The court affirmed the appropriateness of converting originating summons to writ actions when material factual disputes warrant a full trial.

[1] This judgment concerns 2 suits - Originating Summons No WA 24-NCC-410-09/2017 (OS 410) and Originating Summons No WA-24 NCC-411-09/2017 (OS 411). OS 410 and OS 411 were filed by the same Plaintiff pursuant to s 346 of the Companies Act 2016 . The facts surrounding both the Originating Summons relate to similar series of facts.

[2] The Plaintiff has filed 2 separate applications to convert the 2 Originating Summons into writ actions. I have allowed the applications. These are the full reasons for my decision.

Introduction

[3] In OS 410, the parties are as follows:

a) the Plaintiff is Datuk Kasi K L Palaniappan (DK);

b) the Defendants are:

i) the 1st Defendant is Modern Eden Sdn Bhd ("Modern Eden")

ii) the 2nd Defendant is Tan Sri Datuk Haji Mustapha Kamal Haji Abu Bakar ("TS MK");

iii) the 3rd Defendant is Felina Tan Sri Datuk Haji Mustapha Kamal ("Felina") who is TS MK's daughter;

iv) the 4th Defendant is MKN Holdings Sdn Bhd ("MKN Holdings"); and

v) the 5th Defendant is Setia Haruman Sdn Bhd ("Setia Haruman").

[4] The relief sought by DK in OS 410, among others, are:

a) declaration that the 2nd to the 4th Defendants respectively had managed and conducted the affairs of the 1st Defendant, Modern Eden Sdn Bhd (Company NO 623037-H) ("Company") and/or exercised their powers oppressively and/or disregarded and/or acted in a mean unfairly prejudicial to the interest of the Plaintiff as a member of the company;

b) an order that the 2nd to 4th Defendants do jointly and/or severally purchase the 2 ordinary shares of the company owner or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court;

c) the costs of and costs occasioned by the Originating Summons herein be borne personally by the 2nd to the 4th Defendants, jointly and/or severally, and paid to the Plaintiff on an indemnity basis or on any basis deemed fit and proper by the Honourable Court.

[5] In OS 411, the parties are:

a) the Plaintiff is also DK;

b) the Defendants named are:

i) Menara Embun Sdn Bhd ("Menara Embun") as the 1st Defendant;

ii) TS MK as the 2nd Defendant;

iii) Felina as the 3rd Defendant;

iv) MKN Holdings as the 4th Defendant; and

v) Setia Haruman as the 5th Defendant.

[6] The relief sought by DK in OS 411, among others, are:

a) a declaration that the 2nd to the 4th Defendants respectively had managed and conducted the affairs of the 1st Defendant, Modern Eden Sdn Bhd (Company NO 428618-M) ("Company") and/or exercised their powers oppressively and/or disregarded and/or acted in a mean unfairly prejudicial to the interest of the Plaintiff as a member of the company;

b) an order that the 2nd to 4th Defendants do jointly and/or severally purchase the 105,000 ordinary shares of the company owned or held by the Plaintiff at such price and on such terms as shall be determined by the Honourable Court; and

c) the costs of and costs occasioned by the Originating Summons herein be borne personally by the 2nd to the 4th Defendants, jointly and/or severally, and paid to the Plaintiff on an indemnity basis or on any basis deemed fit and proper by the Honourable Court.

Salient Background Facts

[7] Menara Embun has a total issued share capital of RM300,000.00. TSMK holds 65% stake in Menara Embun whereas DK held the remaining 35% stake.

[8] Modern Eden has a total issued share capital of RM5.00 and TSMK holds 3 ordinary shares (a 60% stake) whereas DK held the remaining 2 ordinary shares (a 40% stake).

[9] TSMK and DK were the only 2 directors of Menara Embun and Modern Eden until 1 December 2008 when TMSK's daughter Felina, was appointed to the board of the 2 companies.

[10] Menara Embun and Modern Eden were vehicles used by TSMK and DK for their joint participation in Setia Haruman and by exte