in the court of appeal malaysia (appellate jurisdiction)

In Kumagai Gumi Co Ltd v. Zenecon-Kumagai Sdn Bhd (1994) 2
MLJ 789 Anuar J (as he then was) at pp. 804 - 806 cited Re Tivoli Freeholds
Ltd.:
“In Re Tivoli Freeholds Ltd at p 452, Menhennitt J said:
Whether or not a company is being conducted in a manner
oppressive to certain shareholders depends upon all the
circumstances and it is not possible to attempt a universal
definition. However, in the kind of situation which arises in
this case and having regard to the matters relied upon by the
petitioner and the supporting members, the following elements
are I think included in the matters postulated in the section and
are also established by the authorities:
(1) Those alleging that the affairs of the company have been
conducted in a manner oppressive to them must establish,
as one element, conduct which the Court of Appeal has
recently restated in the case of Re Jermyn Street Turkish
Baths Ltd [1971] 1 WLR 1042 at p 1059, as conduct
which is unfair or, to use the expression adopted by
Viscount Simonds in Scottish Cooperative Wholesale
Society Ltd v Meyer [1959] AC 324 at p 342,
‘burdensome, harsh and wrongful’ to the other members
of the company or some of them and lacks that degree or
probity which they are entitled to expect in the conduct
of the company’s affairs: see Scottish Co-operative
Wholesale Society Ltd v Meyer and Re HR Harmer Ltd
[1959] 1 WLR 62.
It is to be noted that Buckley LJ, delivering the judgment
of the court, appears to have stated lack of probity of the
kind described as an element additional to the
requirement that the conduct must be unfair or
burdensome, harsh and wrongful. In Scottish Cooperative
Wholesale Society Ltd v Meyer, Lord Keith at p
364, stated the test as ‘lack of probity and fair dealing’,
using the word ‘and’. However, in Lord Keith’s
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