(JUDGMENT NO. 2)

This Appeal is to determine whether the High Court was right to order the winding-up of Fairview Schools Berhad (FSB). The judgment is now reported as Indrani a/p Rajaratnam & Others v. Fairview Schools Berhad [1997] 3 CLJ 460; [1997] 5 MLJ 267. For reasons which will follow later the salient facts have to be restated.

The Respondents in this Appeal were the Petitioners in the Court below. They are referred hereafter as the Petitioners. Their whole case was based on an assertion that the permit issued by Government to run the schools belonged to Ahmad Roose, P.S. Sundram (Sundram) and Dr. I.U. Malik (hereafter referred to as the Group of 3 or G3 for short). They claimed that FSB was merely a [Page 3] trustee of all its assets for the G3. They even claimed that the liabilities of FSB were the personal concern of the incumbent directors of FSB after the 11th November 1992.

The point of origin of these claims is a letter dated 28th July 1978 from the Ministry of Education (the Ministry's letter). There is a purported copy of the Ministry's letter dated 28th July 1978 annexed to Sundram's written submission (1st Volume Appeal Record page 79, 3rd Volume Appeal Record page 619) in the Court below. It is not signed. The letter head contains the Ministry's fax number.

Ahmad Roose also exhibited a purported copy of this letter in his affidavit affirmed on the 20th January 1995 (2nd Volume Appeal Record page 514, 3rd Volume Appeal Record page 859). It is a photostat of the same document. It is also not signed.

The third copy of the Ministry's letter was exhibited by Puan Arpah bte Haji Mohamad, the Deputy Director-General of Education in her affidavit of the 19th April 1996. Sundram had filed a civil suit S4-22-594-93 on the 4th October 1993 for declaratory relief alleging [Page 4] wrongful dismissal from his post as Managing Director of FSB. The winding-up Petition was filed on the 25th August 1994. Before the winding-up Petition was heard the G3 filed Originating Motion No. R. 1-25-9-25 against the Chief Registrar of Schools and the Ministry of Education for a mandamus. The object of this exercise was to restore Ahmad Roose as the permit holder as opposed to K. Balan Thurasingham (KBT). The civil suit and the mandamus proceedings have been put on hold pending the disposal of this Appeal. The files relating to those matters are not before us. However Puan Arpah's affidavit aforesaid which was filed in the mandamus proceedings was introduced into evidence in this matter without objection in the Court below. It contains the only signed and authentic file copy of the Ministry's letter (1st Volume Appeal Record page 243). The date 28th July 1978 has been overwritten to read 3rd August 1978 and the letter is signed by P. Navaratnarajah. The authenticity of the date 3rd August 19978 is confirmed by Ahmad Roose's reference to it in his letter dated 1st March 1979. Since faxes were not in use in 1978 it must follow that the unsigned copies relied on by Sundram and Ahmad Roose are of a later vintage. The contents of all three letters however are identical, so nothing should turn on this.

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The proper interpretation to be placed upon this letter is hotly disputed. Whilst the G3 may have been the active individuals concerned in setting up the Fairview Schools the first paragraph of this letter categorically states that the request to set up schools named "Fairview Schools Association" at 40 Jalan Utara, Bukit Bintang and 216 Jalan Pekeliling, Kuala Lumpur came not from any or all the individuals of the G3 but from the Parent-Teacher Association of the Garden School. The Fairview Schools Association is hereafter referred to as FSA. The Ministry's letter is addressed not to Ahmad Roose but to the Registrar of Schools. The second paragraph states that the Ministry has no objection in principle to the establishment of such schools because it was intended for expatriate children and was not profit oriented. The third paragraph