A defendant must establish a prima facie case of contempt with sufficient particulars and evidence; a Stay Order does not prohibit share increases unless explicitly stated.

JUDGMENT (No 4)

(Enclosure 191 - Heard On Opposed Ex Parte Basis)

Ong Chee Kwan J:

Introduction

[1] This judgment deals with an application by the Defendant for leave to commence committal proceedings in respect of an alleged breach of an order of this Court prohibiting the Plaintiff to "deal with or otherwise dispose of' certain shares pending the hearing by the Court of Appeal of the Defendant's appeal against the decision of this Court that the Defendant transfers the said shares to the Plaintiff.

[2] Although the Rules of Court 2012 provides for the application to be made ex parte, this Court directed the Defendant to serve the same on the alleged contemnors and for the hearing to proceed on an opposed ex parte basis (See: Dato' Oon Ah Baa & Ors v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors; 2003 MarsdenLR 1870 ; Dato' Sri Andrew Kam Tai Yeow v. Tan Sri Dato' Kam Woon Wah & Ors).

[3] At the leave stage, the Defendant must demonstrate to this Court that he has a prima facie case or a case to be answered by the alleged contemnors for the Court to grant leave. Upon hearing oral submissions from counsel, this Court dismissed with costs the application filed by the Defendant.

Background Facts

[4] The matter before this Court is premised upon a dispute between Tan Sri Kam Woon Wah ("TSK" or "the Plaintiff") and his son, Dato' Sri Andrew Kam Tai Yeow ("DSK" or "the Defendant").

[5] This dispute pertains to the actual and or beneficial ownership of a number of companies including Lead Enterprises Sdn Bhd ("LESB"), Grandfoods Sdn Bhd ("GFSB") and Granny's Kitchen Sdn Bhd ("GKSB") (collectively referred as "the Companies").

[6] The Plaintiff filed this suit against the Defendant alleging that the Defendant held shares of the Companies on trust for the Plaintiff ('Subject Shares').

[7] Prior to the filing of the present suit, vide Kuala Lumpur High Court Civil Suit No: WA-22NCC-352-09/2017 (the "Main Suit"), DSK seeks specific performance of a Shareholders' Agreement dated 16 January 2017 executed by DSK and TSK (the "Shareholders' Agreement"). Pursuant to the Shareholders' Agreement, DSK contends that he already owned 50% of TSK's entire interests in Raub Mining & Development Company Sdn Bhd ("RMDC") (which has a subsidiary named Raub Oil Mill Sdn Bhd ("ROM")), and has a first or priority option to purchase the remaining 50% of his interest at a certain price. The Main Suit is still pending. DSK claimed that the present suit is a collateral attack on the Main Suit.

[8] The shareholding of RMDC is structured through shares held by individuals directly in RMDC and indirectly (I.e. through holding companies). LESB, GFSB and GKSB are amongst these holding companies.

[9] As at the time of the filing of the Main Suit, and also as at the time of the filing of this action, the shareholding structures of LESB, GFSB and GKSB were as follows:

[10] On 22 April 2022, I allowed TSK's claims in this action and ordered for the Subject Shares to be transferred to TSK ("the 22 April 2022 Order"). Dissatisfied with this decision, DSK filed an appeal to the Court of Appeal of Malaysia vide Civil Appeal No W-02(IM)(NCC)-758-04/2022 ("the Appeal"). The Appeal is pending hearing before the Court of Appeal.

[11] In the interim, for the purposes of preserving the subject matter of the Appeal, DSK filed an application vide Enclosure 165 seeking a stay of execution of the 22 April 2022 Order. Enclosure 165 was filed as DSK feared that there was a real risk of TSK disposing of or dealing with DSK's shares in LESB, GFSB and GKSB in such manner as would be irreparably prejudicial towards DSK.

[12] On 30 May 2022, I ordered that TSK shall not "deal with and/or dispose of the Subject Shares to any third party, pending the final disposal of the Appeal ("the Stay Order")

[13] On or around 9 October 2023, new shares were issued by many companies within the RMDC Group to increase and enlarge their respective share capital ("the Dilution Exercise"). DSK