1. ) POH KEE LOCK 2. ) FENG YU HOLDINGS SDN BHD v 1. ) IVAN GOH-LEE EN TATT 2. ) MOHD FAIZ BIN SAZALI

Case Significance

A useful discussion of statutory injunctive relief under section 351 of the Companies Act 2016 and of the stringent requirements for obtaining and sustaining an ex parte Anton Piller order, which the court set aside on the defendants' application.

This decision of the High Court's Commercial Division in Kuala Lumpur arises from proceedings begun by originating summons under section 351 of the Companies Act 2016, the provision that confers statutory injunctive relief allowing shareholders and members of the public to prevent breaches of the Act and to overcome the technical constraints of the rule in Foss v Harbottle. That relief is remedial in character and has been interpreted broadly, allowing a qualifying plaintiff to obtain an injunction, damages, disclosure or declaratory relief to prevent conduct that contravenes the Act or a company's constitution. The plaintiffs sought declarations that the first defendant had contravened several provisions of the Act, together with injunctions to restrain the defendants from dealing with or misusing the assets and information of a company, and orders compelling disclosure of that company's financial information. On the same day the summons was filed, the plaintiffs obtained an ex parte Anton Piller order, which was executed shortly afterwards, and they later sought leave to bring committal proceedings for alleged breaches of that order. The court heard together the questions of whether the originating summons should proceed, whether the plaintiffs had locus standi under section 351 and whether disputes of fact required the matter to go to a writ action, whether the ex parte Anton Piller order should be set aside, and whether leave to commence contempt proceedings should be granted. The court examined the stringent requirements for an Anton Piller order — an exceptional, intrusive remedy — and concluded that the ex parte order should not stand. It allowed the defendants' application to set aside the Anton Piller order, with costs of RM40,000 subject to allocatur. The judgment is a useful discussion of statutory injunctive relief under section 351 of the Companies Act 2016 and of the exacting standards a party must meet to obtain and sustain an Anton Piller order.