wa-22ncc-221-05-2022 — PUNCAK KENANGAN (M) SDN BHD v 1. ) SYED SAZLEE BIN SYED HAMZAH 2. ) Suruhanjaya Syarikat Malaysia (SSM) 3. ) KHOO KIAM CHONG

Catchwords

FRAUD: Impeachment of consent order – Consent order procured by conscious and deliberate concealment of material facts – Setting aside judgment on ground of fraud – Whether test for fraud requires proof of conscious and deliberate dishonesty – Whether constructive fraud or mere unconscionability sufficient – Whether concealed facts must be material in the sense their disclosure would have fundamentally altered the manner in which the court approached and decided the matter – Whether applicant who personally approved and benefited from impugned transactions could conceal such involvement and seek to challenge those same transactions – Whether consent order entered bilaterally between applicant and statutory body without participation of affected parties could stand – Whether fraud vitiates judgments, agreements and transactions – Applicability of 'fraud unravels everything' principle – Whether fresh action to impeach judgment obtained by fraud barred by res judicata COMPANY LAW: Register of members – Rectification of register – Appeal under s 602(4) Companies Act 2016 against Registrar's refusal to rectify – Whether consent order directing Registrar to reconsider rectification application affects proprietary rights of shareholders – Whether company whose register is subject of rectification application is a necessary party – Whether Registrar entitled to know full facts when making decisions about exercise of discretionary powers – Whether consent order merely procedural or dispositive of parties' rights CONTRACT LAW: Champerty and maintenance – Champertous agreements void as contrary to public policy – Whether Declaration of Trust, Power of Attorney and Agreement for Shares constitute champertous arrangements – s 24(e) Contracts Act 1950 – Whether person with no pre-existing legitimate interest in litigation agreeing to assist party in return for share of proceeds constitutes champerty – Whether interest derived solely from impugned champertous agreements could confer legitimate standing – Whether circularity of deriving standing from agreement whose validity is in question – Whether stranger to company with no shareholding, directorship or creditor relationship has independent legitimate interest – Whether champertous agreements void by operation of law without need for formal declaration – Whether proceedings instituted pursuant to champertous arrangements liable to be set aside – Whether finding of no conspiracy in separate proceedings precludes finding of champerty – Whether arrangement designed to enable party to obtain indirectly what failed to obtain through dismissed litigation NATURAL JUSTICE: Breach of audi alteram partem principle – Deliberate exclusion of interested parties from proceedings – Whether party whose proprietary rights may be affected entitled to notice and opportunity to be heard – Whether consent order obtained in breach of natural justice is a nullity – Whether affected party entitled to have order set aside ex debito justitiae – Whether right to be heard applicable where rectification of register of members would fundamentally alter shareholding structure – Whether opportunity to participate at subsequent administrative stage cures exclusion from court proceedings in which order was obtained – Whether bilateral consent order binding on parties who were not party to it and had no knowledge of it ABUSE OF PROCESS: Multiplicity of proceedings – Whether filing of successive proceedings based on substantially similar allegations regarding same underlying transactions constitutes abuse of process – Whether repeated attempts to relitigate matters determined adversely in prior proceedings amounts to collateral attack – Whether litigation pursued not for vindication of rights but for commercial benefit of intermeddler – Whether cumulative effect of excluding interested parties, concealing mater

Practice Areas

FRAUD: Impeachment of consent order COMPANY LAW: Register of members CONTRACT LAW: Champerty and maintenance NATURAL JUSTICE: Breach of audi alteram partem principle ABUSE OF PROCESS: Multiplicity of proceedings

Judges (1)

Atan Mustaffa Yussof Ahmad Delivered

Counsel (13)

Lim Kian Leong & Co Firm Vazeer Akbar Majid & Co. Firm Zahir Jeya & Zainal Firm Dennis Xavier Counsel Defendant Jeane Lee Yi Jin Counsel Plaintiff Jeyakumar Palakrishnar Counsel Plaintiff Nor Syairah Sulaiman Counsel Defendant Normadiah Mohammad Counsel Plaintiff Rossa Severinus Counsel Defendant Shamitha a/p Ganisan Counsel Plaintiff Stanley Sebastian a/l Sinnappen Counsel Defendant Terence Chan Kah Meng Counsel Plaintiff Ung Zhee Laine Counsel Plaintiff

Parties (4)

PUNCAK KENANGAN Sdn Bhd Plaintiff Suruhanjaya Syarikat Malaysia Defendant Khoo Kiam Chong Defendant Syed Sazlee bin Syed Hamzah Defendant

Summary

Two suits heard together challenged a consent order obtained in earlier proceedings regarding the register of members of Puncak Kenangan (M) Sdn Bhd, alleging it was procured through fraud, champerty, and in breach of natural justice. The High Court impeached and set aside the consent order in its entirety, finding it was obtained through conscious and deliberate concealment of material facts, pursuant to champertous arrangements void under s.24(e) Contracts Act, and in violation of the audi alteram partem principle.

What was the outcome of PUNCAK KENANGAN (M) SDN BHD v 1. ) SYED SAZLEE BIN SYED HAMZAH 2. ) Suruhanja...?

<p>Two suits heard together challenged a consent order obtained in earlier proceedings regarding the register of members of Puncak Kenangan (M) Sdn Bh...

Statutes Cited

Companies Act 2016 (Cap 777)

Contracts Act 1950 (Cap 136)

Rules of Court 2012

Cases Cited (25)

SG (1)

[2006] SGCA 46

SLR (2)

[1998] 1 SLR 374 [2016] 5 SLR 103

UK (5)

[1956] 1 All ER 341 [1967] 2 QB 729 [1993] 1 WLR 1489 [2003] 1 WLR 1511 [2013] EWCA Civ 328

AU (1)

[2012] VSC 87

MY (16)

[1975] 2 MLJ 175 [1976] 2 MLJ 253 [1981] 2 MLJ 199 [1985] 1 MLJ 42 [1989] 2 MLJ 290 [1990] 2 MLJ 303 [1996] 1 MLJ 374 [2004] 1 MLJ 618 [2009] 5 MLJ 95 [2010] 2 MLJ 181 [2012] MLJU 1070 [2016] MLJU 367 [2019] 2 CLJ 246 [2020] 5 MLJ 185 [2021] 3 MLJ 622 [2024] 1 CLJ 467