Conduct of directors is not deemed oppressive unless it demonstrates clear unfairness or disregard for minority shareholder interests; adherence to majority rule prevails in corporate governance.

[1] Enclosure 1 is a petition filed under s 181 of the Companies Act 1965 for, inter alia, an order that the second respondent, Chew Khoon Aik, shall purchase the entire 7% shareholding of the petitioner in Wings Logistic Sdn Bhd or in the alternative that it be wound up.

Mode Of Commencement

[2] Before dealing with the merits of the petition, there is a preliminary procedural point that needs to be addressed.

[3] This petition was filed on 7 January 2013, whereas the Rules of 2012 ('the ROC') came into force on 1 August 2012. Hence, the applicable procedural rules are the ROC. The ROC is in pith and substance an amalgam of the Rules of the Subordinate 1980 and the Rules of the High 1980.

[4] However, it has made substantial changes to the adjectival law in Malaysia, in particular (but not limited to) to the modes of commencement of actions. Under the ROC parties are to file their actions either by way of writ or originating summons, unless it is one of the matters that falls under Appendix C to the ROC. The present action however, was filed by way of petition instead of the mode as prescribed by the ROC.

[5] At the outset, I drew the attention of counsel to O 5, O 88 and O 94 and Appendix C of the ROC which pertain to the modes of commencement of proceedings. I have, for ease of reference, reproduced the relevant Orders.

[6]Order 5 r 1 reads as follows:

Except as provided in these Rule and subject to Order 94, rule 2, proceedings shall be commenced either by originating summons or by writ.

[7] Next, O 88 r 2 reads as follows:

Except for the proceedings specified in Appendix C relating to Winding Up of companies and capital reduction under the Act, proceedings under the Act shall be commenced by originating summons.

[8] Then, O 94 reads as:

(1) Order 5 r 1 shall not apply to the proceedings under the matters law listed in Appendix C, except as provided under these Rules.

[9] Finally, I refer to Appendix C to the ROC which is reproduced below:

Appendix C

List of Exempted Laws

7 Admission to the Bar

[10] The above provisions in the ROC make it abundantly clear that the present application ought to have been filed by way of originating summons and not by way of petition. Under the ROC, the only matters under the Companies Act 1965 which are to be filed by way of petition are matters falling under s 62 (capital reduction) and s 218 (winding up) (see Appendix C to the ROC).

[11] Hence, under the ROC, proceedings under s 181 of the Companies Act 1965 are to be commenced by way of originating summons.

[12]Order 88 r 2 of the ROC, now provides that all matters under the Companies Act 1965 (other than those falling within Appendix C) are to be filed by way of originating summons. In this case, it is obvious that the wrong mode of commencement was used.

[13] However, the respondents raised no objection to the fact that the wrong mode of commencement had been used. In any event, I was of the view that it was an important procedural point which I ought to raise on my own volition and deal with accord