Haidar Mohd Noor JCA:

In the court below, the plaintiff prays for a number of orders against the defendant company videwrit action no. 22-125-94. The action relates essentially to a claim by the plaintiff of his 355,000 shares ("the said shares") in the defendant company which he alleged had been transferred to his father trough the forgery of the share transfer form dated 24 August 1998 (exh. D4).

After a full hearing the learned judge made the following orders:

(a) the plaintiff was declared the shareholder of the said shares in the defendant company;

(b) the purported transfer of the said shares in D4 be cancelled;

(c) the plaintiff was allowed to claim all dividends he was entitled to since 24 August 1993;

(d) costs to the plaintiff

However, in respect of the other claims of the plaintiff, the learned judge made the following orders:

(i) the defendant company had properly and lawfully removed the plaintiff as a director at the company's extraordinary general meeting held on 10 June 1993;

(ii) there was no need to appoint M/s Ernst & Young, an acccounting firm, as the receivers and managers for the purpose of managing the daily business of the defendant company;

(iii) mareva injunctionorder was disallowed;

(iv) damages for forgery was also disallowed.

The defendant company filed an appeal to this court against orders (a), (b) and (c) made by the learned judge. The plaintiff filed a cross-appeal against orders (i), (ii), (iii) and (iv) set out above. For the purpose of this judgment we will refer the parties as the plaintiff and the defendant company.

Preliminary

At the outset of the hearing of this appeal, counsel for the defendant company intimated that the appeal record was not complete as the chemist report was not included therein. By consent of the parties, it was agreed that the chemist report be included as part of the appeal record and accordingly marked as pp. 810, 811 and 812 in Jilid 2, Bahagian C.

In addition thereto, the defendant company filed a notice of motion for leave to file a supplementary memorandum of appeal. Counsel for the plaintiff objected. After hearing counsel for both parties, we granted leave to the defendant company to file the supplementary memorandum of appeal as exhibited to the affidavit of Lim Hoi Siok, its director (exh. "LHS-1"). We also ordered that the costs of the application be paid to the plaintiff in any event.

Brief Background

The defendant company is a second-hand car dealer family company with branches throughout Perak and was founded by the plaintiff's father, Lim Chin Seng @ Lim Sitt Min @ Lim Tai Ming who had a number of "wives". The plaintiff (PW1) and his brother, Lim Tuck Cheong (PW2) are brothers and have the same mother whilst Lim Hoi Siok (DW1) is the half-brother of the plaintiff and PW2 and is the offspring of the first wife. The plaintiff's father, Lim Chin Seng @ Lim Sitt Min @ Lim Tai Ming died on 28 February 1994.

It is not disputed that the plaintiff held the said shares in the defendant company and that he was a director of the defendant company before the alleged transfer of the said shares and his removal as a director thereof.

The purported transfer of the said shares from the plaintiff to his father was approved by the defendant company videa circular resolution 12/93 dated 24 August 1993 (P2). All the directors of the defendant company including the plaintiff's father and PW2 signed the resolution.

The plaintiff was removed as a director of the defendant company following a notice (D17) of an extraordinary general meeting which was held on 10 June 1993, a directors' circular resolution (P4) and confirmed by the minutes of the extraordinary general meeting (D20). The plaintiff himself did not attend the extraordinary general meeting as he was overseas as is evidenced from the attendance list (see p. 373 of the appeal record). His full brother, PW2, did attend the said meeting. The removal of the plaintiff as a director of the defendant company was