Leong Wai Hong J:

Judgment

[Application to proceed with opprSession Originating Summons as if begun by way of a Writ]

Introduction

[1] The plaintiff holds a 35% share in Peninsular Steel Galvanising Sdn Bhd (“PSG”), the first defendant in this case. The second defendant [Ng Kong Chen @ Ng Ting Miew (NRIC No.: 490325-10-5455) and the third defendant [Ng Jinn Yeong (NRIC No.: 810326-14-5547] are directors of PSG, with the second defendant owning 55% of the shares and the third defendant owning 10% of the shares in PSG.

[2] The plaintiff has filed an Originating Summons dated 23-04-2024 in Enclosure 1 (“OS”) against the 2^nd and 3^rd defendants seeking a remedy premised on section 346Companies Act 2016

i.that the affairs of PSG are being conducted or the powers of the directors are being exercised in a manner oppressive to him as a member;

ii.or in disregard of his interests as a member.

[3] Affidavits were filed by the parties. Subsequently, the plaintiff filed an application in Enclosure 13 dated 03-10-2024 under Order 28 rule 8 [1] Rules of Court 2012 [“ROC 2012”] to proceed with the OS as if it was begun by way of a Writ. This is opposed by the defendants.

Plaintiff’s Contentions

[4] The plaintiff contends it cannot proceed with the OS format but needs a conversion to a writ as a trial is required because-

i.the defendants deny there is oppression;

ii.there are factual allegations made by the plaintiff which are denied by the defendants; and

iii.the plaintiff needs to subpoena witnesses to testify on disputed facts.

[See Enclosure 21 plaintiff’s written submissions at paragraph 3]

Defendants’ Contentions2

[5] The defendants contend a trial is not needed because “if there is any conflict of facts, which the plaintiff has failed to prove, the plaintiff could resort to the process under Order 28 rule 4 ROC 2012 to cross-examine the 2nd and 3rd defendants”, unquote. [See Enclosure 19 defendants’ written submissions at paragraph 18].

[6] The defendants also contend a trial is not needed because-

i.It is mandatory under Order 88 Rules of Court 2012 for an action under section 346CA 2016

ii.Issues raised are irrelevant to oppression and do not in any way prove that the plaintiff’s rights as a shareholder have been affected. It is trite law that mismanagement of the company, if any, do not amount to oppression;

iii.The plaintiff is embarking on a fishing expedition via a trial; and

iv.The plaintiff offered no explanation why the 2nd and 3rd defendants could not be cross-examined on the affidavits.

[See Enclosure 19 defendants’ written submissions at paragraph 5]

Law on conversion of OS to writ

[7] Where the facts are contradicted on substantial grounds, the court has the discretion under Order 28 rule 8(1) ROC 2012 to order that the proceedings be continued as if the cause or matter had been begun by writ.

[See Malaysian Civil Procedure 2024 Volume 1 Sweet and Maxwell at 28/8/1 and 88/2/4, Ting Ling Kiew v Tang Eng Iron Works Co Ltd Ting Ling Kiew”] and Khoo Kheng Sim v Khoo Chooi Leong Khoo Kheng Sim”]].

[8] The plaintiff may by his own accord make such an application for conversion. However, the court may dismiss the conversion application where documentary evidence is sufficient to address the issues arising.

[See Malaysian Civil Procedure 2024 Volume 1 Sweet and Maxwell at 28/8/1 and 88/2/4, Ho Yaw Ming v Ho Yau Hong & Ors [“Ho Yaw Ming”]; Lee Quan Yoong v Koh Heng Jin Holdings Sdn Bhd & Ors [2020] AMEJ 1001; ; Lee Quan Yoong”]].

Outcome

[9] I heard counsel and allowed the plaintiff’s application on 09-01-2025 with costs in the cause. The defendants are unhappy and have appealed to the Court of Appeal on 27-01-2025.

[10] These are my Grounds of Judgment. For the purposes of this Judgment, the term “oppression”, when used in isolation by me, is used as a short form to refer to the entire range of conduct prohibited by section 346CA 2016

Facts of the case

[11] On 23-04-2024, the plaintiff filed an OS seeking reliefs under section 346CA 2016^st defendant and/or are e