Tan Kim Tian v Tan Kim Chuan (W-02(IM)-1087-05/2018/W-02(IM)-1088-05/2018)

TAN KIM TIAN (No. K/P: 460414-71-5127)

TAN BAN SENG (M) SDN BHD 15 (No. Syarikat: 033599-W) … PERAYU-PERAYU

TAN KIM CHUAN 20 (No. K/P: 501216-10-5385)

PROPERLAND REALTY SDN BHD (No. Syarikat: 046138-T) (dalam liquidasi) … RESPONDEN-RESPONDEN 25 [Dalam Perkara Petisyen Penggulungan Syarikat No. D6-28-1032-1999 Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam perkara Seksyen 218 Akta 30 Syarikat 1965 Dan Dalam perkara Properland Realty 35 Sdn Bhd No. Syarikat 046138-T Antara Tan Beng Seng (M) Sdn Bhd … Pempetisyen 40 (No. Syarikat: 033599-W) Dan Properland Realty Sdn Bhd … Responden] (No. Syarikat: 046138-T) 45 2 CORAM 5 HAMID SULTAN ABU BACKER, JCA HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 10 GROUNDS OF JUDGMENT INTRODUCTION 15 [1] There were 2 appeals fixed before us on 21.8.2019, i.e Appeal No: W-02(IM)-1087-05/2018 ("Appeal 1087") and Appeal No: W-02(IM)-1088-05/2018 ("Appeal 1088") which emanated from the decision of the High Court delivered on 6.4.2018. 20 [2] The Appellants are Tan Kim Tian (TKT) and Tan Beng Seng (M) Sdn Bhd (TBS) and the Respondents are Tan Kim Chuan (TKC) and Properland Reality Sdn Bhd (Properland). [3] In Appeal 1087, the appeal is against the whole decision of the 25 High Court Judge (the learned judge) in dismissing the 1st Appellant’s (Applicant) application dated 16.2.2017 (Encl. 61) with no order as to costs. In Appeal 1088, the appeal is against the decision of the the learned judge in allowing the 1st Respondent’s (Applicant) application dated 26.1.2018 (Encl. 92) with no order 30 as to costs. Both Enclosures are applications made pursuant to section 236 (3) of the Companies Act 1965 (CA 1965). 3 [4] The learned judge had written her grounds of judgment dated 5 10.9.2018. We noted that besides Encl. 61 and 92 which are the subject matter of these appeals, the judgment also mentioned Encl. 63 and 67. It was stated that since all the Enclosures were inter related to one another, the learned judge decided to hear all the Enclosures together. 10 BRIEF FACTS [5] The Respondents’ Company, Properland was incorporated on 22.3.1979. Its shareholding remains equally split between TKT 15 and TKC. Both TKT and TKC are also the only 2 directors of Properland. [6] Properland was wound up by Court Order dated 29.3.2000 with the Official Receiver appointed as its liquidator. On 25.3.2015, 20 both Yew Fooi’s (“Yew Fooi”) and Onn Kien Hoe’s (“Kien Hoe”) were appointed as Joint Liquidators of Properland. [7] In the High Court, the following 4 post winding-up Applications were filed by the parties:

(a) Encl. 61 is TKT’s Summons In Chambers application dated 16.2.2017 made pursuant to Section 236 (3) of the CA 1965 seeking essentially for an Order that one of the properties of Properland namely Lot 21 be sold to TKT 30 and/or TBS based on a First Right of Refusal. 4

(b) Encl. 63 is Yew Fooi’s Notice of Motion dated 2.3.2017 5 made pursuant to Section 237(3) of CA 1965 seeking to sell the properties of Properland on a First Right of Refusal.

(c) Encl. 67 is Onn Kien Hoe’s Notice of Application dated 20.3.2017 made pursuant to Section 237(3) of CA 1965 10 seeking, inter-alia, that (i) Lot 14 and PT 949 sold by way of public tender; and (ii) public tender be conducted for Lot 21 and first right of refusal be offered to TBS at the highest tender price. 15

(d) Encl. 92 is TKC’s Notice of Application dated 26.1.2018 seeking that the 3 Properties be sold by way of open tender to the highest bidder. [8] Having heard all the applications in the respective Enclosures, 20 the learned judge dismissed TKT’s Application in Encl. 61. Appeal 1087 is in respect of the said dismissal of Encl. 61. TKC’s Application in Encl. 92 was allowed. Appeal 1088 is in respect of the said decision allowing Encl. 92. Yew Fooi’s Application in Encl. 63 was dismissed. Kien Hoe’s Application on Encl. 67 was 25 allowed to follow the Order granted in Encl. 92. [9] Encl. 61 and Encl. 63 were dismissed and Encl. 92 and Encl. 67 were allowed by the learned judge on the following terms: 30 5

(a) The 3 Properties are to be sold by open tender to the 5 highest bidder;

(b) The reserved price shall be fixed as per the updated valuation by KGV International Property Consultants (M) Sdn Bhd (KGV) 10 [10] The learned judge in the Grounds of Judgment held, inter-alia, as follows:

(a) Initially, the Joint Liquidators agreed to dispose of the 15 properties by way of first right of refusal. TKC objected to the method of disposal.

(b) Subsequently, Kien Hoe had a change of mind and proposed a new method for the disposal.

(c) The Court is of the view that due to the objection, it is not appropriate to dispose of the properties in the way the Joint Liquidators originally agreed. 25

(c) The Court is of the view that open tender method is beneficial to the company and its contributories and that it will not cause any prejudice to the parties. 30 6 [11] Not satisfied with the Orders of the learned judge, the Appellants 5 raised several grounds in Memorandum of Appeal dated 3.7.2018 complaining that the learned judge had misdirected herself in fact and in law in making such Orders. [12] At the outset, it is not disputed that TKT is the older brother of 10 TKC. TKT was the founder and the ultimate will and mind of the TBS. TBS was the Petitioner in the winding up proceedings. [13] Before hearing the appeals proper, we were minded to call on parties to try to resolve the disputes based on our preliminary 15 view that:-

(i) Properland is a company which shareholdings are held by 2 brothers in equal share. 20

(v) The denial of the first right of refusal would in the first 5 instance cause a breach of the agreement reached between the Joint Liquidators and TKT, and secondly and importantly, it would cause irreparable damage and severe hardship to TKT/TBS ongoing business. 10

Lot PT 21 (Lot A21), Jalan Kuang Bulan, Kepong Garden Industrial Area, 52100 Kuala Lumpur (“Lot Unencumbered land with building tenanted by TBS Sdn Bhd.

Lot PT 14, Jalan Kuang Bulan (Jalan Kanan), Kepong Garden Industrial Area, 52100 Kuala Lumpur (“Lot 14”). Unencumbered vacant land. 8

Lot PT 949, Lorong Kuang Cermin 2, Taman Kepong, 52100 Kuala Lumpur (“Lot 949”). Unencumbered bungalow. 5 [15] We would thought that it is in their best interest if the dispute can be amicably resolved. Counsels for both parties agreed to our proposal and the appeal was subsequently stood down for counsels to get the proper instructions from their clients. We believed that the parties required sufficient time. We then 10 adjorned the appeal to the next day i.e 22.8.2019. [16] On the return date, both counsels informed the Court that parties could not reach a settlement as proposed by the Court. However, the Appellant informed us that on record, the Appellants’ had 15 made a proposal that the property will be priced on the correct market value to be updated by the same valuer KGV which the liquidators had appointed. [17] The Respondents on the other hand, instead of considering the 20 Appellants’ proposal took the view that the Order granted by the learned judge dated 6.4.2018 is non-appealable because it is not a decision but a direction. We considered the issue raised as not relevant because the relevant issue is in our view is whether the learned judge can interfere with the exercise of discretion of the 25 Joint Liquidators which they have agreed in the first place. The 9 Joint Liquidators had agreed to dispose of the properties by way 5 of first right of refusal and whether such actions were within their scope of power under the CA 1965. [18] Be that as it may, the Appellant had managed to get a proposal that the properties will be priced on the correct market value, 10 which we considered as fair and reasonable proposal, we indicated to parties that the court would like to allow the appeal in the manner that the properties be priced at the current market value as proposed by the Appellants. The Appellants confirmed to this court of the proposal. We then required the Appellants to put 15 the confirmation in a proper minutes. The appeal was then stood down for the Respondents to reconsider. Since we thought that the Respondents might require more times to reconsider the proposal, we adjorned the case to the next day, 23.8.2019. 20 [19] On 23.8.2019, parties appeared before this court and after having heard them, we delivered our dicision. We were unanimous in our decision that this is a fit and proper case of the appeal to be disposed of in the manner provided in the minutes prepared by the Appellants which we marked it as Exhibit “A”. In respect of the 25 valuation report, we accept the minutes of the Appellants (joint liquidators) and marked as Exhibit “B”. There is no order as to Costs. We also direct that the “liberty clause in the event if both parties require to purchase” be added in Exhibit “A”. 30 10 [20] We reproduced Exhibit “A” and “B” as follows- 5 Exhibit “A” Appeal 1087 & Appeal 1088 10 Both Appeals allowed on the following terms:

Within thirty (30) days from the date of this Order, the Joint Liquidators shall procure an updated valuation based on current market value (“Latest Valuation Report”) from KGV 15 International Property Consultants (M) Sdn Bhd (“KGV”) of all three (3) properties registered in the name of 2nd Respondent notably: a. Lot PT 21 (Lot A21), Jalan Kuang Bulan, Kepong Garden 20 Industrial Area. 52100 Kuala Lumpur (“Lot 21”); b. Lot PT 14, Jalan Kuang Bulan (Jalan Kanan), Kepong Garden Industrial Area, 52100 Kuala Lumpur (“Lot 14”); and 25 c. Lot Pt 949, Lorong Kuang Cermin 2, Taman Kepong, 52100 Kuala Lumpur (“Lot 949”).

Within thirty (30) days from the receipt of the Latest Valuation 30 Report by the Appellants and the 1st Respondent, the following shall occur: In respect of Lot 21 35 a. That the Joint Liquidators shall sell Lot 21 by way of first right of refusal to the Appellants (jointly and/or severally) by way of private treaty with the value stated in the Latest Valuation Report, being the purchase consideration. 40 b. In the event the value for Lot 21 stated in the Latest Valuation Report is lesser than the value stated by KGV 11 in the Updated Valuation Report dated 28.12.2017 5 (“Valuation Report of 2017”), the value stated in the Valuation Report of 2017 shall be the purchase consideration for Lot 21. c. Within sixty (60) days from receipt of the Latest Valuation 10 Report, the Appellants (jointly and/or severally) shall pay to the Joint Liquidators the purchase consideration and the Joint Liquidators shall cause to be transferred to the Appellants (jointly and/or severally) the issue document of title and/or all other relevant documents to effect the 15 sale and transfer of Lot 21 to the Appellants (Jointly and/or severally). d. Should the Appellants (jointly and/or severally) fail to remit the purchase consideration in respect of Lot 21 20 within the sixty (60) days stated above, the 1st Respondent shall have the right to purchase Lot 21 from the Joint Liquidators in the same terms as set out in paragraphs 2(b) and 2(c) above, that is, payment of the same purchase consideration within sixty (60) days from 25 the Appellants’ failure to remit the purchase consideration. In respect of Lot 14 and Lot PT 949 30 3. Within thirty (30) days from the receipt of the Latest Valuation Report by the Appellants and the 1st Respondent, the following shall occur in respect of Lot 14 and Pt 949: a. That the Joint Liquidators shall sell Lot 14 and Lot PT 35 949 by way of first right of refusal to the 1st Respondent by way of private treaty with the value stated in the Latest Valuation Report, being the purchase consideration. b. In the event the value for Lot 14 and Lot PT 949 stated in 40 the Latest Valuation Report is lesser than the value stated by KGV in the Updated Valuation Report dated 28.12.2017 (“Valuation Report of 2017”), the value 12 stated in the Valuation Report of 2017 shall be the 5 purchase consideration for Lot 21 and Lot PT 949. c. Within sixty (60) days from receipt of the Latest Valuation Report, the 1st Respondent shall pay to the Joint Liquidators the purchase consideration and the Joint 10 Liquidators shall cause to be transferred to the 1st Respondent the issue document of title and/or all other relevant documents to effect the sale and transfer of Lot 14 and Lot PT 949 to the 1st Respondent. 15 d. Should the 1st Respondent fail to remit the purchase consideration in respect of Lot 14 and Lot PT 949 within the sixty (60) days stated above, the Appellants (jointly and/or severally) shall have the right to purchase Lot 14 and Lot PT 949 from the Joint Liquidators in the same 20 terms as set out in paragraphs 2(b) and 2(c) above, that is, payment of the same purchase consideration within sixty (60) days from the 1st Respondent’s failure to remit the purchase consideration. 25 Exihibit “B” Appeal 1087 & Appeal 1088 30 1. The costs of procuring of the Updated Valuation Report for 2019 (“Latest Valuation”) by KGV International Property Consultants (M) Sdn Bhd (“KGV”) for the subject 3 assets of the 2nd Respondent in both the above Appeals and the outstanding costs of KGV’s Updated 35 Valuation Report dated 28.12.2017 (“KGV’s Valuation 2017”), amounting to RM25,806.22, may be borne by the 1st Appellant and 1st Respondent equally or by any one party. Such costs as borne by the party or parties may be reimbursed by deducting that amount from the 40 purchase consideration payable by the respective party or parties pursuant to the terms of the Counter Order. 13 [21] We gave our reasons in allowing the Appellants’ appeals in the 5 following paragraphs. VIEW OF THIS COURT [22] The learned judge knew and accepted the fact that at the initial 10 stage the Joint Liquidators agreed to dispose of the properties by way of first right of refusal. However, because TKC h a d objected to the method of disposal and that Kien Hoe had also changed his mind and proposed a new method for the disposal, the learned judge formed her own view that due to the 15 objection, it is not appropriate to dispose of the properties in the way the Joint Liquidators originally agreed. Hence, she held that an open tender method is beneficial to the company and its contributories and that it will not cause any prejudice to the parties. We did not agree with her decision because it tantamount 20 to interfering with the scope of powers of the Joint Liquidators under section 236(2)(c) of CA 1965. It was also our view that the method employed by the learned judge is not correct. [23] At the outset we had given our preliminary view the Properland 25 was a winding up Company by Court Order dated 29.3.2000 with the Official Receiver appointed as its liquidator. On 25.3.2015, both Yew Fooi and Kien Hoe were appointed as Joint Liquidators of Properland. The Liquidators have wide powers under CA 1965 to do any act specified under section 236 of the 30 14 CA 1965. The applications at the High Court involved disputes on 5 the manner to dispose the properties of Properland. In this context, section 236(2)(c) of CA 1965 clearly provides that Liquidators may sell the Properties by way of public auction, public tender or private contract. 10 [24] Section 236(2)(c) of CA 1965 provides as follows- “236 …

(c) sell the immovable and movable property and things in action of the company by public auction, public tender or private contract with power to transfer the whole thereof to any person or company or to sell the same in parcels;” 20 [25] We agreed that such discretion cannot be exercised arbitrarily but rather against certain just and equitable principles by considering or taking into account factual and commercial settings as well as conduct of the parties. 25 [26] The selling of properties by the Liquidators is in fact an arrangement or commercial transaction done for the benefit of the contributories and creditors of Properland. The Courts have ample powers to look into the settings or the surrounding 30 15 circumstances involving the arrangement or transaction. In this 5 aspect Edgar Joseph Jr SCJ in Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633 at page 651, had laid down the following: “So also, in Reardon Smith Line Ltd v Hansen-Tangen 5 10 Lord Wilberforce said [at p 574]: No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually 15 described as 'the surrounding circumstances' but this phrase is imprecise, it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of 20 the genesis of the transaction, the background, the context, the market in which the parties are operating. He continued: 25 … what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were.” 30 16 [27] It is precisely for the above reasons, Parliament in its wisdom 5 have in place Section 236(3) of CA 1965 to ensure that the Courts act as a check and balance of such discretion. The said section empowers contributories and creditors such as TKT to apply to Court. The section reads: 10 “236 .. The exercise by the liquidator of the powers conferred by this section shall be subject to the control of the Court, and any creditor or contributory may apply to the Court with respect 15 to any exercise or proposed exercise of any of those powers.” [28] The High Court’s case of Re Kian Joo Holdings Sdn Bhd (in liquidation); Abdul Jabbar bin Abdul Majid & Anor, applicants [1999] 6 MLJ 352 considered the application under Section 20 236(3) of the CA 1965. [29] The Court recognised that power to sell immovable properties by liquidators are pursuant to section 236(2)(c) of CA 1965 and the provision of section 236(3) allows a contributory such as TKT to 25 apply Court in respect of the actual or envisaged exercise of the liquidators (at page 358 of Para C to E). [30] The liquidators may also apply for direction by the Court pursuant to Section 237(3) of CA 1965 if difficulties arise in the course of 30 17 their administration of the winding-up (at page 357 Para I to page 5 358 of Para A to B). [31] The Court will have to see if liquidator’s action has such importance and can be seen to have such defects as to justify the court exercising its supervisory power” where “a defect 10 arising either out of some want of good faith or out of some erroneous approach in law or in principle then that is clearly a ground on which the court would entertain an application by one of the interested parties for appropriate directions or some other form of remedial order (at page 360 of Para D to page 361 15 Para E). [32] Onn Kien and Yew Fooi having been appointed as the Joint Liquidators had on 1.09.2015 appointed a professional property valuer, KGV to conduct the valuation of the Properties. 20 [33] The details of the properties and the market value given by KGV are as follows: Lot No. Value Lot Pt 21 RM10,075,000.00 Lot PT 14 RM19,000,000.00 Lot PT 494 RM2,300,000.00 25 18 [34] As we had alluded to earlier, the Liquidators’ discretion cannot be 5 exercised arbitrarily but must be based on just and equitable principles by considering or taking into account factual and commercial settings as well as conduct of the parties. In other words, the conduct of the Joint Liquidators in the appointment of an independent valuer, KGV by the Joint Liquidators must be 10 considered. [35] It was also not disputed that the Joint Liquidators had notified that a contributories’ meeting will be held on 29.1.2016 and one of the agenda was on the realisation of Properland’s properties. The 15 Joint Liquidators had also notified the creditors of the meeting on 29.1.2016. [36] It was also not disputed that at the Contributories’ Meeting, the Joint Liquidators informed all present including the other 20 contributory TKC that a decision had been taken by the Joint Liquidators to realise the properties in the following manner:

(a) For Lot PT 21, the property is to be realised by way of a first right of refusal to be offered to TKT/TBS Sdn Bhd.

(b) While the 2 other properties namely Lot PT 14 and Lot PT 949 be offered to TKC by way of first right of refusal. 30 19

(c) The prices for the properties will be as per the valuation by 5 KGV. [37] It was not disputed that in the said Contributories Meeting, TKT had informed his unequivocal acceptance of the offer of the first right of refusal to purchase Lot PT 21 to all present at the 10 meeting. The above was clearly recorded in the minutes of the Contributories’ Meeting. Further, TKT had again reaffirmed his acceptance of the offer to purchase Lot PT 21 at the price of RM10,075,000.00 as per the valuation report by way of his letter dated 9.5.2016 to the Joint Liquidators. 15 [38] Clearly an agreement/arrangement had been entered between the Joint Liquidators and TKT. As such it is completely unjust and inequitable for one of the Joint Liquidators namely Onn Kien Hoe to renege on his agreement. 20 [39] Our attention was also drawn to the fact that there was an admission by Onn Kien that there was an agreement between the 2 Liquidators to realise the Properties by way of first right of refusal. This contained in Onn Kien’s email dated 23.02.2016. 25 [40] It was not disputed that prior to the hearing of the 4 Application, the High Court subsequently directed that the valuation of KGV be updated. As at 27.12.2017, the updated valuation were as follows: 30 20 Lot No. Value Lot Pt 21 RM11,005,000.00 Lot PT 14 RM20,000,000.00 Lot PT 494 RM2,300,000.00 5 [41] We were of the view that the Joint Liquidators’s conduct of appointing a professional property valuer, KGV to conduct the valuation of the said properties was within their scope of power to find the right price to dispose of Properland properties. The valuation was premised on a market value and not on a forced 10 sale basis although Properland was under winding-up. [42] It was not disputed that the offer for the first right of refusal for Lot PT 21 was made by the Liquidators to TKT based on the valuation amount given by KGV i.e. RM10,075,000.00 i.e. the 15 amount as per the valuation report given by KGV. [43] In the circumstances, clearly the conduct of appointing a professional valuer, taking into account the feedback of the contributories and thereafter offering the valuation price to TKT 20 shows a clear intention on the part of the Liquidators to offer the properties by way of first right of refusal, which offer TKT had unequivocally accepted. The first right of refusal offered and accepted is a disposal at a fair value i.e. based on the KGV valuation. It is not forced sale value but rather on market value. 25 21 [44] We agreed with the Appellants that if a public tender or open 5 tender as held by the learned judge is to be carried out, it would protract the liquidation process. It is fundamental that in liquidation, the liquidators are to be concerned most about liquidating the assets of the company as soon as they can in the most costs saving and expeditious manner. Certainly, the first 10 right of refusal will not protract the liquidation of the Respondent particularly when there is already a ready, able and willing purchaser i.e. TKT. [45] Further, TKC or Onn Kien Hoe have failed to show any evidence 15 that if a public tender is to be exercised, it will fetch a higher value than the market value indicated. In this context we agreed with the Appellants that anyone who wishes to purchase the property through public tender may offer lower than the market value because any potential purchaser will have to incur costs of 20 demolishing existing building structure which has been there since early 1980s and to deal with issue of vacant possession since TKT/TBS has been occupying the premises for business. [46] We also agreed that the High Court should have taken into 25 account the current dull economy climate of the country where obtaining the desired market value through a public tender process would not be possible. 22 [47] It must be reminded that the Court in exercising its supervisory 5 power under section 236(3) of CA 1965 must not go beyond such power. The Court only have to see if Liquidator’s action has such importance and can be seen to have such defects as to justify the court exercising its supervisory power where a defect arising either out of some want of good faith 10 or out of some erroneous approach in law or in principle then that is clearly a ground on which the court would entertain an application by one of the interested parties for appropriate directions or some other form of remedial order. 15 [48] In this case, the learned judge had accepted the fact the liquidators had agreed to dispose of the properties by way of first right of refusal. There is no defect mentioned by the learned judge as to the Joint Liquidators agreement neither unreasonableness of Joint Liquidators’ action has been raised by 20 the learned judge in her judgment. Therefore, the learned judge in our view ought not to invoke her supervisory power to substitute the Joint Liquidators’ decision with her decision without any cause. 25 [49] Merely because one contributory is not agreeable to offer made, it does not stop the Liquidators from reaching a decision. The Liquidators should have proceeded with the sale and purchase based on the acceptance by TKT. In Re Kian Joo Holdings 23 [1999] 6 MLJ 352 where the Court had clearly stated at page 5 357 that: “As counsel rightly submitted, the terms of a sale of the assets of the company would be a commercial decision best left in the hands of the liquidators as the legislature intended it to 10 be. Just because there was a difference of views amongst the contributories, the liquidators should not be divested of the responsibility of making a decision.” [50] Section 236 (3) of CA 1965 is to ensure that the Courts act as 15 a check and balance of such discretion. We did not think it is correct for the learned judge to entertain TKC’s objection on the method of disposal and Kien Hoe’s proposal for a new method for the disposal. The decision is best left to the Liquidators to make decision within their scope of powers under CA 1965. 20 [51] A similar position is taken in Wong Sin Fan & Ors v. Ng Peak

Yam @ Ng Pyak Yeow & Anor [2013] 3 CLJ 17; [2013] 2 MLJ Zulkefli CJ (Malaya)(delivering the judgment of the Federal Court) adopted the judgment of Ramly Ali J in Ng Yok Gee & 25 Anor v. CTI Leather Sdn Bhd (Metro Brilliant Sdn Bhd & Ors, intervener) [2006] 3 CLJ 360; [2006] 7 MLJ 28 on the principles of law governing an application to remove a provisional liquidator and at 638 [24] held - 24 "[24] Based on the above principles of law, we are of the 5 view that the court should be slow to interfere with any act or decision of the liquidators in discharging their roles in company liquidation and will do so only if it is so unreasonable and absurd that no reasonable person would have acted in that way. The court will not 10 interfere with the decision simply because its opinion might differ from that of the liquidator (see the case of Andrew Christopher Chuah Choong Eng Chuan v. Ooi Woon Chee & Anor [2007] 2 CLJ 405; [2007] 2 MLJ 12)". 15 [52] Based on Wong Sin Fan's case (supra), the Court will not interfere unless the conduct of the Liquidator was so unreasonable and absurd that no reasonable person would so act. The Court too, will not interfere with the Liquidator's decision 20 simply because its opinion might differ from that of the Liquidator. In our instant case, we do not think that it could be said that the conduct of the Joint Liquidators was so unreasonable and absurd that no reasonable person would so act. 25 [53] The learned judge is therefore was plainly wrong to form her own view that due to the objection, it is not appropriate to dispose of the properties in the way the Joint Liquidators originally agreed. Hence, her decision that an open tender method is 25 beneficial to the company and its contributories was completely 5 wrong. [54] For all intent and purpose we had noted that at the Contributories’ Meeting, the Joint Liquidators informed all present including the other contributory TKC that a decision had been taken by the 10 Joint Liquidators to realise the properties in the following manner:

(a) For Lot PT 21, the property is to be realised by way of a first right of refusal to be offered to TKT/TBS. 15

(b) While the 2 other properties namely Lot PT 14 and Lot PT 949 be offered to TKC by way of first right of refusal.

(c) The prices for the properties will be as per the valuation by KGV. 20 [55] Therefore, we were of the view that based on the decision, the learned judge should instead direct that the properties be disposed of according to the decision taken by the Joint Liquidators which they have already agreed as set out in the 25 above manner. [56] Since the Appellants had agreed with a proposal that the properties will be priced on the correct market value, we made our unanimous decision that this is fit and proper case of the appeal to 30 26 be disposed of in the manner provided in the minutes prepared by 5 the Appellants which we marked it as Exhibit “A” and the valuation report marked as Exhibit “B”. We also direct that the “liberty clause in the event if both parties require to purchase” be added in Exhibit “A”. 10 [57] We allowed the Plaintiffs’ appeals and with no order as to costs. Dated this 2nd January 2020 15 Sgd KAMALUDIN MD. SAID JUDGE 20 COURT OF APPEAL MALAYSIA PUTRAJAYA 25 30 35 27 PARTIES 5

Ashok Kandiah and David Soosay for the Appellants (Messrs Kandiah Partnership)

David Hoh and Keith Mood for the Respondent 1 10 (Messrs Lim & Hoh)

CM Wong for the Respondent 2 (Onn Kien Hoe), Joint Liquidator (Messrs K F Low & Co.,) 15

CM Owee and Lee Boon Koon for the Respondent 2 (Yew Fooi), Joint Liquidator (Messrs Owee & Ho.,)