Gunn Chit Tuan SCJ:

Lai Kim Loi (the petitioner) presented a petition in the High Court in Borneo at Sandakan on 14 August 1985. The petition was intituled Companies Winding-Up No. 6 of 1985 and stated that Lai Fook Kim Estates Sendirian Berhad (the company) was incorporated under the Companies Act 1965 on 30 December 1971. The nominal capital of the company is RM10,000,000 divided into 10,000,000 ordinary shares of RM1 each. The amount of the capital paid up or credited as paid up is RM1,000,000. The company was set up by the petitioner and his elder brother Datuk Lai Fook Kim (the first respondent) and both of them were subscribers with one share each in the company. The petitioner and the first respondent owned oil palm estates adjoining each other and in the year 1972 the company built an oil palm mill on the petitioner's land which was managed by him. In 1980 the first respondent proposed that he be allotted 999,998 shares of RM1 each in the company. The petitioner agreed and the first respondent was allotted the shares at a directors' meeting on 26 February 1980. According to the petitioner he was also to be allotted the same number of shares. But finally on or about 19 April 1985, the first respondent was alleged to have refused to honour their agreement. Amongst other instances of acts of alleged oppression to the petitioner it was stated that the first respondent and his son Lai Keat Yeong purported to hold a directors' meeting on 22 February 1983, without notice to the petitioner and caused the company to guarantee a loan of RM5 million borrowed by Sabah Hotel Sdn. Bhd. which is controlled by the first respondent, from another company. The said Lai Keat Yeong was appointed a director of the company in the year 1976.

It was also alleged that on 9 April 1985, the first respondent called a directors' meeting and passed resolutions to alter Articles 70 and 76 of the company. The effect of the alteration of the articles was that the founder directors were no longer permanent directors . It was at that meeting that the petitioner made a formal request that 999,998 shares be allotted to him but that request was rejected. There were other acts by the first respondent recited in the said petition which the petitioner alleged showed oppressive conduct under s. 181 of the Companies Act 1965, and the petitioner prayed for the following orders:

(i) that steps be taken by the company and its directors to be caused to issue to the petitioner shares equal in numbers to those issued to the said Fook Kim, alternatively that the said Fook Kim be ordered to transfer half his shareholdings to the petitioner.

(ii) alternatively that the allotment of 999,998 shares and 1 share to Lai Fook Kim and Keat Yeong respectively be set aside.

(iii) that the Court may order that steps be taken to restore Articles 70 and 76 of the articles of association to their original form.

(iv) that Lai Fook Kim Estate Sendirian Berhad may be wound up by the Court under s. 181 or 218 of the Companies Act 1965.

(v) or that such other order may be made in the premises as shall be just.

On 15 August 1985, the petitioner also filed a writ of summons and a statement of claim against the first respondent in which substantially the same facts were averred as those stated in the said petition, and in the statement of claim the petitioner prayed for the following orders:

(1) a declaration that the plaintiff is entitled to 999,998 shares in the said company.

(2) alternatively that the plaintiff is entitled to half the issued capital of the said company.

(3) an order that the defendant call a board meeting and take all steps as are necessary to issue the plaintiff with 999,998 shares in the said company.

(4) alternatively an order that the defendant transfers such of his shareholding in the said company as will give the plaintiff an equal half share holding in the said company;

(5) Costs; and

(6) such other order as shall be just.

It was therefore not unexpected t