INTRODUCTION

[1] There were originally three enclosures before this court, namely:

(i) Enclosure 1 is the petitioner’s petition for an order to wind up the

respondent under s 218(1)(i) of the Companies Act 1965 (‘the Act’),

with certain consequential prayers also sought;

(ii) Enclosure 16 is the petitioner’s application by way of a summons in

chambers, inter alia, for an order pursuant to s 305 of the Act to

compel two individuals namely, Yap Chooi Lee, who is a director of the

respondent, and R Charles Penafort to repay or restore, within three

days from the order made hereof, the sum of RM580,000 taken from the

petitioner’s account in two banks or any other sum disbursed from the

petitioner’s account after 15 June 2005; and

(iii) Enclosure 24 is the respondent’s application via a notice of motion

for, inter alia, an order that the Yap Chooi Lee as the sole director

of the respondent be allowed to convene a meeting of the respondent in

order to carry out various acts specified in the motion under ss 150

and 355 of the Act. However, encl 24 has since been withdrawn and

struck out.

RE ENCLOSURE 1

The petitioner’s case

[2] The petitioner formerly worked with a company known as Hamon (M) Sdn Bhd and befriended one R Charles Penafort (‘Charles’), who at the material time was the Managing Director of Hamon (M) Sdn Bhd. In July 2003, Hamon (M) Sdn Bhd decided to cease its business operation in Malaysia. Due to that fact, the petitioner and Charles toyed with the prospect of opening and continuing a similar business, in particular, the business of producing wet cooling towers, as they had acquired sufficient experience and knowledge in that business. After discussions between the petitioner and Charles the respondent was incorporated on 1 April 2003 with an authorised paid-up capital of RM100,000 divided into 100,000 shares priced at RM1 per share. The paid up capital of the respondent was RM2 divided into two shares which were registered in the names of the petitioner and one Yap Chooi Lee, who is the wife of Charles. Both the petitioner and Yap Chooi Lee [*394] also acted as the respondent’s directors. It is the contention of the petitioner that the respondent is a quasi-partnership between him and Yap Chooi Lee because Charles did not wish to be involved in the newly incorporated company as he was, at the material time, also engaged in another company called Hassfort (M) Sdn Bhd. The petitioner contends that he was solely responsible in the running of the respondent from his residence between August 2003 and December 2003. In January 2004, Charles started coming into the respondent’s office and introduced himself as the managing director of the respondent although there was never any resolution to this effect. Until now Charles was never a registered shareholder in the respondent. Sometime in November 2004, after Charles had started to assert his influence and control in the running of the respondent, the petitioner came to know that Charles and his wife had used some of the respondent’s funds for their personal purposes such as for holiday expenses, payment for car installments, car insurance, and credit cards which were not related to the business of the respondent. Also some funds were transferred from the respondent’s bank account to the personal account of Charles. Charles and his wife had refused to address the queries raised by the petitioner. Instead, Charles and his wife suggested that the petitioner receive a payment of RM50,000 as dividends and that an account be prepared by April 2005, to determine the dividends payable to the shareholders. Charles then suggested that one Yap Yen Cheng, who is the brother of Yap Chooi Lee, be appointed to prepare the accounts of the respondent. However, the petitioner rejected the suggestion because it could cause a conflict of interest. Since January 2005, the petitioner was left out