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1 CIVIL APPEAL NO: M-02(IM)-1476-08/2022 …
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Court of Appeal of Malaysia8 May 2026M-02(IM)-1476-08/2022
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“(ii)(a) s 236(2)(i) of the Companies Act 1965 [CA”
“(d) s 71 of the Contracts Act 1950 [CA (1950)] or the doctrine of quantum meruit?;”
“4. Reproduced below are s 69(1) to (3) of the Courts of Judicature Act 1964 (CJA), rr 7(1) to (3) and (3A) of the Rules of the Court of Appeal 1994 (RCA): “CJA s 69 Hearing of appeals”
“ants. We agree with the comment made by **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 Marks J, in Commissioner for Corporate Affairs v Harvey [1980] VR 669 at 689 that “once the court is apprised of any matter bearing on the conduct of a liquidator it has jurisdict”
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1 CIVIL APPEAL NO: M-02(IM)-1476-08/2022 …
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GOH SIEW KOON @ ENG SING KUAN
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TEY BOON GIOW & SONS SDN. BHD. ... RESPONDENTS (HEARD TOGETHER WITH) CIVIL APPEAL NO: M-02(IM)-1622-08/2022 … APPELLANT 20/05/2026 15:51:31 M-02(IM)-1476-08/2022 Kand. 244
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GOH SIEW KOON @ ENG SING KUAN
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TEY BOON GIOW & SONS SDN. BHD. ... RESPONDENTS (HEARD TOGHETHER WITH)
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TEY BOON GIOW & SONS SDN. BHD. ...
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LIM JIT KIM @ LIM TIAN JEE
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DATIN FAKHRIAH BINTI HJ. MOHD. NOAH ... RESPONDENTS [In the Matter of High Court of Malaya at Malacca Companies (Winding Up) Petition No.: MT2-28-32-2004 Between
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Lim Jit Kim @ Lim Tian Jee 2. Tan Yian Ping 3. Lim Ah Sang 4. Tan Seng Lee 5. Tan Seng Thai 6. Tan Seng Huat 7. Tan Guan Chong 8. Tan Peng Hin 9. Lee Kim Li
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Tan Soon Hin Holdings Sdn. Bhd.
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Ng Aw Say
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Tan Seng Chye
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Tan Seng Kee
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Tan Chin Peng
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Lim Siew Hwa
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Chan Ah Bee
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Lim Jit Teng
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Pang Chin Tong
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Datin Fakhriah Binti Hj. Mohd. Noah ... Petitioners And
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Goh Siew Koon @ Eng Sing Kuan 2. Tey Liong Seng 3. Tey Sui Kiat 4. Sin Hai Estate Bhd. ... Respondents] CORAM: WONG KIAN KHEONG, JCA LIM HOCK LENG, JCA LATIFAH BINTI HAJI MOHD TAHAR, JCA SUPPORTING JUDGMENT A. Introduction
1
The following three appeals (3 Appeals) were heard together:
Subsection
(1) Civil Appeal no. M-02(IM)-1476-08/2022 (1st Appeal) had been filed by Mr. Lim Aik @ Lim Yeok (Mr. Lim) as the liquidator for Sin Hai Estate Bhd. (SHEB), the fourth respondent in the 1st Appeal, against the High Court’s decision dated 4.7.2022 [High Court’s Decision (4.7.2022)];
Subsection
(2) Mr. Lim had also lodged Civil Appeal no. M-02(IM)-1622- 08/2022 (2nd Appeal) against the High Court’s decision dated 12.8.2022 [High Court’s Decision (12.8.2022)]; and
Subsection
(3) Mr. Tey Sui Kiat and Tey Boon Giow & Sons Sdn. Bhd., the contributories of SHEB, had filed Civil Appeal no. M- 02(IM)-1665-09/2022 (3rd Appeal) against the High Court’s Decision (12.8.2022).
2
My learned brother, Dr. Lim Hock Leng JCA, had previously forwarded to me a draft judgment regarding these 3 Appeals (Draft). B. Issues
3
I agree with the Draft and wish to discuss the following five matters in this judgment (This Judgment):
Subsection
(1) if a party to an appeal in the Court of Appeal, be it an appellant or respondent [Party (Appeal)], intends to rely on evidence (for the purpose of the hearing of the appeal) which only came into being after the decision of the High Court (Subsequent Evidence), whether the Party (Appeal) is required to prove the relevance of the Subsequent Evidence to the appeal before the Party (Appeal) can rely on the Subsequent Evidence at the hearing of the appeal;
Subsection
(2) the Winding Up Court had earlier dismissed Mr. Lim’s application to ratify -
a
(a) Mr. Lim’s appointment of PricewaterhouseCoopers Advisory Services Sdn. Bhd. (PWCAS) to assist Mr. Lim in the liquidation of SHEB; and
b
(b) Mr. Lim’s payment of PWCAS’s fees [Mr. Lim’s Payment (PWCAS’s Fees)] from SHEB’s assets (Winding Up Court’s Decision) and there was no appeal to the Court of Appeal against the Winding Up Court’s Decision. In these circumstances, does the Winding Up Court’s Decision bar Mr. Lim’s subsequent application to the Winding Up Court for the payment of Mr. Lim’s fees as SHEB’s liquidator from the assets of SHEB (Enc. 349) on the ground of issue estoppel principle, the second limb of the doctrine of res judicata (Issue Estoppel Principle)? In this regard -
i
(i) is the Issue Estoppel Principle applicable in this case even if there was no written judgment for the Winding Up Court’s Decision?;
Subparagraph
(ii) in view of -
Subparagraph
(ii)(a) s 236(2)(i) of the Companies Act 1965 [CA
Subsection
(1965)]; and
Subparagraph
(ii)(b) rr 171(1) and 173 of the Companies (Winding Up) Rules 1972 (WUR); would the application of the Issue Estoppel Principle cause an injustice to Mr. Lim in this case?;
Subsection
(3) can the court allow Enc. 349 -
a
(a) pursuant to s 232(3)(c) CA (1965) read with r 142(3) WUR and Table C in the Second Schedule to the WUR (Table C);
b
(b) based on the value of time cost of Mr. Lim’s actual work for SHEB’s liquidation with regard to matters wherein actual invoices had been issued and paid (Mr. Lim’s Time Cost);
c
(c) unjust enrichment doctrine; and/or
d
(d) s 71 of the Contracts Act 1950 [CA (1950)] or the doctrine of quantum meruit?;
Subsection
(4) could the Winding Up Court order Mr. Lim to return Mr. Lim’s Payment (PWCAS’s Fees) to SHEB when there was no such prayer in Enc. 349?; and
Subsection
(5) if the Court of Appeal -
a
(a) sets aside the High Court’s Decision (4.7.2022) and High Court’s Decision (12.8.2022); and
b
(b) remits this case for the Winding Up Court [before another Judge/Judicial Commissioner (J/JC)] to re-determine Mr. Lim’s fees as SHEB’s liquidator [Winding Up Court’s Re-Determination (Mr. Lim’s Fees)] whether the Winding Up Court’s Re-Determination (Mr. Lim’s Fees) -
i
(i) can consider Mr. Lim’s work as SHEB’s liquidator prior to 21.2.2012 [the date Mr. Lim provided security to the Official Receiver (OR) as required by s 228(a) CA
Subsection
(1965)]; and
Subparagraph
(ii) can decide Mr. Lim’s fees based solely on Mr. Lim’s Time Cost. C. Mr. Lim’s application to adduce Subsequent Evidence for the hearing of the 3 Appeals
4
Reproduced below are s 69(1) to (3) of the Courts of Judicature Act 1964 (CJA), rr 7(1) to (3) and (3A) of the Rules of the Court of Appeal 1994 (RCA): “CJA s 69 Hearing of appeals
Subsection
(1) Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court or through a remote communication technology, by affidavit, or by deposition taken before an examiner or commissioner.
Subsection
(2) The further evidence may be given without leave on interlocutory applications, or in any case as to matter which have occurred after the date of the decision from which the appeal is brought.
Subsection
(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal. RCA r 7 Power of Court to amend, admit further evidence, or draw inferences of fact
Subsection
(1) The Court shall have all the powers and duties, as to amendment or otherwise, of the appropriate High Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, or by deposition taken before an examiner or Commissioner.
Subsection
(2) Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.
Subsection
(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court.
Subsection
(3A) At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that -
a
(a) at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
b
(b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be.
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In -
Subsection
(1) Krishnasamy a/l Kuppusamy & Anor v Pengarah Hospital Sultanah Aminah & Ors and two other appeals [2024] 4 MLJ 907, at [20]; and
Subsection
(2) Cempaka Mewah Sdn Bhd (in creditors’ voluntary liquidation) v Pengarah Ukur dan Pemetaan Negeri Sembilan Darul Khusus [2026] 2 MLJ 89, at [19] - I have stated that there are three scenarios (3 Scenarios) for the Court of Appeal to admit “further evidence” for the hearing of an appeal under s 69(1) to (3) CJA) rr 7(1) to (3) and (3A) RCA (referred collectively in This Judgment as the “Relevant Statutory Provisions”). Reproduced below is the passage in Cempaka Mewah, at [19] - “[19] The 3 Scenarios provided in the Relevant Provisions are as follows:
Subsection
(1) a party to an appeal, be it an appellant or respondent [Party (Appeal)] wishes to use further evidence in an “interlocutory application” in the Court of Appeal (1st Scenario). The 1st Scenario is provided in -
a
(a) the first limb of s 69(2) CJA (further evidence may be given without leave on interlocutory applications) {1st Limb [Section 69(2) CJA]}; and
b
(b) the first limb of r 7(2) RCA (further evidence may be given without leave on interlocutory applications) {1st Limb [r 7(2) RCA]}. …
Subsection
(2) in the second scenario (2nd Scenario), for the purpose of the hearing of an appeal, a Party (Appeal) relied on evidence which only came into being after the decision of the High Court (Subsequent Evidence). The following Relevant Provisions provide for the 2nd Scenario -
a
(a) the second limb of s 69(2) CJA (in any case as to matters which have occurred after the date of the decision from which the appeal is brought) {2nd Limb [Section 69(2) CJA]};
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(b) s 69(3) CJA (Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court) (emphasis added);
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(c) the second limb of r 7(2) RCA (in any case as to matters which have occurred after the date of the decision from which the appeal is brought) {2nd Limb [r 7(2) RCA]}; and
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(d) r 7(3) RCA (Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court) (emphasis added); and
Subsection
(3) in the last scenario (3rd Scenario), a Party (Appeal) wished to use evidence in an appeal which was available before the High Court’s decision but such evidence was not adduced at the trial in the High Court (Existent Evidence). The 3rd Scenario is provided in the following Relevant Provisions -
a
(a) s 69(3) CJA; and
b
(b) r 7(3), (3A)(a) and (b) RCA.” (emphasis added).
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Prior to the hearing of these 3 Appeals [Hearing (3 Appeals)], Mr. Lim had applied for leave of the Court of Appeal to adduce Subsequent Evidence [evidence which came into being after the High Court’s Decision (4.7.2022) and High Court’s Decision (12.8.2022)] for the Hearing (3 Appeals) [Mr. Lim’s 3 Applications (Subsequent Evidence)]. The Subsequent Evidence concerned documentary evidence regarding the payment of the liquidator’s fees for the liquidation of Sing Lian Sdn. Bhd. (in liquidation) (SLSB), the fifth respondent company in the 1st and 2nd Appeals [Subsequent Evidence (SLSB’s Liquidation)].
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Premised on -
Subsection
(1) the second limb of s 69(2) CJA;
Subsection
(2) s 69(3) CJA;
Subsection
(3) the second limb of r 7(3) RCA; and
Subsection
(4) r 7(3) RCA as explained in Krishnasamy and Cempaka Mewah, Mr. Lim was entitled to adduce the Subsequent Evidence (SLSB’s Liquidation) for the Hearing (3 Appeals) (without obtaining leave of the Court of Appeal). Having said that, if the Court of Appeal subsequently decides that the Subsequent Evidence (SLSB’s Liquidation) has no relevance in the 3 Appeals, such fact can and should be taken into account by the Court of Appeal in the determination of the costs of the 3 Appeals pursuant to s 70 CJA read with rr 54 and 96 RCA - please refer to Cempaka Mewah, at [25(2)(c)].
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I have no hesitation to decide that the Subsequent Evidence (SLSB’s Liquidation) has no relevance, let alone a material bearing, in these 3 Appeals. This is because the Subsequent Evidence (SLSB’s Liquidation) concerned the liquidation of SLSB and not SHEB’s liquidation. Consequently, Mr. Lim’s adduction of the Subsequent Evidence (SLSB’s Liquidation) in these 3 Appeals, should be considered in the Court of Appeal’s determination of the costs for these 3 Appeals.
9
With regard to the third scenario (Existent Evidence), I have stated in Cempaka Mewah, at [31], that there are four approaches. Consequently, I have pleaded for law reform regarding the conditions for the Court of Appeal to grant leave for a Party (Appeal) to adduce Existent Evidence for the hearing of an appeal - please refer to In Cempaka Mewah, at [33(5)] and [39]. As there is a possibility of the irrelevance of Subsequent Evidence to the hearing of an appeal (as in these 3 Appeals), the Relevant Statutory Provisions should be reconsidered so as to require a Party (Appeal) to obtain leave of the Court of Appeal to adduce Subsequent Evidence on the sole condition that the Subsequent Evidence “would probably have an important influence on the result of the case, although it need not be decisive” as laid down by Denning LJ (as he then was) in United Kingdom’s Court of Appeal case of Ladd v Marshall [1954] 3 All ER 745, at p. 748. D. Would Issue Estoppel Principle apply in this case?
10
The following statutory provisions are reproduced below -
Subsection
(1) ss 232(3)(c) and 236(2)(i) CA (1965); and
Subsection
(2) the definition of “Taxing Officer” in r 2(1), rr 142(1), (3), (4) 171(1) and 173 WUR “CA (1965) s 232. General provisions as to liquidators …
Subsection
(3) A liquidator other than the Official Receiver shall be entitled to receive such salary or remuneration by way of percentage or otherwise as is determined -
a
(a) by agreement between the liquidator and the committee of inspection, if any;
b
(b) failing such agreement or where there is no committee of inspection by a resolution passed at a meeting of creditors by a majority of not less than three-fourths in value and one-half in number of the creditors present in person or by proxy and voting at the meeting and whose debts have been admitted to vote, which meeting shall be convened by the liquidator by a notice to each creditor to which notice shall be attached a statement of all receipts and expenditure by the liquidator and the amount of remuneration sought by him; or
c
(c) failing a determination in a manner referred to in paragraph (a) or (b), by the [Winding Up Court]. … s 236. Powers of liquidator …
Subsection
(2) The liquidator may - …
i
(i) appoint an agent to do any business which the liquidator is unable to do himself; … WUR r 2(1) … "Taxing Officer" means the officer of the [Winding Up Court] whose duty is to tax costs in the proceedings of the [Winding Up Court] under its ordinary jurisdiction. r 142. Remuneration of liquidator
Subsection
(1) The remuneration of a liquidator, unless the [Winding Up Court] shall otherwise order, shall be fixed by the committee of inspection, and shall be in the nature of a commission or percentage of which one part shall be payable on the amount realized, after deducting the sums (if any) paid to secured creditors (other than debenture holders) out of the proceeds of their securities, and the other part on the amount distributed in dividend. …
Subsection
(3) If there is no committee of inspection the remuneration of the liquidator shall, unless the [Winding Up Court] shall otherwise order, be fixed by the scale of fees and percentages for the time being payable on realizations and distributions by the [OR] as liquidator.
Subsection
(4) This rule shall only apply to a liquidator appointed in a winding-up by the [Winding Up Court]. r 171. No allowance for performance by other person of liquidator's and special manager's duties
Subsection
(1) Where a liquidator or special manager in a winding-up by the [Winding Up Court] receives remuneration for his services as such, no payment shall be allowed in his accounts in respect of the performance by any other person of the ordinary duties which are required by [CA
Subsection
(1965)] or [WUR] to be performed by himself. r 173. Costs No payments in respect of bills or charges of solicitors, managers, accountants, auctioneers, brokers or other persons other than payments for costs and expenses incurred and sanctioned under rule 45, and payments of bills which have been taxed and allowed under orders made for the taxation thereof, shall be allowed out of the assets of the company without proof that the same have been considered and allowed by the Taxing Officer. The Taxing Officer shall satisfy himself before passing the bills or charges that the employment of a solicitor or other person to assist the liquidator in the performance of his duties in respect of the matters mentioned in the bills or charges has been duly sanctioned. Provided that the [OR] when acting as liquidator may without taxation pay and allow the costs and charges of any person employed by him where the costs and charges are within the scale usually allowed by the [Winding Up Court] and do not exceed the sum of RM100.” (emphasis added).
11
Once a court has finally decided an application (1st Application), the decision in the 1st Application may affect subsequent applications due to the Issue Estoppel Principle - please refer to the judgment of Peh Swee Chin FCJ in the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, at 199 to 200.
12
I am of the view that by virtue of the Issue Estoppel Principle, the Winding Up Court’s Decision would bar Enc. 349 with regard to Mr. Lim’s claim for liquidator’s fees from 7.9.2012 (the date Mr. Lim appointed PWCAS to perform the liquidation of SHEB) until 14.12.2015 (the date the Court of Appeal removed Mr. Lim as SHEB’s liquidator). My reasons are as follows:
Subsection
(1) Mr. Lim did not appeal to the Court of Appeal against the Winding Up Court’s Decision. Hence, for the purposes of SHEB’s liquidation, the Winding Up Court’s Decision is final for all parties in the liquidation of SHEB, including Mr. Lim;
Subsection
(2) the parties in the Winding Up Court’s Decision and Enc. 349 were the same. The Winding Up Court’s Decision and Enc. 349 concerned the same issue regarding the payment of fees for work done in the liquidation of SHEB. Notably, the Winding Up Court’s Decision was made by the same Winding Up Court (in the same liquidation of SHEB) which was to decide Enc. 349;
Subsection
(3) by virtue of s 236(2)(i) CA (1965), Mr. Lim could only appoint an agent (such as PWCAS) to assist in any work regarding the liquidation of SHEB if he was unable to do such work himself. In this regard, I refer to a judgment of a three-member coram of the Federal Court of Australia (not its apex court) in Ah Toy v Registrar of Companies (Northern Territory) (1986) 72 ALR 107. Ah Toy concerned the then s 236(2)(j) of the Companies Act of Northern Territory in Australia [CA (NT)] which is similar to our s 236(2)(i) CA (1965). It was decided in Ah Toy, at p. “Section 236(2)(j) [CA (NT)] provides that a liquidator may “appoint an agent to do business which the liquidator is unable to do himself”. That provision falls well short of authorising the type of wholesale delegation undertaken in this case. The purpose of s 236(2)(j) is to enable the delegation of specific tasks which the liquidator, for one reason or another, is not able to undertake. The scheme of the Act is that the liquidator remains generally responsible to the court and to the creditors and contributories of the company for the conduct of the liquidation. We agree with the comment by Marks J, made in relation to a similar general delegation in Harvey at 754 , that if a liquidator is so disabled in some way that he cannot perform the duties to which he has been appointed, his duty is not to appoint an agent but to seek leave to resign his office: see also the acceptance by Kelly J in Re Bridal Centre Co Pty Ltd (1985) 59 ACTR 1 at 14 of the words “alarming and improper” as a description of the delegation by a liquidator of the whole of his functions as liquidator to his firm.” (emphasis added). There was no evidence that PWCAS had performed work in SHEB’s liquidation of which Mr. Lim was not able to do himself. As such, Mr. Lim had breached s 236(2)(i) CA
Subsection
(1965) {Mr. Lim’s Breach [Section 236(2)(i) CA (1965)]};
Subsection
(4) rule 171(1) WUR is a mandatory provision because an imperative term (shall) is employed in that provision. According to r 171(1) WUR, Mr. Lim could not lawfully pay PWCAS from SHEB’s assets for the performance of his “ordinary duties” as SHEB’s liquidator which were required by the CA (1965) and WUR to be performed by himself. It is clear in this case that when Mr. Lim’s Payment (PWCAS’s Fees) was made, Mr. Lim had breached the mandatory r 171(1) WUR {Mr. Lim’s Breach [Rule 171(1) WUR]};
Subsection
(5) a mandatory term “shall” is used in r 173 WUR. Mr. Lim’s Payment (PWCAS’s Fees) was made without taxation by the “Taxing Officer” [defined in r 2(1) WUR]. Once again, I refer to the judgment in Ah Toy, at p. 133, as follows - “In Harvey it was conceded on behalf of the liquidator that fees paid by a liquidator to the firm of which he was a member were required to be taxed by a proper officer of the court, as required by the relevant Rules of Court. The correctness of that concession was accepted by Marks J: see [1980] VR at 754-5. We agree with what his Honour said in connection with this matter. In our opinion each of the payments made by the present appellant to Price Waterhouse, whether in respect of work before or after he became a member of the firm, was made in breach of r 274.” (emphasis added). In this case, there was a contravention of the mandatory r 173 WUR in the form of Mr. Lim’s Payment (PWCAS’s Fees) [Mr. Lim’s Breach (Rule 173 WUR)];
Subsection
(6) if the Issue Estoppel Principle did not apply to Enc. 349 in this case -
a
(a) this would render nugatory the Winding Up Court’s Decision; and
b
(b) this would allow Mr. Lim to circumvent s 236(2)(i) CA
Subsection
(1965), rr 171(1) and 173 WUR; and
Subsection
(7) the application of the Issue Estoppel Principle to Enc. in this case, did not cause any injustice to Mr. Lim because Mr. Lim’s Breach [Section 236(2)(i) CA (1965)], Mr. Lim’s Breach [Rule 171(1) WUR] and Mr. Lim’s Breach (Rule 173 WUR) (referred collectively in This Judgment as the “Mr. Lim’s 3 Breaches”) had been committed in this case. In other words, Mr. Lim could not claim any injustice caused to him by the Winding Up Court’s Decision which was due to Mr. Lim’s 3 Breaches.
13
Once -
Subsection
(1) the elements for the application of the Issue Estoppel Principle are fulfilled [please refer to the above sub-paragraphs 12(1) and (2)]; and
Subsection
(2) an application of the Issue Estoppel Principle to Enc. did not occasion any injustice to Mr. Lim - please see the above sub-paragraph 12(7) the Winding Up Court and the Court of Appeal in this case can and should invoke the Issue Estoppel Principle with regard to Enc. 349. The application of the Issue Estoppel Principle does not require a written judgment to be delivered for the Winding Up Court’s Decision.
14
In view of the application of the Issue Estoppel Principle in this case, Mr. Lim cannot rely on the following matters in these 3 Appeals:
Subsection
(1) s 232(3)(c) CA (1965) read with r 142(3) WUR and Table C;
Subsection
(2) Mr. Lim’s Time Cost;
Subsection
(3) the doctrine of unjust enrichment; and
Subsection
(4) s 71 CA (1950) or the quantum meruit doctrine. Additionally, I express the following view:
a
(a) the phrase “unless the Court shall otherwise order” in r 142(3) WUR empowers the Winding Up Court and the Court of Appeal to invoke the Issue Estoppel Principle based on the Winding Up Court’s Decision; and
b
(b) the equitable doctrines of unjust enrichment and quantum meruit [as provided in s 71 CA (1950)] cannot apply in these 3 Appeals because of the inequitable conduct of Mr. Lim (in the form of Mr. Lim’s 3 Breaches).
15
All the cases cited by Mr. Lim’s learned counsel can be easily distinguished from this case on the following grounds:
Subsection
(1) the Winding Up Court’s Decision had been made based on Mr. Lim’s 3 Breaches; and/or
Subsection
(2) the Issue Estoppel Principle applied to Enc. 349 and the 3 Appeals so as to prevent Mr. Lim’s circumvention of s 236(2)(i) CA (1965), rr 171(1) and 173 WUR. E. Could the Winding Up Court lawfully order the return of Mr. Lim’s Payment (PWCAS’s Fees)?
16
I reproduce below s 277(2) CA (1965): “Control of Court over liquidators s 277(2) The [Winding Up Court] shall take cognizance of the conduct of liquidators, and if a liquidator does not faithfully perform his duties and observe the prescribed requirements or the requirements of the [Winding Up Court] or if any complaint is made to the [Winding Up Court] by any creditor or contributory or by the [OR] in regard thereto, the [Winding Up Court] shall inquire into the matter and take such action as it thinks fit.” (emphasis added).
17
Mr. Lim’s learned counsel had contended that Enc. 349 merely concerned Mr. Lim’s application for his fees as SHEB’s liquidator. There was no notice of motion filed in the Winding Up Court by any of the respondents in Enc. 349 for the return of Mr. Lim’s Payment (PWCAS’s Fees) to SHEB. Consequently, according to Mr. Lim’s learned counsel, the Winding Up Court could not lawfully order Mr. Lim to return Mr. Lim’s Payment (PWCAS’s Fees) to SHEB.
18
I am not able to accede to the above submission due to the following reasons:
Subsection
(1) by virtue of s 277(2) CA (1965), the Winding Up Court “shall take cognizance of the conduct of liquidators”, including the conduct of Mr. Lim as SHEB’s liquidator. It is to be noted that Parliament had employed a mandatory term “shall” in s 277(2) CA (1965). When Enc. 349 was filed by Mr. Lim in the Winding Up Court, if Mr. Lim did “not faithfully perform his duties and observe the prescribed requirements” pursuant to CA
Subsection
(1965) and WUR, the Winding Up Court “shall inquire into the matter and take such action as it thinks fit” as understood in s 277(2) CA (1965). Hence, with the filing of Enc. 349, the Winding Up Court clearly had the judicial power, if not the judicial duty, under s 277(2) CA (1965), to -
a
(a) inquire into Mr. Lim’s conduct as SHEB’s liquidator; and
b
(b) order Mr. Lim to return Mr. Lim’s Payment (PWCAS’s Fees) to SHEB as a result of Mr. Lim’s 3 Breaches; and
Subsection
(2) in support of the above decision, I cite the judgment of the Federal Court of Australia in Ah Toy which concerned the then applicable s 278(1) CA (NT). Section 278(1) CA (NT) is in pari materia with s 277(2) CA (1965). I rely on the following passage in Ah Toy, at p. 109, 132 and 133 - “The section [s 278(1) CA (NT)] is unusual in two respects. First, it provides for an inquiry the scope of which is not necessarily confined to issues raised by the participants. We agree with the comment made by Marks J, in Commissioner for Corporate Affairs v Harvey [1980] VR 669 at 689 that “once the court is apprised of any matter bearing on the conduct of a liquidator it has jurisdiction to inquire into that conduct and the ambit of the inquiry is for the court to determine”. Secondly, the powers of the court are not confined to making substantive orders. The court may “take such action as it thinks fit”. This power is sufficiently wide to include the making of findings regarding the conduct of the relevant liquidator; findings which, in a practical sense, may be of considerable significance to the liquidator notwithstanding that they do not involve the payment of any money. … In the present case the learned Chief Justice made both substantive orders for the repayment of money and findings. The substantive orders required the appellant to pay to the estate of the company in liquidation three sums of money - respectively $21,840.88, $3504.54 and $20,554.69 - said to have been lost to the estate by his fault. … The final specific matter complained of by Mr Ah Toy is a finding by the Chief Justice that fees totalling $20,554.69 were improperly paid to Price Waterhouse in respect of the work done by them as agents for the liquidator, together with a consequential order that the appellant make good that loss to the estate of the company. … … The finding and order made by the Chief Justice in regard to this matter were correct and should be affirmed.” (emphasis added). F. Winding Up Court’s Redetermination (Mr. Lim’s Fees)
19
For the reasons stated by my learned brother, Dr. Lim Hock Leng JCA, and the reasons given in This Judgment -
Subsection
(1) the High Court’s Decision (4.7.2022) and High Court’s Decision (12.8.2022) are set aside; and
Subsection
(2) we order the Winding Up Court’s Re-Determination (Mr. Lim’s Fees) before another J/JC.
20
I express the following view regarding the Winding Up Court’s Re-Determination (Mr. Lim’s Fees):
Subsection
(1) the Winding Up Court cannot consider Mr. Lim’s work as SHEB’s liquidator prior to 21.2.2012 [the date Mr. Lim provided security to the OR as required by s 228(a) CA
Subsection
(1965)]. This is clear from s 228(a) CA (1965) which provided as follows - “s 228. Provisions where person other than [OR] is appointed liquidator Where in the winding up of a company by the Court a person other than the [OR] is appointed liquidator, that person -
a
(a) shall not be capable of acting as liquidator until he has notified his appointment to the [Registrar of Companies] and given security in the prescribed manner to the satisfaction of the [OR]; …” (emphasis added). Our legislature had used an imperative term “shall” in s 228(a) CA (1965). Accordingly, I am not able to accept the contention by Mr. Lim’s learned counsel that the Winding Up Court could consider Mr. Lim’s work as SHEB’s liquidator before 21.2.2012;
Subsection
(2) the Winding Up Court’s Re-Determination (Mr. Lim’s Fees) can only determine Mr. Lim’s fees as SHEB’s liquidator for the period from 21.2.2012 until 7.9.2012 (the date the Court of Appeal removed Mr. Lim as the liquidator of SHEB) (Claimable Period); and
Subsection
(3) the Winding Up Court’s Re-Determination (Mr. Lim’s Fees) for the Claimable Period is premised on what is a “fair and reasonable” remuneration for Mr. Lim’s work in the liquidation of SHEB (Fair and Reasonable Approach). The Fair and Reasonable Approach had been explained by Che Mohd. Ruzima JCA (as he then was) in the Court of Appeal case of Emiprima Sdn Bhd v Wonderful Castle Sdn Bhd (in liquidation) [2023] 5 MLJ 695 CA, at [35] to [38], as follows - “[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 VK 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
(a) valued contribution, what difference the liquidator has made to the matter;
b
(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;
c
(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
(d) the assistance, rendered by the employees from the liquidator’s firm subject to strict proof;
e
(e) the scope of work, it is important to understand the functions and responsibilities of the liquidator;
f
(f) the disbursement, it must have some measure of restraint and discipline on how the items are recouped and accounted for; and
g
(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. [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 three methods to be considered and any of the chosen methods is subject to the overriding principle of fairness and reasonableness. …” (emphasis added). In applying the Fair and Reasonable Approach, the Winding Up Court may consider Mr. Lim’s Time Cost but Mr. Lim’s Time Cost is only one relevant consideration and is certainly not conclusive. G. Postlude
21
A draft of This Judgment had been previously forwarded by me to Dr. Lim Hock Leng and Latifah bt. Haji Mohd. Tahar JJCA. Both my learned brother and sister had agreed with the draft. DATE: 8 MAY 2026 sgd WONG KIAN KHEONG Judge Court of Appeal Appeal No.: M-02(IM)-1476-08/2022 Counsel for Mr. Rabindra S. Nathan, the Appellant: Mr. Saresh Mahendaren, Mr. Chew Mingyih & Mr. She Zhen Yang (Messrs Shearn Delamore & Co.) Counsel for the Encik Mohd. Izral Khairy, Mr. Owee Chia Ming, 1st, 2nd, 3rd & 6th Ms. Leanne Chua, Mr. Lim Jun Ni & Respondents: Ms. Thum Shi Ying (Messrs Owee & Co.) Counsel for the Dato’ Ambiga Sreenevasan, 4th Respondent’s Ms. Shireen Selvaratnam & liquidator: Mr. Tan Yoong Chang (Messrs Sreenevasan) Counsel for the Mr. Ranjit Singh a/l Harbinder Singh, 5th Respondent’s Mr. Daniel Albert, Mr. Nicholas Yap & liquidator: Ms. Amanda Yap (Messrs Daniel & Wong) Appeal No.: M-02(IM)-1622-08/2022 Counsel for Mr. Rabindra S. Nathan, the Appellant: Mr. Saresh Mahendaren, Mr. Chew Mingyih & Mr. She Zhen Yang (Messrs Shearn Delamore & Co.) Counsel for the Encik Mohd. Izral Khairy, Mr. Owee Chia Ming, 1st, 2nd, 3rd & 6th Ms. Leanne Chua, Mr. Lim Jun Ni & Respondents: Ms. Thum Shi Ying (Messrs Owee & Co.) Counsel for the Dato’ Ambiga Sreenevasan, 4th Respondent’s Ms. Shireen Selvaratnam & liquidator: Mr. Tan Yoong Chang (Messrs Sreenevasan) Counsel for the Mr. Ranjit Singh a/l Harbinder Singh, 5th Respondent’s Mr. Daniel Albert, Mr. Nicholas Yap & liquidator: Ms. Amanda Yap (Messrs Daniel & Wong) Appeal No.: M-02(IM)-1665-09/2022 Counsel for the Encik Mohd Izral Khairy, Mr. Owee Chia Ming, the Appellants: Ms. Leanne Chua, Mr. Lim Jun Ni & Ms. Thum Shi Yhing (Messrs Owee & Co.) Counsel for the Mr. Rabindra S Nathan, 1st Respondent: Mr. Saresh Mahendaren, Mr. Chew Mingyih & Mr. She Zhen Yang (Messrs Shearn Delamore & Co) Counsel for the Dato’ Ambiga Sreenevasan, 2nd Respondent: Ms. Shireen Selvaratnam & Mr. Tan Yoong Chang (Messrs Sreenevasan) Counsel for the Mr. Ranjit Singh a/l Harbinder Singh, 3rd Respondent: Mr. Daniel Albert, Mr. Nicholas Yap & Ms. Amanda Yap (Messrs Daniel & Wong)
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