JUDGMENT

Richard Malanjum JCA:

Introduction

This is an appeal by the appellants (the petitioners in the court below and hereinafter referred to as 'the petitioners') against the decision of the High Court rendered on 9 October 2001 striking out their petition (as amended) on the application by the respondents (the respondents in the court below and hereinafter referred to as 'the respondents'). The main relief sought for in the petition is for an order to wind up the 9th respondent herein on the ground that it is just and equitable pursuant to s. 218(1)(i) of the Companies Act 1965 (the Act).

The petition was filed on 21 May 2001 and fixed for hearing on 16 August 2001. Affidavits in support of the petition as well as in opposition were also filed. And in the interim the respondents by a notice of motion dated 15 June 2001 applied for the order to strike out the petition pursuant to O. 18 r. 19(1)(a), (b) or (d) of the Rules of the High Court 1980 (the RHC) and/or under the inherent jurisdiction of the court on the ground that it was an abuse of process of the court. Meanwhile on 18 July 2001 the petitioners obtained an order to amend the petition.

The hearing of the notice of motion was fixed on 27 July 2001 with the end result as alluded to hereinabove.

The Background Facts

From the petition as amended and the several affidavits filed by the contesting parties some undisputed facts can be discerned. They have been set out in chronological order by the court below. Hence it will suffice if the gist is reproduced herein as follows:

1.Tan Chong & Co was founded in the early 1930s by the patriarch Tan Chong as a sole proprietorship.

2.In 1946 or thereabout a partnership of Tan Chong & Co. (TC & Co.) was founded with the partners being the late Tan Chong and his two sons, namely the 1st petitioner and his brother the late Tan Sri Tan Yuet Foh, the father of the 1st respondent. The business was in food supply.

3.Over the years the business of the partnership flourished and the brothers saw an opportunity in the automobile business. The end result was that the partnership became the distributor for Nissan and Datsun cars in addition to the then existing business of food supply.

4.On 16 February 1959 Tan Chong & Sons Motor Company Sdn. Bhd. (TCM) was incorporated to carry out the automobile business. The first subscribers and directors were the two brothers.

5.The food supply business remained with TC & Co.

6.The automobile business expanded and diversification of the business came into being. TCM went into car rentals, distribution of commercial vehicles and industrial equipment and tour and travel services. There was therefore a necessity to incorporate several companies to accommodate the various businesses.

7.There was also a regional expansion of the business with the setting up of companies in nearby Singapore as for instance in 1966 the Tan Chong & Sons Motor company (Singapore) Private Limited (TCCS) was established while in 1968 the Singapore Automotive Industries Private Limited (SAI) was acquired.

8.With the expansion of the business came the involvement of the younger generation of the family to assist the older members in the management.

9.Then there was the next move to go public but with the caution that the Tan Chong family must continue to be in controlling position.

10.To achieve that plan the family was advised to set up an investment holding company to be a holder of a controlling stake of shares in the company that would be public listed. And it was also planned that only members of the Tan Chong family would be the shareholders of the proposed investment holding company. In effect the Tan Chong family would continue to dominate the intended public listed company.

11.On 4 October 1972 beginning as a private company the Tan Chong Motor Holdings Berhad (TCMH) was established. It became a public listed company on 1 September 1973. With the establishment of TCMH the other companies of the family including TCM were a