The court has inherent jurisdiction to intervene in winding-up proceedings when abuse of process occurs due to material non-disclosure.

Introduction

[1] There are nine sets of court proceedings currently being jointly tried in the High court of Sabah and Sarawak at Kuching ('the Kuching High court'). They relate to the Yii/Yu family that comprises six brothers (two of whom are deceased). The full factual matrix has been set out in the 1st and 2nd respondents' chronology of facts. Their family business empire has more than 30 companies. Three of the companies that are alleged to comprise a part of the family companies include Sibu Slipway Sdn Bhd and its two fully owned subsidiaries namely Lambang Sinar Mas Sdn Bhd and Ensengei Palm Oil Mill Sdn Bhd ('the three companies'). These three companies comprise the subject matter of the appeals before us.

Salient Facts

[2] There have been disputes between the 1st and 2nd respondents on the one part and Dato' Yu Chee Hoe and Tony Yu Yuong Wee on the other part in relation to the sharing of the family assets and companies between the brothers. This has led to the nine court proceedings that are being jointly tried as mentioned earlier. Of these nine suits, Civil Suit No: KCH-22NCVC-16-3-2014 ('the 16/3 suit') is a suit between Dato' Yu Chee Hoe, Tony Yu Yuong Wee and the three companies on the one part ('the plaintiffs in the 16/3 suit') and the 1st and 2nd respondents on the other part.

[3] In the 16/3 suit, Tony Yu Yuong Wee sought a declaration that he was the legal and beneficial owner of one share in Sibu Slipway Sdn Bhd registered in his name. The 1st and 2nd respondents filed counterclaims on the grounds that these three companies are and were at all material times part of the Yii/Yu family companies and, more pertinently, that Dato' Yu Chee Hoe and Tony Yu Young Wee are holding the shares in the three companies on trust for all the Yii/Yu brothers.

[4] Pending the trial of some of the other suits, the Kuching High court allowed ex parte applications taken out by the 1st respondent and his brother-in-law for injunctions to preserve the shares of two other companies, namely one Megapron Engineering Sdn Bhd and one Megakina Shipping Sdn Bhd These injunctions were affirmed inter partes by the High court on 19 November 2014, and the High court's decision was affirmed by this court on 25 June 2015.

[5] On 19 November 2014 when these orders were affirmed inter partes, the Kuching High court further ordered that all nine suits be heard jointly.

[6] Shortly before the commencement of these joint trials, the 1st and 2nd respondents became aware that Dato' Yu Chee Hoe and Tony Yu Yuong Wee had realised the assets of Lambang Sinar Mas Sdn Bhd and Ensengei Palm Oil Mill Sdn Bhd to Koperasi Permodalan Felda Malaysia Berhad for a consideration totalling RM60 million (RM5 million for Lambang Sinar Mas Sdn Bhd, RM55 million for Ensengei Palm Oil Mill Sdn Bhd). The 1st and 2nd respondents were concerned about a potential dissipation of these monies and sought to obtain an order for the preservation of a one third share of the net proceeds of the sale.

[7] This application for a preservation order in Suit No: KCH-22NCVC-16-3-2014 was fixed for hearing on 13 July 2015 but rescheduled to 21 September 2015. On that date, the 1st and 2nd respondents' advocate was ready to proceed with the hearing of the application. However, the advocate for the plaintiffs in the 16/3 suit requested for an adjournment on the grounds that the plaintiffs intended to file an affidavit in relation to the status of the three companies. The status of the three companies was not disclosed to the Kuching High court at the time the adjournment was sought. However, it was stressed that the status of these companies was very material to the hearing of the application f