Filing fee if claim is over $10 1 00 2. Fee on Special Proxy 1 00 [26] Plainly, the Second Schedule of the CWR 1972 refers to Rule 195 in which the shoulder notes clearly stated the word ‘Fees’. Subrule 195(1) provides that “The fees payable in respect of the winding-up of companies under these Rules are prescribed in the Second Schedule.”. It’s clearly stated that the fees mentioned in Table A shall be paid to the Court, the fees mentioned in Tables B and C shall be collected by the official receiver and the only fees mentioned in Table D shall be collected in stamps by the official receiver or the liquidator. Thus, the percentage mentioned in paragraph 2 of Table C applies as a fee when the Official Receiver acts as the liquidator. [27] Notwithstanding the provision for ‘fees’ mentioned under the Second Schedule, subrule 142(1) of the CWR 1972 provides that the remuneration of a liquidator, unless the Court shall otherwise order, shall be fixed by the COI, and shall be in the nature of a commission or percentage of which one part shall be payable on the amount realized, and the other part on the amount distributed in dividend. In the meantime, according to subrule 142(3), in the absence of a COI agreement, the liquidator's compensation shall, unless the Court orders otherwise, be determined by the scale of fees and percentages now payable on realisations and distributions by the Official Receiver in the capacity of liquidator. According to the aforementioned S/N K3hyXWuyxkqdJkNw5uoH4A subrule, the counsel for the Liquidator asserted before us that the COI majority decision to compute the remuneration for the Liquidator using the percentage listed in Table C of the Second Schedule was correct. [28] Reading the law and the rule harmoniously, we are of the opinion that the percentage listed in Table C can be used to compute the remuneration of a liquidator where there is no COI agreement on the remuneration or even the COI can agree that the computation of the remuneration can be based on the percentage listed in Table C. However, the law is not one sided when it comes to the determination of the remuneration of a liquidator. It is clear that the minority contributary who holds at least 10% shares in a company has the right to apply to the winding up Court to question the fairness and reasonableness of the determined remuneration. With such a provision, we are of the considered view that once the winding up Court is confronted with the minority contributory’s objection to challenge the COI determination on the remuneration of the Liquidator, the winding up Court holds a statutory duty to examine whether the amount of the determined remuneration is in fact fair and reasonable. Thereafter its owes a duty to confirm or vary the determined remuneration. [29] What happened here is, the LHCJ in the winding up Court took a very simplistic approach in handling and deciding the appellant’s application to assess and vary the remuneration of the Liquidator. The LHCJ consider only two factors in his finding. First, the duration of the Liquidator’s appointment and second, the Liquidator’s Explanatory Note in the virtual COI meeting explaining how he uses the percentage listed in paragraph 2 of Table C to compute the remuneration. Based on the two factors, the LHCJ found that the total claim in the amount of RM9,296,304.00 by the Liquidator does not go against the principles of fairness and reasonableness. S/N K3hyXWuyxkqdJkNw5uoH4A [30] Apparently, the simplistic approach taken by the LHCJ in his decision which is now under appeal contradicted his own decision when he decided to dismiss the Liquidator’s application for the court’s sanction to distribute WCSB’s assets via Forms of Summons in Enclosure 139. The LHCJ refused to give sanction and had this to say in his judgment: As regards to the remuneration charged, it is not in dispute that not less than 3/4 in value and 1/2 in number of the creditors present in person or by proxy (whose debt had been admitted) voted in favour of this remuneration. Be that as it may, the supporting affidavits prepared by the Liquidator failed to provide any resolution passed by the creditors in support of the said "agreed fees" of RM2.5 million to the Liquidator. As for the Contributories, there was no unanimous consent by all the Contributories to sanction such remuneration. Without having placed before me of all the relevant material in support of the "agreed fees", I find it difficult to decide what amount of the remuneration claimed is fair and reasonable and justifiable that the Liquidator is entitled to for the work which he had actually done. In the instant case, there is no concrete explanation or reason given why such amount of remuneration should be given to the Liquidator. In short, without the supporting documents, I am unable to make a realistic assessment with an independent mind of the quantum claimed for work undertaken due to the Liquidator even though there was overwhelming support from the creditors and contributories (except Emiprima Sdn Bhd) to accept the terms as set out in the Amended Annexure A. It is precisely for this reason this Court is unable to depart from the approach taken in Ong Kwong Yew & 6 Other v. Ong Ching Chee & 4 Other (Court of Appeal Civil Appeal No. B - 02 (IM) - 2135 - 10 /2017 where the Court of Appeal held as follow: "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 which 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." Having considered the totality of the circumstances, I hereby, refused to sanction the "agreed fees" of RM2.5 million in the absence of a full particulars or records of the work undertaken to substantiate his claim for the said remuneration. Regret to say that the material was given to this Court was woeful inadequate to meet the S/N K3hyXWuyxkqdJkNw5uoH4A standard to enable me to make a realistic assessment of the remuneration due for work done. See the LHCJ’s decision as reported in Lim Boon Chuan @ Lim Ban Huat v. Wonderful Castle Sdn Bhd (In Liquidation) & Anor [2020] 1 LNS 330. [31] We observed that there is a similar fact and situation between the Liquidator’s application for the court’s sanction via Enclosure 139 and the COI agreement to pass a resolution to approve the remuneration of the Liquidator in the amount of RM9,296,304.00. The similar fact in both situations is that, the majority of the COI members except for the appellant agreed to the amount claimed by the Liquidator. Be that as it may, the LHCJ had taken a very different approach in handling and deciding those similar facts and situations. [32] In the case of Enclosure 139, the LHCJ referred to the remuneration claimed in the amount of RM2.5 million by the Liquidator as “agreed fees” but still refused to allow the sanction upon objection by the appellant on the reason that without the supporting documents, he is unable to make a realistic assessment with an independent mind on the quantum prayed by the Liquidator even though there was overwhelming support from the members of the COI. Ironically, in the case of the Liquidator’s claim for remuneration in the amount of RM9,296,304.00, the same LHCJ refused the appellant’s application to assess and vary the determined remuneration on a simple reason that the majority members of COI agreed and voted in favour of the remuneration of the Liquidator even though without any justification or supporting documents. In fact, the LHCJ made a specific finding that the Liquidator is perfectly entitled to charge the percentage listed in Table C without giving any reason other than the determination was agreed by the COI. The LHCJ is inconsistent in his decisions, akin to an S/N K3hyXWuyxkqdJkNw5uoH4A action of changing the goal post in deciding the two similar facts and situations. [33] It is trite law that, once the winding up Court is confronted with the minority contributory’s objection via a Notice of Motion filed under subsection 479(3) of the CA 2016 to challenge the OCI determination on the remuneration of the Liquidator, the winding up court holds a statutory duty to examine whether the amount of the determined remuneration is in fact fair and reasonable. The duty to examine and determine whether a remuneration is fair and reasonable had to be discharged judiciously. [34] As to the consideration of a fair and reasonable remuneration, this Court in Ong Kwong Yew & Ors v Ong Ching Chee & Ors and other appeals [2018] MLJU 2189; [2018] 1 LNS 2247 (Ong Kwong Yew’s case) made the following observation: [49] This last-mentioned case of Perumahan NCK Sdn. Bhd. v Mega Sakti Sdn. Bhd. (above) sets out comprehensively the law in relation 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. [50] 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. For better understanding, the principles in determining remuneration for the liquidator as decided by Ramly Ali J (as he then was) in Perumahan NCK S/N K3hyXWuyxkqdJkNw5uoH4A Sdn. Bhd. v Mega Sakti Sdn. Bhd. [2005] 7 MLJ 389 which was referred to by this Court in Ong Kwong Yew’s case are as follows: 29 The Companies Act 1965 clearly provides for the payment of remuneration of liquidators and empowers the court to fix the amount if there is a failure to do so by the committee of inspection or the creditors. In determining the remuneration, the court must start from the position that the liquidator is entitled to reasonable remuneration (see Re Wun Ross & Co). 30 The remuneration to which the liquidators are entitled is for the work which was actually done. In the ordinary course, the process of fixing of remuneration comes down essentially to ensuring that the work upon which the claim was based was work undertaken in the course of administration; and that the amount claimed for having done that work is fair and reasonable reward for it. Therefore, the burden of proof lies with the liquidators to show that the remuneration claimed is justifiable. 31 The benchmark in the assessment process is fairness and reasonableness. The court need not accept what is submitted at face value but will carefully scrutinise the facts placed before it, in deciding what aspect of the remuneration claimed is reasonable and justifiable. The court will not blindly accept that what is said as done is done. 32 In order to discharge that burden the liquidators in the present case have filed an affidavit in support in which they have given evidence of the work that were performed by the liquidators and the staff assisting the liquidators in administering the assets of the respondent. [35] We also like to refer to the Singapore High Court decision in Re Econ Corp Ltd (In Provisional Liquidation) (No 2) [2004] 2 SLR 264 (Re Econ’s case) where Justice V K Rajah has spelt out the guiding principles to be taken into account in determining a fair and reasonable remuneration for a liquidator. The guidelines as stated in Re Econ’s case can be summarised as follows: a. valued contribution, what difference the liquidator has made to the matter; b time spent, the importance will vary from case to case, from being a possibly critical factor in one case to just another matter for consideration in another; S/N K3hyXWuyxkqdJkNw5uoH4A c. the rates, in the absence of acceptable guidelines it cannot be accepted at face value and the rates to be determined as fair and reasonable by the court depends on complexity or otherwise of the case; d. the assistance, rendered by the employees from the liquidator’s firm subject to strict proof; e. the scope of work, it is important to understand the functions and responsibilities of the liquidator; f. the disbursement, it must have some measure of restraint and discipline on how the items are recouped and accounted for; and g. in summary, it remains open for the court in any matter to decide whether the basis for the remuneration ought to be on a time basis, a realisation basis or an all-encompassing basis absorbing all or a combination of the criteria identified, and the guidelines are not immutable rule. [36] As clearly mentioned in the summary of Re Econ’s case, the guidelines are not conclusive. There are other factors that can be considered in determining the fair and reasonable remuneration of a liquidator. As to the burden of proof, it is trite law that the burden is always on a liquidator to prove all relevant factors in determining a fair and reasonable remuneration. [37] Based on the principles enunciated, it is clear that the prime consideration in determining the remuneration of a liquidator is that, it should be fair and reasonable. To determine a fair and reasonable remuneration, the Court must ensure that the work upon which a claim is made must be the work undertaken or done in the course of the administration of the wound-up company. In the determination process, the Court has to consider all relevant factors involved, and need not accept what is submitted at face value but is duty bound to scrutinise all facts placed before it. Along the process, the burden to prove a fair and reasonable amount of remuneration lies on a liquidator. S/N K3hyXWuyxkqdJkNw5uoH4A [38] As to the mode or method to be considered by the winding up Court in determining the remuneration of a liquidator, this court in Ong Kwong Yew’s case held that there are 3 methods to be considered and any of the chosen methods is subject to the overriding principle of fairness and reasonableness. The relevant excerpt of the decision is as follows: [110] 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. [39] In the present appeal, the Liquidator presented his claim based on a calculation sheet calculated using the percentage listed in paragraph 2 of Table C before the COI. In defending his claim against the appellant’s application before the winding up Court, the Liquidator averred that the professional remuneration in carrying out liquidation works ought to be charged based on the percentage listed in Table C of the total net assets realised. For the works done, the Liquidator averred that he has been appointed since 14.8.2015, hence the remuneration passed by the COI is inclusive of all work done or carried out throughout the period of 2015 until