JCW

[Locus standi – “persons acting in concert” under Section 360 CMSA 2007] This case involves the issue of the strict compliance of the Capital Market and Services Act 2007 where the Plaintiffs alleges that the Defendants are “persons acting in concert” and a Suit was filed to seek Injunctive remedies against the Defendants. Justin acted for the 12th and 13th Defendants. All the Defendants applied to strike out the Suit which was allowed by the Court.   The important points of laws canvassed by Yang Arif Ong Chee Kwan includes the following :   1.Sections 218(1) to (3) of the CMSA and s. 60(7), 64(1), 64(1)(h)(iv) and (v) and s.72(2)(a)(i) of the CMSA and / or Rule 4.02(8) and 4.02(9) of the Licensing Handbook SC-GL/2007 (R6-2018)T. 218 are clearly not a "relevant requirement" for the purposes of Section 360 of the CMSA.   2.The Plaintiffs do not have locus standi and neither can they be a "person aggrieved" when :   (i)      The Plaintiffs, as the target companies, are the very subject matter of this case; and   (ii)      It is the minority shareholders in this case, if at all, who are affected by the acts of 'persons acting in concert' who can sue and not the Plaintiffs.   (3)   This case involves the rights of the minority shareholders against the purported "PAC" or "persons acting in concert" as regards the latter's obligations to them under the provisions of the Code on Take-Overs and Mergers and the relevant provisions of the CMSA. As such, even if there are persons acting in concert, it is the minority shareholders who ought to sue and not the Plaintiffs.   (4)   Accordingly, the basis upon which the Plaintiffs claim to be "aggrieved persons" falls, bringing along with it any locus standi the Plaintiffs allege they may have to commence this OS 246.   (5)   Further, whilst prayer 6.1 of the OS 246 seeks to compel the Securities Commission to act, however, the Securities Commission is not made a party in these proceedings.   This is an important case where it appears to be the first case in Malaysia where the Court held that the “target” or “subject matter” company has no locus standi in respect of an allegation of  'persons acting in concert' and/or suit under Section 360 CMSA or breach of Takeover Code/Rules.