[7] It was submitted that prior to entering into the SPA, the Liquidator had applied to court vide Enclosure 60 for an order to sell the land to the Petitioner, being the main creditor, but the court did not grant order in terms as prayed for but directed the Liquidator to take appropriate steps to secure and sell the land. [8] Counsel for the Appellant submitted that during the hearing of Enclosure 60, based on a valuation report by JS Valuers Property Consultants (Perak) Sdn Bhd dated 2/9/2016, the land was valued at RM43,000,000.00 on a commercial basis and RM24,000,000.00 on a residential basis. [9] He submitted that prior to the winding-up the Petitioner had entered into a SPA dated 11/7/2013 for the land for a purchase price of RM34,000,000.00 and therefore it was unconscionable and in bad faith for the Liquidator to have entered into the SPA for only RM17,689,000.00 which was way below the market price which Page 8 of 13 tantamount to inequitable fraud as it deprived the contributories of the surplus from the sale. That SPA was not concluded. [10] Counsel for the Appellant submitted that based on the decision given in Encl. 60, the judge hearing Encl. 68 had misdirected himself on the Liquidator's power to sell or dispose the land which was not the asset of the Respondent in liquidation and as at the date of the SPA the land had not been alienated to the Respondent by the State Authority. [11] It was submitted that the judge had failed to consider the haste taken by the Petitioner and Liquidator in entering the SPA and in presenting the transfer documents with the knowledge that the Appellant was applying to stay the disposal of the land, which objectively viewed fairly supported the irresistible inference of lack of bona fides on the part of the Liquidator and Petitioner in the disposal. [12] It was submitted that the judge failed to evaluate the totality of the evidence adduced before him as to the value of the land sold at an under value of RM17,689,000.00 with the Petitioner knowing the true value of the land at RM34,000,000.00 some 3 years earlier which had resulted in a miscarriage of justice. [13] The Appellant submitted that the Liquidator failed to take any alternative steps to secure and sell the land or to consider any other offers and without the benefit of a fresh valuation report in selling the land to the Petitioner. [14] Furthermore, it was submitted that the Liquidator did not take any steps to appoint a committee of inspection which was required by Page 9 of 13 s.241(1) of the CA. It was submitted that the observations above apply with equal force to s.269(2) of the Act as the Legislature has provided that the exercise by the Liquidator shall be subject to the control of the Court. [15] The Petitioner and Respondent submitted that the High Court had granted leave to the Liquidator to sell the land, that the SPA entered into was a conditional sale of the land which became unconditional after the land was subsequently alienated to the Respondent. It was submitted that there was no order preventing the presentation of the transfer. OUR DECISION [16] In s.2 of CA, a ‘contributory’ means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory. Under s.214(1), on a company being wound up, any present and past members will be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities and the court charges and expenses for the winding up. [17] Under s.269(1)(c) of CA, the liquidator may exercise the power of the court under the Act of settling a list of contributories, and the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories. In this appeal there is no dispute that the Appellant is a contributory of the Respondent company which has been wound up. Page 10 of 13 [18] On the Appellant’s submission on the absence of court’s approval and the committee of inspection, Counsel for the Appellant submitted that the Liquidator failed to take any steps to appoint a committee of inspection contrary to the provisions of ss. 236, 237, 241 and 269 of CA, citing the authorities of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761; North Plaza Sdn Bhd v Equiticorp Holdings Ltd and Other Appeals [2013] 3 MLJ 617 in support of the submission. [19] The above two authorities cited should be read in the light of and can be distinguished on the facts. In that case, several months after the respondent was wound up, the High Court ordered (the 2001 order), by consent of the creditors and contributories, the appointment of a liquidator together with a committee of inspection for the respondent to enable the creditors and contributories to be consulted and for them to participate in all acts and decisions of the liquidator. The liquidator never set up a committee of inspection but unilaterally took steps to sell all 16 parcels of land belonging to the respondent to North Plaza Sdn Bhd in order to settle the respondent’s debts. Following an application to injunct the sale, the liquidator accepted a lower revised offer from North Plaza and applied to court which approved the sale. On appeal, the Court of Appeal ruled that there was disobedience of the 2001 order by the liquidator who had acted in breach of the order which provided that the liquidator was to act with a committee of inspection. The apex court affirmed the decision of the Court of Appeal ruling that the liquidator could not act independently despite the fact that there was a consent order appointing the liquidator together with a committee of inspection. In our present appeal there was no such order appointing the liquidator together with a committee of inspection. Page 11 of 13 [20] The facts showed that the Respondent has no other asset or fund to make payments to the State Authority pursuant to the consent judgment unless it accepted the advances and conditions of the Petitioner to which the Appellant had objected. In the circumstances the Liquidator had no alternative but to seek directions pursuant to s.237(3) of CA vide Encl. 60. [21] Under s.241(1), the liquidator may, and shall if requested by any creditor or contributory summon separate meetings of the creditors and contributories for the purpose of determining whether or not either of them require the appointment of a committee of inspection to act with the liquidator. On the facts, the Appellant did not request for such a meeting to require the appointment of a committee of inspection. [22] It should be noted that in that application (Encl. 60) the contributory (Appellant) did not apply for a committee of inspection to be appointed. Despite the two authorities being cited to the presiding judge in that application, she did not deem it necessary to order for a committee of inspection to be appointed in the circumstances of the case. The Appellant did appeal against that decision. [23] Similarly, in Encl. 68 and his affidavit in support, the Appellant did not apply nor affirmed that a committee of inspection should be appointed or that the SPA was null and void because the liquidator did not take steps to appoint or did not appoint a committee of inspection. It was only raised in the submission in this appeal. Thus there were no merits in the submission and there was no requirement to appoint a committee of inspection in the circumstances of the case. Page 12 of 13 [24] Under s.236(2)(c), the Liquidator may sell the immovable property by private contract and do all things as are necessary for the winding up of the affairs of the company subject to the control of the court. In this case the Liquidator has sought the directions of the court which gave directions that in the event there was no extension of time granted by the State Authority, the Liquidator was at liberty to take appropriate steps to secure and sell the land. [25] Reading the Appeal Record, the Respondent on 27.10.2016 had paid the balance purchase price and land premium to the State Authority using the advances made by the Petitioner. The SPA entered into on 21.11.2016 was a conditional contract subject inter alia to the land alienated to the Respondent pursuant to the consent judgment. On 28.12.2016 the land was alienated to the Respondent. Therefore the SPA became unconditional. It has been held that a conditional agreement is valid: Tan Ong Ban v Teoh Kim Heng [2016] 3 CLJ193; Khatijah bte Abdullah & Ors v Mohd Isa bin Biran [2017] 2 MLJ1. [26] We are unanimous in our decision that there were no merits in the appeal which is dismissed with costs of RM10,000.00 subject to allocatur and the deposit to be refunded. Dated : 19th July 2018 Signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya Page 13 of 13 Counsel For Appellant : Harpal Singh Grewal with Teh Boon Eng Messrs. Teh & Associates For 1st Respondent : Leong Sai Hwa Messrs. C. K. Leong & Co. For 2nd Respondent : K. Ganesan with R. Subashini Messrs. Ganesan & Irmohizam