Nik James Ferrie Arkitek v Tenaga Gagah Sdn Bhd & Kuh Cho Sen & Saik Siw Lai & 6 Lagi (28NCC-410-05/2014)

1.

2.

3.

4.

5.

LIM SU HUA … PEMOHON-

LAI MIN WANG PEMOHON (Lamp.104) 2 5 GROUNDS OF DECISION Background [1] There are 2 Notice of Motions before the Court, encls.101 and 104. Encl.101 is an application dated 30/8/2016 by the Applicant, Kuh Cho Sen (‘Applicant in encl.101’) essentially for (i) 10 leave to file the said application, (ii) Mr. Ler Cheng Chye and Lum Tuck Cheong of Messrs. Ler & Lum Advisory Services Sdn Bhd (‘Ler & Lum’) to be appointed as the Liquidators of Tenaga Gagah Sdn Bhd, the Respondent, jointly and severally in substitution of the Official Receiver of Malaysia and without Committee of 15 Inspection pursuant to s.232 of the Companies Act 1965 (‘CA 1965’), (iii) Ler & Lum to be granted specific powers as Liquidators under the CA 1965 and the Companies (Winding Up) Rules 1972 (‘CWUR’) and (iv) costs of the application be cost in the cause. 20 [2] Encl.104 is a similar application dated 1/11/2016 by the 7 Applicants named therein (‘Applicants in encl.104’) essentially for

leave to file the said application, (ii) Mr. Wong Weng Foo of Messrs. Wong Weng Foo & Co. (‘WWFoo’) to be appointed as the Liquidator of the Respondent pursuant to s.232 of the CA 1965 25 and (ii) costs of the application be cost in the cause. [3] Encl.101 and encl.104 stem from the decision of the Court of Appeal No. W-02(NCC)(A)-1544-09/2014 whereby at para 32 and 41 of the Grounds of Judgment, the Court of Appeal opined - 30 “[32] We went on to make a further order at the hearing of the appeal. We ordered that the Official Receiver be appointed as the provisional liquidator of the company with effect from the date of the winding up order, ie 31 July 2014, in place of Ler&Lum. This is turn was to counter the effect of the lack of disclosures on the part of the solicitor for the 35 3 company and the solicitors for the second petitioner, which had 5 resulted in their preferred nominees, namely Ler&Lum being appointed as liquidators, rather than Wong Weng Foo”. … 10 “… As stated above we further substituted the liquidators appointed under the first order for winding up with the Official Receiver. This allowed the parties to apply for the liquidators of their choice by way of further application to the winding up court where they could both be heard, and a fully considered decision be made by 15 the court …”. (Emphasis added) [4] Upon being served with encl.101, the Official Receiver had called for a general meeting of creditors and contributories of the 20 Respondent on 4/10/2016. That meeting was adjourned to a date to be fixed on the ground of insufficient quorum. [5] On 6/10//2016, the Official Receiver issued a notice of adjourned general meeting of creditors and contributories of the 25 Respondent. This notice provided that the meeting would be held at the office of the Malaysian Insolvency Department on 17/10/2016. It further provided that all completed proxy forms must be filed with the Official Receiver on or before 12:00pm on 13/10/2016 and all proof of debt were also to be filed. 30 [6] On 17/10/2016, the Official Receiver held the adjourned creditors and contributories meeting and reported from its Minutes of Meeting (exh.LMW-7, encl.109 Affidavit in Reply affirmed by Lai Min Wang), amongst others, that - 35

5 creditors with total debt value of RM26,074,832.95 voted to appoint Ler & Lum as liquidators of the Respondent; 4

255 creditors with total debt value of RM11,094,608.32 voted 5 for Wong Weng Foo as liquidators of the Respondent; and

1 creditor with debt value of RM438,797.39 voted for the Official Receiver as liquidator of the Respondent. [7] Prior to the voting of the liquidators, the Chairperson of the 10 meeting reported that 255 Proof of Debt forms were received on 17/10/2016 although the forms were to be filed on or before 12:00pm on 13/10/2016. Counsel for the Petitioner objected to the inclusion of the 255 creditors but the Chairperson exercised her rights under rule 128 of the CWUR and accepted the 255 creditors 15 for the purpose of voting. [8] Although the Applicant in encl.101 was present during the said meeting, he did not object to the inclusion of the 255 Proof of Debt. 20 [9] Subsequently, on 2/11/2016, Counsel for the Applicant in encl.101 raised objections against the 255 Proof of Debt before this Court. 25 Preliminary Objection [10] For the purposes of the hearing of the 2 Notices of Motions, there are altogether 10 Affidavits filed: encls.102, 105, 106, 107, 108, 109, 110, 111, 112 and 116. Learned Counsel for the Applicant in encl.101, Mr. C. S. Ong urged the Court to disregard 30 encls.105, 106 and 116. 5 [11] I have considered encls.105, 106, 108 and 116. I 5 disregarded encl.116 on the grounds that filing of affidavits is governed by O.32 r.13(2)(a) Rules of Court 2012 (‘ROC 2012’) which mandated the Applicants in encl.104 to file and serve the affidavit in support of encl.104 on the Applicant in encl.101 within 14 days from the date of the filing of the application. Encl.104 was 10 filed on 1/11/2016. [12] The Applicants in encl.104 cannot willynilly file encl.116 on 19/3/2017, albeit according to them it is to replace encl.105. The Applicants in encl.104 ought to seek leave of the Court to file the 15 same as Affidavits have been exhausted and the Court gave directions for the filing of the Affidavits by 13/3/2017. Learned Counsel for the Applicant in encl.101 complied with the Court’s direction by e-filing the same on 13/3/2017 and served the hard copy on the Court on 10/3/2017. Counsel for Applicants, in 20 encl.104, Mr. K. K. Ong, filed their Written Submission only on 20/3/2017. [13] In this regard, I drew support from the Court of Appeal case of Sagujuta (Sabah) Sdn Bhd v. Trane Malaysia Sales & 25 Services Sdn Bhd [2014] 5 MLJ 535, where the appellant, amongst others, complained that the learned High Court Judge erred in allowing a preliminary objection raised by the respondent in respect of the appellant’s further affidavit which was filed out of time and contrary to O.32 r.13(2)(b) of the Rules of the High Court 30

The Court of Appeal at 545[31], [32], [33] and [34], held that the learned High Court Judge had correctly exercised his discretion in allowing the preliminary objection and rejecting the 6 said affidavit, which finding has been summarised at p.536 5 Headnotes as follows: “(4) The appellant had not applied for leave or abridgment of time to file the said affidavit. Furthermore the said affidavit was served after the respondent had served on the appellant’s solicitors their submissions and bundle of authorities in respect of the 10 summary judgment application”. [14] I also noted that the Commissioner of Oaths had in his handwritten comments, amongst others, stated Lai Min Wang did not affirm the Affidavit encl.106 before him (exh.LCC-4 in Affidavit 15 of Ler in enc.108). Having examined the Affidavits in encls.105, 106, 108, I was of the view that I should disregard encl.106 as it is defective. Merits of the Applications 20 Whether the 255 Proof of Debt was rightly admitted? [15] The Applicant in encl.101 contended the Official Receiver should not have admitted the 255 Proof of Debt for the purpose of voting as there was no explanation offered by her on the need to comply with the deadline fixed for the filing of proof of debt on or 25 before 12.00 noon on 13/10/2016. [16] The Applicants in encl.104 submitted that the Chairperson of the Meeting of 17/10/2016 correctly admitted the 255 Proof of Debt for the purpose of voting in accordance with r.128 CWUR and the 30 Applicant in encl.101 is estopped from raising any objection against the Chairperson’s decision as he did not object to the 255 Proof of Debt during the said Meeting and neither did the Applicant in encl.101 appealed against the said decision within 21 days thereof under r.189 of the CWUR. 35 7 5 [17] R.128 of the CWUR provides - “The Chairman shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the Court. If he is in doubt whether a proof should be admitted or rejected he shall mark it as objected to and allow the creditor to vote subject to 10 the vote being declared invalid in the event of the objection being sustained”. (Emphasis added) I agreed with the submission of the learned Counsel for the Applicants in encl.104 that the Insolvency Officer as the 15 Chairperson of the Meeting of 17/10/2016 correctly admitted the 255 Proof of Debt as she was empowered to do so under r.128 and I find she had correctly exercised her power under the said provision. This is evident from para 6 of the Minutes of the Meeting - 20 “6. Pengerusi memaklumkan semua Borang Bukti Hutang yang telah difailkan kepada Pegawai Penerima (PP) diterima bagi tujuan pengundian dalam mesyuarat ini dan sekiranya pihak ingin membantah hendaklah dibuat di Mahkamah. Pengerusi akan merekodkan bahawa Borang Bukti Hutang pemiutang-pemiutang tersebut sebagai dibantah 25 tertakluk kepada keputusan Mahkamah sekiranya bantahan dibenarkan kelak”. [18] R.189 of the CWUR provides- “189. An appeal to the Court from an act or decision of the Official 30 Receiver, acting otherwise than as liquidator of a company, shall be brought within twenty-one days from the time when the act or decision appealed against was done, pronounced or made”. In my judgment rule 189 CWUR does not apply in the 35 determination of encl.101 and 104 because of the exception made in the said rule “acting otherwise than as a liquidator of a company.” By the Court of Appeal’s Order on 7/7/2015, the Winding Up Order of 31/7/2014 was varied in that the Official 8 Receiver was appointed as the Provisional Liquidator of the 5 Respondent and such appointment was to take effect from 31/7/2014. In my judgment the right of the Applicant in encl.101 to appeal against the Chairperson’s decision at the Meeting of 17/10/2016 is preserved under r.128 of the CWUR and he is not estopped from doing so. Further support on the availability of this 10 right of appeal to the Applicant in 101, is in my view, found in s.279 CA 1965 which provides that “Any person aggrieved by any act or decision of the liquidator may apply to the Court which may confirm, reverse or modify the act or decision complained of and make such order as it thinks just”. “Liquidator” according to s.4 CA 15 1965 “includes the Official Receiver when acting as the liquidator of a corporation.” Locus standi of the Applicants in encl.104 [19] The Applicant in encl.101 submitted that the Applicants in 20 encl.104 no longer have the locus standi to maintain their application in encl.104 on the ground that the Respondent had reached a settlement with the Applicants in encl.104 whereby payment of RM68,028.81 vide MBB cheque no.404737 dated 27/6/2014 was received by the Solicitors for the Applicants in 25 encl.104, Mr. Ong Keh Keong of Messrs. Ong Partnership, in consideration of the agreement on the part of the Applicants in encl.104 to withdraw the Winding Up Petition No.28NCC-352- 04/2014. The Applicant in encl.101 relied on the letter dated 9/7/2014 issued by the firm of Messrs. Ricky Tan & Co. (former 30 solicitors for the Respondent) addressed to Messrs. Ong Partnership (exh.LCC-14 in encl.108, Affidavit in Reply affirmed by Ler Cheng Chye on 5/1/2017). 9 5 [20] The aforesaid submission of the Applicant in encl.101 that the Applicants in encl.104 have no locus standi is devoid of merit for these reasons. Whilst it is true that the Applicants in encl.104 have not denied receipt of RM68,028.81 from the Respondent, however the Applicants in encl.104 have vide para 20 in encl.111, 10 Affidavit in Reply No 2 affirmed by Lai Min Wang on 13/1/2017 “vehemently deny that any agreement has been agreed upon with the Respondent.” Unfortunately I find the Applicant in encl.101 omitted to quote para 20 in toto, namely - “I further state that the Respondent owes 57 other creditors with 15 awards from the House Buyers Tribunal amounting to approximately RM650,000.00 hence, it would amount to undue preference if the amount of RM68,028.81 is solely paid to us”. (Emphasis added) On account of that it is reasonable for learned Counsel for 20 the Applicants in encl.104 to retain the amount of RM68,028.81 as stakeholders pending the determination of the appointment of the liquidator. The case of Ng Hee Thoong & Anor. v. Public Bank Berhad [1995] 1 CLJ 609 cited by the Applicant in encl.101 is inapplicable: I find there is no admission of there being any 25 settlement as the Applicants in encl.104 have contradicted the averment of the Applicant in encl.101 in para 27, Affidavit in Reply affirmed by Ler Cheng Chye on 5/1/2017. Whether the Court decides based on the majority of creditors 30 in value or majority in number? [21] R.119 of the CWUR provides - “119. At a meeting of creditors or contributories a resolution shall be deemed to be passed when a majority in number and value of the creditors or, as the case may be, contributories present, personally 35 or by proxy, and voting on the resolution, have voted in favour of 10 the resolution, the value of the contributories being determined 5 according to the number of votes conferred on each contributory by the regulations of the company”. (Emphasis added) [22] Based on the clear wordings of r.119 of the CWUR, if there 10 is a majority in value and in number, then the resolution for the appointment of the liquidator is carried. In Qi-pmc Sdn Bhd v Asia Petroleum Hub Sdn Bhd [2012] MLJU 1393, in a winding up petition, the Court was faced with the problem where 3 creditors, the petitioner and 2 supporting creditors, CIMB Bank 15 and Muhibbah Engineering (M) Sdn Bhd all wanted to wind up the respondent company but each wanted the liquidator nominated by them to be appointed in preference to the liquidators nominated by the others. Lee Swee Seng JC (now Judge) took cognisance of r.119 of the CWUR, (i) made an order of winding up with the 20 Official Receiver being appointed as the provisional liquidator and

(ii) ordered the Official Receiver to call a meeting of Creditors and Contributories pursuant to r.106 and r.46 of the CWUR and s.227 CA 1965 within 21 days and notices of meetings shall be served on all the creditors and contributories. The parties withdrew their 25 respective applications. [23] At para 23 of Qi-pmc Sdn Bhd (supra), His Lordship pointed out - “[23] The English Court in Re Caston Cushioning Ltd [1955] 1 All ER 30 508 had to interprete a similar provision in Rule 134 of the English Companies (Winding-Up) Rules 1949 which is in pari materia with our Rule 119. Roxburgh J held at page 510 as follows: "It is plain that Mr Baker was appointed liquidator unless the creditors nominated Mr Lambeth. But did the creditors nominate 35 11 Mr Lambeth? Rule 134 of the Companies (Winding-Up) Rules, 5 1949, provides If this was a meeting to which r. 134 applies, it is plain that the resolution was not passed, because it was not passed by a majority in number and value; it was passed by a majority in value which was a minority in number. It seems to me that there 10 is no real ambiguity about that rule, and if the rule is applied, the resolution was not duly passed. That is consistent with the decision in Re Bloxwich Iron & Steel Co, [1984] W.N. 111, where the court on an application gave effect to the wishes of the majority in value. It was nowhere stated in the judgment, 15 though it was suggested in argument, that a resolution supported by a majority in value but a minority in number had been duly passed.”". It is to be observed in both the English decisions of Re Caston Cushioning Ltd (supra) and Re Bloxwich Iron & Steel Co., the 20 English Court confirmed that at a meeting to which r.134 of the English Companies (Winding-Up) Rules 1949 applies (in pari materia to r.119 CWUR), a resolution was passed if passed by a majority in number and value. 25 [24] It is clear from the results alluded to in para 6 above of the Creditors Meeting (no Contributories were present) that a resolution for the appointment of a liquidator in accordance to r.119 CWUR was not passed as the results showed there was no resolution passed appointing a liquidator based on majority in 30 number and value of the creditors present and voting on the resolution. [25] Learned Counsel for the Applicant for encl.101 submitted that even if the votes of the 255 creditors casted on 17/10/2016 35 were taken into account, the Court should give effect to the decision of the majority in value, namely, the 5 creditors with total 12 debt value of RM26,074,832.95 who voted to appoint Ler & Lum 5 as liquidators of the Respondent. S.521 of CA 2016 was cited in support. I am of the view since the Notice of Motion (encl.101) was moved under CA 1965, the appropriate provision to refer to would be s.289 CA 1965 and not s.521 of CA 2016 although the 10 provisions per se are identical. S.289 of the CA 1965 provides - “289. Meetings to ascertain wishes of creditors or contributories.

The Court may, as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence, and may, if it thinks fit for the 15 purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held and conducted in such manner as the Court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the Court. 20

In the case of creditors regard shall be had to the value of each creditor’s debt.

In the case of contributories regard shall be had to the number of votes conferred on each contributory by this Act or the articles”. 25 (Emphasis added) [26] At para 28 of Qi-pmc Sdn Bhd, His Lordship added - “[28] It may well be that at the meeting of Creditors, CIMB Bank Berhad may be able to get the resolution carried for the appointment of 30 the Liquidator nominated by them. Under Rule 119 if there is a majority in value and number, then the resolution for the appointment of the Liquidator is carried. Even if a resolution for instance to appoint a Liquidator is not carried for failure to garner a majority in number though there is a majority in value, the Creditor(s) concerned or the 35 Provisional Liquidator may apply to Court for directions or confirmation of the appointment of a Liquidator and they can most certainly invite the Court and the Court is obliged to give regard to the wishes of the Creditors, all other things being equal, based on the value of the Creditors' debt”. 40 (Emphasis added) “[29] Thus a distinction is made by Rule 119 between the twin requirements of value and number of Creditors on the one hand before a resolution to appointment a Liquidator is carried and an application to 13 Court for appointment of a Liquidator where the Court shall have 5 regard to the wishes of the majority in value of the Creditors”. [27] I observed that both the Applicants in encl.101 and 104 moved the Court under s.228 CA 1965 and/or the inherent jurisdiction of the Court. With respect, in my opinion, s.228 CA 10 1965 is inappropriate and I believe what may be intended by the Applicants is s.227 CA 1956, in particular, s.227(3) which reads - “(3) the Court may make any appointment and order required to give effect to any such determination, and, if there is a difference between the determinations of the meetings of the creditors and 15 contributories in respect of the matter aforesaid, the Court shall decide the difference and make such order thereon as the Court may think fit”. (Emphasis added) 20 [28] Assuming that s.289 CA 1965 applies, it is my respectful view that the Court will have to consider the circumstances of the case. This in my judgment is in accord with the discretionary power exercisable by the Court when deciding the difference between the determinations of the meetings of the creditors in 25 respect of the appointment of the liquidator (see s.227(3) CA 1965). In fact the Court in Southwind Development Sdn Bhd v. Tanjung Tiara Sdn Bhd [2015] 1 LNS 523 (cited by the Applicant in 101), was determining the application of the Official Receiver on 30 the appointment of a liquidator when the results obtained after a creditors’ meeting showed “there was difference in value in terms of debt on the voting of proposed Private liquidator and the Official receiver in terms of value and number”. It is to be noted that the Official Receiver conducted the meeting in accordance to s.289 35 CA 1965 read with r.114 CWUR. Whilst the Court stated it is 14 “obliged to give regard to the wishes of the creditor, all other things 5 being equal, based on the value of the creditor’s debt”, I observed that the Court considered concerns like the 8 creditors (majority in number but only 4% interest in value) who opposed the appointment of HJK & AH on ground that the latter would be biased and impartial but supported the appointment of the Official 10 Receiver who preferred HJK & AH on grounds like “OR’s inability to discharge their professional duties” and the lack of manpower in the OR’s Department which would severely prejudice the liquidation process. This brings me to the next consideration of the suitability of 15 Ler & Lum as liquidator of the Respondent Company. Whether Ler & Lum is suitable as liquidator of the Respondent Company? [29] In TR Hamzah & Yeang Sdn Bhd v. City Centre Sdn Bhd 20 [2014] 1 CLJ 682, Umi Kalthum Abd Majid J (now JCA) held “there was a possibility that the position of [Robert Teo Keng Tuan] may be in conflict with his role as liquidator based on the ground that he was the appointed liquidator for the respondent’s parent company, USSB. As USSB’s only valuable assets available was its 25 stake in the respondent, this placed Robert in conflict of interest vis the other creditors of the respondent company where his impartiality might be questioned vis the interest of the respondent company vis a vis USSB”. 30 [30] Similarly in the present case, there is evidence adduced that Ler & Lum are closely related with the Talam group of companies. Based on the searches with Companies Commission of Malaysia 15 (‘CCM’) (exh.LMW-4 encl.109, Affidavit in Reply affirmed by Lai 5 Min Wang, Ler & Lum) are also the liquidators of Talam Properties Sdn Bhd and Expand Factor Sdn Bhd and Maxisegar Sdn Bhd (wound up on 22/7/2016). All these companies are developers and the corporate structure of Talam extracted from the 2001 Annual Report (exh.LMW-5) shows that the Talam Properties Sdn Bhd, 10 Expand Factor Sdn Bhd and the Respondent, Tenaga Gagah Sdn Bhd are subsidiaries or associated companies of Talam. Hence there is a possibility of conflict of interest and impartiality on the part of Ler & Lum which render them unsuitable to be liquidators of the Respondent. 15 [31] It is not disputed that the Federal Court on 28/7/2016 dismissed Lum & Ler’s application for leave to appeal against the Court of Appeal Order of 7/7/2015. The Applicants in encl.104 complained that although Ler & Lum conceded that they ceased to 20 be liquidators of the Respondent after 28/7/2016, yet they continued to withhold the Respondent’s documents, files, books and registers (‘Respondent’s Documents’) including neglecting to forward the sum of approximately RM875,000.00 to the Official Receiver as per the Court of Appeal Order of 7/7/2015, amongst 25 others, that the Official Receiver be appointed the Provisional Liquidator with effect from 31/7/2014. I noted that Ler & Lum has vide its solicitors’ letter, Messrs. Lim Kian Leong, dated 1/8/2016 (exh.LCC-9, encl.108, Affidavit in Reply affirmed by Ler Cheng Chye on 5/1/2017) informed the 30 Official Receiver of the outcome of the application for leave to the Federal Court and seeking a meeting with the Official Receiver but stated there was no reply from the Official Receiver to date. 16 On 28/4/2017, Encik Subri bin Hashim, appearing on behalf 5 of the Official Receiver, confirmed that the Insolvency Department did not reply to the letter of 1/8/2017. However he said - “I can confirm that there are various e-mail communications to M/s Ler Lum Advisory Services to Pn Dian and we have requested a few information to include List of Creditors who have filed proof of debt with 10 Liquidator (Ler & Lum). As of to date we have not been given a complete list from Ler & Lum. Our e-mail communication commenced from 7/9/2016 till 23/11/2016 15 (last e-mail communication). … No documents and monies have handed to us by Ler & Lum since the 20 Order of the Court of Appeal”. In the light of the Court of Appeal’s Order of 7/7/2015 and the Federal Court’s Order of 28/7/2016, and taking the case at its highest, in my view at the very least since then, Ler & Lum should 25 have actively taken steps to communicate with the Official Receiver and handed over the Respondent’s Documents and whatever monies are due to the Respondent. Without the said Respondent’s Documents, the Official Receiver’s office could not provide confirmations required for the sale transactions to the 30 detriment of the Respondent’s creditors and owners of the Lagoon Perdana Apartment, of which the Applicants in encl.104 are purchasers who had obtained awards from the House Buyers Tribunal against the Respondent for late ascertained damages (‘LAD’) for late delivery of their units by the Respondent. 35 [32] In paras 5 and 6 Lai Min Wang deposed as follows: “On 28/11/2015, I have entered into a Sale and Purchase Agreement to sell my unit in Lagoon Perdana Apartment, Unit B1-2-17 for 40 17 RM255,000.00 upon terms and conditions stated in the said agreement 5 wherein my solicitors have written to Ler & Lum for their letter confirmation as legally required under the Housing Development Act. A copy of the said agreement and my solicitors’ letter to Ler & Lum are exhibited as Exhibit LMW-2. 10 Via letter dated 4/1/2016, Ler & Lum replied among others, stating that their fees for the letter of confirmation is 2% of the selling price which is clearly in contravention of Section 22D of the Housing Development Act which only allows the imposition of a nominal amount of RM50.00 for the said letter of confirmation. A copy of the said letter is enclosed 15 as Exhibit LMW-3”. S.22D(4) of the Housing Development (Control and Licensing) Act 1966 (Act 118) (‘HDA’) provides - “(4) The housing developer shall provide all necessary and accurate 20 confirmation of the records in the register whenever requested by a purchaser of the housing accommodation or his solicitors or his financier or his financier’s solicitors subject to a payment of a fee not exceeding fifty ringgit or such amount as may be prescribed from time to time for meeting every request for confirmation in respect of all of the 25 following:

full particulars of the housing accommodation;

the postal address of the housing accommodation;

the current purchaser of the housing accommodation;

the current chargee or assignee of the housing accommodation; 35

the total amount due to the developer under the sale and purchase agreement as at the date of the confirmation; and

such other matter as may be prescribed from time to time”. (Emphasis added) 40 S.22 D(6) of the HDA provides - “(6) Any housing developer who - … 45

fails or refuses to provide any confirmation in contravention of subsection (4) or imposes any condition or any other fee in respect of any matter arising from subsection (4), shall be guilty of an offence and 18 shall, on conviction, be liable to a fine which shall not be less than fifty 5 thousand ringgit but which shall not exceed one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both”. Encik Subri confirmed “that it is our [Official Receiver] 10 practice to charge RM50.00 for confirmation of the sales of the ownership of the property whether charged to the bank, whether there are encumbrances”. With respect by charging fees at 2% of the value of sale 15 transaction, I find Ler & Lum is charging more than the imposition of RM50.00 under s.22D of the HDA. Conclusion [33] For the foregoing reasons I made the following order:

leave be granted for the Applicants in encl.104 to make the application (prayer 1); and

Mr. Wong Weng Foo of Messrs. Wong Weng Foo & Co. be appointed as the liquidator of the Respondent pursuant to s.232 CA 1965 (prayer 2);

encl.101 is dismissed; and

no order as to costs. Dated:20/3/2018 30 SGD. (LAU BEE LAN) Judge 35 19 5 Encl.101 Counsel for the Applicant: Encik Ong Chin Siong 10 Messrs Siong & Rita Advocates & Solicitors E-712, Phileo Damansara 1 Jalan 16/11 46350 Petaling Jaya 15 Selangor Darul Ehsan Encl.104 Counsel for the Applicants: 20 Encik Ong Keh Keong Messrs Ong Partnership Advocates & Solicitors Suite B-06-12, 6th Floor 25 Plaza Mont’ Kiara No.2 Jalan Kiara 50480 Kuala Lumpur Encik Subri bin Hashim 30 Official Receiver Jabatan Insolvensi Malaysia Cawangan Wilayah Persekutuan Tingkat 22-25, Menara TH Perdana 1001 Jalan Sultan Ismail 35 50250 Kuala Lumpur