JUDGEMENT

Abdul Hamid Mohamad FCJ:

By a notice of motion dated 17 December 2004, the applicant, inter alia, prayed for the following orders:

1. That leave be granted that Civil Appeal No. 02-03-2004 (J) be re-heard;

2. That the judgment of this court delivered on 22 October 2004 be set aside.

3. That the execution of the said judgment be stayed pending the final disposal of this court in respect of this motion.

To give a brief history of the case, the respondent commenced proceedings in the High Court, Johor Bahru praying for specific performance of an agreement dated 16 December 1995 and, alternatively, for a declaration that the respondent and/or his nominee is the registered and beneficial owner of 32,630 shares in Son Huut Plantation Sdn. Bhd. ("SHP") and that the company secretary registers the respondent and/or his nominee as the legal and beneficial owner of the said shares.

The respondent then applied for a summary judgment pursuant to O. 81 of the Rules of the High Court 1980 ("RHC 1980").

The High Court made an order declaring that the respondent or his nominee was the beneficial owner of the said shares but dismissed the prayer that the company secretary registers the shares in the name of the respondent or his nominee on the ground that the secretary was not made a party.

The applicant then appealed to the Court of Appeal. The respondent also cross-appealed against the refusal of the High Court to direct the company secretary to register the said shares in the name of the respondent or his nominee. On 3 April 2002, the Court of Appeal dismissed both the applicant';s appeal and the respondent';s cross appeal.

On 3 March 2004, this court granted the applicant leave to appeal to this court on the following question:

whether the beneficial interest (but not the legal interest) in the shares of a private limited company can pass from a Vendor to the Purchaser upon the disposal of the said shares in non-compliance with the restriction on transfer of share provisions contained in the article of association of the said private limited company i.e. the shares must be offered to the existing members of the company before it may be transferred to a non-member of the company.

On 17 March 2004, the respondent filed a notice of cross-appeal.

The appeal was heard by this court on 15 July 2004. On 22 October 2004, this court delivered its judgment wherein the applicant';s appeal was dismissed with costs and the respondent';s cross-appeal was allowed with costs. This court thus declared that the respondent was both the beneficial and legal owner of the said shares and further ordered the company secretary to register the respondent or his nominee as the "beneficial and registrable owner" of the shares. The judgment of this court was reported in [2004] 4 CLJ 533.

It is that judgment of this court that the applicant is asking this court to set aside and that the appeal be re-heard.

Learned counsel for the applicant listed a number of "errors in law and or errors in law and fact" in the judgment of this court dated 22 October 2004 as grounds to support this application. They are, in brief:

(1) This court failed to consider that the agreement in question was a bilateral contract and therefore could not involve third parties including the other shareholders of SHP.

(2) This court failed to consider that the share certificates in question were deposited with the respondent as a collateral or pledge to secure the repayment of RM270,000 paid by the respondent to the applicant for the purchase of 8,039 shares in Chan Tiong Kwai Realty Sdn. Bhd. ("CTK").

(3) The court erred in law in relying on s. 6A(6) of the Companies Act 1965 without considering properly whether the said section was applicable to a private limited company.

(4) This court failed to consider that s. 15 of the Companies Act 1965 was applicable to the case and not s. 6A(6).

(5) This court only took into consideration the case of Hawks v. Mc Arthur & Ors. [1951