Eng Kee Wat @ Ng Yee Siang v CHERISH SPRINGS SDN. BHD. (WA-28PW-218-04/2022)

Before this Court is a Notice of Motion dated 26.4.2022 in Enclosure 1 (Motion) whereby the applicants, Eng Kee Wat @ Ng Ye Siang & 4 others (Applicants), who are all creditors of the Company, are applying to this Court for inter alia an order that Tharma Iswara a/l Subramaniam, the Liquidator (“Liquidator”) of the Respondent (Company) be forthwith removed as the Liquidator of the Company and Dawin Tang Keng Wai be appointed as the new Liquidator of the Company.

The grounds of the Motion are summarised as follows:-

2.1 the Liquidator has failed to faithfully discharge his statutory duty as a Liquidator and has failed to display a reasonable amount of skill and diligence in conducting the affairs of the Company 2.2 the Liquidator has blatantly disregarded statutory obligations such as inter alia the requirements for lodging 6 monthly statement of payments and receipts and of the position of winding up, to adjudicate upon proofs of debt lodged and settling the list of contributories and creditors 2.3 the Liquidator has displayed a lack of probity in his dealings and has failed to keep the creditors updated on the progress of the liquidation 2.4 the Liquidator has vested pecuniary interest in the liquidation as evidenced by his charging exorbitant and onerous fees for the transfer of strata titles held by the Company to unit owners.

I had on 11.8.2021 considered a number of preliminary objections (PO) raised by the Liquidator and after hearing the respective learned counsels on the PO’s, this Court had dismissed the same.

The Respondent was wound up on 9.8.2019 by this Honourable Court and Tharma Iswara was appointed as the Liquidator of the Respondent.

The composite of the directors and contributor/shareholder of the Respondent prior to it winding up are as follows:- NO DIRECTORS CONTRIBUTORY/SHAREHOLDER %

Wong Hon Chong

Wong Tzy Jian

Mr. Tharma had paid the security that was required by the Insolvency Department and a certificate that Liquidator had given security was issued on 13.9.2019.

On 22.8.2019, Mr. Tharma had lodged with the Companies Commission of Malaysia (CCM), the notice of the appointment and the situation of office of Liquidator pursuant to Section 513(1) of the Companies Act 2016 and similarly on 10.9.2019, Mr. Tharma had lodged with the Insolvency Department the notice of appointment and situation of office of the Liquidator.

After the winding up of the Respondent, Mr. Tharma had advertised on 13.8.2019 in the New Straits Times and the Berita Harian of his appointment as the Liquidator and had called for all creditors of the Respondent to lodge their Proof of Debts with him.

The Statement of Affairs was lodged by the director of the Respondent only on 1.12.2021 after several reminders and the extension of time was given to the Director. However, in relation to the list of creditors appearing in the Statement of Affairs, some of the details and the description of the debts owing to the creditors were left blank and/or incomplete. On 16.2.2022 the Liquidator had written to the director of the Respondent to provide the information as required.

The Liquidator had also written to the auditor of the Respondent on 29.8.2019, to all financial institution and also the Respondent’s bankers on 6.3.2020 requesting for the bank balance and latest bank statement.

The List of creditors in the Statement of Affairs show the total debts are RM5,540,106.66.

The creditors who had lodged their respective proof of debts with the Liquidator as at 12.7.2022 whereby there are a total debts of RM43672,345.11 is as shown below:- No Creditors Amount (RM) 1 Lembaga Hasil Dalam Negeri Malaysia RM6,457,421.52 2 Khoo Hsien Yew RM6,000.00 3 PJ Centrestage JMB RM8,848,607.00 4 Kumpulan Sepakat Konsult RM116,700.00 5 Eng Kee Wat @ Ng Yee Siang RM30,880.00 6 Gerald Ong @ Ong Hean Hoe RM21,460.00 7 Ng Kit Yoong RM15,430.00 8 Leadmont Properties Sdn Bhd RM28,061,708.37 9 Bgreen Consultancy Sdn Bhd RM29,837.50 10 JY Consult PLT RM84,300.72 Total

Based on the CCM search, there is an unsatisfied charge. On 11.8.2021, the Liquidator had written to Malayan Banking Berhad and had enquired on the status of the unsatisfied charges as reflected in the search and requested them to update the said information and/or provide the details of the charge.

Pursuant to the statutory duties, Mr. Tharma had lodged the Liquidator’s Account of Receipt and Payments and statement of the position in the winding up in Form 75 every six(6) months with the Companies Commission of Malaysia at the following dates:- a. 9.8.2019-8.2.2020; b. 9.2.2020-8.8.2020; c. 9.8.2020-8.2.2021; d. 9.2.2021-8.8.2021 e. 9.8.2021-8.2.2022

Mr. Tharma had advertised in the government gazette and the newspaper calling for a meeting with the creditors and contributories on 6.12.2019 to discuss issues pertaining to the Respondent’s company. Notices of the 1st creditor’s meetings dated 22.11.2019 were then sent out to all creditor of the Respondent.

On 6.12.2019, the Liquidator’s representatives convened the creditors and contributories meeting and had informed them of the background of the Respondent and the brief status of the Liquidator process, assessment of the Proof of Debt lodged, identifying the assets and verification of assets.

At all material times, the Respondent was the registered owner of all that 2 parcels of leasehold lands for 99 years knows as H.S(D) 280735 (formerly known as Pajakan Negeri 10193) for Lot No. 3 Seksyen 13 measuring approximately 9289.25 square metres in areas (“Land 280735”) and H. S (D) 280736 Lot 72 Seksyen 13 (formerly known as H.S (D) 159966 P.T No. 5) measuring approximately 5537 square metres in area (“Land 280736”) both in Bandar Petaling Jaya, District of Petaling, Negeri Selangor [Lands]. The Respondent was also the developer of the development of PJ Centerstage consisting of the following units and blocks:- a. 448 units in Block A under a mixed commercial development known as centrestage @ PJ Section 13; b. 341 units of service apartment in Block B known as centrestage @ PJ Section 13 under Schedule H of the Housing Development (Control and Licensing) Act 1966 and Housing Development (Control and Licensing) Regulation 1989 which was thereafter converted into Hotel Rooms c. 354 units in Block C under a mixed commercial development known as centrestage @ PJ Section 13; and d. 333 units of Shoplex in a mixed commercial development known as centrestage @ PJ Section 13 [all totaling 1476 units]

The Liquidator was served with the cause papers in relation to the legal suits that was initiated by the JMB against the Respondent and other parties prior to its winding up whereby the brief details are as follows:-

The Injunction Order dated 14.11.2017 affecting both the Respondent and Leadmont Properties Sdn Bhd [Leadmont] [“Injunction Order”]-

Briefly, the Injunction Order had restrained the Respondent and Leadmont, its servants and/or agents until the disposal of the main suit from selling, consolidating disposing, charging, transfer and/or otherwise deal with: i. 346 units of car part bays that was assigned as an accessory parcel to one(1) office unit known as C-06-18; ii. Landscape area measuring 808 sq meter; iii. Five (5) units of the admin offices of Best Western Hotel erected on the car park area at Level 3A and siven (7) car par units at Level 3A PJ Centrestage; iv. RC Roof Top at Level 5 PJ Centrstage; all situated at No. 1 (Disputed Common Properties).

The Respondent through its directors, agents, representatives is restrained and an injunction to prevent them from taking any steps to make any application to the relevant authority for the transfer of the Disputed Common Property to Leadmont.

The Civil Suit filed in the Shah Alam High Court Suit No: BA-22C- 30-05/2017 against the Respondent as the 1st Defendant and 3 others [CS 30] .

In the CS 30, among others, the JMB claims are as follows: a) A declaration that the following areas are common property under the management of the Plaintiff and subsequently under the management and ownership of the management corporation: i. 342 units of the car park bays assigned as a accessory parcels to one (1) unit of the Designer Suite Unit No. C- 16-08; ii. 7 areas containing parking installations, structures and signage in Basement 1; iii. The Landscape area measuring 808nsquare meters; iv. 5 Administration Offices; v. Level 6 RC Rooftop; vi. Level 14 RC Rooftop. b) A declaration that the following areas shall not be the subject of any title or strata title and shall not be annexed as main or accessory parcel to any title or strata title; i. 342 units car park bays; ii. 7 basement areas; iii. The Landscape areas; iv. 5 Administration Offices; v. Level 6 RC Rooftop; vi. Lever 14 RC Rooftop. c) The relevant Selangor Land Office by its employees, staffs, agents and/or successors-in-title be ordered to subdivide the building in and around PJ Centerstage and issue new strata title according to the duly amended share unit allocation register within reasonable time.

The Civil Suit filed in the Shah Alam High Court Suit No: BA-22C-49- 05/2017 against the Respondent as the 1st Defendant and 2 others [CS 49]. In CS 49, among others, the JMB claims were for the following:- a) Insufficient capacity of the sewerage treatment plant (STP; b) Unlawful installation of Secondary Grease Tan at Level 5 to the STP; c) Security Surveillance System docs not correspond to As-Built specifications and Tier 3 system marketed; d) Unlawful/illegal installation of 2 Liquefied Petroleum Gas [LPG] storage facility; and e) Unlawful/illegal installation of the air-cooled chillers at Level 5 Open deck area.

As the civil suits involved the Respondent, Mr. Tharma had appointed Messrs Hakem Arabi & Associates to act as his solicitors for the Respondent and to defend these matters.

On 25.9.2019, the JMB had filed an application for leave in this winding up court under WA-28PW-570-09/2019 to proceed with other Civil Suit 30 and Civil Suit 49 and Mr. Tharma was advised by his solicitors to allow the leave application filed by the JMB to enable the JMB to proceed with the civil suits as it involves the re-calling of the strata titles in the event that the share allocation is affected and the leave order was granted by this Honourable court on 18.11.2019.

On 18.3.2021, the JMB had withdrawn CS 49.

Somewhere in October 2019 to early 2020, the former director of the Respondent had surrendered in stages the register books of the Purchasers, the 1476 sales and purchase agreements and 1471 original strata titles in which all the strata titles are still registered under the name of the Respondent. 5 out of the 1476 titles were not in the Respondent’s possession and the investigation as to the status of 5 missing original titles was done with Saujana Ukur, the Surveyor. Further, 9 strata tiles were returned to Saujana Ukur as there were amendments required due to the wrongly attached accessory parcel to the units which did not correspond with the Sale and Purchase Agreement.

All 1476 original strata titles issued by the Selangor Land Office have a restriction in interest namely that “Tanah ini boleh dipindahmilik, dipajak atau digadaikan setelah mendapat kebenaran Pihak Berkuasa Negeri” and “Jumlah Unit syer bagi semua bangunan yang dipecah bahagi atas tanah: 283947” is indicated on all 1476 original strata titles.

On 16.12.2021, the High Court had decided on CS 30 and the order was given on 1.6.2022 whereby as the accessory parcels were removed from the main parcels and were assigned to the JMB as common properties. As a result of the order, all the share units in 1476 were affected which means all strata titles had to be recalled and resubmitted for an amendments to be made in the Land Office.

It is undisputed that the Company is the owner of 2 parcels of leasehold land known as HS(D) 280735 Lot No 3 Seksyen 13 and HS (D) 280736 Lot 72 Seksyen 13 in Bandar Petaling Jaya, District of Petaling, Selangor (Lands) and the developer of a mixed development project known as PJ Centrestage (PJ Centrestage) and that the Applicants herein are all owners of units in the said PJ Centrestage.

It is also before this Court, at exhibit TS 9 in Enclosure 7, that there was an Injunction Order dated 14.11.2017 (CS 30 Injunction) obtained at the Shah Alam High Court vide Summons No. BA-22C- 30-05/2017 (CS 30) brought by the Joint Management Body (JMB) against the Company and Leadmont Properties Sdn Bhd (Leadmont) which had inter alia restrained the Company and Leadmont from disposing, charging, transferring or otherwise dealing with

the 346 car park bays that was assigned to 1 office unit known as C-06-18

(ii) landscape area

(iii) 5 units of admin office of Best Western Hotel erected on the car park areas

(iv) RC Roof Top at Level 5 PJ Centrestage

This Court has further noted that the JMB had claimed in CS 30 for amongst others a declaration that certain designated areas in PJ Centrestage are Common Property and that the Selangor Land Office be ordered to sub divide the building in and around PJ Centrestage and issue new strata titles.

There was a further at Civil Suit at the Shah Alam High Court vide Summons No. BA-22C-49-05/2017 (CS 49) brought by the JMB against the Company to wit there were claims with regards the sewage treatment plant, unlawful installation of secondary grease tank, 2 liquified petroleum gas storage facilities (LPG Storage) and air cooled chillers amongst others. CS 49 has however since been withdrawn on 18.3.2021

I have found that the Liquidator had, in Enclosure 7, averred that sometime between October 2019 to early 2020, he had only received the register book of purchasers, the 1476 sales and purchase agreements (SPA’s) and 1471 original strata titles (Strata Titles) which were still registered in the name of the Company from a former director of the Company. It was also further averred that there were 5 missing titles not in the Company’s possession and that a total of 9 strata titles were returned to the surveyor, Saujana Ukur, for amendments due to wrongly attached accessory parcels which did not correspond with the SPA’s.

It is also my finding, as seen in the sampling of exhibits at TS 13 of Enclosure 7, that the said Strata Titles had a restriction in interest therein that they could not be transferred, charged or mortgaged without the consent of the State Authority (Pihak Berkuasa Negeri) and that in CS 30, the Court had on 16.12.2021 ordered that the accessory parcels be removed from the main parcels and assigned to the JMB as common properties which meant that all the Strata Titles were affected and had not only to be recalled but to be resubmitted for amendments at the Land Office. All these events are supported by the study conducted by Jurukur Kemuncak entitled “Study on Stratified Scheme on Lot 10149 Section 13 Bandar Petaling Jaya, Jalan Kemajuan, PJ Centrestage” dated 26.4.2022 which can be seen in exhibit TS 25 in enclosure 10 and which showed amongst others that the strata title deeds were to be amended to show the new total share unit which has been reduced and that it was best not to transfer the strata titles now as well as to appoint a licenced land surveyor to undertake the corrections, amendments and to re-prepare the Pelan Akui Bangunan in accordance with the court’s judgment. This was also reconfirmed by the surveyor, Yap Sze Pin, appointed by the Applicants as seen in exhibit G5-45 in enclosure 23.

I therefore agree with learned counsel for the Liquidator that the Strata Titles need to be reamended before the perfection of transfer is done.

From the facts before me I have also found that the Applicants have not shown evidence to corroborate their contention that the Liquidator has failed to discharge his statutory duties as a Liquidator. In fact to the contrary and from the documents before this Court as seen in the Affidavit of Reply by the Liquidator Enclosure 7, I find that the Liquidator had indeed complied with his statutory duties.

This Court has noted that the Liquidator has lodged the 6 monthly statement of payments and receipts as shown in exhibit TS-6 in Enclosure 7 for the periods from August 2019 to February 2022 and thus the applicants contention that this was not done has been rebutted by the Liquidator.

I however find that by various letters dated 8.2.2022, 10.2.2022,

28.2.2022, 5.3.2022 shown in exhibit GS-30 of Enclosure 2, there were some letters addressed to the Liquidator seeking inter alia the Statement of Affairs and list of creditors and contributories and the amounts of their claim. Section 509 of the Companies Act 2016 provides that:- Every liquidator shall keep proper books and papers in which he shall cause to be made entries or minutes of proceedings at meetings and of such other matters as are prescribed, and any creditor or contributory may, subject to the control of the Court, personally or by his agent inspect the proper books and papers.

The said Section 509 of the Companies Act 2016 only provides that the Liquidator is to allow the Applicants to inspect the books and papers but they are not entitled to a copy of the same. I therefore hold that there is no statutory or legal duty on a Liquidator to submit the Statement of Affairs or any other documents to the Applicants and that Section 485 of the Companies Act 2016 only requires the Liquidator submit a preliminary report to the Court.

This Court therefore holds that the Applicants contention that the Statement of Affairs, statement of payment and receipts were not lodged or that that the Liquidator had failed to provide the list of contributories and creditors are without basis.

It is also undisputed that the Liquidator was appointed on 9.8.2019 and that the matters raised in CS 49, which included the purported illegal LPG Storage, were issues which had occurred in 2017 and which was prior to the Liquidators appointment. I have found that the Liquidator did on 13.1.2020 and 15.1.2020 received letters from the JMB on this issue but that the Liquidator had averred that as regards the purported illegal LPG Storage, the Liquidator was informed that Leadmont had applied for permission of the council to remove the same to another site since October 2019 as per exhibit TS -14 of Enclosure 7. As to this this Court further notes that the JMB has filed a Proof of Debt seeking for compensation of the purported illegal LPG Storage. Liquidator being Indolent

I now turn to the Applicants contention that the Liquidator was indolent in taking over the assets of the Company and had shown a lackadaisical attitude with regards the same. As to this, the Court finds that, as shown in exhibit TS 4 of Enclosure 7, after the Liquidator was appointed on 9.8.2019, he had on 6.3.2020 written to the company’s banker, Malayan Banking Berhad (MBB) i.e within 7 months of his appointment. The documents before this Court further show that the monies held by; MBB were transferred to the Official Receiver (OR) and that the Liquidator had written to the OR to transfer the same to the Liquidator vide its letter dated 29.10.2021 and had received a response form the OR on 29.10.2021, the evidence of which can be found in exhibit TS 15 of enclosure 7.

It is also before this Court that 8 units of retail Shoplex have been sold by the Company prior to the winding up and that the Liquidator has informed the JMB of the same via its letters of 27.5.20202 and 25.6.2020, the evidence of which is in exhibit TS 16 of Enclosure 12. The said 8 units of retail Shoplex are therefore not part of the Company’s assets and are thus no longer a live issue before this Court and I hold that the Applicants contention on this is therefore clearly untenable.

As to the alleged potential fraudulent dealings of PJ Centrestage Management Services (PJCMS) which the Applicants allege that the Liquidator has failed to investigate, I have found from the documents before me that:-

due to an Injunction obtained on 15.1.2021 (CS 390 Injunction) vide Kuala Lumpur High Court Suit No. WS-22NCVC-390- 07/2020 (CS 390), 276 purchasers had obtained an injunction against PJCMS and that as PJCMS was wound up and placed under the OR, the OR had on 22.12.2021 written to the Liquidator in response to the Liquidator’s letter of 2.12.2021 stating that due to the CS 390 Injunction, the OR was unable to conduct an inventory over the Company’s assets;

the management of Best Western Hotel by PJCMS does not show vast amounts of revenue for PJCMS as the Summary of Financial Information for the Financial Year End at 29.2.2020 of PJCMS shows a loss of RM2,879,784 as compared to its revenue of RM9,230,527 and expenditure of RM12,110,311 as shown in exhibit TG GS5-19 of enclosure 2.

I therefore find that the Liquidator did attempt to investigate the issue aforementioned but was not able move on this due to the said CS 390 Injunction and that the evidence before this Court shows that PJCMS was making losses in the year 2020. With respect, I am also unable to find any evidence being brought forth by the Applicants with regards the alleged suspicious turn of events vis a vis the change of directors and shareholders and find that these allegations remain purely unsubstantiated.

I am therefore unable to find that the Liquidator did not attempt to investigate the potential fraudulent dealings of PJCMS in light of my said findings and the absence of any other cogent evidence before this Court.

This Court will now address the alleged exorbitant fees charged by the Liquidator for obtaining the blanket consent amounting to RM4,000,000. I have compared this estimate fee to that of the applicant’s surveyor, Messrs Jurukur Murni, being RM 675,997.11 and that of Yap Sze Pin for RM108,472.19. This Court has also examined the letter dated 9.3.2022 from the National House Buyers Association on this matter in exhibit GS5-28 of enclosure 2 and in particular their views that the said 2% charge for the administration fee as being exorbitant and onerous. I have also taken heed of their statement with regards the Housing Development (Control & Licensing) Act 1966 (HDA).

In Section 3 of the Housing Development (Control & Licensing) Act 1966 it is provided that:- "housing developer" means any person, body of persons, company, firm or society (by whatever name described), who or which engages in or carries on or undertakes or causes to be undertaken a housing development, and in a case where the housing developer is under liquidation, includes a person or body appointed by a court of competent jurisdiction to be the provisional liquidator or liquidator for the housing developer”.

Based on the above definition of ‘housing developer’ is that it includes a liquidator who is appointed where the said housing developer is under liquidation as in the matter before me. Thus, this Court prefers and will adopt the ruling in KAB Corporation Sdn Bhd & Anor v Master Platform Sdn Bhd [2019] MLJU 796 where the Court of Appeal held: “[34] In the light of the abovementioned, we are of the v1ew that the defendant had exercised its discretion unreasonably when it imposed the flat 1% rate for the administrative fee. The defendant failed to take into consideration that the work of updating the records was the same irrespective of the value of the transaction. At any rate, even if the value of the properties had appreciated considerably over time, the benefit accrues to the purchasers who have already paid the purchase price in full. The defendant’s decision affected the plaintiffs and itself; as such the defendant was in a conflict of interest and the defendant failed to weigh the relevant factors before imposing the fee. We also note that in this particular instance, the defendant did not in fact give any undertaking to the bank. Therefore, the defendant’s argument that they had to cover the risks which they assumed is without merit and unsubstantiated. [35] For the foregoing reasons, we are of the view that a nominal administrative fee of RM500.00 is fair and reasonable.”

After due consideration of the above evidence and documents, I do find the fees charged by the Liquidator to be excessive and that the 2% charge for the administration fee plus a RM424 vetting fee for the same as being unjustified and clearly arbitrary. The exercise of discretion by the Liquidator here must not be exercised unreasonably and as stated in KAB Corporation Sdn Bhd (supra) quoting C.V.G. Siderurgicia Del Orinoco S.A. v London Steamship Owners’ Mutual Insurance Association Ltd (The “Vainqueur Jose”) [1979] 1 Lloyd Rep 557 where in the latter it was held: “The common law principles applicable to the exercise of a contractual discretion include fairness, reasonableness, bona fides and absence of misdirection in law.”

It is clear that the Liquidator has to carry out a verification process and the necessaries following from the same which will incur some costs and that it is their function to administer the affairs of the Developer Company and accordingly borrowing the words of the Court of Appeal in KAB Corporation Sdn Bhd (supra) “ the necessity of applying to the defendant (Land Office in our case] for its consent is only a matter of administrative expediency”. The work to be done for each and every unit is the same. I will adopt the following passage in KAB Corporation Sdn Bhd (supra) which I find is equally applicable herein being:- “[30] In this instance, there is a significant imbalance of power between the plaintiffs and the defendant. First, the defendant’s written consent is required before the plaintiffs can carry out any transaction of their office unit. Secondly, the plaintiffs are required to pay the administrative fee, the amount to be determined at the defendant’s absolute discretion. Thus, there is no equality of bargaining power between the parties. Further, the defendant being the dominant party has a clear conflict of interest because it is exercising its power to make decisions which affect both the plaintiffs and itself. In such circumstances, it is in our view necessary to imply a term as to how the contractual discretion may be exercised, in the context of the SPA and House Rules.”

From the tabulation done by the Applicants at exhibit G5-27 in Enclosure 2, the Liquidator would be earning the sum of RM17,225,392 from the quoted fee of 2% admin fee and vetting fees for the 1476 parcels. I have contrasted this with the documents in exhibit G5 – 29 of enclosure 2 from other developers in respect of the transfer of strata titles in other projects where the average charge for a similar administrative function is RM500.

I have noted the terms in the SPA’s where the developer is allowed to claim 1% for any sub sale matters and/or assignments as submitted by learned counsel for the Liquidator but I hold that this is not a case of comparing an apple with another apple as the issue before this Court is the fee to be imposed on the transfer of strata titles as opposed to the completely different situation of the occurrence of sub sale matters and/or assignments.

That being the case and following the customary market practices as shown to this Court in the said exhibit G5 – 29 of Enclosure 2 and applying KAB Corporation Sdn Bhd (supra), a flat fee of RM1,000 for each and every transfer of the 1476 parcels as prayed for by the Applicants is in my view a fair and reasonable amount to be charged. Alleged Collusion between Liquidator, Company and Petitioner

As regards the alleged collusion between Liquidator, Company and Petitioner, I have found that the fact that there are common directors in the Company and Leadmont as well as the fact that there are shareholders who are related in the Company and Leadmont or that the Wong Family is behind Leadmont and another property development company known as One Inspiration Development Sdn Bhd are in itself not sufficient grounds for this Court to find the allegation of collusion between them which I might add the burden of proving the same by the Applicants is high.

The same reasoning will apply to the fact that the Liquidator is not only the Liquidator for the Company but also for One Inspiration Development Sdn Bhd.

Any allegations of collusion must be backed by strong and probative evidence of the said act of collusion and not by mere assertions. I find nothing before me to show that the aforesaid parties, in particular the Liquidator and the Company have acted in an impartial or bias manner. As such I hold that such allegations are unwarranted and unproven.

I have after careful consideration of the entire matter before this Court and the evidence adduced before this Court hold that there has been no alleged delay by the Liquidator in performing his duties. In coming to my said decision I have taken into consideration the Movement Control Order (MCO) and Conditional Movement Control Order (CMCO) imposed by the government in tackling the Covid 19 pandemic which led to the delay as submitted by the counsel for the Liquidator.

The law on the removal of Liquidators have been laid out succinctly by Ramly Ali J (as His Lordship then was) in Ng Yok Yee & Anor v CTI leather Sdn Bhd (Metro Brilliant Sdn Bhd & ors, intervener) [2006] 7 MLJ 28 where it was stated: “[50] For convenience, the court, set out below the relevant legal principles applicable to an application to remove a liquidator:

(a)A liquidator appointed by the court can only be removed by the court 'on cause shown' — s 232 of Companies Act 1965.

(b)The court does not have an unfettered discretion as 'cause must be shown'. The position is not the same as it is when a liquidator is first appointed and the court may choose between two or more competing candidates.

(c)The normal ground for removal is that the liquidator has a personal unfitness, has failed to act impartially or is in a position where his duty and interest are in conflict. See: o (i)In re Sir John Moore Gold Mining (1879) 12 Ch Div 325, p 331; o (ii)Advance Housing v Newcastle Classic Developments (1994) 12 ACLC 701; and o (iii)Commonwealth of Australia v O'Reilly (1984) 52 ALR 031.

(d)As to what constitutes a conflict of interest, there has to be a real and not merely theoretical possibility of conflict before a liquidator can be removed (Advanced Housing).

(e)A liquidator may act even though there has been a prior involvement with the company, provided that the involvement is unlikely to impede the liquidator from acting impartially (Advanced Housing).

(f)In Advanced Housing there was an actual conflict because the liquidator had to adjudicate on whether payments made to his firm immediately before the company went into liquidation constituted an unfair preference.

(g)It is an integral part of a liquidator's duty to investigate the affairs of the company from its foundation onwards (Commonwealth of Australia v O'Reilley).

(h)A liquidator who fails to investigate the affairs of the company to the prejudice of an applicant is in neglect of his duty and can be removed (see In re Sir John Moore Gold Mining Company).

(i)It cannot be a ground for removal that a liquidator is carrying out his duty to investigate the affairs of the company, even though some interested parties may object.

(j)In a case where the application for removal is by a creditor, all the creditors must be given notice of the application or it must be shown conclusively that the removal is for the benefit of all creditors (see In re White Cliffs Dredging Co (1893) 11 NZLR 711).

(k)A liquidator is not bound to pursue a claim on behalf of the company, unless he believes that it has a reasonable prospect of success (see In re George A Bond and Company Ltd (1932) SR (NSW) 301).

(l)Where there are no assets which can be imperiled by the continuance in office, fair play to the liquidator may be the decisive factor (see In re George Bond).

(m)Fair play to the liquidator is not to be left out of sight. (Chua Boon Chin v JM McCormack & Ors [1979] 2 MLJ 156 at p 158).

(n)In Adam Eyton Limited; Ex parte Charlesworth (1887) 36 Ch Div 299, the applicant for removal of liquidator was required to give an undertaking to pay all costs and expenses of the liquidator on solicitor and client basis. [51] Based on the principles above, it is clear that in the present case there is no cause shown by the applicant warranting the removal of the liquidator. [52] What this court must also take into account is the fact that the liquidator is in his final stages of his liquidation with the real property recently sold. This is a relevant factor to be considered (see Chua

Boon Chin v JM McCormack & Ors).” In Andrew Christopher Chuah Choong Eng Chuan v Ooi Woon Chee & Anor [2007] 2 MLJ 12;[2007] 2 CLJ 405 the Court of Appeal held that: “The court will not interfere with the decision simply because its opinion might differ from that of the liquidator. Generally, the court will recognize that the discretion has been vested by statute in the liquidator and will not interfere unless it is shown that he did not address himself to the correct questions or has made errors of law, or has not exercised his discretion bona fide or has acted in a way which no reasonable liquidator would have acted, or has taken into account entirely irrelevant considerations or when there is fraud.”.

Applying the above mentioned settled case law authorities to the facts of the case before me, I hold that the Applicants have, based on my aforesaid findings, failed to prove to the satisfaction of this Court that the Liquidator should be removed and that I am duly satisfied that the Liquidator has, save for the issue of the fees charged for the transfer of the Strata Titles:-

56.1 addressed himself to the correct questions 56.2 not made any errors of law 56.3 exercised his discretion bona fide 56.4 not acted in a way which no reasonable liquidator would have acted, or has taken into account entirely irrelevant considerations.

In the circumstances, I am hereby dismissing prayers a-d and will allow prayer e.

I make no order as to costs. Dated: 13th day of October 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: Vinesh Mathew Varghese and Esvine Maria Anne a/p Saganathan for the Applicants [Messrs Teja Singh Penesar & Co.] Pamela Ephraim for the Respondent [Messrs Epharim & Associates]