Atan Mustaffa Yussof Ahmad J:

JUDGMENT

[1]This judgment concerns an application for leave to cross-examine deponents in an oppression action under the Companies Act 2016. The underlying dispute involves a minority shareholder who claims he was wrongfully removed as director and had his shareholding diluted through a share allotment to a new director. The applicant seeks to cross-examine witnesses on three main issues: whether the company operates as a quasi-partnership, the circumstances leading to the shareholder’s removal as director, and allegations of financial misconduct. The application was filed approximately six months after the exchange of the main affidavits and two months before the scheduled hearing date of the oppression action. The respondents oppose the application on grounds that it was filed with undue delay, the disputed facts are not central to the core issues, and there is sufficient documentary evidence for determination. This matter requires the court to consider whether particular circumstances justify departing from the usual practice of determining such applications on affidavit evidence alone.

Background facts

[2]CJ Polymers Sdn Bhd was incorporated on 16.2.2001. By 27.12.2018, the shareholding structure consisted of the Plaintiff, Kerk Han Meng, (“Kerk”) and the 4^th Defendant, Sim Chin Hu, (“Sim”) as equal shareholders, each holding 10,000,000 shares. On 12.9.2019, both Kerk and Sim transferred 300,000 shares each to the 1^st Defendant, Lee Yu Meng, (“Lee”) resulting in Kerk and Sim each holding 48.5% (9,700,000 shares) and Lee holding 3% (600,000 shares).

[3]On 23.12.2021, CJ Polymers allotted 6,000,000 additional shares, with 5,820,000 going to Kerk and 180,000 to Lee. This changed the shareholding structure to: Kerk with 59.7% (15,520,000 shares), Sim with 37.3% (9,700,000 shares), and Lee with 3% (780,000 shares).

[4]In March 2020, Sim filed Kuala Lumpur High Court Originating Summons No. WA-24NCC-138-03/2020 (“OS 138”) against CJ Polymers, Kerk and Lee under Section 346Companies Act 2016^nd Defendant, (“Kua”) was brought in as a defendant in OS 138 because he was a shareholder who had purchased 1/3 stake in CJ Polymer and was allegedly involved with the Kerk and Lee in oppressing Sim’s rights by orchestrating the transfer of 3% shares to break the 50:50 deadlock, which enabled them to remove Sim from management. The High Court on 9.11.2022 found in Sim’s favour, holding that CJ Polymers was formed as a quasi-partnership between Sim and Kerk with an understanding that both would participate in management as long as they remained shareholders, and ordered that Sim’s shares be bought out by CJ Polymers and/or alternatively by Kerk, Lee or Kua at fair value to be determined by an independent valuer.

[5]Both Kerk and Lee filed appeals against this decision in Appeal No. W-02(NCC)(A)-2148-11/2022 (“Appeal 2148”), which was pending and scheduled for hearing on 29.5.2024. Kerk has since filed a Notice of Discontinuance of his appeal on 20.5.2024.

[6]On 29.8.2023, Lee passed a circular resolution declaring that Kerk had vacated his office as director of CJ Polymers. On the same day, the 3^rd Defendant, Wong Kok Kheong (“Wong”) was appointed as a director. Shortly after, on 6.9.2023, CJ Polymers allotted 26,000,000 shares to Wong at RM0.05 per share, doubling the total issued shares to 52,000,000. This created a new shareholding structure: Wong with 50% (26,000,000 shares), Kerk with 29.85% (15,520,000 shares), Sim with 18.65% (9,700,000 shares), and Lee with 1.5% (780,000 shares).

[7]On 18.9.2023, Kerk was prevented from entering CJ Polymers’ office. That same day, CJ Polymers engaged BDO Malaysia for a forensic investigation into certain transactions.

[8]On 29.9.2023, Lee lodged a police report against Kerk and Sim alleging criminal breach of trust involving RM3,169,480.47.

[9]On 5.10.2023, Kerk filed the present Originating Summons (“OS”) challenging three specific corporate actions: his removal as director, Wong’s