ALINA BINTI MOHD TAHIR v 1. ) SETIA FOOD HUNTER SDN. BHD. 2. ) TIONG BOON KEONG 3. ) TAN KIM LAI 4. ) AHMAD BASHIER BIN MUHAMMAD AFIFI

Case Significance

Confirms that a company secretary's challenge to her removal may be determined by originating summons for declaratory relief, but that a claim for damages requiring pleaded particulars and an assessment of quantum must be pursued by a separate writ action.

This High Court decision at Johor Bahru concerns a challenge by a company secretary to her removal from office, brought by originating summons under sections 236 and 239 of the Companies Act 2016. The applicant sought declarations that her purported removal as company secretary of the first respondent on 20 December 2024 was null and void, that she remained the lawful company secretary, and that the appointment of the fourth respondent in her place was invalid, together with damages for the loss and distress said to arise from her removal. The respondents opposed the application, relying on a board resolution said to have been passed on 20 December 2024 and contending that a claim for damages could not be sustained in proceedings commenced by originating summons. The Court examined the validity of the removal and the subsequent appointment, having regard to the requirements of notice and procedural fairness. On the declaratory relief, the applicant succeeded. On the claim for damages, however, the Court held that general, exemplary and aggravated damages of the kind sought must be supported by specific pleadings and evidence of quantifiable loss, and that no particulars of loss had been set out in the supporting affidavit or the originating summons, leaving the Court unable to assess any compensatory sum. More fundamentally, the Court observed that an originating summons is a procedure intended for declaratory and interpretative relief where the facts are largely undisputed, whereas a claim for damages involving factual disputes and an assessment of quantum must be brought by writ action, as reaffirmed in Ismail Othman & Ors v Seacera Group Bhd & Ors. Accordingly, while the applicant succeeded on the declaratory aspects of her claim, the head of damages was dismissed, without prejudice to her right to pursue it in a separate writ action. The declaratory relief therefore stood, but the compensatory claim was left to be litigated in the proper form so that any factual disputes and the quantum of loss could be tried.