Gary Ng Cheng Yip and Steven Tan Chee Qian for the Applicant in Enclosure 27 [Messrs Dennis Nik & Wong] v 1. ) Alex Tan and Natalie Law for the 1 st -5 th Respondent [Messrs Wong Kian Kheong] (WA-28PW-227-06/2020)

KEATOMAS SDN BHD

MEDIA NETWORK AGENCIES INC

REWARD EMPIRE SDN BHD

J.C.T. HOLDINGS SDN BHD

NICOLE TING BIN SHUN

LINKMAN CONNECTIONS SDN BHD

AMPLE PARAMOUNT SDN BHD (NO SYARIKAT: 599528-P) 3

OPUS ESTATE CAPITAL SDN BHD (NO SYARIKAT: 791770-U) …RESPONDEN-RESPONDEN JUDGMENT (In respect of the Re-Amended Originating Summons in Enclosure 27)

In the Re-Amended Originating Summons dated 2.4.2021 in enclosure 27 (Amended OS), the Liquidator had applied to this Court pursuant to section 254(1) and 267 of the Companies Act 1965 and/or section 439(1) and 454 of the Companies Act 2016, Rule 195(1) of the Companies (Winding Up) Rules 1972 and/or Order 88 rule 2 (1) of the Rules of Court 2012 for the following orders:

That the remuneration of the Liquidator, Chong Chuan Long (NRIC No.: 710625-10-5475) of Leica Residence Sdn Bhd (In Liquidation) (“the said Liquidator”) from the date of 26.7.2017 up to 28.12.2017 be approved in the sum of RM484,439.38;

(ii) That the sum of RM484,439.38 is to be paid out of the assets of Leica Residence Sdn Bhd (In Liquidation) (“the Respondent”) towards payment of his remuneration, costs and expenses be approved;

(iii) That the cost of this application on a solicitor-client basis be paid out of the assets of the Respondent. 4 Background Facts

On 26.7.2017, Leica Residence was voluntarily wound up by the creditors and Mr. Chong Chuan Long was appointed as the Liquidator of Leica Residence.

It is pertinent to note that, in the same meeting, the creditors of Leica Residence have unanimously agreed that the Liquidator could exercise any of powers under the Twelfth Schedule as per Section 456 of the CA.

Subsequently, the Liquidator had undertaken the work on Leica Residence and realized a total net assets of RM24,500,000-00 over two pieces of freehold vacant land held under Geran 75878, Lot No. 80302 (formerly HS(D) 118027, PT 26203), Tempat Jalan Kenny H ill, Mukim Batu, District of Kuala Lumpur, State of Wilayah Persekutuan KL bearing postal address at No.59, Jalan Bukit Tunku, Bukit Tunku, 50480 WP Kuala Lumpur (“ the first piece of Land”) and under Geran 33331, lot No. 4794 in Mukim Batu, District of Kuala Lumpur, State of Wilayah Persekutuan KL bearing postal address No. 55, Jalan Bukit Tunku, Bukit Tunku, 50480 WP Kuala Lumpur (“the second piece of Land”) (collectively referred to as “the Lands”).

During the Creditor’s Meeting of the Company on 13.2.2018, the Liquidator informed the attendees that the remuneration of the liquidator would be tabulated in accordance with Table C of the Second Schedule of the Companies (Winding-Up) 5 Rules 1972 (“CWUR”) for the realization of the Lands. Table C was circulated to the attendees and there was no objection from the floor.

The proxy of 6th and 8th Respondents herein, Mr. Liew Tuck Hon (“Mr. Liew”) attended the meeting and did not object to the tabulation of the remuneration of the Liquidator.

During the Creditor’s Meeting of the Company on 5.7.2018, a detailed tabulation of the Liquidator’s remuneration in the sum of RM 484,439- 38 was circulated to the attendees. This was put forward for approval by the creditors by way of poll.

The remuneration of RM484,439.38 includes the works done in distributing dividend to the creditors (including the Respondents herein).

Amanah Raya Capital Sdn Bhd (Company No. 0549057K) which represented a significant majority of the voting weight i.e. 93.31% total votes in value of debts had voted in agreement to pass the resolution, while Mr. Liew, as the proxy of the 8 the Respondent and one Dato’ Sri Yap Wee Keat, represented voting weight of 6.69%, voted against the resolution.

Section 267(1) of the Companies Act 1965 and the present equivalent Section 454(2) of the Companies Act 2016 on which this 6 Court was moved by the Liquidator in the said Amended OS, which are exactly identical, reads: “Any member, creditor or the liquidator may, at any time before the dissolution of the company, apply to the Court to review the amount of the remuneration of the liquidator and the decision of the Court on the matter shall be final and conclusive.”

The Respondents herein in opposing the Amended OS had, in summary, contended that the word ‘review’ used in the said section 267(1) of the Companies Act 1965 and section 454(2) of the Companies Act 2016 above meant that the said sections were revisionary only in nature i.e not for the Court to determine but only to review the Liquidators remuneration appoint an application by either any member, creditor or the liquidator.

I was referred by counsels to the case of Estate of Lim Tuan & Ors v Lim San Peen & Ors [2019] 6 CLJ 463 where the Court of Appeal had held as follows: “[6] In addition, it must be noted that ss. 237 and 274 are not sections meant to fix remuneration. The appropriate section to fix remuneration for liquidator will be s. 232 in the case of compulsory winding up and s. 258 in members' voluntary winding up. A reading of s. 258 will suggest that the remuneration of a liquidator is one related to agreement of parties and not one sought through the direction of court. If there is a dispute as to remuneration, it will appear from the reading of ss. 232 and 258, that a civil suit has to be filed in case of voluntary winding up and only in case of compulsory winding up, that the court may determine the issue of remuneration. Reliance on ss. 7 237 or 274 to fix remuneration or seek direction is in our view, a flawed application and the learned judge ought to have dismissed the application in limine.”

It is to be noted that part of the decision in Estate of Lim Tuan & Ors (supra) was made in reference to the previous Companies Act 1965, of which I am of the opinion with reference to the part which had referred to the “appropriate section to fix remuneration for liquidator will be s. 232 in the case of compulsory winding up and s. 258 in members' voluntary winding up.” can no longer be applied to the present situation where section 258(4) of the Companies Act 1965 is no longer applicable as the words in the said section which I hereby have emphasised “(4) If a vacancy occurs by death, resignation, removal or otherwise in the office of a liquidator, the company in general meeting may fill the vacancy by the appointment of a liquidator and fix the remuneration to be paid to him, and for that purpose a general meeting may be convened by any contributory, or if there were more liquidators than one by the continuing liquidators (emphasis mine)” now no longer appears in the current sections 445 and/or 446 of the Companies Act 2016 in respect of the remuneration of a liquidator appointed in a members voluntary winding up, which now currently reads as follows: Section 445 “(1) In a members' voluntary winding up, the company shall appoint one or more liquidators for the purpose of winding up the company's affairs and distributing its assets in general meeting.

On the appointment of a liquidator, all the powers of the directors cease, except so far as the company in general meeting 8 with consent of the liquidator, or the liquidator sanctions the continuance of all the powers of the directors.

The company may, in general meeting convened by any contributory by special resolution of which special notice has been given to the creditors and the liquidators, remove any liquidator but no such resolution shall be effective to remove a liquidator if the Court on the application of the liquidator or a creditor has ordered that the liquidator may not be removed.” Section 446 “(1) If a vacancy occurs by death, resignation, removal or otherwise in the office of a liquidator appointed by the company, the company in a meeting of members may fill the vacancy, subject to any arrangement with its creditors.

For the purposes of subsection (1), a meeting may be convened by any contributory or, if there is more than one liquidator, by the continuing liquidators.

The meeting shall be held in a manner provided by this act or by the constitution, or in such manner as may be determined by the Court, on application by any contributory or by the continuing liquidators.”

Be that as it may, it is my view that the part of the decision in Estate of Lim Tuan & Ors (supra) concerning the “Reliance on sections. 237 or 274 to fix remuneration or seek direction is in our view, a flawed application and the learned judge ought to have dismissed the application in limine” would still be applicable in the present scenario 9 of the matter before this Court for this Court to determine if indeed the Amended OS is flawed.

Coming back to the matter at hand which involves the appointment of the present Liquidator via a Creditors Voluntary Winding Up, it is to be observed that the relevant sections applicable are either Section 261(3) of the Companies Act 1965 and /or section 450(5) of the Companies Act 2016 where again the words in both the said referred sections, which again are exactly identical, provides: “The committee of inspection, or if there is no such committee, the creditors may fix the remuneration to be paid to the liquidator.”

From a reading of the above mentioned section 261(3) of the Companies Act 1965 and/or section 450(5) of the Companies Act 2016, I hold that the express words are plain and obvious in that only the Committee of inspection, or if there is no such committee, the creditors may fix the remuneration to be paid to the liquidator in a Creditors Voluntary Winding Up. Thus, this Court does not have the power to determine or approve the Liquidator’s remuneration which power, by virtue of the said respective sections in the Companies Act 1965 and /or the Companies Act 2016 is provided to only the Committee of inspection, or if there is no such committee, the creditors.

I therefore further hold from a reading of the aforementioned section 261(3) of the Companies Act 1965 and/or section 450(5) of the Companies Act 2016, and the said section 267(1) of the Companies Act 1965 and/or section 454(2) of the Companies Act 2016 either 10 when read together or on its own, does not authorize or give power to the Court to determine and/or approve the Liquidator’s remuneration in a Creditors Voluntary Winding Up. At the very most, the said section 267(1) of the Companies Act 1965 and/or section 454(2) of the Companies Act 2016 only allows this Court to review the Liquidators remuneration.

I refer to Amalan Tepat Sdn Bhd v Pan Flex Sdn Bhd [2012] 2 MLJ 168 where the Federal Court had defined the word ‘review’, and which I am bound to adopt, as follows:- “[14] The word 'review' in legal parlance connotes a judicial re-examination [2012] 2 MLJ 168 at 176of the case. According to the Concise Oxford Dictionary (9th Ed), the word 'review' means 'revision or reconsideration'; 'reconsider or revise'; 'view again'. In Webster's New World Dictionary (2nd Ed), the word 'review' means 'a looking at or looking over again'. In Stroud's Judicial Dictionary of Words and Phrases (7th Ed), (Vol 3: P-Z) the word 'review' is illustrated as follows: Where a decision is to be reviewed, the reviewing body will normally examine the lawfulness of the decision in question, as in the expression 'judicial review' or whether that decision is safe, or well-founded, as in the title of the Criminal Cases Review Commission (Kataria v Essex Strategic Health Authority [2004] 3 All ER 572 at 581, QBD per Stanley Burnton J. The judgment proceeds to distinguish between review and appeal).”

My above said decision is despite there being a creditors meeting held on 13.2.2018 as can be seen by the minutes of meeting in exhibit CCL-5 of enclosure 2 where the Liquidator’s remuneration was tabled 11 at the said meeting and which was to be decided by poll, at which Amanah Raya Capital Bhd (ARC), being the majority creditor at that material time, had approved the said resolution.

However, as can be found in evidence before me, ARC’s position as the majority creditor of the Company has been significantly reduced by the Court of Appeal via Civil Appeal No. W-02(A)-1899-12/2020 in exhibit A-1 of enclosure 44. Accordingly, I hold that the resolution at the said creditors meeting held on 13.2.2018 as being unsafe to be regarded as an approval of the Company’s creditors with regards the Liquidator’s remuneration.

Be that as it may, lest I am wrong on my finding on ARC’s position and the creditors meeting held on 13.2.2018, my decision on the effect of section 267(1) of the Companies Act 1965 and/or section 454(2) of the Companies Act 2016, at the risk of repetition, will still not permit this Court to allow and/or determine the Liquidator’s remuneration.

I wish to further add that as there was no remuneration fixed in section 261(3) of the Companies Act 1965 and /or section 450(5) of the Companies Act 2016 by either the Committee of Inspection, or if there is no such committee, the creditors, there is nothing before this Court to ‘review’, revise or reconsider. I further hold that based on the documents before this Court, there is also no material before this Court for this Court to review the matter.

In the circumstances, I hereby dismiss the Amended OS in enclosure 27 in limine with costs of RM10,000 to be paid jointly to the 1st-5th 12 Respondent and RM8,000 to be paid jointly to the 6th-8th Respondent and costs to be borne by the Liquidator personally. Dated: 13th day of July 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: Gary Ng Cheng Yip and Steven Tan Chee Qian for the Applicant in Enclosure 27 [Messrs Dennis Nik & Wong] Alex Tan and Natalie Law for the 1st-5th Respondent [Messrs Wong Kian Kheong] Gary Teh and Chew Chee Hui for the 6th-8th Respondent [Messrs Gary Teh & Ngiam]