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2021 MarsdenLR 2043
HIGH COURT MALAYA KUALA LUMPUR
DATUK KASI K L PALANIAPPAN – Appellant
Versus
MENARA EMBUN SDN BHD & ORS AND ANOTHER CASE – Respondent
[Originating Summons Nos: WA-24NCC-410-09/2017 & WA-24NCC-411-09/2017]
Judges must demonstrate impartiality, and applications for recusal on perceived bias require substantial justification; prior decisions do not alone warrant recusal.
Headnote:(A) Companies Act, 2016 – Section 346 – Recusal applications filed to recuse the judge from hearing related minority oppression claims in Menara Embun Sdn Bhd and Modern Eden Sdn Bhd – Applications sought recusal based on alleged bias due to interrelatedness of cases – Judge ruled no real danger of bias; applications dismissed with costs. (Paras 21-56)
Facts of the case: The Plaintiff claimed oppression due to alleged breaches of understanding with a co-defendant - decisions to not combine hearings were made under judicial discretion citing procedural complexities.
Findings of Court: Judge addressed and dismissed the recusal applications, establishing that there was no substantive basis for bias.
Issues: Whether the judge's prior rulings create a perception of bias in subsequent related cases.
Ratio Decidendi: The court asserted that a judge's decision in one matter does not inherently disqualify them from hearing related matters, reflecting a stance against judge-shopping and maintaining judicial integrity.
Result: Applications dismissed with costs.
JUDGMENT
Introduction
[1] Enclosure ("Encl") 284 in Originating Summons WA-24NCC-410-09/2017 ("Menara Embun OS") and Encl 267 in Originating Summons WA-24NCC-411-09/2017 ("Modern Eden OS") are recusal applications filed to recuse me from hearing the Menara Embun OS and Modern Eden OS.
[2] I had dismissed both applications on 26 October 2021. These are the reasons for my decisions. As the matters were related, it is convenient to deal with both decisions in one judgment.
Background
[3] The Menara Embun OS and Modern Eden OS were filed by the Plaintiff, Datuk Kasi a/l Palaniappan ("DK") pursuant to s 346 of the Companies Act, 2016 (" CA 2016") complaining of minority oppression in respect of the affairs of Menara Embun Sdn Bhd and Modern Eden Sdn Bhd respectively.
[4] DK together with one Impresive Circuit Sdn Bhd also commenced another minority oppression claim in respect of Setia Haruman Sdn Bhd vide Originating Summons No WA-24NCC-290-07/2017 ("Setia Haruman OS"). In the Setia Haruman OS, DK was struck out as a Plaintiff on 25 April 2018 as he was not a shareholder of Setia Haruman. DK however owns 50% of the shares in Impresive Circuit.
[5] In each of the 3 OS Actions, Tan Sri Mustapha Kamal ("TSMK") was named as the 2nd Defendant. The Plaintiff's complaints in the 3 Actions are that alleged oppressive acts were carried out in breach of an alleged Understanding, New Board Understanding that the DK allegedly had with TSMK and DK's legitimate expectation to participate in the management of Setia Haruman, Menara Embun and Modern Eden.
[6] In Enc 15 of both the Menara Embun OS and Modern Eden OS, DK made an application dated 15 November 2017 for the Menara Embun OS and Modern Eden OS to be transferred from KLHC NCC 5 to KLHC NCC 6 ("transfer applications"), the court hearing the Setia Haruman OS on inter alia the grounds that:
(a) the underlying issues arising in the Menara Embun and Modern Eden OS are closely connected to the issues in OS 290;
(b) the transfer will ensure that all issues in dispute arising from all the claims in the Menara Embun and Modern Eden OS are before the same forum for an effectual and complete determination by the court and to avoid inconsistent decisions;
(c) two out of the 5 Defendants named in the Menara Embun and Modern Eden OS (TS MK and Setia Haruman) are also Defendants in the Setia Haruman OS; and
(d) the Plaintiff's transfer applications merely seek to transfer the OS to a different court which is of coordinate jurisdiction and the transfer will not cause any prejudice or any inconvenience.
[7] The transfer applications were dismissed.
[8] Meanwhile, on 26 October 2018, the Menara Embun OS and Modern Eden OS were converted into writ actions known as Kuala Lumpur High court Civil Suit No: WA-22NCC-500-11/2018 and Kuala Lumpur High court Civil Suit No: WA-22NCC-497- 11/2018 (Menara Embun and Modern Eden Actions).
[9] In or about November 2018, the Setia Haruman OS was administratively transferred to NCC5.
[10]Vide Encl 18 dated 28 January 2019 in the Setia Haruman OS, Impresive Circuit applied for the Setia Haruman OS and the Menara Embun and Modern Eden Actions to be heard together pursuant to O 4 of the Rules of 2012 and/or the inherent jurisdiction of the court on the grounds that:
(a) the Setia Haruman OS and the Menara Embun and Modern Eden Actions are premised on the same and/or similar set of acts or transactions;
(b) the underlying issues in the Setia Haruman OS are closely connected to the issues arising in the Menara Embun and Modern Eden Actions;
(c) to ensure that all issues and/or facts in dispute between all the relevant parties are before the same forum for a "complete and effective determination and to avoid inconsistent decisions"; and
(d) to save time and costs.
[11] On 3 December 2019, Wong Chee Lin J, dismissed Impresive Circuit's application to have the 3 Actions heard together. Her Ladyship held in her judgment reported as Impresive Circuit Sdn Bhd v. Setia Haruman Sdn Bhd
