MMM Group Berhad (Dahulunya Dikenali Sebagai Asia Media Group Berhad) v Asia Media Sdn. Bhd. (WA-28PW-356-06/2024)

These Grounds concern the following applications for the appointment of a Private Liquidator (“the PL”) pursuant to s. 477 of the Companies Act 2016 (“CA 2016”). a. Encl 1: MMM Group Berhad (formerly known as Asia Media Group Berhad) (Company No.: 813137-V) (“Applicant or MMM”) filed an application dated 14.06.2024 to appoint Andrew Heng and Ashvin Mahendran (“Applicant’s Nominees”) as the Private Liquidators of Asia Media Sdn Bhd (“AMSB”). AMSB was at all material times, a wholly owned subsidiary MMM; b. Encl 11: Peakmax Sdn Bhd’s (“Peakmax”) filed an application dated 27.11.2024 to appoint Tee Siew Kai (“Peakmax’s Nominee”) as the Private Liquidator of AMSB.

2.

Only three (3) creditors, including Plisch, have lodged proofs of debt (“PODs”) with the OR, namely: No.

Percent-age

The Applicant 109,810,021.00 95.11%

Plisch 5,316,783.85 4.61% Peakmax 323,500.00 0.28% TOTAL 115,450,304.85 100%

On 14.06.2024, the Applicant filed Encl 1 nominating the Applicant’s Nominees to be appointed as liquidators of AMSB.

The OR held a creditors’ meeting to ascertain the wishes of the creditors on the appointment of the Applicant’s Nominees as liquidators of AMSB. The creditors’ meeting was finally held on 18.09.2024 (the initial meeting on 27.08.2025 was adjourned due to the lack of quorum). The votes cast were as follows: Total Votes Received RM115,450,304.85 Votes to Appoint Applicant's Nominee 2 votes totaling RM115,126,804.85 (99.72%) Votes to Maintain the OR 1 vote of RM323,500.00 (0.28%) See: Laporan Keputusan Mesyuarat Am Pemiutang dan Penyumbang in Encl 7, pp 9 to 18.

Encl 1 was met with opposition in the form of Encl 11, pursuant to which, Peakmax nominated Peakmax’s Nominee to be appointed as the liquidator.

Therefore, I was faced with a choice between 2 sets of nominees. The determining factor would ordinarily be the wishes of the majority creditors.

Hence, the case for the Applicant is that a large majority of the creditors favoured the appointment of the Applicant’s Nominees. The Court of Appeal in Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd and Another Appeal [2011] 7 CLJ 942 held, amongst others, that the main voice in the appointment of a liquidator are the majority creditors. “(4) The appellant was a substantial creditor of Comsa, thus it must naturally follow that the appellant had the right in the choice of the liquidator of Comsa.”

In Dato’ Sri Shamir Kumar Nandy v Crest Worldwide Resources Sdn Bhd [2020] 1 LNS 1134 at paras 24 and 25, the High Court when faced with a choice of liquidator, also considered the view of the majority creditors in value.

Indeed, the appointment of a liquidator is normally based on the majority wishes of creditors. In Southwind Development Sdn. Bhd. v Tanjung Tiara Sdn. Bhd. [2015] 1 LNS 523 it was held: “[26] I agree with YA Tuan Lee Wee Seng that "the court is obliged to give regard to the wishes of the creditor, all other things being equal, based on the value of the creditors' debt." In the present Application the result of the meeting was that the 5 creditors having 96% interest in value terms had voted for the appointment of HJK & AH whilst the 8 creditors having only 4% interest in value terms had voted for the OR to be the Liquidator. It is between value and number. Surely the Court is obliged to consider the wishes of these 5 creditors and I do so by appointing HJK & AH as joint Liquidator.”

I do accept, however, that the views of the majority creditors are not conclusive. In Abdul Rahman bin Ismail v Pembangunan Qualicare Sdn. Bhd. [2018] 12 MLJ 338, it was held: “[22] Consequently but subject to disqualification because of conflict of interest, the appointment of liquidator is often based on majority wishes: see Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd and another appeal [2011] MLJU 1554; [2011] 7 CLJ 942.”

Similar reservations were held by Justice Nadzarin Wok Nordin in Tai Heng Leng @ Tek Hean Leng v New Future Capital Sdn Bhd and another case [2022] MLJU 1747, who said: “[21] I hold that the fact that a majority creditor has proposed a particular nominee as liquidator does not bind the Court to accept the same and that the Court can take and/or consider the views of the parties who will be affected in such a situation. I need to go no further than quote Re Dunquil Pty Ltd (In Iiq) [1985] 3 ACLC 606, which was also quoted by our Court of Appeal in Malaysian Assurance Alliance Berhad v Comsa Properties Sdn Bhd & Anor Appeal [2011] 7 CLJ 942 and which reads: “There can be little doubt that, where it appears that a company is hopelessly insolvent, the views of the creditors, whilst by no means binding upon the Court, must nevertheless be given due weight - for it is they and not the shareholders of the company who have the primary interest in the ultimate outcome of the liquidation” [22] I also wish to reiterate what Ramly Ali J (as His Lordship then was) had stated in Ng Yok Gee & Anort v CTI Leather Sdn Bhd & ors [2006] 3 CLJ 360 where His Lordship stated: “[41] As a matter of law, it is not a sufficient ground for removal of a liquidator that a substantial minority or even the majority of shareholders wants the liquidators to be removed. It is not a popularity contest.” [23] Accordingly, based on the facts before me and my aforesaid reasons, this Court did not find any prejudice and/or any injustice to the Applicant by the acts of Lim San Peen and/or his team. [24] I was thus satisfied that Lim San Peen had exercised his duties professionally and impartially and that there was no element of lack of independence or impartiality or dereliction of duty shown, and thus Victor Saw Seng Kee who was working side by side with Lim San Peen in the Respondent’s liquidation was equally similarly acting as such. On that ground amongst others, I had decided that Victor Saw Seng Kee was the best person to take over the liquidation of the Respondent … and as per the Court of Appeal in Malaysian Assurance Alliance Berhad (supra) where it was held: “The rule of fair play demands that a liquidator should be independent and also seen to be independent. To be one, the views of creditors must be taken into consideration. When there exist opposing views on the appointment of a liquidator, the winding-up court ought to give due consideration to all the views.”

As such, apparent conflict or apparent bias would be enough to disqualify a candidate. In effect, an objection for apparent bias or conflict was raised by Peatmax against the Applicant’s Nominees. It is this.

Messrs Heng & Mahendran are from Baker Tilly Malaysia. Baker Tilly’s corporate recovery arm, Ferrier Hodgson MH Sdn Bhd (“Ferriers”). It is alleged that Ferriers were engaged or were involved in part of MMM’s regularisation plan in MMM’s restructuring and would have been remunerated by MMM. Mr Heng is also a director in Ferrier Hodgson MH Sdn Bhd. It is said that such prior involvement creates at least a reasonable apprehension of conflict or raises questions about Messrs Heng & Mahendran’s independence; they may favour MMM given their prior or existing relationship.

I had an opportunity to consider previous relationships of professional nominees for an appointment as a liquidator in KNM Group Bhd & Anor v Hitachi Zosen Corp & Ors [2025] MLJU 3528 while following Ooi Woon Chee v See Teow Chuan [2012] 2 MLJ 713 (FC). I held at para 58 that: “[58] Other examples should be appreciated. In the case of liquidators, previous relationships are similarly viewed. The Federal Court in Ooi Woon Chee v See Teow Chuan [2012] 2 MLJ 713 in relation to conflict of interest, which is not unlike bias, held: “[25] It is trite that the correct principle with respect to conflict of interest in the case of liquidators are as set out in McPherson’s Law of Company Liquidation (at para 8.120). The guiding principle is that the liquidator must be independent and be seen to be independent. In other words, there cannot be an actual or apparent conflict. ... [27] On apparent conflict the correct approach is as set out in Advance Housing Pty Ltd (in liq) v Newcastle Classic Development Pty Ltd (1994) 14 ACSR 230 at p 233: “In performing his functions, the liquidator must both be and appear to be independent and impartial of the creditors; Re Intercontinental Properties Pty Ltd (in liq) (1977) 12 ACLR 488 at pp 491-2 after citing from Re Chevron Furnishers Pty Ltd, the court held: ...If the foregoing statement were taken as precluding any association, it being in the circumstance’s obiter, then even the most limited prior involvement with the company in liquidation could disqualify the relevant firm of accountants from providing one of its partners as liquidator. In my judgment, the correct balance is struck by permitting a liquidator to act as such even if there be a prior involvement with the company in liquidation, provided that involvement is not likely to impede or inhibit the liquidator from acting impartially in the interests of all creditors or be such as would give rise to a reasonable apprehension on the part of a creditor that the liquidator might be so impeded or inhibited. In short, the question should be whether there would be a reasonable apprehension by any creditor of lack of impartiality on the liquidator’s part in the circumstances by reason of prior association with the company or those associated with it, including creditors, or indeed any other circumstance. [28] ... We are of the view the commercial reality is that large accounting practices will give rise to associations with persons whom insolvency practitioners will sell assets to. ... [29] Commercial reality dictates that the existence of such relationship by itself should not disqualify liquidators or their audit clients. ... In Pongrass Group Operations Pty Ltd v Lowerpinems Pty Ltd (1994) 15 ACSR 341 with respect to the appointment of the liquidators and possible conflict, the court ruled: ... the evidence of relationship between a senior partner of Ferrier Hodgson and the Pongrass family who are associated with creditors of the company does not seem sufficient to impair the capacity of another member of the firm to perform and be seen to perform his duties as liquidator.”

In short, I found that a previous relationship with the subject company or other interested parties will not, per se, disqualify a professional nominee from being appointed as a liquidator of the said subject company.

It is not in dispute that the majority in number and value of the creditors support the appointment of the Applicant’s Nominees as liquidators of AMSB. As such, in the absence of any other evidence showing conflict or lack of impartiality on their part, a mere previous professional relationship, without more, is insufficient to disqualify them. The ordinary rule that the choice of the majority creditors should prevail applies.

I therefore granted Encl 1 and dismissed Encl 11. Dated the 27th day of October 2025 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Counsel for the Applicant: Solicitors: Marcus Lee Min Lun and Lee Min Yau Marcus Lee (Kuala Lumpur) Counsel for the Respondent: Solicitors: NurulAzeannie binti Jamian Dong Jabatan Insolvensi Malaysia Wilayah Persekutuan Kuala Lumpur (Kuala Lumpur) Counsel for the Aggrieved Party: Solicitors: Leong Phaik Leng and Tan Shang Neng Tan Sheng Neng (Kuala Lumpur) Case References: • Abdul Rahman bin Ismail v Pembangunan Qualicare Sdn. Bhd. [2018] 12 MLJ 338 • Dato’ Sri Shamir Kumar Nandy v Crest Worldwide Resources Sdn Bhd [2020] 1 LNS 1134 • KNM Group Bhd & Anor v Hitachi Zosen Corp & Ors [2025] MLJU 3528 • Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd and Another Appeal [2011] 7 CLJ 942 • Southwind Development Sdn. Bhd. v Tanjung Tiara Sdn. Bhd. [2015] 1 LNS 523 • Tai Heng Leng @ Tek Hean Leng v New Future Capital Sdn Bhd and another case [2022] MLJU 1747 Legislation References: • Companies Act 2016 (“CA 2016”). Decision Date: 14th October 2025