Khairil Azar Bin Badur v Wirama Sdn Bhd (WA-28PW-772-12/2024)

YAP KOK BIN (NRIC No.: 870620-14-5585)

TAM WEI LUN (NRIC No.: 810108-06-5303) …APPLICANTS

These Grounds concern my decision on 21.1.2026: a. granting Encl 1 in 28PW-487-08/2025 (“PW-489”); and with respect to the appeal to the Court of Appeal vide Encl 18; b. dismissing Encl 1 in 28PW-772-12/2024 (“PW-772”); and with respect to the appeal to the Court of Appeal vide Encl 31.

Both applications concern the remuneration of the Liquidator of the Respondent (“Wirama”), Tharma Iswara a/l Subramaniam (“the Liquidator”). PW-489 was an application by the Liquidator for his remuneration; PW-772 was an application by the Appellants in the Court of Appeal (originally the Applicants in S/N jzhdbmsBW02Ce6tuiujzfA PW-772) for the Liquidator’s remuneration to be capped. The Appellants are purchasers of the condominium project of Wirama (see para 4 of Encl 5).

Save where the context otherwise provides, all references to sections are with reference to sections in the Companies Act 2016 (“CA 2016”).

I will deal with PW-489 to determine the remuneration of the Liquidator first and then I will consider PW-772 as to whether a cap should be placed on such remuneration assessed.

In short, the terms of the approval of the remuneration sought as per Encl 1 of PW-489, are as follows: 1) That the Liquidator’s remuneration be fixed by way of percentage in the following manner: a) At 1% of the purchase price of each principal Sale and Purchase Agreement or 1% of the prevailing purchase price (as the case may be) (subject to SST or other taxes levied) for each transfer or for each refinancing or sub-sale matter and/or any other form of assignment (to include assignments by way of gift or by way of Grant of Probate or Letters of Administration) of the property in the residential S/N jzhdbmsBW02Ce6tuiujzfA development known as Amansiara consisting of 1716 units; b) That the Liquidator’s remuneration be fixed at RM160.00 (subject to SST or other taxes levied) for the application of each blanket consent to be paid by each unit/parcel owner for the remaining of 1524 units; c) That the Liquidator’s disbursements and expenses (subject to SST or other taxes levied) at RM425.00 for each unit be approved for the remaining 1524 units; and d) That the Liquidator’s solicitor’s vetting fee of RM

280.00 (subject to SST or other taxes levied) for each unit be approved. 2) Alternatively, that the Liquidator’s remuneration be fixed on time cost basis. [Full terms of the prayers omitted as being immaterial.] 3) That the Liquidator’s remuneration in the sum of RM597,385.39 for the transfers of 192 units paid by the parcel owners based on 1% of the purchase price of the principal Sale and Purchase Agreement or prevailing purchase price, the blanket consent fee and the expenses and disbursements (inclusive of the blanket S/N jzhdbmsBW02Ce6tuiujzfA consent fee to the Land Office & SST) and Liquidator’s solicitors vetting fee RM66,032.54 from the period of 7.4.2023 to 27.8.2025 be approved; or 4) Alternatively, pursuant to s. 487(3) of the Companies Act 2016, the Liquidator’s remuneration be sanctioned for the work undertaken by the Liquidator since his appointment on 29.9.2020 pertaining to the 1716 units in the Amansiara housing development including the administrative work and verification exercise carried out in the past and for the future for the remaining 1524 units.

I had the opportunity to consider the basis of the claims for remuneration of a liquidator in Finterra Global Plantations Berhad & 2 Ors v. FGP Ventures Sdn. Bhd. Companies Winding-up Petition No.: WA-28NCC-1089-11/2024 (9.4.2026). In short, the general principle is that Liquidators are entitled to be paid for work done. Fairness and reasonableness are the overriding factors in determining quantum. Although the ‘percentage basis’ is the default basis under rule 142(3), see rule 142(3) of the Rules, Finterra Global (supra) at paras 16 and 16, there may be sufficient special circumstances to warrant allowing remuneration on a time cost basis.

Counsel for the liquidator took a slightly different approach. His stance is that there were no assets realised by the Liquidator nor any left for s. 479 to apply. It is then said that the Liquidator may exercise his discretion to assess his remuneration, see S/N jzhdbmsBW02Ce6tuiujzfA Walley Metal Works Sdn Bhd v Safety Development Corporation Sdn Bhd; Pegawai Penerima (Applicant) & Ler Cheng Chye (Liquidator) (2015) 1 CLJ 1019 (“Walley Metal”) at paras 49 to 52.

The Official Receiver (“OR”) had, as the then provisional liquidator, obtained strata titles to Wirama’s condominium project (“Amansiara”) and handed them to the Liquidator. The Liquidator subsequently charged 2% of the purchase price of each unit on all purchasers as verification fees in order to execute the strata titles. However, the condominium owners’ society objected. The issue raised for the Court’s determination was whether the liquidator could exercise his discretion in respect of the collection of fees in the way he did.

In Walley Metal, the Liquidator was appointed in place of the OR. The Court, at paras 49 to 51, explained s. 232 of the Companies Act 1965 (“CA 1965”) (now s. 479) and how the said s. 232 does not apply where the Liquidator is not expected to be paid out of the properties or assets of the company in liquidation, especially when there are no funds left. The Liquidator then has the discretion to charge and obtain his fees through charges such as verification fees on third party purchasers and not from the company in liquidation, see also Biocoslab Manufacturing Sdn Bhd v Golden Affinity Development Sdn & Ors [2024] MLJU 2025 at paras 46, 50(k) and (l). S/N jzhdbmsBW02Ce6tuiujzfA

In this case, the Liquidator asserts that there are no funds left in Wirama, see para 30 of Encl 23 in PW-772. This does not appear to be disputed.

Therefore, it is argued, following Walley Metal that it is unreasonable to expect the Liquidator to continue acting as the Liquidator of Wirama while not being paid for his work. Precisely for this reason, it is argued, that s. 479 (then s. 232 of CA 1965) does not operate where a liquidator will not to be paid out of the assets of the company in liquidation, as in the case of Wirama.

So, following Walley Metal the Liquidator devised a method of being paid, not from the properties and the assets of Wirama but through fees charged to third parties. It is noted later in these Grounds that even through this method, the remuneration charged was not exorbitant.

As such following Whalley Metal (supra) at paras 70 to 72, the Liquidator may exercise his discretion in respect of his fees under s. 487(4), (then s. 237(4) of the CA 1965), which states that the Liquidator shall use his own discretion in the management of the affairs and property of the company and the distribution of its assets. As to how these 2 matters are carried out is within the discretion of the Liquidator. If the Liquidator does not resort to the assets and properties of Wirama to fund his remuneration, he is then justified in funding his fees by way of charges to third parties. I accept that this step will also S/N jzhdbmsBW02Ce6tuiujzfA preserve the assets of Wirama that may be left (which there appears to be none).

I regret that I do not accept that the decision of Abu Bakar Jais JC (as he then was) in Walley Metal was made per incuriam as submitted by the Applicants at para 7 of Encl 25 in PW-489.

In any event, the Liquidator submits the Court in Walley Metal found that the 2% charges imposed by the Liquidator for the verification exercise was reasonable and not exorbitant. Applying Walley Metal, the fees charged by the Liquidator at 1% or the prevailing market price is reasonable and is also in line with charges sanction by the OR, see also para 19(d) below. Further, since the Liquidator’s appointment, it is apparent that he had expended extensive time and incurred expenses and costs in the Amansiara project and is it is only fair that he be remunerated for his work as Liquidator for the benefit of the parties involved.

It is now settled that the test for upsetting the Liquidator’s exercise of discretion is whether the acts of the liquidator acted is so unreasonable and absurd that no reasonable person would have acted in that way, see the Federal Court in Wong Sin Fan & Ors v Ng Peak Yam @ Ng Pyak Yeow & Anor [2013] 2 MLJ 629 at para 24. Given Walley Metal, I could not say that the Liquidator had abused his discretion in deciding to charge his remuneration in the way he did. S/N jzhdbmsBW02Ce6tuiujzfA

Accordingly, I granted an order in terms of prayers 1, (a) to (d) and prayer 3 of PW-489. I made no order as to prayer 2, being the alternative prayer to charge remuneration on a time cost basis.

PW-772 is designed to ‘cap’ the remuneration of the Liquidator. The relief sought are for orders for the Liquidator: a. to cap his administration fees and vetting fees to a maximum sum of RM 1,000.00 for each transfer of the strata titles of the residential development located at HS

(D) 56300 PT No. 31593 Mukim Rawang District of Gombak (now known as Amansiara) to its unit/parcel owners; b. to refund all administration charges and vetting fees previously collected from the parcel owners of Amansiara in excess of RM 1,000.00 for each transfer of the strata titles; c. to cap his administration fees for the granting of consent towards sub-sales of parcels in Amansiara to a sum of RM

500.00 or 0.5% whichever is lower; S/N jzhdbmsBW02Ce6tuiujzfA d. to refund all administration charges and vetting fees previously collected from the parcel owners of Amansiara in excess of RM 500.00 or 0.5%, whichever is lower for the granting of consent for sub-sale of parcels.

I find it unnecessary to impose such a cap as the evidence suggests that the work done was substantial and the charges were not excessive.

In this respect, the steps taken by the Liquidator are set out in paras 14 to 36 of Encl 5 in PW-772 and summarised in the submissions of the Liquidator in Encl 23 PW-772 at para 32 (a) to (z), which I will not restate. However, I note that: a. although the strata titles were issued between 2013 to 2016, 4 years before the winding up of Wirama, nothing was done by the Developer to perfect the transfers in favour of the 1716 owners. b. The Developer had oversold the bumiputra units and had breached the bumiputra allocation and was subject to the payments and penalties. c. The Liquidator had taken steps to resolve these problems. The detailed descriptions of the steps and work done and time spent by the Liquidator and his support staff have been outlined in Encl 5. S/N jzhdbmsBW02Ce6tuiujzfA d. the market pricing for verification fees, including that charged by the OR is between 1% to 2.5%, see the summary in Table B and para 52 of Encl 5. Accordingly, the sum billed of 1% is not extortionate.

As such, I also dismissed the remaining prayers (c), (d), (e) and

with no order as to costs. Dated the 27th day of April 2026 ..........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA S/N jzhdbmsBW02Ce6tuiujzfA Case References: • Biocoslab Manufacturing Sdn Bhd v Golden Affinity Development Sdn & Ors [2024] MLJU 2025 • Finterra Global Plantations Berhad & 2 Ors v. FGP Ventures Sdn. Bhd. Companies Winding-up Petition No.: WA-28NCC- 1089-11/2024 • Walley Metal Works Sdn Bhd v Safety Development Corporation Sdn Bhd; Pegawai Penerima (Applicant) & Ler Cheng Chye (Liquidator) (2015) 1 CLJ 1019 • Wong Sin Fan & Ors v Ng Peak Yam @ Ng Pyak Yeow & Anor [2013] 2 MLJ 629 Legislation References: • Companies Act 2016 • Companies Act 1965 • Winding Up Rules, Rule 142(3) Decision Date: 21st January 2026 Counsel for the Applicant: Solicitors: Vinesh Mathew Varghese & Manesh Kalai Selvan Messrs. Teja Singh Penesar & Co. (Kuala Lumpur) Counsel for the Respondent: Solicitors: Pamela Ephraim & S. Ranjini Messrs. Ephraim & Associates (Sungai Buloh) S/N jzhdbmsBW02Ce6tuiujzfA