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2021 MarsdenLR 2841
COURT OF APPEAL PUTRAJAYA
RINOTA CONSTRUCTION SDN BHD – Appellant
Versus
MASCON RINOTA SDN BHD & ORS – Respondent
[Civil Appeal No: W-02(IM)-1481-08-2019]
The court emphasized a purposive interpretation of court orders, allowing applications that further the resolution of cases without altering their essence, alongside recognizing inherent liberty to apply despite lack of express terms.
Headnote:(A) Companies Act 1965 – Section 181 – Interlocutory appeal against High Court Order dismissing application for accountant appointment – Anguish over oppression of minority shareholders due to financial wrongdoings of respondents effectively addressed by prior orders of the High Court – Previous High Court Order included Buy Out Order and Accountant Order for share valuation – Application for independent accountant questioned for perceived inconsistency with original orders. (Paras 1-16)
(B) Interpretation of Court Orders – Purposive approach advocated over literal interpretation – Erroneous literal approach leading to denial of remedy – Orders viewed as interdependent in achieving fair resolution to oppression claims. (Paras 17-22)
(C) Liberty to Apply – Implied liberty exists even in absence of express terms – Judicial interpretation allows for necessary applications to achieve order's purpose without varying essence. (Paras 23-26)
(D) Appealability of Orders – Distinction between final judgments and interim orders emphasized – Appeals permissible where orders affect rights of parties before the trial concludes. (Paras 29-33)
JUDGMENT
[1] This is an interlocutory appeal against the High Court Order dated 23 July 2019 ("the Impugned Order") dismissing the Petitioner's application to appoint Ferrier Hodgson MH Sdn Bhd ("FHMH") to prepare an expert report to advise the High Court on the fair price of the Petitioner's shares in the 1st respondent to be purchased jointly and severally by the 2nd and the 4th to the 7th respondents ("Petitioner's Application").
Material Background Facts
[2] By way of a petition filed in the High Court under s 181 of the Companies Act 1965, the appellant contended that it was oppressed by the 2nd respondent and the 4th to the 7th respondents.
[3] The oppressive conduct complained of centered on accounting malpractices and financial wrongdoings committed by the respondents and the total disregard by respondents of the Petitioners' legitimate expectation arising from the formation of a joint venture company, Mascon Rinota Sdn Bhd (1st respondent).
[4] In the Petition, the appellant prayed, among others, that its shareholding in the joint venture company be bought out by the 2nd to the 7th respondents.
[5] On 29 August 2012, the High Court granted the Petitioner's prayer for its shares to be bought by the respondents. Paragraphs (a) and (c) of the High Court Order are most relevant to this appeal. Paragraphs (a) and (c) of the order provides:
(a) that the 2nd and the 4th to the 7th respondents jointly and severally purchased the shares owned by the Petitioner in the 1st respondent at such price and terms determined by the High Court, after making all necessary adjustments to the accounts of the company to compensate for the acts and oppression of the respondents (hereafter refer to as "Buy Out Order").
(b) that a certified public accountant be appointed to inspect the accounts of the 1st respondent for the period beginning June 1995 to the date of the order and to report to the High Court the results of such inspection (hereafter refer to as "Accountant Order").
[6] Not satisfied with the High Court Order, the respondent appealed to the Court of Appeal. In the meantime, in order to give effect to the Buy Out Order and the Account Order, the appellant filed encl 66 proposing several accountancy firms to be appointed by the High Court. By way of the Order dated 20 September 2013, the High Court appointed BDO Governance Advisory Sdn Bhd to prepare an accounting report pursuant to the Account Order by the High Court.
[7] However, on 12 May 2014 and before BDO Governance Advisory Sdn Bhd could complete its work, the Court of Appeal had allowed the respondent's appeal and overturned the High Court's decision. When the High Court Order was overturned by the Court of Appeal, the preparation of the accounting report was kept in abeyance.
[8] The appellant appealed to the Federal Court against the Court of Appeal decision. On 22 May 2017, the Federal Court allowed the appellant's appeal. The Federal Court reversed the Court of Appeal decision and restored the High Court Order dated 29 August 2012.
[9] Following the restoration of the High Court Order by the Federal Court, on 22 May 2017, the appellant filed an application to extend the time for the preparation of the accounting report. The application for extension of time was allowed and BDO Governance Advisory Sdn Bhd was supposed to prepare the accounting report by 26 December 2018.
[10] Unfortunately, the BDO Governance Advisory Sdn Bhd was not able to inspect the account and to prepare the accounting report by the dateline given.
[11] The appellant then filed a fresh Notice of Application to appoint another accountant, Ferrier Hodgson MH Sdn Bhd to prepare an expert report to advise the High Court. The main prayer in the said application reads:
"That the Petitioner be allowed to appoint Ferrier Hodgson MH Sdn Bhd to prepare an expert report on behalf of the Petitioner to advice this Honourable Court the fair price of the shares owned by the Petitioner in the 1st res
