Winding up under Companies Act requires credible evidence supporting claims of illegality; speculative allegations are insufficient for equitable relief.

Mary Lim Thiam Suan FCJ:

[1] The five appeals before us concern the law on winding up of companies on the ground that it is just and equitable under s 218(1)(i) of the Companies Act 1965 to wind up the target companies. Three appeals are brought by the petitioner who did not succeed in winding up all three companies that he had targeted whilst two other appeals are by the two companies that were wound up as a result of the petitions.

[2] A total of four questions are posed by the two sets of appellants in these appeals:

Petitioners appeals

Civil Appeals Nos: 02(f)-5-02-2017(P) and 02(f)-6-02-2017(P) & 02(f)- 12-02-2017(P)

i. Where there are applications to wind up more than one company in a group of family companies, is the conduct of the parties to be tested separately in respect of each company or as a whole having regard to the decisions in Ebrahimi v. Westbourne Galleries Ltd [1972] 2 All ER 492 and DHN Food Distributors Ltd v. London Borough of Tower Hamlets [1976] 3 All ER 462.

ii. Whether the principles governing an application made under s 181 of the Companies Act 1965 are applicable to an application to wind up a company under s 218(1)(i) of the said Act having regard to the decision of the Federal Court in Looh Siong Chee v. Numix Engineering Sdn Bhd & Ors And Other Appeals, 2015 MarsdenLR 2096 .

Wound-Up Companies Appeals

Civil Appeals Nos: 02(f)-13-02-2017(P) & 02(f)-14-02-2017(P)

i. Whether a company could be wound up by a shareholder of the said company under s 218(1)(i) of the Companies Act 1965 merely on the grounds of non-compliance or breach by the directors (where no prosecution whatsoever was ever taken against the said company by the authorities in any Court) of ss 169, 364(2), 136 of the and ss 199, 200 and/or 193 of the Penal Code and s 114 of the Income Tax Act 1967 , which if proven, can nonetheless be regularised by provisions of the statutes by way of penalty/fine.

ii. Whether a petitioner shall be allowed with equitable relief under s 218(1)(i) of the Companies Act 1965 when the petitioners truthfulness and credibility have been impugned by the Winding- Up Court.

Background Facts

[3] The full factual background which led to the winding up of Tan Eng Hong Paper & Stationery Sdn Bhd [TEH Paper] and Tan Eng Hong Holdings Sdn Bhd [TEH Holdings], the appellants in Civil Appeals Nos: 02(f)-13-02-2017(P) and 02(f)-14-02-2017(P), and the dismissal of the winding-up petition against Peace Centre Sdn Bhd [PCSB], may be found in the grounds of decision of the learned judge at the High Court reported in Tan Keen Keong @ Tan Kean Keong v. Tan Eng Hong Holdings Sdn Bhd & Ors & Other Cases. For the purposes of these appeals, suffice that we summarize those facts as thus.

Parties

[4] For ease of reference, we shall refer to the parties as they were at the High Court.

[5] The late Tan Boon Kak and his wife, Ong Chooi Tee, had six sons. They also had daughters but they and their families are not involved in the litigation before us. All six sons, whether themselves directly or their families are however, involved. The learned High Court Judge referred to them collectively as the "Tan Families" and/or by reference to their position in those six families.

[6] The 2nd, 3rd and 4th respondents are respectively, the third, fifth and sixth sons. The 5th respondent is the eldest son of the deceased second son. Because of the nature of the allegations and the role that he holds in the target companies, the 4th respondent and the sixth son, Tan Seng Kow, shall be referred to by his initials, "TSK".

[7] The petitioner, Tan Keen Keong @ Tan Kean Keong [Petitioner] is from the first family. In support of his petitions, the Petitioner relied on inter alia, the evidence of Tan Choo Leong [TCL] who is from the fourth family. The Petitioner and TCL are nephews of the 2nd and 3rd respondents and of TSK, and cousins of the 5th respondent.

[8] Although TCL was not a party to any of the petitions, he testified for the Petitioner as PW