Atan Mustaffa Yussof Ahmad J:

GROUNDS OF JUDGMENT

INTRODUCTION

[1]Before the court is an originating summons filed by the Plaintiff under Section 346Companies Act 2016

BACKGROUND FACTS

[2]The 3rd Defendant, Enpro Solutions Sdn Bhd (“ESSB”), is a company that provides lightning protection systems to ensure safety of structures against lightning strikes. The 1st Defendant, Lee Seik Fun (“D1”), and the 2nd Defendant, Lim Leong Chuan (“D2”), are directors and majority shareholders of ESSB, holding 40% and 30% of shares respectively. The Plaintiff, Koay Peng Soon, is also a director and holds the remaining 30% of shares in ESSB.

[3]The shareholding structure of ESSB is as follows:

D1:40%

D2:30%

Plaintiff: 30%

[4]The Plaintiff joined ESSB as a director and shareholder on 5.5.2022. Prior to joining, the Plaintiff, D1, and D2 were business associates within the lightning protection services industry. The Plaintiff’s expertise was primarily in the northern region of Malaysia (Penang, Kedah, and Perlis).

[5]According to the Plaintiff, it was the common understanding between all three shareholders that:

a)While D1 and D2 would be the “maker” and “approval” for financial transactions of ESSB, the Plaintiff would be allowed to examine financial transactions and have access to ESSB’s financial accounts;

b)The business and affairs of ESSB would be managed based on mutual trust, confidence, and good faith among the shareholders; and

c)Profits of ESSB would be enjoyed and distributed equally through dividends without any prejudice or discrimination between the three shareholders.

[6]D1 and D2 contend that there was a business arrangement where ESSB would collaborate with the 5th Defendant, Enpro Teknologi Sdn Bhd (“ETSB”), and the 6th Defendant, Enpro Engineering Sdn Bhd (“EESB”). Under this arrangement, the Plaintiff would source customers for ESSB, EESB would handle engineering aspects, and ETSB would supply and deliver lightning protection system materials. Payments received by ESSB from customers would be distributed to ETSB and EESB according to agreed distribution rates for each project.

[7]The 4th Defendant, Abre Engineering Sdn Bhd (“AESB”), is also involved in this matter concerning a specific transaction of RM250,000.00 transferred from ESSB’s accounts to AESB on 9.2.2024.

[8]It is undisputed that D1 and D2 are the sole shareholders and directors of ETSB, EESB, and AESB.

THE ORIGINATING SUMMONS

[9]This Originating Summons is filed by the Plaintiff as a minority shareholder oppression action against D1, D2, ESSB, AESB, ETSB, and EESB. The Plaintiff seeks:

a)a declaration that D1 and D2 are conducting the affairs of ESSB in an oppressive manner and in disregard of his interests as a member;

b)a declaration that transactions totaling RM2,036,673.60 transferred to ETSB and EESB and RM250,000.00 transferred to AESB are illegal, null and void;

c)an order that D1 and D2 buy out his entire 30% shareholding in ESSB at fair value as determined by an independent valuer;

d)specific valuation criteria including clawback of the allegedly illegal transactions, valuation as a going concern with no minority discount;

e)payment of the determined value within 14 days; and

f)costs to be borne by D1 and D2 with liberty to apply.

[10]The Plaintiff’s case is founded on two main limbs of oppressive conduct under Section 346Companies Act 2016

[11]First, beginning in August/September 2023, D1 and D2 systematically denied the Plaintiff access to ESSB’s accounts and financial information, with D2 explicitly stating “I’m now the commander” and “no further story to tell” when questioned about dubious transactions. This denial of access kept the Plaintiff in the dark about ESSB’s financial affairs despite his rights as a director and 30% shareholder.

[12]Second, having gained complete control over ESSB’s accounts, D1 and D2 proceeded to divert substantial company funds to related entities in which they were the sole shareholders, specifically transferring RM250,000.00 to AESB and at least 59