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2024 MarsdenLR 2939
HIGH COURT MALAYA GEORGETOWN
NG CHIANG CHONG – Appellant
Versus
NG CHENG HOCK & ORS (ENCL 2 3 9 10 & 13) – Respondent
[Originationg Summons No: PA-24NCC-38-12/2022]
The court has discretion to allow a plaintiff to discontinue proceedings if it avoids multiplicity of actions and does not unfairly disadvantage the defendants, even if the plaintiff's position has changed.
Headnote:(A) Companies Act 2016 - Sections 346 and 351 - Application to discontinue proceedings - Plaintiff claimed oppression as a minority shareholder and sought remedies - Discontinuance granted to avoid multiplicity of proceedings as broader issues raised in subsequent Suit 192 - Costs of RM30,000 awarded to Defendants. (Paras 1, 4, 15, 47)
(B) Court's discretion - Court has discretionary power to allow discontinuance of action, considering whether the Defendant has gained an advantage or if the case has reached an advanced stage. (Paras 19, 31)
Facts of the case:
The Plaintiff commenced proceedings under the Companies Act claiming oppression as a minority shareholder. The Plaintiff later sought to discontinue these proceedings citing the filing of a broader suit, Suit 192, which encompassed similar issues.
Findings of Court:
The court found that Suit 192 raised broader issues and allowed the Plaintiff to discontinue the current proceedings while ordering costs of RM30,000 to be paid to the Defendants.
Issues: The main issues were whether the Plaintiff was still dominus litis, if the proceedings were at an advanced stage, and whether Suit 192 constituted an abuse of the court process.
Ratio Decidendi: The court ruled that the Plaintiff was not dominus litis and that the proceedings had not reached an advanced stage, allowing discontinuance to avoid multiplicity of suits.
Result: Application to discontinue granted.
Introduction
[1] These proceedings were commenced by the Plaintiff pursuant to s 346 of the Companies Act 2016 claiming that he was oppressed as a minority shareholder of the 4th Defendant. Through the said Originating Summons, the Plaintiff inter alia sought a declaration that the 1st to 3rd Defendants had conducted the affairs of the 4th Defendant in disregard of the Plaintiff's interest as a minority shareholder and prayed for an Order that the 1st to 3rd Defendants purchase his shares in the 4th Defendant for fair value failing which the 4th Defendant be wound up.
[2] However midway through these proceedings and upon changing his solicitors and after filing another suit vide PA-22NCVC-192-12/2023 (hereinafter referred to as "Suit 192"), the Plaintiff then filed encl 57 herein which is an application pursuant to O 21 r 3 and/or O 92 r 4 of the Rules of 2012 (hereinafter referred to as " ROC 2012") to discontinue these proceedings in light of the filing of Suit 192.
[3] The Defendants objected to the Plaintiff's application in encl 57 to discontinue these proceedings.
[4] Having heard parties submit on 26 March 2024, I allowed encl 57 ie the discontinuance of the current proceedings against the Defendants with costs to be paid by the Plaintiff to the Defendants. The Defendants have since filed an appeal against my decision allowing encl 57 and as such, I will hereinbelow set out the salient background facts, the parties' respective contentions and the reasons for my allowing the said application to discontinue these proceedings.
Salient Background Facts
[5] The salient background facts can be summarized as follows.
[6] On 30th December 2022, the Plaintiff commenced these present proceedings against the Defendants pursuant to ss 346 and 351 of the Companies Act 2016 claiming oppression as a minority shareholder in the 4th Defendant.
[7] The Plaintiff's claim was opposed and parties exchanged several affidavits thereafter.
[8] The Plaintiff had also filed two applications for injunctions against the Defendants vide encls 3 and 22. However, the Plaintiff thereafter withdrew encl 22 on 17 April 2023 and also withdrew encl 3 on 18 July 2023 and I therefore struck out both enclosures on those dates with no order as to costs.
[9] On 18th July 2023, learned Counsel for both parties informed the Court of their intention to cross-examine the deponents of the Affidavits that have been filed so far as there appeared to be some disputes for which oral testimony was required. As such, I directed that the matter be fixed for Hearing on 3 October 2023 for the cross-examination of the Plaintiff and the deponents of the affidavits filed by the Defendants. In this regard, learned Counsel for both parties agreed that the cross-examination would be restricted to the following two issues which required judicial determination at the end of the day and these were (i) whether there exists a legitimate expectation of the Plaintiff to remain as a director; and (ii) whether there was a breach of fiduciary duty on the part of the Plaintiff.
[10] On 3rd October 2023, the matter proceeded and the Plaintiff was cross-examined in relation to the Affidavits affirmed by him in encls 2, 9, 10 and 13.
[11] However, the re-examination of the Plaintiff could not commence on the said date due to lack of time and the matter was adjourned to 5 December 2023 for continued hearing for the re-examination of the Plaintiff and the cross-examination of the Defendants' witnesses/deponents of affidavits.
[12] On 5 December 2023, the Plaintiff was not present in Court citing health issues as he was unwell. Learned Counsel for the Plaintiff had also on 5 December 2023 indicated that the Plaintiff intended to discharge him as solicitors and a notice of change of solicitors would be filed shortly. On the same date, it was brought to my attention that Suit 192 was filed on 1 December 2023 by another set of solicitors on behalf of the Plain
