KAMALANATHAN RATNAM J:

facts

The plaintiffs have brought this action by way of an originating summons (‘OS’) (encl 1) alleging that the defendants have failed and/or refused to return, inter alia, all files, documents, accounts and vehicles belonging to the first and second plaintiffs based on the causes of action of conversion and detinue and praying for delivery-up of the same and for damages to be assessed on account of the alleged failure and/or refusal to deliver-up.

On 15 June 1998, the plaintiffs by way of this application (encl 4) obtained an interlocutory mandatory injunction on an ex parte basis which had essentially given them the full reliefs they seek in so far as delivery-up was concerned.

On 31 March 1999, upon the defendants’ application (encl 25), I set aside the ex parte mandatory injunction obtained by the plaintiffs (encl 15) on the grounds of non-disclosure of material facts and lack of clean hands and made certain other consequential orders. I do not intend to repeat the facts leading to this case as I have already done so in my written judgment given on 31 March 1999.

the application

This is the plaintiffs’ application for an interlocutory mandatory injunction (encl 4) on the inter partes basis. A holding over the injunction has since been granted pending the disposal of this application.

findings of the court

The third and fourth plaintiffs’ claim to injunction

It is apparent from reading the plaintiffs’ OS (encl 1) that this action for the recovery of property allegedly belonging to the first and second plaintiffs is predicated upon the causes of action of conversion and detinue. This case does not concern any alleged breaches of any of the master agreement entered into between the third and fourth plaintiffs and the three defendants. This is also not a case for the return of property belonging to the third and fourth plaintiffs. In the circumstances I find that there is no reason whatsoever for the third and fourth plaintiffs to seek an interlocutory mandatory injunction by way of this application as they have not pleaded nor sought any relief in respect of any wrong done to them or in respect of any property belonging to them, either in the OS (encl 1) or in this application (encl 4). It is trite law that companies or corporations (the first and second plaintiffs) are the proper parties to sue for the recovery of property belonging to them (see the rule in Foss v Harbottle (1843) 67 ER 189; s 16(5)Companies Act 1965Abdul Rahim bin Aki v Krubong Industrial Park (Melaka) Sdn Bhd & Ors [1995] 3 MLJ 417

Of course there are exceptions to this principle of a separate legal personality of a company or a corporation and the principles and exceptions to the rule in Foss v Harbottle have been well stated by the Court of Appeal in the Krubong case. As a result thereof a type of action called a derivate action arose. This is where the minority is allowed to bring an action on behalf of the wronged company which company is otherwise disabled from bringing the action itself by virtue of the wrongdoers being in control of the company. The key circumstance is where the company itself is unable to bring the action due to the wrongdoers being in control of it.

In the case before me the first and second plaintiffs are not disabled in any way from bringing the action to recover what is allegedly their property, hence the exceptions to the rule in Foss v Harbottle cannot apply.

I am fully aware that I had previously dismissed encl 26 on 10 December 1998, which was the defendants’ application to, inter alia, strike out the third and fourth plaintiffs’ action on the basis that they had no sustainable cause of action. I must however emphasise that the effect of that decision was merely that the third and fourth plaintiffs’ action as a whole was not a plain and obvious one to be struck out summarily and that it merited full investigation at trial.

In this application I am being asked to determine whether the third and fourth plaintiffs