Disqualification of counsel requires a proven former solicitor-client relationship and the existence of confidential information, which was not established in this case.

See Mee Chun JCA:

Introduction

[1] Enclosure 34 is an application by the respondent to recuse and/or disqualify Mr Nahendran Navaratnam (NN) and Ms Wong Wye Wah (WWW) from acting as counsel for the appellants.

[2] We had dismissed the application and we now give our reasons.

The Cause Papers

[3] The cause papers are as follows:

3.1 The respondent's Notice of Motion dated 12 December 2020 (encl 34);

3.2 The respondent's Affidavit in Support affirmed by Lim Siew Kim and Chan T'shiao Li on 11 December 2020 (encl 35 and encl 36);

3.3 The appellants' Affidavit (No 1) affirmed by Nahendran Navaratnam on 29 December 2020 (encl 42);

3.4 The appellants' Affidavit (No 2) affirmed by Ang Joo Koon (Ang) on 29 December 2020 (encl 43); and

3.5 The respondent's Affidavit in Reply (1) affirmed by Lim Siew Kim and Chan T'shiao Li on 22 January 2021 (encl 48).

The Relevant Parties

[4] The appellants are independent directors of Apex Equity Holdings Bhd (Apex), a public listed company and a licensed broking house.

[5] The respondent is an investment holding company. At all material time, the respondent is a shareholder of Apex with approximately 8,898,480 shares or 4.17% of the issued and paid up capital of Apex. NN is the lead counsel for the appellants and WWW his assistant.

[6] Mdm Lim Siew Kim (Mdm Lim) is the director and shareholder of the respondent and mother of Ms Chan T'shiao (Ms Chan). Ms Chan is the former director and/or shareholder of the respondent and ceased to be so by 31 August 2014. Mdm Lim and Ms Chan are mother and daughter.

The Present Appeal

[7] On 27 June 2019 Mercury Securities Sdn Bhd (Mercury) and JF Apex Securities Sdn Bhd (JF Apex), a wholly owned subsidiary of Apex, filed Originating Summons No WA-24NCC-345-06/2019 (OS 345). This was to seek a vesting order to give effect to the business merger between Mercury and JF Apex and this was granted on 1 July 2019.

[8] The respondent applied to intervene and set aside the vesting order and also filed a counterclaim against Mercury, JF Apex, Apex, Alliance Investment Bank Bhd (Alliance) and the appellants. In the counterclaim, the respondent sought a declaration that the Resolutions passed at the EGM of Apex on 19 June 2019 be invalidated and/or annulled and/or set aside. This was premised on the Conditions Precedent to the Business Merger Agreement (BMA) not being fulfilled and remained conditional.

[9] In defending the counterclaim, it was contended by the appellants that the counterclaim was procedurally improper as the respondent was not entitled to add the appellants who are non parties to OS 345 as additional parties.

[10] On 18 September 2019 the High Court set aside the Resolutions with damages against Apex and JF Apex to be assessed; and the counterclaim against Mercury and Alliance dismissed. The appellants' defence of the counterclaim being procedurally improper was not accepted. The counterclaim against the appellants was allowed but the merits were not decided and no further order was made.

[11] The present appeal relates to that part of the High Court judgment which held there was no procedural impropriety in relation to the filing of the counterclaim.

Originating Summons No WA-24NCC-264-05-2019 (OS 264)

[12] Prior to the filing of OS 345, Apex and JF Apex filed OS 264 against the respondent, Mdm Lim, Ms Chan and 15 others on 17 May 2019 seeking declarations they are aggrieved persons within the meaning of s 360(1)(d) of the Capital Markets and Services Act 2007 (CMSA); that the respondent, Mdm Lim, Ms Chan and the others have contravened the provisions of the CMSA and the Licensing Handbook SC-GL/LH-2007 concerning the control and takeover codes and that the respondent, Mdm Lim, Ms Chan and the others are deemed persons acting in concert (PACs).

[13] All the defendants filed a striking out action. Ms Chan, through her solicitors Messrs Dennis Nik & Wong (DNW), appointed NN and WWW as counsel to oppose and strike out OS 264. OS 264 was successfully struck out against all the