A minority shareholder can seek leave for a derivative action against company directors for failing to recover funds, provided good faith is demonstrated and compliance with statutory requirements is evident.

[1] Enclosure 1 is the Plaintiff Originating Summons dated 24 October 2011 bearing an application pursuant to ss 181A, 181B and 181E of the Companies Act 1965 (CA) for leave to bring an action on behalf of the Defendant Company against the former and current directors of the Defendant,

(1) Leave be granted to the Plaintiff to commence and/or bring action against the former and current directors of the Defendant namely:

(a) Y Bhg Dato' Nik Ezar Bin Nek Bolia

(b) Ramakrishnan a/l S. Navaratnam

(c) Dato' Abdullah Bin Mohd Zain

(d) Dato' Mohamed Kamal Bin Hussain

(e) Dato' Sri Md Kamal Bin Bilal

(f) Jamal Mohamed Bin Sma Mohamed Mydin

(g) Dato' Paduka Khairuddin Abu Hassan

(h) Fong Heng Leong

(i) Chan Kim Chee

(2) Leave be granted to the Plaintiff to commence, bring and/or maintain action including any interlocutory applications against the aforesaid parties in the name and benefit of the Defendant;

(3) Leave be granted to the Plaintiff to oppose, in the name and for the benefit of the Defendant, any appeal and/or any interlocutory application filed and/or made by the aforesaid parties;

(4) Encik Zakaria bin Sharif or any other officer nominated by the Plaintiff is hereby authorized to control the conduct of the above-mentioned proceedings, including instructing solicitors;

(5) The Defendant and/or its agent, solicitors, auditors, accountants, officer and/or employee shall provide all information and assistance including affirming affidavits and/or statutory declarations and/or witness statements as required for proper conduct of the above-mentioned proceedings;

(6) The Defendant and/or its agent, solicitors, auditors, accountants, officer and/or employees shall disclose all documents including documents in written, printed or electronic form for inspection of the Plaintiff or its solicitors or authorized officer, as required for proper conduct of the above-mentioned proceedings;

(7) The Plaintiff and/or its solicitors or authorized officer shall be entitled to duplicate or make copy of the above-mentioned document and use them in the proceedings commenced and/or brought in the name of the Defendant;

(8) The Defendant shall forthwith indemnify the Plaintiff in respect of all costs, expenses, disbursement, tax and/or legal fees incurred for bringing, commencing and/or maintaining the above-mentioned proceedings;

(9) Parties are at liberty to apply for further directors or orders;

(10) Such other order, relief or direction as this Honourable Court may deem fit; and

(11) The cost of and incidental to this application be paid by the Defendant to the Plaintiff.

[2] The grounds for the Application are as follows:

1. The Plaintiff is a minority shareholder in the Defendant.

2. In the Defendants' annual report it was stated that the Defendant had placed investment exceeding RM100 million in foreign asset management company. Out of the total investment of RM112,000,000 the Defendant had only received RM4,000,000 (the Investment Sum). However the sum of RM108,000,000 is still due and owing.

3. The company which owes the Investment Sum is a company known as Boston Asset Management Pte Ltd.

4. The Defendant admitted that the sum is due and owing by Boston as indicated in its report financial statement ended 30 November 2003.

5. No steps were taken by the Defendant to recover the balance of the Investment Sum.

6. The Plaintiff vide its solicitors through a series of letters inquired into the progress of the recovery of the Investment Sum. The Defendant through its solicitors notified that a letter of demand had been issued and a Writ of Summons may be filed against Boston.

7. Since there was no update as to the progress of the recovery action the Plaintiff then issued a letter pursuant to s 181B(2) CA indicating its intention to commence a derivative action against the Defendant.

8. On 3 June 2009 the Plaintiff filed an OS for leave to commence action against Boston. Through the Affidavits it was discovered that;

(i) The Defendant had commenced an action against Boston on