dalam mahkamah rayuan malaysia antara 1. ong … · dalam mahkamah rayuan malaysia (bidang kuasa...
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[2018] 1 LNS 2247 Legal Network Series
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DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
[RAYUAN SIVIL NO: B-02(IM)-2135-10/2017]
ANTARA
1. ONG KWONG YEW
2. ONG KONG LIM
3. ONG KONG SEONG
4. ONG KONG BENG
5. ONG BEE LEE
6. TAN SOH HOON
7. LIM ENG GUAT … PERAYU-PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KONG YEE
5. ELEGANT PALMS SDN BHD
(DALAM LIKUIDASI) … RESPONDEN
- RESPONDEN
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Dalam Negeri Selangor Darul Ehsan
Petition No.: 28-432-09/2013
Antara
1. Ong Ching Chee
2. Chong Chit Eng
3. Ong Kong Kuan
4. Ong Kong Yee … Pempetisyen
-pempetisyen
Dan
Elegant Palms Sdn Bhd
(Company No.: 544854-M) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
[RAYUAN SIVIL NO.: B-02(IM)-2259-11/2017]
ANTARA
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
2. CHONG CHIT ENG
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(NO. K/P: 440622-04-5078)
3. ONG KONG KUAN
(NO. K/P: 710406-04-5193)
4. ONG KONG YEE
(NO. K/P: 740118-10-5515) … PERAYU-PERAYU
DAN
1. ELEGANT PALMS SDN BHD
(NO. SYARIKAT: 544854-K) … RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
Dalam Negeri Selangor Darul Ehsan
Petition No.: 28-432-09/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen
- pempetisyen
Dan
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Elegant Palms Sdn Bhd
(Company No.: 544854-M) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2325-11/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KONG YEE
5. ONG KWONG YEW
6. ONG KONG LIM
7. ONG KONG SEONG
8. ONG BEE LEE
9. TAN SOH HOON
10. LIM ENG GUAT
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11. ONG KONG BENG
12. ELEGANT PALMS SDN BHD
(DALAM LIKUIDASI) … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No..: 28-432-09/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen
- pempetisyen
Dan
Elegant Palms Sdn Bhd
(Company No.: 544854-M) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
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(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2326-11/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG KONG KUAN
2. ONG KWONG YEW
3. ONG KONG LIM
4. ONG KONG SEONG
5. ONG KONG BENG
6. HELEN BINTI MATURUN
7. PENGANGKUTAN JASA SDN BHD
(DALAM LIKUIDASI) … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No..: 28-433-09/2013
Antara
Ong Kong Kuan
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(No. K/P: 710406-04-5193) … Pempetisyen
Dan
Pengangkutan Jasa Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2327-11/2017
ANTARA
1. ONG KWONG YEW
2. ONG KONG LIM
3. ONG KONG SEONG
4. ONG KONG BENG
5. HELEN BINTI MATURUN … PERAYU-PERAYU
DAN
1. ONG KONG KUAN
2. PENGANGKUTAN JASA SDN BHD
(DALAM LIKUIDASI) … RESPONDEN
- RESPONDEN
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Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No..: 28-433-09/2013
Antara
Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
Dan
Pengangkutan Jasa Sdn Bhd
(Company No.: 141826-A) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2328-11/2017
ANTARA
ONG KONG KUAN
(NO. K/P: 710406-04-5193) … PERAYU
DAN
1. PENGANGKUTAN JASA SDN BHD
(NO. SYARIKAT: 141826-A) … RESPONDEN
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Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No..: 28-433-09/2013
Antara
Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
Dan
Pengangkutan Jasa Sdn Bhd
(Company No.: 141826-A) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2329-11/2017
ANTARA
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
2. CHONG CHIT ENG
(NO. K/P: 440622-04-5078)
3. ONG KONG KUAN
(NO. K/P: 710406-04-5193)
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4. ONG KONG YEE
(NO. K/P: 740118-10-5515) … PERAYU-PERAYU
DAN
ONG CHING CHEE REALTY SDN BHD
(NO. SYARIKAT: 53014-K) … RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
No. Petisyen: 28-434-09/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen- Pempetisyen
Dan
Ong Ching Chee Realty Sdn Bhd
(No. Syarikat: 53014-K) … Responden
DIDENGAR BERSAMA
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DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2330-11/2017
ANTARA
YEW FOOI
(NO. K/P: 570206-06-5585) … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KWONG YEW
5. ONG KONG LIM
6. ONG KONG SEONG
7. ONG KONG BENG
8. ONG CHING CHEE LORRY TRANSPORT SDN BHD
(DALAM LIKUDASI] … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. 28-435-09/2013
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Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
Pempetisyen
Dan
Ong Ching Chee Lorry Transport Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2331-11/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
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3. ONG KONG KUAN
4. ONG KWONG YEW
5. ONG KONG LIM
6. ONG KONG SEONG
7. ONG KONG BENG
8. ONG CHING CHEE LORRY TRANSPORT SDN BHD
(DALAM LIKUDASI] … RESPONDEN
-RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. 28-435-09/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
- Pempetisyen
Dan
Ong Ching Chee Lorry Transport Sdn Bhd … Responden
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DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2422-11/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KONG YEE
5. ONG KONG SENG
6. ONG KWONG YEW
7. ONG KONG HIN
8. ONGN KONG LIM
9. ONG KONG SEONG
10. ONG KONG BENG
11. ONG CHING CHEE LORRY TRANSPORT SDN BHD
(DALAM LIKUDASI] … RESPONDEN
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-RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. 28-434-09/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen
- Pempetisyen
Dan
Ong Ching Chee Reality Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2562-12/2017
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ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KONG YEE
5. ONG KWONG YEW
6. ONGN KONG LIM
7. ONG KONG SEONG
8. ONG BEEE LEE
9. TAN SOH HOON
10. LIM ENG GUAT
11. ONG KONG BENG
12. ELEGANT PALMS SDN BHD
(DALAM LIKUDASI] … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. BA-28PW-07-07/2017
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Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen
- Pempetisyen
Dan
Elegant Palms Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2563-12/2017
ANTARA
YEW FOOI … PERAYU
DAN
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1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KWONG YEW
5. ONG KONG LIM
6. ONG KONG SEONG
7. ONG KONG BENG
8. ONG CHING CHEE LORRY TRANSPORT SDN BHD
(DALAM LIKUDASI] … RESPONDEN
-RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. BA-28PW-08-07/2017
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
- Pempetisyen
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Dan
Ong Ching Chee Lorry Transport Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2564-12/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG KONG KUAN
2. ONG KWONG YEW
3. ONGN KONG LIM
4. ONG KONG SEONG
5. ONG KONG BENG
6. HELEN BINTI MATURUN
7. PENGANGKUTAN JASA SDN BHD
(DALAM LIKUDASI] … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
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(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. BA-28PW-09-07/2017
Antara
Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen
Dan
Pengangkutan Jasa Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2565-12/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KONG KUAN
4. ONG KONG YEE
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5. ONG KONG SENG
6. ONG KWONG YEW
7. ONG KONG HIN
8. ONG KONG LIM
9. ONG KONG SEONG
10. ONG KONG BENG
11. ONG CHING CHEE REALITY SDN BHD
(DALAM LIKUDASI] … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. BA-28PW-10-07/2017
Antara
1. Ong Kong Kuan
(No. K/P: 710406-04-5193)
2. Chong Chit Eng
(No. K/P: 440622-04-5078)
3. Ong Kong Kuan
(No.K/P: 710406-04-5193)
4. Ong Kong Yee
(No. K/P: 740118-10-5515) … Pempetisyen
- Pempetisyen
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Dan
Ong Ching Chee Reality Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)-2566-12/2017
ANTARA
YEW FOOI … PERAYU
DAN
1. ONG CHING CHEE
2. CHONG CHIT ENG
3. ONG KWONG YEW
4. ONG KONG LIM
5. ONG KONG SEONG
6. ONG KONG BENG
7. ONG CHING CHEE CAPITAL (M) SDN BHD
(DALAM LIKUDASI] … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
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(Bahagian Dagang)
Petisyen Penggulungan Syarikat No. BA-28PW-11-07/2017
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078) … Pempetisyen
Pempetisyen
Dan
Ong Ching Chee Capital Sdn Bhd … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)(NCC)-2133-10/2017
ANTARA
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
2. CHONG CHIT ENG
(NO.K/P: 440622-04-5078) … PERAYU-PERAYU
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DAN
ONG CHING CHEE CAPITAL (M) SDN BHD
(COMPANY NO.: 450824-V) … RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
No. Petisyen: 28NCC-53-11/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078) … Pempetisyen
- Pempetisyen
Dan
Ong Ching Chee Capital (M) Sdn Bhd
(Company NO.: 450824-V) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(IM)(NCC)-2134-10/2017
ANTARA
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ONG CHING CHEE CAPITAL (M) SDN BHD
(COMPANY NO.: 450824-V) … PERAYU
Dan
YEW FOOI
(NO. K/P: 570206-06-5585) … RESPONDEN
DAN
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
2. CHONG CHIT ENG
(NO.K/P: 440622-04-5078) … PEMOHON
- PEMOHON
Dalam Mahkamah Tinggi Malaya di Shah Alam
No. Petisyen: 28NCC-53-11/2013
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078) … Pempetisyen
- Pempetisyen
Dan
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Ong Ching Chee Capital (M) Sdn Bhd
(Company No.: 450824-V) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(A)-907-04/2018
ANTARA
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
2. CHONG CHIT ENG
(NO.K/P: 440622-04-5078) … PERAYU-PERAYU
DAN
1. YEW FOOI
(NO. K/P: 570206-06-5585)
2. ONG CHING CHEE CAPITAL (M) SDN BHD
(COMPANY NO.: 450824-V)
3. ONG KWONG YEW
(NO. K/P: 581026-10-5475)
4. ONG KONG LIM
(NO. K/P: 691204-10-5273)
5. ONG KONG SEONG
(NO. K/P: 570404-10-5461)
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6. ONG KONG BENG
(NO. K/P: 550110-10-5265) … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
Petisyen No.: BA-28PW-11-07/2017
Antara
1. Ong Ching Chee
(No. K/P: 270622-10-5035)
2. Chong Chit Eng
(No. K/P: 440622-04-5078) … Pempetisyen
- Pempetisyen
Dan
Ong Ching Chee Capital (M) Sdn Bhd
(Company No.: 54050-W) … Responden
DIDENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO.: B-02(A)-908-04/2018
ANTARA
1. ONG CHING CHEE
(NO. K/P: 270622-10-5035)
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2. CHONG CHIT ENG
(NO.K/P: 440622-04-5078)
3. ONG KONG KUAN
(NO. K/P: 710406-04-5193) … PERAYU-PERAYU
DAN
1. YEW FOOI
(NO. K/P: 570206-06-5585)
2. ONG CHING CHEE LORRY TRANSPORT SDN BHD
(COMPANY NO.: 54050-W)
3. ONG KWONG YEW
(NO. K/P: 581026-10-5475)
4. ONG KONG LIM
(NO. K/P: 691204-10-5273)
5. ONG KONG SEONG
(NO. K/P: 570404-10-5461)
6. ONG KONG BENG
(NO. K/P: 550110-10-5265) … RESPONDEN
- RESPONDEN
Dalam Mahkamah Tinggi Malaya di Shah Alam
Petisyen No.: BA-28PW-08-07/2017
Antara
1. Ong Ching Chee
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(No. K/P: 270622-10-5035)
3. Chong Chit Eng
(No. K/P: 440622-04-5078)
4. Ong Kong Kuan
(No. K/P: 710406-04-5193) … Pempetisyen - Pempetisyen
Dan
Ong Ching Chee Lorry Transport Sdn Bhd
(Company No.: 54050-W) … Responden
CORUM:
NALLINI PATHMANATHAN, JCA
YEOH WEE SIAM, JCA
HANIPAH FARIKULLAH, JCA
GROUNDS OF JUDGMENT
Introduction
[1] There are nineteen (19) appeals before this Court. The subject
matter of the majority of these appeals relate to the remuneration as
well as the discharge and release of a liquidator, one Yew Fooi,
arising subsequent to his removal as the liquidator of five companies.
The application for his removal was allowed by the High Court and
upheld by the Court of Appeal.
[2] As such, these appeals relate to orders made by the High Court
in relation to interim payments drawn and retained by the liquidator
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himself as fees for work done during the tenure of his appointment, as
well as his subsequent release and discharge. Two of the appeals
relate to an examination of the sale of businesses of the relevant
companies by the liquidator.
Salient Background Facts
[3] These appeals arise as a consequence of a family shareholders’
dispute between the majority contributories of the five companies
(‘majority’) and the minority contributories of these companies
(‘minority’). They are all related through the founder of this group of
companies, one Ong Ching Chee, after whom a number of the
companies are named. Essentially the two groups of disputing
contributories are from different arms of the same family.
[4] A shareholders’ dispute arose between the majority and minority
contributories resulting in the minority contributories filing winding
up petitions in respect of the five companies premised inter alia, on
the ground that it is just and equitable that the companies be wound
up. It is significant that all five companies are solvent.
[5] On 9 April 2014, Lim Chong Fong J, ordered that the five
related companies be wound up pursuant to s. 218(1)(i) of the
Companies Act 1965. His Lordship further ordered that Yew Fooi be
appointed as the liquidator. (The choice of liquidator was at the
behest of the minority contributories who presented the petitions for
winding up.)
[6] The five companies in question are:
(i) Elegant Palms Sdn Bhd (‘Elegant Palms’);
(ii) Pengangkutan Jasa Sdn Bhd (‘Jasa’);
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(iii) Ong Ching Chee Realty Sdn Bhd (‘OCC Realty’);
(iv) Ong Ching Chee Capital(M) Sdn Bhd (‘OCC Capital’); and
(v) Ong Ching Chee Lorry Transport Sdn Bhd (‘OCC Lorry
Transport’).
[7] The judgment of the High Court sets out the basis for the
judge’s finding that there was “a fundamental breakdown in the
common understanding underlying the companies”.
Events Post-Winding Up of the five Companies On 9 April 2014
and the subsequent period
[8] The function of the liquidator here as in other cases, was to
liquidate the assets. He was appointed, it will be recalled on 9 April
2014. The primary assets of these companies are their businesses. It
was contended for the liquidator that it was imperative that these
solvent businesses were maintained at optimum levels so as to ensure
that the best realisable value could be obtained.
[9] Finally it was the majority contributories who purchased the
businesses of Elegant Palms, Jasa and OCC Lorry Transport. The
minority contributories had numerous objections about the entire
tender process, contending that it was conducted unfairly, particularly
in relation to the invitation and acceptance of bids. They further
contended that the exercise had not been conducted in the interests of
the company or the minority contributories. They further alleged that
the tender exercise in relation to the properties of OCC Lorry
Transport and OCC Realty were designed to favour the majority
contributories.
[10] These issues were in fact the subject matter of the removal
application.
[2018] 1 LNS 2247 Legal Network Series
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[11] The purpose of referring to these matters here, is only in so far
as they are relevant the appeals relating to the remuneration claimed
by the liquidator as:
(i) justifying the interim payments he had drawn while still a
liquidator, and
(ii) justifying further payment for work done which remains
unpaid.
[12] To that end, it is necessary to comprehend the work undertaken
by the liquidator.
Sale of Business vide a Tender Exercise commencing on 6 May
2014
[13] On 6 May 2014, the liquidator, Yew Fooi invited competitive
tender bids from both the majority and minority groups in their
respective capacities as contributories for the sale of the businesses of
Elegant Palms, Jasa and OCC Lorry Transport. In the interim the
liquidator sought to keep the business running.
[14] The minority contributories took the stance that the liquidator
ought to proceed with realisation and had no power to keep the
businesses running beyond four weeks. This was countered by the
liquidator who relied on the winding up order, which empowered him
to keep the businesses running until their disposal.
[15] The minority contributories then sought an extension of time to
put in a bid, which was opposed by the majority contributories, and
the liquidator allowed the extra time, in the best interests of the
liquidation.
[2018] 1 LNS 2247 Legal Network Series
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[16] Eventually the liquidator accepted the highest bid from the
majority contributories.
June 2014
[17] In June 2014, the sale of business of these three companies was
entered into with a company related to the majority group.
[18] The sale price at which each of these businesses was sold is as
follows:
a) RM5,300,000-00 for the sale of the business of Jasa; and
b) RM8,000,000-00 for the sale of the business of Elegant
Palms;
c) RM1,200,000-00 for the sale of the business of OCC Lorry
Transport.
August 2014
[19] Apart from the sale of these businesses, in August 2014 the
liquidator distributed the sole asset of OCC Capital, namely shares in
one Jugra Palm Oil Sdn Bhd to all the contributories equally. A debt
in the sum of RM2,880,000-00 due from OCC Realty to OCC Capital
was assigned to the contributories equally to facilitate the liquidation
of Capital. A cash sum of RM200,000-00 was returned to the
contributories.
September 2014
[20] On 8 September 2014, the liquidator sought competitive tender
bids from the two groups of contributories for the purposes of
disposing of:
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a) the two (2) landed properties of OCC Lorry Transport; and
b) the eight (8) landed properties of OCC Realty; and
c) the shares in Seri Jenjarom Sd Bhd belonging to OCC
Realty.
[21] However the minority contributories objected to this invitation
on the grounds that the information memorandum was irregular and
was along the same lines as the sale of businesses earlier effected.
The minority contributories had misgivings about the manner in which
those sales had been conducted and sought to defer this exercise. The
liquidator pointed out that deferment should be avoided as the
liquidation exercise would then become unduly protracted.
The Applications Filed in Court by the contributories and the
liquidator
[22] On 24 September 2014, some five months after his appointment
as liquidator, the minority contributories filed applications in the
winding up court in respect of each of the wound up companies,
seeking the removal of the liquidator.
[23] The liquidator sought an expeditious disposal of the sale of the
remaining assets of OCC Capital and OCC Realty, including the
shares in Sri Jenjarom (as set out above in the preceding paragraph).
However, in the light of the removal applications which were pending,
the liquidator gave an undertaking to defer his decision on the
expression of interest received in respect of the sale of those assets
pending the disposal of the removal applications, provided the
same were disposed of on or by October 2014.
[24] In July 2015, the liquidator filed an application for release as a
liquidator and for the dissolution of OCC Capital.
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[25] This was followed in October 2015 by the minority
contributories’ applications for injunctions to refund monies he
had drawn from the companies’ accounts for work done and to restrain
him from making further withdrawals without the consent and
approval of the court. This was made by the minority contributories.
[26] The liquidator then sought sanction for the interim
remuneration he had procured as liquidator as well as to seek
delivery of records and books of the five companies from the minority
contributories.
[27] In 2015 settlement agreements were entered into between
Elegant Palms, Realty, Jasa and Lorry Transport vide the liquidator,
with the respective companies related to the majority contributories,
to deal with the non-payment of the balance purchase price for the
sale of these three businesses. The solution apparently reached
between the liquidator and the majority contributories for the balance
purchase price, was to set the same off against the monies due and
owing to the majority contributories as returns to the contributories.
[28] On 21 October 2015, almost a year after the removal
applications had been filed and remained pending, the minority
contributories filed further applications for injunctions in each of
the winding up proceedings. They sought an order that the liquidator
be ordered to refund to the respective companies, the monies that
had been drawn by the liquidator from these companies, as
remuneration for work done. The basis for these further applications
was that such drawings were made without the knowledge and
approval of the minority contributories and without obtaining the
leave of the winding up court.
[29] On 11 November 2015, about a month later, the liquidator then
filed applications to counter the applications by the minority
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contributories, seeking the sanction of the winding up court to allow
him to retain:
a) the sums comprising the subject matter of the
injunction applications; and
b) the sums that had been unilaterally drawn as interim
remuneration.
Decision on the Removal Application
[30] On 12 February 2016 the removal applications were heard and
allowed on 23 March 2016. This meant that the liquidator was
removed from each of the five companies. A new liquidator was
appointed for the five companies.
[31] The decision by the High Court to remove Yew Fooi as
liquidator was premised on the following grounds:
(i) There was evidence of bias in his handling of the sale of
the business of two of the companies. In this context, the
majority contributories had purchased the businesses of
Jasa and Elegant. However the balance of the purchase
price was not paid. The complaint of the minority
contributories was that the liquidator did not take steps to
enforce or recover the balance purchase price, which
affected them adversely, at the expense of the majority.
The liquidator’s position was that he and the majority
contributories had agreed to deal with the balance purchase
price by way of set-off against the surplus from the
liquidation to be paid to the majority contributories;
(ii) The liquidator had breached various provisions of the
Companies Act 1965.
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[32] On 12 July 2017, one year and four months after his removal,
the liquidator filed applications in each of the winding up courts for
further remuneration.
Appeals in relation to the order of removal of the liquidator
[33] Appeals were filed by both the majority group and the liquidator
against the removal order, as were orders for a stay of the same. As
stated at the outset, this Court affirmed the decision of the High
Court. Accordingly the decision of the High Court remains on record
and is binding.
[34] Insofar as the present appeals on remuneration are concerned,
they do not subsist in vacuo but have to be considered in the context
of the removal of the liquidator and the reasons accorded by the court
for allowing the same.
The Current Appeals
[35] In relation to the current appeals, the learned Judge delivered
his decision in relation to the injunction appeals, the sanction of
remuneration appeals, the liquidator’s injunction appeals and the
majority contributories examination of sale of business appeals on 13
September 2017.
[36] On 16 November 2017 the learned Judge delivered further
decisions relating to the interim remuneration appeals as well as the
further remuneration appeals.
[37] (In view of the decision of the Court of Appeal in A Santamil
Selvi Alau Malay & Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak &
Ors [2015] 4 CLJ 1016 it became necessary for the parties to file no
less than 19 notices of appeal, in respect of each decision/application
[2018] 1 LNS 2247 Legal Network Series
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that had been made.)The nineteen appeals are best considered under
the following categories of description:
a) Appeals numbered 907 and 908 are appeals by the
minority contributories against the decision of the High
Court in allowing interim remuneration to be drawn and
retained by the liquidator. These two appeals by the
minority contributories are usefully described as the
Interim Remuneration appeals;
b) Appeals numbered 2133, 2259, 2328 and 2329 are
appeals by the minority contributories against the
decision of the High Court in refusing to order the former
liquidator to refund monies drawn from the respective
companies by way of interim remuneration. These four
appeals by the minority contributories are usefully
described as the Injunction appeals;
c) Appeal numbered 2134 is an appeal by the minority
contributories allowing the release and discharge of Yew
Fooi as liquidator of one of the companies namely OCC
Capital. It is usefully described as the Release Appeal;
d) Appeals numbered 2325, 2326, 2330 and 2422 are
appeals by the liquidator against the decision of the High
Court refusing to sanction sums drawn by the liquidator as
interim remuneration. These four appeals by the liquidator
are usefully described as the Refusal to Sanction
Remuneration Appeals;
e) Appeals numbered 2562, 2563, 2564, 2565 and 2566 are
appeals by the liquidator against the decision of the High
Court refusing to allow further remuneration sought by
him post-removal. These four appeals brought by the
[2018] 1 LNS 2247 Legal Network Series
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liquidator are usefully described as the Further
Remuneration Appeals;
f) Appeal numbered 2331 is another appeal by the liquidator
against the decision of the High Court restraining him
from drawing any payments from OCC Lorry Transport
without procuring the prior consent of the court. This
appeal by the liquidator is usefully described as the
Liquidator’s Appeal against the Injunction;
g) Appeals numbered 2135 and 2327 are appeals by the
majority contributories against the decision of the High
Court seeking orders to examine the sale of business of
Elegant Palms and Jasa. These appeals by the majority
contributories may usefully be described as the
Examination of Sale of Business Appeals.
[38] To summarise there are in total:
(i) seven (7) appeals by the minority contributories;
(ii) ten (10) appeals by the liquidator; and
(iii) two (2) appeals by the majority contributories.
The Appeals
[39] We propose to deal with the appeals according to the categories
set out above. Prior to that however, it is pertinent that the learned
Judge had occasion to deal generally with the issue of remuneration in
the course of his judgment in the removal application.
[40] In this context, we concur with learned counsel for the minority
contributories’ submission that the core reasoning of the High Court
[2018] 1 LNS 2247 Legal Network Series
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in the removal application is wholly relevant in the consideration of
the present appeals in relation to remuneration:
“ On the issue of the remuneration of the liquidator, Section
232(3) provided that the liquidator is entitled to remuneration
by way of percentage or as otherwise determined by agreement
between the liquidator and committee of inspection, or by
resolution passed at a meeting of creditors with a majority of
three-fourths in value and one half in number of the creditors,
and failing either of these circumstances, at the behest of the
Court. (I do not find any solid justification for the petitioner
[sic] to be paid the remuneration of RM659,000-00 within eight
month [sic] of the appointment. The payment of this large
amount will seriously prejudice the petitioners. Notwithstanding
the interim remuneration can only be taken by the liquidator
without the sanction of the Court, the Court find that the amount
taken unreasonable).”
Appeals pertaining to the Remuneration of the Liquidator
[41] This encompasses:
Categories (a) and (b), namely the Interim Remuneration
appeals and the Injunction appeals filed by the minority
contributories;
as well as
Categories (d), (e) and (f), namely the Refusal to Sanction
Remuneration Appeals, the Further Remuneration Appeals
and the Liquidator’s Appeal against the Injunction
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[42] All these appeals relate solely to claims for, and objections to,
remuneration either already drawn or further claimed by the
liquidator.
The Interim Remuneration appeals and the Injunction appeals
filed by the minority contributories
[43] With respect to the appeals relating to monies that had already
been withdrawn and retained by the liquidator as compensation,
namely the Remuneration appeals and the Injunction Appeals brought
by the minority contributories, it appears to us that the first issue that
falls for consideration is whether the liquidator was entitled to
withdraw and retain such monies by way of remuneration given the
objections of the minority contributories and the absence of the
sanction of the winding up court.
Can the Liquidator withdraw remuneration without the consent of
all the contributories and without the sanction of the Court?
[44] The order of Court granted on the winding up of the five
companies allowed or empowered the liquidator to claim remuneration
for work undertaken by him. Clause (xiii) of the order of Court dated
9 April 2014 provides:
“.. to make any payment which is necessary or incidental to the
performance of the liquidator’s duties or functions and to pay
the expenses and remuneration of the liquidator out of the
assets of the Company” (emphasis ours)
[45] Does it follow from that express provision in the order of court
relating to remuneration, that the liquidator was entitled to withdraw
monies from the five related companies in such sums (or quantum) as
he deemed commensurate with the work he had or claimed to have
[2018] 1 LNS 2247 Legal Network Series
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undertaken? In other words, is a liquidator granted carte blanche to
withdraw such quantum of monies as he deems fit, as remuneration
for work done?
[46] We are of the considered view that while the order of the Court
envisages that the liquidator must be paid remuneration for the work
undertaken, that sum is not to be determined or removed from the
account of the company unilaterally by the liquidator. The law
envisages that the liquidator receives compensation in accordance
with the provisions of the Companies Act 1965 (‘CA ‘65’) (which
was in force at the material time). Any removal of funds by way of
remuneration which is not in compliance with the Act would amount
to a contravention of the same.
Remuneration of the liquidator
[47] Section 232(3) of the CA ‘65 deals with the remuneration of the
liquidator and provides that he is entitled to remuneration by way of
percentage or as otherwise determined by agreement between the
liquidator and committee of inspection, or by resolution passed at a
meeting of creditors with a majority of three-fourths in value and one
half in number of the creditors, and failing either of these
circumstances, at the behest of the Court. When a liquidator is paid
professionally, he or she is expected to observe a high standard of
care and skill commensurate with his or her professional standing.
(See Vasudevan v. ICAB Pte. Ltd. [1987] 2MLJ 563. Instructive cases
in this regard include Wong Sin Fan & Ors v. Ng Peak Yam @ Ng Pak
Yeow & Anor. [2014] 2 MLJ 629, Dato’ Robert Teo Keng Tuan v.
Metroplex Bhd. [2014] 1 MLJ 39 (FC), and Perumahan NCK Sdn.
Bhd. v. Mega Sakti Sdn. Bhd. [2005] 7 MLJ 389.)
[48] This last mentioned case of Perumahan NCK Sdn. Bhd. v. Mega
Sakti Sdn. Bhd. (above) sets out comprehensively the law in relation
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to section 232(3) and Rule 142(3) of the Companies (Winding Up)
Rules 1972. It examines when and how a liquidator is to be paid
particularly where the liquidation is protracted and considers the
parties who can be heard at the liquidators’ application for
remuneration, and the principles to be applied when determining the
remuneration of liquidators.
[49] What is apparent from a consideration of the law is that the
legislation does not conceive of a situation where a liquidator simply
“helps himself” to compensation without the consent of all the
relevant creditors, or contributories in the instant case. Although the
majority contributories took no issue with the quantum claimed, the
minority contributories took strong objection. Moreover the
fundamental basis for the removal application was that of bias on the
part of the liquidator in favour of the majority contributories. Given
the foregoing, the consent of the majority contributories did not, of
itself, entitle the liquidator to contend that the payments he made to
himself were approved.
[50] A prudent liquidator, appreciating that he occupies a position of
trust in relation to the company in liquidation, and that he is directly
answerable to the court, would have taken the precaution of obtaining
the sanction of the court.
[51] The timing of the withdrawals of the monies by the liquidator is
also questionable, given that the monies were drawn out after the
application for his removal had been filed and during the pendency of
the same.
[52] In all these circumstances it appears to this Court that the
liquidator was obliged to obtain the sanction of the court prior to
withdrawing monies which he felt, subjectively, was due to him for
work he had undertaken. It is the lack of sanction either from the
Court or the consent of all the contributories that taints his unilateral
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withdrawal of the funds. Given that a liquidator is in a fiduciary
position in relation to the funds of the company which he holds on
trust for both the contributories and creditors, it is untenable if not
bordering on unethical conduct for him to pay himself out of those
funds. This is particularly pronounced in the instant case where
applications for his removal were before the Court. The withdrawals
appear to be an imprudent attempt to collect his fees prior to any
potential removal from office.
[53] The liquidator was not entitled to act as he did in relation to his
own remuneration. The unilateral and periodic withdrawal of monies
of the company in liquidation (which he held on trust for creditors and
the contributories) without the requisite consent of the contributories
or the Court in the instant case, amounts to a contravention of section
232 (3) of the CA ’65.
[54] It would therefore follow that any monies taken in contravention
of the law ought to be reimbursed to the Companies in question, and a
proper claim be made for remuneration in accordance with section
232(3) of the CA ’65, namely by way of application to Court to
obtain sanction.
Work Undertaken by the Liquidator during his Tenure
[55] One of the issues raised by the minority contributories is that as
the liquidator was removed for ‘biased’ conduct of the affairs of the
companies in favour of the majority contributories, this amounts to
misconduct and he is therefore not entitled to any remuneration
whatsoever. This issue will be dealt with further on in the judgment.
[56] In general, a liquidator is entitled to reasonable remuneration for
work done. And, as we have set out above, such remuneration is paid
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out in accordance with the provisions of section 232 (3) of the CA
’65.
[57] In the chronology of relevant events, we have set out a summary
of the work undertaken by the liquidator during his tenure. In support
of his claim for remuneration for work done (both already drawn and
claimed), the liquidator provided the following justification:
(a) Work done in dealing with the business operations of these
three companies pending disposal of the business;
(b) Work done in negotiating the sale of the business by way
of tender; and
(c) Work done in performing administrative tasks with two
other employees.
(d) Remuneration for work done in relation to Ong Ching
Chee Realty, although the sale did not go through.
[58] Learned counsel for the present liquidator has usefully tabulated
the liquidator’s claim for remuneration:
Compa
ny
Period of
Claim
Amount of
Claim
Time Fee
Was Paid
Based
on
Ong Ching
Chee Realty
April 2014
to
March 2015
RM173,687-50
9-12-2014
To
22-5-2015
Time Cost
Ong Ching
Chee Capital
April 2014
to
RM89,837-50
9-12-2014
To
Time Cost
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March 2015 27-4-2015
Ong Ching
Chee Lorry
Transport
April 2014
to
March 2015
RM189,325-00 11-5-2015 Time Cost
And
Realisable of
RM3,862,76
7
Pengangkuta
n Jasa
April 2014
to
March 2015
RM306,214-00 6-8-2014
To
27-7-2015
Time Cost
And
Realisable of
RM14,709,3
26
Elegant
Palms
April 2014
to
March 2015
RM274,862-25 15-8-2014
To
7.4.2015
Time Cost
And
Realisable of
RM16,788,2
61
[59] However as submitted for learned counsel for the current
liquidator, a closer scrutiny and analysis of the liquidator’s claim
does not prima facie justify the quantum claimed, nor the quantum
withdrawn.
[60] We are persuaded by the analysis submitted by learned counsel
for the current liquidator.
(i) With respect to OCC Realty for example, a sum of
RM173,687-50 has been claimed on a time cost basis. It
has been paid out to, and retained the liquidator. However
the planned sale of OCC Realty’s assets did not take place
as the liquidator was removed. Therefore to allow the
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liquidator’s claim for remuneration for a sale that has not
gone through and to subsequently allow remuneration for
any sale that now transpires through the current liquidator,
will effectively mean that a double charge is incurred. To
that extent, the claim requires review.
(ii) With respect to OCC Lorry Transport, the liquidator
represented an estimated quantum of assets realised at
RM3.8 million. That quantum is inclusive of RM2.04
million owing by the purchaser from the sale of the
business, namely the majority contributories. The claim for
receipt and payment comprises a part of managing the
business for the period from April to May 2014.
With respect to the actual realised assets as at 23 March
2016, the payment received by the company from the
contributories stood at only RM400,000-00 leaving an
unpaid balance sum of RM800,000-00 under the Sale of
Business Agreement. Therefore the RM1.2 million claimed
as realised is not made out as the bulk of the monies due
have yet to be received. The overstatement by the
liquidator, it is submitted, arises from the estimated sum of
RM2.04 million from the disposal of an asset which had
not been realised.
In this context, Rule 142(1)(i) of the Companies
(Winding Up) Rules 1972 provides that the remuneration
of a liquidator is premised on the amount realised. This
refers to actual monies received and not potential or
possible amounts to be recovered in the future.
(iii) With regards to Jasa, again a sum of RM14.7 million was
quoted by the liquidator as the estimated amount of assets
realised. However the actual amount received by the
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company from the sale of business is only RM1.8 million
and the balance of RM6.2 remains unpaid. Further the
stated sales/collections of RM4.7 million comprise monies
due to the purchaser under the sale of business to Jasa
Kroporat Sdn Bhd and are not available for distribution to
the contributories. In these circumstances the statement of
RM14.7 million being assets realised is incorrect. Any
payment made by way of remuneration in favour of the
liquidator based on the estimated amount of RM14.7
million therefore amounts to an overcompensation and
requires review. Rule 142(1) of the Rules has not been
followed.
[61] Similarly with Elegant Palms a sum of RM16.7 million was
quoted by the liquidator as the estimated amount of assets realised.
However the payment actually received by the company is only
RM1.5 million with an unpaid balance of RM3.8 under the Sale of
Business Agreement, owing by the purchaser.
[62] It appears that there is a clear overstatement, as a sum of RM9.8
million, in actuality, belongs to the purchaser under the sale of
business. A claimed surplus of RM4.2 million is not supported by any
evidence as the RM9.8 million was returned to the purchaser under
the sale of business. Again Rule 142(1) does not appear to have been
complied with.
[63] But as the monies in the three instances stated above were
withdrawn without recourse to the Court nor with the consent of the
contributories as a whole, there was no opportunity for review. It is
not possible for this Court to conclude that the sums claimed and then
withdrawn were reasonable. On the contrary there is suggestion that it
is far in excess of the quantum prescribed under Rule 142(1) of the
Rules.
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[64] It may well be contended that the charges were based on time
costs. Even then it becomes clear that any such claim ought to be
reviewed and sanctioned by the Court, or that consent be obtained
from the contributories, both majority and minority. The nub of these
appeals is therefore not so much the basis and standard of
reviewing or sanctioning of these monies taken by the liquidator
as fees, but the failure of the liquidator to comply with the
provisions of section 232(3) of the CA ’65.
[65] In other words, the liquidator was not entitled to unilaterally
withdraw monies he claimed were due to him for work done in the
absence of the concurrence of the contributories as a whole, and
more significantly, in the absence of the sanction of the Court. We
have earlier explained that the order of the court of 9 April 2014
handed down during the winding up of the five companies does not
give the liquidator unbridled powers to bill and draw fees as he
deems fit. The power so granted is circumscribed (as it necessarily
must be) by the provisions of the CA ’65. Therefore the power so
granted to the liquidator is to be exercised in accordance with that
provision. As such we are of the view that the Interim
Remuneration appeals brought by the minority contributories
ought to be, and are allowed.
[66] Any attempts by the liquidator to obtain sanction ex post
facto should be viewed with considerable caution.
[67] The learned Judge erred in failing to recognise that the
liquidator was not entitled to bill and draw monies as he saw fit.
Other Reasons Why the Interim Remuneration and Injunction
Appeals are allowed
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[68] First of all, as submitted by learned counsel for the minority
contributories, the learned Judge had determined in the course of the
removal decision that there was no justification for the sum of
RM659,000-00 which the liquidator had taken by way of remuneration
within an eight month period. He further determined that such
payment would seriously prejudice the minority contributories. The
learned Judge’s decision was upheld by the Court of Appeal.
[69] To that extent the learned Judge was bound by his own initial
finding that the sum sought by way of fees was excessive. It could
hardly then be reasonable. However the learned Judge then went on to
allow the liquidator to retain these very sums, which he had found to
be excessive. These monies were also paid out in contravention of
section 232(3) of the CA ‘65. Given these circumstances, it is
apparent that the Judge, in concluding that the interim remuneration
could be retained by the liquidator, was making a completely
contradictory decision. He was bound by his own finding in the
removal decision (see Hartecon JV Sdn Bhd v. Hartela Contractors
Limited [1997] 2 CLJ 104).
[70] A second similar reason is that at the time when the Interim
Remuneration Appeals were heard, the learned Judge had dismissed
the liquidator’s appeals seeking the sanction of the court ex post facto
for the monies that he had already taken by way of remuneration. The
learned Judge’s reasoning in dismissing these applications was that as
the liquidator had been removed on grounds of misconduct, the Court
had exercised its discretion to refuse any payment of remuneration to
the liquidator.
[71] Therefore in dismissing the Interim Remuneration application
filed by the minority contributories, the learned Judge was once again,
with respect, taking a contradictory position/decision in relation to his
earlier decision to refuse to sanction the monies taken and retained by
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the liquidator by way of remuneration. The decisions were
inconsistent, and with respect, the learned Judge ought to have
similarly refused to sanction the liquidator’s unilateral taking of
monies by way of remuneration. His Lordship did not, with the result
that his decision comprises the subject matter of the Interim
Remuneration Appeals. It therefore follows that these appeals ought
to be allowed.
[72] The Injunction appeals are allowed because they comprise
the natural consequence of the finding that the liquidator was not
entitled to draw monies by way of remuneration as he deemed fit.
Those bills require review and /or taxation by the Court. As such
it is only correct that any monies wrongfully retained by the
liquidator are paid back to the companies, and if allowed, bills
tendered to the Court for a full taxation exercise. Therefore the
Injunction Appeals should similarly be allowed.
[73] With respect to OCC Lorry Transport, the learned Judge had
also refused the sanction sought for remuneration taken for the period
April 2014 until March 2015 yet allowed in part some of that
remuneration in one of the Interim Remuneration appeals, namely
Appeal 2330, which is again contradictory. This too comprises a
reason for allowing the Interim Remuneration and Injunction appeals
filed by the minority contributories.
Conclusion in relation to the Interim Remuneration Appeals and
the Injunction appeals filed by the minority contributories
[74] For the many reasons we have elucidated above, we order
that the appeals in categories (a) and (b), namely the Interim
Remuneration appeals and the Injunction appeals filed by the
minority contributories ought to be, and are allowed with costs.
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[75] By reason of our decision in allowing the Injunction Appeals
it follows, and we order that:
The liquidator is to return all monies drawn and retained by
him as remuneration for work claimed to have been done
during his tenure as liquidator of the five related companies.
The monies so drawn and retained by him are to be returned
to the relevant companies through the current liquidator
within thirty days of the service of the sealed order on the
liquidator, Yew Fooi.
The Refusal to Sanction Remuneration Appeals, the Further
Remuneration Appeals and the Liquidator’s Appeal against the
Injunction brought by the liquidator comprising categories (d),(e)
and (f) filed by the liquidator
[76] These are the remaining appeals relating to remuneration
brought by the liquidator and they number 10 in total.
The Refusal to Sanction Remuneration Appeals
[77] The Refusal to Sanction Remuneration Appeals (namely appeals
numbered 2325, 2326, 2330 and 2422) relate to the ex post facto
applications by the liquidator to seek the sanction of the Court for
monies which he had drawn from the companies’ accounts and
retained by way of fees.
[78] The principles applicable in relation to this series of appeals are
similar to those already examined at some length when we were
dealing with the Interim Remuneration and Injunction appeals. It
suffices for us to therefore reiterate those principles without repeating
them here again.
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[79] These applications for sanction were made during the pendency
of the removal proceedings and after the interim remuneration
applications had been filed. They were clearly made with a view to
justifying the amounts already drawn and retained contrary to section
232(3) CA 1965.
[80] The very fact that these applications were made after the monies
had been drawn and retained, taints these applications. The reasonable
inference to be drawn from the timing of these applications is that
they were only made because the interim remuneration was being
challenged. Secondly they were calculated to justify bills and payment
of monies by the liquidator to himself, after the event. As such the
bona fides of these applications is seriously in question.
[81] Given the nature of the office of a liquidator, it is untenable that
sanction be given ex post facto to payments that were made out in
contravention of the CA 1965 in favour of the liquidator himself. We
have alluded to this in our earlier consideration of the subject. The
learned Judge cannot be faulted for arriving at the decision he did. He
is not plainly wrong. Therefore we are of the view that there are no
merits in this series of appeals, which stand dismissed.
[82] For clarity we specify that the Refusal to Sanction Remuneration
Appeals in category (d) (namely appeals numbered 2325, 2326, 2330
and 2422) are dismissed with costs.
The Liquidator’s Appeal against the Injunction
[83] The liquidator’s injunction appeal numbered 2331 relates to the
decision of the High Court restraining the liquidator from drawing any
payments from OCC Lorry Transport without the prior consent of the
Court.
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[84] This appeal too is doomed to failure, as it is premised once
again on the fundamentally flawed basis that the liquidator is entitled
to draw monies and retain them as he deems fit. We reiterate the point
that any powers give to the liquidator by order of the court do not
comprise unchecked or intemperate powers to take out monies by way
of payment of remuneration. In view of the liquidator’s conduct in
having done so, the Court cannot be faulted for granting the
injunction. It was to prevent any further contravention of the law.
There is no basis for this Court to interfere with that finding and
decision of the High Court. It cannot be said that the learned Judge
was plainly wrong.
[85] Accordingly this appeal number 2331 falling within category
(f) also stands dismissed with costs.
The Further Remuneration Appeals
[86] The Further Remuneration Appeals (namely appeals numbered
2562, 2563, 2564, 2565 and 2566) brought by the liquidator and
comprising category (e) were all filed after the liquidator’s removal
for fees claimed to be due to him for work done.
[87] These appeals do not stand on the same footing as the Interim
Appeals, the Injunction Appeals or the Refusal to Sanction
Remuneration Appeals as they do not relate to any attempt to draw
and retain monies in contravention of section 232(3) of the
Companies Act ‘65. These appeals seek further remuneration for
work done after the liquidator’s removal from office.
[88] Learned counsel for the minority contributories contends that
there ought to be no interference with the decision of the High Court
in relation to these appeals because the learned Judge was not wrong
in determining that the liquidator having been removed for
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misconduct was not entitled to any remuneration. However the learned
Judge took contradictory stances when he allowed remuneration in
some instances, finding that work had in fact been undertaken which
deserved recompense, and on other occasions holding that no monies
whatsoever were payable.
[89] We are of the view that the primary issue (as stated earlier) is
when and how a liquidator may be paid. The grounds of his removal
have been canvassed and upheld by this Court. In his decision the
learned High Court Judge held, inter alia, that “…..I do not find any
solid justification for the petitioner [sic] to be paid the remuneration
of RM659,000-00 within eight month [sic] of the appointment. The
payment of this large amount will seriously prejudice the petitioners.
Notwithstanding the interim remuneration can only be taken by the
liquidator without the sanction of the Court, the Court find that the
amount taken unreasonable.” (emphasis ours).
[90] Does this mean that the liquidator is not entitled to any
remuneration at all? His removal was effected because he was found
to be “biased” in his dealings with the contributories. This in turn
affected the minority contributories adversely. He was therefore
removed and the current liquidator replaced him.
[91] It is relevant to note that the learned Judge did not stipulate that
the liquidator was not entitled to any remuneration whatsoever for
work done. He stated that the quantum claimed was unreasonable.
Therefore the difficult question before us is this:
[92] The liquidator in the instant case:
(a) contravened section 232(3) CA’65 by unilaterally drawing
monies by way of fees without the consent of the entirety
of the contributories; and
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(b) was found by the High Court to have charged excessively
for work done during an eight month tenure.
[93] This Court upheld finding (b) in the removal application.
However that determination in relation to billing was only in respect
of work done for an eight month tenure from inception. Moreover the
finding was that it was excessive, rather than not due in its entirety.
[94] Should this Court allow for any remuneration whatsoever in
respect of the work undertaken by the liquidator, or should it simply
refuse all remuneration?
[95] In dismissing the application in respect of the Further
Remuneration Appeals, the learned Judge took the position that as
the liquidator was removed for misconduct he was not entitled to any
remuneration. Authority for this was premised on the case of Re
Campall Industries Sdn Bhd; Perdana Merchant Bankers Bhd
(Applicant) [1997] 3 CLJ Supp 142 @ 173 where Abdul Malik Ishak J
(later JCA) set out the circumstances where a liquidator might lose his
remuneration. The first instance His Lordship described is when a
liquidator is deprived of his remuneration on the ground of
misconduct.
[96] A perusal of the chronology of events will show that it is
indisputable that the liquidator in the instant case did carry out work
in the course of his appointment as liquidator. This is further
evidenced by the sale of business agreements that were executed,
other sales as well as the management of the business of the five
companies. It would follow therefore that the liquidator ought to be
accorded some degree of remuneration for work done.
[97] With regards to the liquidator’s conduct in drawing funds
unilaterally without the consent of the entirety of the contributories
and without the sanction of the Court, the issue that arises is whether
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it precludes the recovery of any remuneration whatsoever. Having
given this issue careful consideration, we are of the view that while
this may well amount to a contravention of section 232(3) of the CA
‘65, the injunction appeals which have been allowed, require the
liquidator to return to the companies all monies which he had
wrongfully drawn and retained. This will ensure that the companies do
not suffer any loss in terms of unauthorised or excessive fees retained
by the liquidator.
[98] The liquidator ought to be sanctioned separately by the relevant
authorities, namely the Malaysian Institute of Accountants or the
Director General of Insolvency who has oversight of liquidators, in
respect of his conduct in unilaterally drawing fees in contravention of
section 232(3) of the CA ’65. Such conduct is not to be condoned or
treated lightly, given the position of trust of a liquidator.
[99] Having considered the totality of the circumstances, we are of
the view that upon the return of all monies unilaterally withdrawn and
returned, the liquidator is entitled to some degree of remuneration, but
only provided he is able to establish the same on well- founded
principles.
[100] As such, in relation to the Further Remuneration Appeals, we
are of the view that the learned Judge erred in denying the liquidator
entirely of remuneration. It is not in dispute that the liquidator did
undertake some work that resulted in the resolution, to a restricted
degree, of the dispute between the two sets of contributories.
[101] While this has not been resolved, it is equally relevant that the
minority contributories do not seek to set aside the sale of business
agreements, which were concluded by the liquidator. In short, it
cannot be said that the liquidator did no work whatsoever towards
bringing the liquidation exercise to a close.
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[102] However that does not mean that the Further Remuneration
Appeals are allowed in full or reversed.
[103] The net effect therefore, of our decision is that the liquidator
may be entitled to some remuneration provided he is able to prove the
same. It does not mean that he is entitled to the fees sought to be
claimed under Further Remuneration Appeals.
[104] This in turn is because the overriding principle is that any such
compensation must be reasonable. It therefore does not follow that the
liquidator is entitled to the sum claimed as of right. The Court is
bound to cast an objective eye on the bill tendered in terms of the
quantum claimed and be satisfied that the sum is justified
The Law on the Basis and Standards to be utilised in the
assessment of reasonable remuneration due to a liquidator
[105] The case of Perumahan NCK Sdn. Bhd. v. Mega Sakti Sdn. Bhd.
[2005] 7 MLJ 389 sets out comprehensively the law in relation to
section 232(3) CA ‘65 and Rule 142(3) of the Rules. It examines
inter alia, the principles to be applied when determining the
remuneration of liquidators. The Court is entitled to proceed on the
basis that reasonable remuneration is to be paid out. The benchmark
in determining the quantum to be paid out is ‘fairness and
reasonableness’, which are fairly discretionary terms. A blind or
unquestioning attitude is not advocated.
[106] The liquidators in that case, as is common, sought to have their
fees justified and paid out on a time scale basis. Ramly J (now FCJ)
held that the time expended by liquidators was only one of several
criteria that the court would taken into consideration. It was pointed
out that the importance of this criteria could well vary from case to
case, assuming greater significance in some cases as compared to
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others. The Court was bound to balance various considerations based
on the reasonableness and scope of the work performed. The Court
had to be satisfied that there was no ‘over servicing’ or ‘over
manning’ in the matter.
[107] In Woodsville Sdn Bhd v. Tien Eik Enterprise Sdn Bhd Hasnah J
(now JCA) expressed skepticism on the time-cost basis and relied on
Re Carton where it was concluded that the proper method to adopt
whenever it is practicable is to assess the remuneration according to
the results attained.
[108] Further guidance on this issue of remuneration in respect of time
costs is to be found in the decision of the Singapore High Court in Re
Econ Corp Ltd (In Provisional Liquidation) (No 2) [2004] SGHC 49.
In that case, Justice V K Rajah (as he then was) held, inter alia, that:-
(i) Liquidators have a right to be fairly and reasonably
remunerated. However they have no legitimate expectation
to be remunerated on a time costing basis as a matter of
right. This is only one of several factors to be taken into
account. The reason afforded was that considerable time
might be expended on unproductive work, particularly less
efficient staff. Secondly it would be difficult to check
charges based on such a system and accurately gauge the
time said to have been spent on the company’s affairs.
There should also be no question of the company paying
for a learning exercise by subordinate staff on the job.
There is no room for ‘overmanning’ or
‘overservicing’.Time is therefore one of many creiteria
that a court will take into account;
(ii) An important aspect of time estimation in relation to costs
will be the rate levied by the liquidator. In this context, the
test is what would be the adequate remuneration for a
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similarly experienced and qualified insolvency
professional. As there was no benchmark available from
any relevant body or association the Court applied the
parameters equivalent to solicitors. Industry practice might
provide a guide.
(iii) The value contributed by the liquidator is highly relevant.
The Court will want to ascertain what difference the
liquidator has made to the entire matter.
(iv) Scope of work – a straightforward liquidation will
necessarily involve less work and effort than a convoluted
matter where, accordingly, different rates will be reflected.
[109] The Court concluded by stating that it remains open for the
court in any matter to decide on the optimum mode of assessing fair
remuneration, albeit on a time basis, a realisation basis or an all
encompassing basis where all of the said criteria are considered.
However, whatever the basis adopted, it must be characterised by
fairness and reasonableness. It was also emphasised that
determination by the court ought to be a matter of last resort, invoked
only when no agreement with the creditors can be reached. The
decision appears, with respect, to set out comprehensively the
approach to be adopted in relation to the assessment of the quantum of
remuneration for them.
[110] A recent decision from New South Wales, Australia namely
Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v.
Sakr [2017] NSWCA 38 is also persuasive. There the Court set out the
general principles and test to be adopted when assessing remuneration
to be accorded to a liquidator:
“It is well settled that the onus is on the liquidator to establish
that the remuneration claimed is reasonable and that it is the
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function of the Court to determine the remuneration by
considering the material provided and bringing an independent
mind to bear on the relevant issues: Venetian Nominees Pty Ltd
v. Conlan [1998] 20 WAR 96; [1998] 16 ACLC 1653; Conlan
(as liquidator of Rowena Nominees Pty Ltd) v. Adams [2008] 65
ACSR 521; [2008] WASCA 61 at [28]-[29]. Although these two
cases related to the legislation as it stood prior to the 2007
amendments, the principles referred to in them remain
applicable. Further it will be expected that the liquidator in
supplying material to enable the Court to assess whether a
remuneration claim was reasonable, would supply material by
reference to the matters referred to in s. 473(10).”
[111] Although the legislative provisions differ, the principles
applicable namely that:
(a) the onus remains on the liquidator to establish that the sum
claimed is reasonable;
(b) the liquidator is bound to provide material on which the
Court can undertake a reasonable analysis; and
(c) the Court is to approach its task by determining the
remuneration due on the established materials with an
independent mind .
are all equally applicable to the assessment of remuneration in this
jurisdiction.
[112] The single unique difference between the instant appeals and the
other cited decisions is this: In all these cases the liquidators did not
attempt to draw monies without the consent of the Committee of
Inspection, creditors or contributories. If no consent was forthcoming
they sought the sanction of the Court.
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The Material Afforded by the Liquidator in Support of his claim
for Further Remuneration
[113] In the instant case the materials afforded by the liquidator in
support of his claim do not appear to be contemporaneous records of
the work undertaken. Rather they are summaries of work done or
simply contain time expended with the rates specified but with no
specification of what work was undertaken during that time, far less
why such an amount of time was necessary. There is no explanation as
to the specific time rates charged, the identity of the varying levels of
personnel involved, nor the reason why each of them was necessary.
In short the material was woefully inadequate to meet the standards
necessary to enable the Court to make a realistic assessment of the
remuneration due, if any, by way of additional fees.
[114] The situation is well described by way of analogy in the
Australian case of Venetian Nominees Pty Ltd & Ors v. Conlan [1998]
16 ACLC 1653. In that case too, the liquidator provided a statement
of work done in very general terms. The description of the statement
bears a close resemblance to the summaries provided ex post facto in
the instant case:
“ The respondent’s claims for remuneration as regards the fees
of his firm were based on hourly rates. The respondent produced
to the learned Master for example, an invoice showing that as
regards Plant for the period from 2 October 1997 to 31 January
1998, he and employees of his firm had spent between 50 and 60
hours working on tasks relating to his duties as provisional
liquidator. Thus for instance a manager was said to have
worked for 16.10 hours and 11.50 hours, a secretary or word
processor operator was said to have spent 14.30 hours and 2.50
hours, a computer 1.20 hours and a supervisor 7.60 hours.
Various rates were then accorded to the hours spent and the
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aggregate of the fees charged for all persons specified was
calculated…………………
Attached to this invoice was a document which purported to set
out: “details of work performed for the periods 2 October 1997
to 31 January 1996”. This document was in very general terms.
It identified in an all embracing fashion certain tasks that were
performed but did not specify who performed them and how long
each task took. Furthermore, many of the tasks were described
in such a way that it was impossible to discern whey they were
necessary, what precisely was involved in performing them, and
what level of complexity or responsibility attached to them. The
descriptions tended more to conceal this kind of detail rather
than reveal information essential to the court’s function of
determining whether the remuneration charged was fair and
reasonable. Typical examples of the descriptions were the
following:
“Discussions and correspondence to Smith Broughton and Sons
regarding retention for plant and equipment pursuant to lien to
satisfy outstanding fees and disbursements.
……………………………………………..”
[115] The liquidator’s summary of work done and the time costing
summaries bore a close resemblance to that described above. These
documents certainly did not constitute material that could possibly
assist the court to arrive at a fair and reasonable determination of
remuneration due for work done.
[116] The time costing method is of no utility to the court when it is
expressed on terms as in the present case. It simply does not afford
any usable information for the court to ascertain the remuneration that
is fair and reasonable for work done. When such meagre and shoddy
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material is handed in as the basis for a claim, it is not possible for the
court to undertake any useful analysis with a view to arriving at a
reasonable quantum by way of remuneration. The court cannot then be
faulted for turning to the assets realised method as in the case of
Woodville (above). And as specified in the Singapore decision of Re
Econ (above), the liquidator is not entitled as of right to demand that
his remuneration be evaluated on the basis of time costs. In the instant
case therefore the time cost method is not a suitable mode of
assessing remuneration due to the liquidator.
[117] We conclude that in order to give effect to our decision that the
liquidator is entitled to some degree of remuneration for work
undertaken. The Further Remuneration Appeals are remitted to the
High Court for a full exercise of taxation to be undertaken in respect
of the sums claimed for work done during his tenure as liquidator. The
liquidator is required to present full particulars to substantiate his
claims for remuneration, such that the Court is able to make an
accurate assessment of reasonable compensation. Such an exercise is
to be applied for within 4 weeks from the date of full payment of all
monies drawn and retained by the liquidator. This means that
repayment is to be made within 30 days of the date of service of the
sealed order on the liquidator, Yew Fooi, and the application for
taxation of his bills may be made after that.
Conclusion on the Further Remuneration Appeals
[118] We allow the appeals by the liquidator in respect of the
further remuneration appeals to the extent only that the
applications for further remuneration are remitted to the High
Court to be taxed in full ONLY AFTER and provided that full
repayment by the liquidator of the monies drawn and retained by
him, to the respective companies that are owed such monies,
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through the current liquidator is made within 30 days of the
service of the sealed order on the liquidator, Yew Fooi.
[119] TO THIS END the liquidator is at liberty to furnish further
particulars of work done for the five related companies during his
tenure as liquidator, such documents to be utilised in the review
and taxation to be undertaken and sanctioned by the High Court
as provided under the Companies Act 1965 and the Companies
(Winding Up) Rules 1972.
The Release Appeal
[120] The learned Judge to our minds erred in allowing the release and
effective discharge of the liquidator in respect of OCC Capital. In
law, such release would effectively release him from liability in
respect of any act done or default made by him in the course of
carrying out his duties while managing OCC Capital as a liquidator,
save in the event of fraud or some other serious misdemeanour. It
effectively has the effect of absolving the liquidator for acts of
negligence etc., during the tenure of his term as liquidator.
[121] A second point to note is that such release was granted
notwithstanding the pendency of an application for his removal. No
such discharge ought to have been allowed at that juncture as the
allegations made against him had not even been heard. The discharge
was, to that extent, premature.
[122] It would further appear that the application for discharge was
defective as the minority contributories were not notified by the
liquidator of his intention to apply for release until the unsealed copy
of the application for release and dissolution together with his
affidavit in support affirmed on 7 July 2015 were served on the
minority contributories on 7 July 2015. This contravenes Rule 149 of
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the Winding-Up Rules. The rule requires a liquidator seeking release
to give notice of his intention to do so to all contributories, and to be
given a summary of all receipts and payments in the winding up. No
such report was given to the minority contributories until the service
of the application itself. As such they was deprived of an opportunity
to query and verify the substance of the repot, in breach of the
principles of natural justice.
[123] In all these circumstances we are of the unanimous view that the
learned Judge erred in allowing the liquidator’s release. We therefore
allow the appeal of the minority contributories in respect of the
Release Appeal with costs.
The Examination of Sale of Business Appeals in appeals numbered
2325 and 2327 brought by the majority contributories
[124] This leaves us with the two appeals brought by the majority
contributories. We had, on the date of the hearing of these appeals,
collectively dismissed these appeals and provided short grounds for
the same. We reiterate those grounds and reproduce them below:
(a) It was contended before us that the minority contributories
had no locus standi to file these applications as they did
not comprise a party to the sale of business agreements.
We determined that the minority contributories did indeed
have the necessary locus standi to file these applications to
examine the sale of business of Elegant Palms and Jasa.
This is because they are directly affected in a pecuniary
capacity by the agreement between the majority
contributories and the liquidator. Their entitlement as
contributories to their share of the assets in the two subject
companies, namely Elegant Palms and Jasa is at best,
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varied by the set-off agreement. However, they were never
informed of the same and had never consented to it;
(b) The liquidator was not in a position to enter into this set-
off agreement without the knowledge and consent of the
minority contributories, particularly given the adverse
effect it would have on their share of the assets;
(c) In any event, the set-off agreement envisages as a pre-
condition the consent of the liquidators of another family
company called Cendawan. Such consent is not
forthcoming, as evidenced in writing by the liquidators of
Cendawan. The liquidators of Cendawan are not agreeable
to the set-off. Therefore the set-off agreement cannot
materialise;
(d) It is therefore essential that the primary agreements should
continue to enable the liquidation process to be completed.
(e) For these reasons, we concur with the learned Judge that
the primary agreements between Elegant Palms and Jasa
should continue.
[125] We therefore dismiss these two appeals by the majority
contributories, namely 2325 and 2327, with costs. In summary we
determine and hold as follows in respect of the 19 appeals:-
(i) Appeals numbered 907 and 908 relating to interim
remuneration filed by the minority contributories are
allowed.
(ii) Appeals numbered 2133, 2259, 2328 and 2329 relating to
the refusal to grant injunctions ordering the liquidator to
refund monies drawn and retained by him filed by the
minority contributories are allowed.
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(iii) The costs in respect of both these categories of appeals,
namely appeals numbered 907, 908 and 2133, 2259,
2328 and 2329 is RM10,000-00 to the appellants, i.e. the
minority contributories, such costs to be borne by the
liquidator personally;
(iv) Appeal number 2134 granting the release and discharge of
the liquidator of OCC Capital, lodged by the minority
contributories is allowed with costs of RM7,500-00 to the
appellants, i.e. the minority contributories, such costs
to be borne by the liquidator personally;
(v) Appeals number 2325, 2326, 2330 and 2422 relating to
the refusal of the High Court to sanction the sums drawn
by the liquidator as interim remuneration lodged by the
liquidator are dismissed with costs of RM5,000-00 to the
appellants, namely the minority contributories, such
costs to be borne by the liquidator personally;
(vi) Appeals numbered 2562, 2563, 2564, 2565 and 2566
relating to the refusal to allow the liquidator to seek
further remuneration post-removal are allowed in part
only in so far as the orders of the High Court are set
aside. These matters are remitted to the High Court to
be taxed in full only after and provided that full
repayment is made by the liquidator of the monies
drawn and retained by him to the respective companies
that are owed such monies, through the current
liquidator within 30 days of the service of the sealed
order on the liquidator, Yew Fooi. TO THIS END the
liquidator is at liberty to furnish further particulars of
work done for the five related companies during his
tenure as liquidator, such documents to be utilised in
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the review and taxation to be undertaken and
sanctioned by the High Court as provided under the
Companies Act 1965 and the Companies (Winding Up)
Rules 1972.
(vii) Appeal numbered 2331 relating to the High Court’s grant
of an injunction to restrain the liquidator from drawing
monies from OCC Lorry Transport without procuring the
consent of the Court is dismissed with no order as to
costs;
(viii) Appeals numbered 2135 and 2327 relating to the refusal
of the High Court to examine the business sales
agreements are dismissed with costs of RM7,500-00 each
to the respondents, i.e. the minority contributories;
All costs awarded are subject to allocatur and the deposits in
respect of all appeals are refunded.
(NALLINI PATHMANATHAN)
Judge
Court of Appeal
Malaysia
Dated: 11 DECEMBER 2018
KAUNSEL:
For the previous liquidator - S Bhuvanes & Chan Wai Shi; M/s
Bhuvanes
Peguamcara & Peguamcara
27-6 Oval Damansara
685 Jalan Damansara
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60000 Kuala Lumpur
For the liquidator - Faizal Khalid & Afifah Azman; M/s Sabri Ahmad
& Co
Peguamcara & Peguamcara
UOA Centre, Suite 19A-16-01
16 th Floor No. 19 Jalan Pinang
50450 Kuala Lumpur
For the minority contributors - Michael Chow & Wendy Yeong; M/s
Michael Chow
Peguamcara & Peguamcara
No. 58A Jalan Bukit Raja
Off Jalan Taman Seputeh
Taman Seputeh
58000 Kuala Lumpur
For the majority contributors - A Kanesrau; M/s Seah Balan & Co
Peguamcara & Peguamcara
Unit A, Tingkat 3 Wisma 1Alliance
No. 1 Lorong Kasawari 4B
Taman Eng Ann
41150 Klang
Selangor Darul Ehsan
Case(s) referred to:
A Santamil Selvi Alau Malay & Ors v. Dato’ Seri Mohd Najib Tun
Abdul Razak & Ors [2015] 4 CLJ 1016
Vasudevan v. ICAB Pte. Ltd. [1987] 2 MLJ 563
Wong Sin Fan & Ors v. Ng Peak Yam @ Ng Pak Yeow & Anor. [2014]
2 MLJ 629
[2018] 1 LNS 2247 Legal Network Series
71
Dato’ Robert Teo Keng Tuan v. Metroplex Bhd. [2014] 1 MLJ 39 (FC)
Perumahan NCK Sdn. Bhd. v. Mega Sakti Sdn. Bhd. [2005] 7 MLJ 389
Hartecon JV Sdn Bhd v. Hartela Contractors Limited [1997] 2 CLJ
104
Re Campall Industries Sdn Bhd; Perdana Merchant Bankers Bhd
(Applicant) [1997] 3 CLJ Supp 142
Econ Corp Ltd (In Provisional Liquidation) (No 2) [2004] SGHC 49
Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v.
Sakr [2017] NSWCA 38
Venetian Nominees Pty Ltd & Ors v. Conlan [1998] 16 ACLC 1653
Legislation referred to:
Companies Act 1965, ss. 218(1)(i), 232(3)
Companies (Winding Up) Rules 1972, rr. 142(1), (3), 149