01 of r 15 of the Rules on Take-Overs, Merges and Compulsory Acquisitions (TOM Rules) which allows the 2nd Respondent to nominate a proxy appointment to the 3rd Respondent's Board of Directors and for the 2nd Respondent to vote at the 3rd Respondent's Annual General Meeting (AGM), scheduled to be held on Tuesday, 20 September 2022 at 10 am at Perdana Hall, Suite 4.1, 4th Floor, Wisma Chase Perdana, Changkat Semantan, Damansara Heights, 50490 Kuala Lumpur (42nd AGM) and also at all subsequent annual general meetings, extraordinary general meetings, and other meetings of shareholders of the 3rd Respondent;

2. As a consequence of prayer (1), the rights of the 2nd Respondent, MAA Group Berhad, as a registered and beneficial shareholder of the 3rd Respondent, to vote on the proposed resolutions tabled at the 42nd AGM and also at all subsequent annual general meetings, extraordinary general meetings and other meetings of shareholders of the 3rd Respondent;

3. As a consequence of prayer (1) and (2), the 2nd Respondent is permitted to submit its proxy form to the Securities Commission to appoint a proxy, or to appoint its authorized corporate representative, to attend and vote on the proposed resolutions tabled at the 42nd AGM and also at all subsequent annual general meetings, extraordinary general meetings and other meetings of shareholders of the 3rd Respondent;

4. Alternatively, an Order that the 42nd AGM be postponed pending the 2nd Respondent obtaining the necessary approvals from the Securities Commission pursuant to the TOM Rules;

5. Alternatively, an Order that the following proposed resolutions 2, 3, 5 and 6 as stated in the Notice of the 42nd AGM (AGM Notice) not to be tabled during the 42nd AGM:

i. Resolution 2 and 3 - To re-elect the following directors, who are retiring by rotation pursuant to cl 97.1 of the 3rd Respondent's Constitution:

a) Ms Usha Nathan; and

b) YM Tunku Dato'Yaacob Khyra

ii. Resolution 5 - Authority to issue and allot shares pursuant to ss 75 and 76 of the Companies Act 2016 , at any time until the conclusion of the next AGM on such terms and conditions and for such purposes as the directors may in their absolute discretion deem fit provided that the aggregate number of shares to be issued pursuant to this Resolution does not exceed 10% of the total number of issued shares of the 3rd Respondent for the time being; and

iii. Resolution 6 - To retain Mr Jayapalasingam Kandiah, who has served as an Independent Non-Executive Director (INED) of the 3rd Respondent for a cumulative term of more than 9 years, to continue to serve as an INED of the 3rd Respondent until the conclusion of the next AGM.

6. The cost of this application be the cost of the cause.

[3] In essence the 2nd Respondent filed this application (encl 42) to vary set aside that part of the Applicant's Judicial Review Stay Order (Applicant's JR Stay Order), restraining the 2nd Respondent from submitting its application to the Securities Commission pursuant to para 15.01 of r 15 of the TOM Rules to nominate a person to be appointed to the board of