Mohd Noor Ahmad JCA:

This is an appeal against the decision of the learned judge at Pulau Pinang which dismissed the appellant's petition. In the petition the appellant prayed for the respondent (the company) to be wound up, for the appointment of a liquidator for the purpose and for the proceeds of sale of the company's assets to be paid out to its shareholders as intended under a will or alternatively in such proportions corresponding to the shareholdings as may be determined by the court. The petition was pitched on s. 218(1)(i)of the Companies Act 1965 ('the Act'), that is to say, if the court is of the opinion that it is just and equitable that the company be wound up. Briefly, the alleged grievances are:

(i) the share equity in the company had been altered to the prejudice of the appellant;

(ii) there was serious mismanagement of the company in its administrative and financial affairs;

(iii) a rival business was set up by the managing director of the company and his family members; and

(iv) the appellant was kept out from participating in the management of the company after he was removed as its permanent director and was forced out as its director by reason of compulsory retirement at the age of 60.

The facts of the case are clearly set out in the learned judge's judgment. For ease of reference, they are produced hereunder:

S.V.K. Patchee Brothers (Malaysia) Sdn. Bhd. was incorporated on 3.7.1967 under the Companies Act, 1965 as a private company limited by shares and its registered office is at No. 15 Lebuh Bishop, 10200 Penang. It has an authorised share capital of RM1.5 million made up of 1,500,000 shares of RM1.00 each. The shareholders are the descendants of Vershay Mohamed Manium who first registered the said company in 1837 as a business entity under the name of S.V.K. Patchee Brothers (Manium). Vershay as far as it could be ascertained from the record of proceeding had a son named Shayana Vana Shayana Manium. The said Shayana, by a Will dated 27.4.1932 bequeathed the said business to his sons, namely Sayana Abdul Rahman (the petitioner's father) and Sayana Mohamed Ismail. The Will reads in parts:

I bequeath all my business of Dubash and Stevedor which now carry on at No. 15 Bishop Street, Penang under the name of S.V.K. Patchee (Manium) Brothers together with the goodwill thereof all goods and stock-in-trade and the sum of Dollars One thousand ($1000/=) deposited by me with Pstayakerr and Company in connection with or used for the purpose of the said business into my Trustees Upon Trust to carry on the business for a period of 21 years after my death unless special circumstances arise which in their opinion make it expedient to sell the same in which case I declare that the proceeds of such sale shall be divided equally between my said sons Sayana Abdul Rahman and Sayana Mohamed Ismail.

I declare that only one of my said sons shall take charge of my said business during a period of one year while the other said son shall take charge the following year in rotation. I further declare that the profits derived from the said business shall be divided equally between my two sons Sayana Abdul Rahman and Sayana Mohamed Ismail subject to the allowances for the maintenance of my two wives as follows:

(1) ...

(2) ...

(3) ...

All the rest and residue of my estate of whatever nature and wherever situate I give and bequeath to my two sons Sayana Abdul Rahman and Sayana Mohamed Ismail to be divided between them equally subject to the payment of my debt, funeral and testamentary expenses.

Currently the registered shareholders of the company as at 14 November 1997 are the petitioner and his two brothers and Shaik Allaudin and his brothers, sisters and his siblings. It is provided by art. 75 of Memorandum and Article of Association of the company that Messrs. Haji S. Mohamed Ismail, JP, SMI, Shaik Allaudin and SA Varusay Mohamed, (the petitioner) shall be permanent directors of the company. The Managing Director of the c