Peh Swee Chin J:

This case involved also the interpretation of s. 218(1)(f) of the Companies Act 1965 which did not seem to have dealt with by any Malaysian Court in any reported judgment, a situation no doubt partly brought about by the fact that s. 218(1)(f) was transplanted from Australia in 1965, the same not having been in United Kingdom's Companies Act 1948, or our previous Companies Ordinance 1946.

It reads as follows:

218. (1)

(a) ... (b) ... (c) ... (d) ... (e) ...

(f) the directors have acted in the affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever which appears to be unfair or unjust to other members;

(g) ... (h) ...

(i) the Court is of opinion that it is just and equitable that the company be wound up.

It will be more convenient to set out my views on s. 218(1)(f) before dealing with the facts so that the latter can be seen in their proper perspective, fortunately with the help of an Australian case on the same section, viz.Re Cumberland Holdings Ltd., [1976] 1 ACLR 361.

Section 218(1)(f) has two limbs, the first limb containing the phrase, inter alia, "interests of members as a whole" and the second, the phrase, inter alia also, "unfair and unjust to other members."

About the phrase, "interests of members as a whole", I have adopted respectfully the interpretation of Bowen CJ in Equity of New South Wales Supreme Court in Re Cumberland Holdings Ltd. that the phrase means a situation where directors are shown to have preferred their own interests to the interests of one, or more or perhaps some significant section of the members so that the action of directors may be open to challenge notwithstanding that it coincides with the interests of the majority shareholder. The test in connection with such challenge seems to be that the said s. 218(1)(f) or para. (f) applies when the directors are seen not have been acting in the interests of all the members and cannot be said therefore to have been acting in the interests of members as a whole.

It will be seen therefore that the scope of the para. (f) is very wide indeed, it can cover a great number of situations which would lie outside, e.g. s. 181 of the Companies Act 1965 in connection with "oppression" or "disregard" as judicially explained in a number of reported cases in Malaysia, notably Re Kong Thai Sawmill (Miri), Sdn. Bhd. [1978] 2 MLJ, 227 PC.

The second limb of para. (f) regarding the phrase "unjust or unfair to members" was unfortunately not elucidated by his Lordship in Re Cumberland Holdings.

The words "unjust or unfair", are not technical terms of law but are ordinary words which will certainly defy attempt of precise legal definition, as, e.g. even the meaning of the words "justice" has been debated for centuries by eminent thinkers. For the purpose of law, their meaning is best left to its highly flexible state, though the words should have reference in my view to some commercial morality or integrity which the law ought to uphold or sustain, having regard to all the surrounding circumstances.

I have mentioned also commercial morality or integrity because the words viz. "unjust and unfair" should also be subject to equitable considerations, i.e. as described by Lord Wilberforce in Ebrahimi v. Westbourne Galleries Ltd., [1973] AC 370, as equitable considerations of a personal character arising between individuals which might make it inequitable to insist on legal rights or exercise them in any particular way. Although his Lordship gave the description when interpreting the provision of "just and equitable" for winding up a company, (that is, para. (i) of our Companies Act 1965, where the word "equitable" is used, but not used in para. (f) under discussion presently,) the words "unjust and unfair" would lend themselves to such superimposition of such equitable considerations on themselves.

In connection with the second limb of para. (f), I am in entire agreement w