Ong Kwong Yew & 6 Lagi Didengar Bersama 18 kes yang berkaitan v Ong Ching Chee & 4 lagi Didengar Bersama 18 kes yang berkaitan (B-02(IM)-2135-10/2017 Didengar Bersama 18 kes yang berkaitan)

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(ii) Pengangkutan Jasa Sdn Bhd (‘Jasa’);

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(iii) Ong Ching Chee Realty Sdn Bhd (‘OCC Realty’);

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(iv) Ong Ching Chee Capital(M) Sdn Bhd (‘OCC Capital’); and

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(ii) justifying further payment for work done which remains unpaid. [12] To that end, it is necessary to comprehend the work undertaken by the liquidator. 26 Sale of Business vide a Tender Exercise commencing on 6 May 2014 [13] On 6 May 2014, the liquidator, Yew Fooi invited competitive tender bids from both the majority and minority groups in their respective capacities as contributories for the sale of the businesses of Elegant Palms, Jasa and OCC Lorry Transport. In the interim the liquidator sought to keep the business running. [14] The minority contributories took the stance that the liquidator ought to proceed with realisation and had no power to keep the businesses running beyond four weeks. This was countered by the liquidator who relied on the winding up order, which empowered him to keep the businesses running until their disposal. [15] The minority contributories then sought an extension of time to put in a bid, which was opposed by the majority contributories, and the liquidator allowed the extra time, in the best interests of the liquidation. [16] Eventually the liquidator accepted the highest bid from the majority contributories. June 2014 [18] In June 2014, the sale of business of these three companies was entered into with a company related to the majority group. 27 [19] The sale price at which each of these businesses was sold is as follows: a) RM5,300,000-00 for the sale of the business of Jasa; and b) RM8,000,000-00 for the sale of the business of Elegant Palms; c) RM1,200,000-00 for the sale of the business of OCC Lorry Transport. August 2014 [20] Apart from the sale of these businesses, in August 2014 the liquidator distributed the sole asset of OCC Capital, namely shares in one Jugra Palm Oil Sdn Bhd to all the contributories equally. A debt in the sum of RM2,880,000-00 due from OCC Realty to OCC Capital was assigned to the contributories equally to facilitate the liquidation of Capital. A cash sum of RM200,000-00 was returned to the contributories. September 2014 [21] On 8 September 2014, the liquidator sought competitive tender bids from the two groups of contributories for the purposes of disposing of: a) the two (2) landed properties of OCC Lorry Transport; and b) the eight (8) landed properties of OCC Realty; and 28 c) the shares in Seri Jenjarom Sd Bhd belonging to OCC Realty. [22] However the minority contributories objected to this invitation on the grounds that the information memorandum was irregular and was along the same lines as the sale of businesses earlier effected. The minority contributories had misgivings about the manner in which those sales had been conducted and sought to defer this exercise. The liquidator pointed out that deferment should be avoided as the liquidation exercise would then become unduly protracted. The Applications Filed in Court by the contributories and the liquidator [23] On 24 September 2014, some five months after his appointment as liquidator, the minority contributories filed applications in the winding up court in respect of each of the wound up companies, seeking the removal of the liquidator. [24] The liquidator sought an expeditious disposal of the sale of the remaining assets of OCC Capital and OCC Realty, including the shares in Sri Jenjarom (as set out above in the preceding paragraph). However, in the light of the removal applications which were pending, the liquidator gave an undertaking to defer his decision on the expression of interest received in respect of the sale of those assets pending the disposal of the removal applications, provided the same were disposed of on or by October 2014. 29 [25] In July 2015, the liquidator filed an application for release as a liquidator and for the dissolution of OCC Capital. [26] This was followed in October 2015 by the minority contributories’ applications for injunctions to refund monies he had drawn from the companies’ accounts for work done and to restrain him from making further withdrawals without the consent and approval of the court. This was made by the minority contributories. [27] The liquidator then sought sanction for the interim remuneration he had procured as liquidator as well as to seek delivery of records and books of the five companies from the minority contributories. [28] In 2015 settlement agreements were entered into between Elegant Palms, Realty, Jasa and Lorry Transport vide the liquidator, with the respective companies related to the majority contributories, to deal with the non-payment of the balance purchase price for the sale of these three businesses. The solution apparently reached between the liquidator and the majority contributories for the balance purchase price, was to set the same off against the monies due and owing to the majority contributories as returns to the contributories. [29] On 21 October 2015, almost a year after the removal applications had been filed and remained pending, the minority contributories filed further applications for injunctions in each of the winding up proceedings. They sought an order that the liquidator be ordered to refund to the respective companies, the monies that had been drawn by the liquidator from these 30 companies, as remuneration for work done. The basis for these further applications was that such drawings were made without the knowledge and approval of the minority contributories and without obtaining the leave of the winding up court. [30] On 11 November 2015, about a month later, the liquidator then filed applications to counter the applications by the minority contributories, seeking the sanction of the winding up court to allow him to retain: a) the sums comprising the subject matter of the injunction applications; and b) the sums that had been unilaterally drawn as interim remuneration. Decision on the Removal Application [31] On 12 February 2016 the removal applications were heard and allowed on 23 March 2016. This meant that the liquidator was removed from each of the five companies. A new liquidator was appointed for the five companies. [32] The decision by the High Court to remove Yew Fooi as liquidator was premised on the following grounds:

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(ii) The liquidator had breached various provisions of the Companies Act 1965. [33] On 12 July 2017, one year and four months after his removal, the liquidator filed applications in each of the winding up courts for further remuneration. Appeals in relation to the order of removal of the liquidator [34] Appeals were filed by both the majority group and the liquidator against the removal order, as were orders for a stay of the same. As stated at the outset, this Court affirmed the decision of the High Court. Accordingly the decision of the High Court remains on record and is binding. [35] Insofar as the present appeals on remuneration are concerned, they do not subsist in vacuo but have to be considered in the context of the removal of the liquidator and the reasons accorded by the court for allowing the same. 32 The Current Appeals [36] In relation to the current appeals, the learned Judge delivered his decision in relation to the injunction appeals, the sanction of remuneration appeals, the liquidator’s injunction appeals and the majority contributories examination of sale of business appeals on 13 September 2017. [37] On 16 November 2017 the learned Judge delivered further decisions relating to the interim remuneration appeals as well as the further remuneration appeals. [38] (In view of the decision of the Court of Appeal in A Santamil Selvi Alau Malay & Ors v Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2015] 4 CLJ 1016 it became necessary for the parties to file no less than 19 notices of appeal, in respect of each decision/application that had been made.)The nineteen appeals are best considered under the following categories of description: a) Appeals numbered 907 and 908 are appeals by the minority contributories against the decision of the High Court in allowing interim remuneration to be drawn and retained by the liquidator. These two appeals by the minority contributories are usefully described as the Interim Remuneration appeals; b) Appeals numbered 2133, 2259, 2328 and 2329 are appeals by the minority contributories against the decision of the High Court in refusing to order the former 33 liquidator to refund monies drawn from the respective companies by way of interim remuneration. These four appeals by the minority contributories are usefully described as the Injunction appeals; c) Appeal numbered 2134 is an appeal by the minority contributories allowing the release and discharge of Yew Fooi as liquidator of one of the companies namely OCC Capital. It is usefully described as the Release Appeal; d) Appeals numbered 2325, 2326, 2330 and 2422 are appeals by the liquidator against the decision of the High Court refusing to sanction sums drawn by the liquidator as interim remuneration. These four appeals by the liquidator are usefully described as the Refusal to Sanction Remuneration Appeals; e) Appeals numbered 2562, 2563, 2564, 2565 and 2566 are appeals by the liquidator against the decision of the High Court refusing to allow further remuneration sought by him post-removal. These four appeals brought by the liquidator are usefully described as the Further Remuneration Appeals; f) Appeal numbered 2331 is another appeal by the liquidator against the decision of the High Court restraining him from drawing any payments from OCC Lorry Transport without procuring the prior consent of the 34 court. This appeal by the liquidator is usefully described as the Liquidator’s Appeal against the Injunction; g) Appeals numbered 2135 and 2327 are appeals by the majority contributories against the decision of the High Court seeking orders to examine the sale of business of Elegant Palms and Jasa. These appeals by the majority contributories may usefully be described as the Examination of Sale of Business Appeals. [39] To summarise there are in total:

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(ii) ten (10) appeals by the liquidator; and

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(iii) two (2) appeals by the majority contributories. The Appeals [40] We propose to deal with the appeals according to the categories set out above. Prior to that however, it is pertinent that the learned Judge had occasion to deal generally with the issue of remuneration in the course of his judgment in the removal application. [41] In this context, we concur with learned counsel for the minority contributories’ submission that the core reasoning of the High Court in the removal application is wholly relevant in the consideration of the present appeals in relation to remuneration: 35 “ On the issue of the remuneration of the liquidator, Section 232(3) provided that the liquidator is entitled to remuneration by way of percentage or as otherwise determined by agreement between the liquidator and committee of inspection, or by resolution passed at a meeting of creditors with a majority of three-fourths in value and one half in number of the creditors, and failing either of these circumstances, at the behest of the Court. (I do not find any solid justification for the petitioner [sic] to be paid the remuneration of RM659,000-00 within eight month [sic] of the appointment. The payment of this large amount will seriously prejudice the petitioners. Notwithstanding the interim remuneration can only be taken by the liquidator without the sanction of the Court, the Court find that the amount taken unreasonable).” Appeals pertaining to the Remuneration of the Liquidator [42] This encompasses: Categories (a) and (b), namely the Interim Remuneration appeals and the Injunction appeals filed by the minority contributories; as well as Categories (d), (e) and (f), namely the Refusal to Sanction Remuneration Appeals, the Further Remuneration Appeals and the Liquidator’s Appeal against the Injunction [43] All these appeals relate solely to claims for, and objections to, remuneration either already drawn or further claimed by the liquidator. 36 The Interim Remuneration appeals and the Injunction appeals filed by the minority contributories [44] With respect to the appeals relating to monies that had already been withdrawn and retained by the liquidator as compensation, namely the Remuneration appeals and the Injunction Appeals brought by the minority contributories, it appears to us that the first issue that falls for consideration is whether the liquidator was entitled to withdraw and retain such monies by way of remuneration given the objections of the minority contributories and the absence of the sanction of the winding up court. Can the Liquidator withdraw remuneration without the consent of all the contributories and without the sanction of the Court? [45] The order of Court granted on the winding up of the five companies allowed or empowered the liquidator to claim remuneration for work undertaken by him. Clause (xiii) of the order of Court dated 9 April 2014 provides: “.. to make any payment which is necessary or incidental to the performance of the liquidator’s duties or functions and to pay the expenses and remuneration of the liquidator out of the assets of the Company” (emphasis ours) [46] Does it follow from that express provision in the order of court relating to remuneration, that the liquidator was entitled to withdraw monies from the five related companies in such sums (or quantum) as he deemed commensurate with the work he had or claimed to 37 have undertaken? In other words, is a liquidator granted carte blanche to withdraw such quantum of monies as he deems fit, as remuneration for work done? [47] We are of the considered view that while the order of the Court envisages that the liquidator must be paid remuneration for the work undertaken, that sum is not to be determined or removed from the account of the company unilaterally by the liquidator. The law envisages that the liquidator receives compensation in accordance with the provisions of the Companies Act 1965 (‘CA ‘65’) (which was in force at the material time). Any removal of funds by way of remuneration which is not in compliance with the Act would amount to a contravention of the same. Remuneration of the liquidator [48] Section 232(3) of the CA ‘65 deals with the remuneration of the liquidator and provides that he is entitled to remuneration by way of percentage or as otherwise determined by agreement between the liquidator and committee of inspection, or by resolution passed at a meeting of creditors with a majority of three-fourths in value and one half in number of the creditors, and failing either of these circumstances, at the behest of the Court. When a liquidator is paid professionally, he or she is expected to observe a high standard of care and skill commensurate with his or her professional standing. (See Vasudevan v ICAB Pte. Ltd. [1987] 2MLJ 563. Instructive cases in this regard include Wong Sin Fan & Ors v Ng Peak Yam @ Ng Pak Yeow & Anor. [2014] 2 MLJ 629, Dato’ Robert Teo Keng Tuan v Metroplex Bhd. [2014] 1 MLJ 39 (FC), and 38

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(ii) With respect to OCC Lorry Transport, the liquidator represented an estimated quantum of assets realised at RM3.8 million. That quantum is inclusive of RM2.04 million owing by the purchaser from the sale of the business, namely the majority contributories. The claim for receipt and payment comprises a part of managing the business for the period from April to May 2014. With respect to the actual realised assets as at 23 March 2016, the payment received by the company from the contributories stood at only RM400,000-00 leaving an unpaid balance sum of RM800,000-00 under the Sale of Business Agreement. Therefore the RM1.2 million claimed as realised is not made out as the bulk of the monies due have yet to be received. The overstatement by the liquidator, it is submitted, arises from the estimated sum of RM2.04 million from the disposal of an asset which had not been realised. In this context, Rule 142(1)(i) of the Companies (Winding Up) Rules 1972 provides that the remuneration of a liquidator is premised on the amount realised. This refers to actual monies received and not 43 potential or possible amounts to be recovered in the future.

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(iii) With regards to Jasa, again a sum of RM14.7 million was quoted by the liquidator as the estimated amount of assets realised. However the actual amount received by the company from the sale of business is only RM1.8 million and the balance of RM6.2 remains unpaid. Further the stated sales/collections of RM4.7 million comprise monies due to the purchaser under the sale of business to Jasa Kroporat Sdn Bhd and are not available for distribution to the contributories. In these circumstances the statement of RM14.7 million being assets realised is incorrect. Any payment made by way of remuneration in favour of the liquidator based on the estimated amount of RM14.7 million therefore amounts to an overcompensation and requires review. Rule 142(1) of the Rules has not been followed. [62] Similarly with Elegant Palms a sum of RM16.7 million was quoted by the liquidator as the estimated amount of assets realised. However the payment actually received by the company is only RM1.5 million with an unpaid balance of RM3.8 under the Sale of Business Agreement, owing by the purchaser. [63] It appears that there is a clear overstatement, as a sum of RM9.8 million, in actuality, belongs to the purchaser under the sale of business. A claimed surplus of RM4.2 million is not supported by any evidence as the RM9.8 million was returned to the purchaser 44 under the sale of business. Again Rule 142(1) does not appear to have been complied with. [64] But as the monies in the three instances stated above were withdrawn without recourse to the Court nor with the consent of the contributories as a whole, there was no opportunity for review. It is not possible for this Court to conclude that the sums claimed and then withdrawn were reasonable. On the contrary there is suggestion that it is far in excess of the quantum prescribed under Rule 142(1) of the Rules. [65] It may well be contended that the charges were based on time costs. Even then it becomes clear that any such claim ought to be reviewed and sanctioned by the Court, or that consent be obtained from the contributories, both majority and minority. The nub of these appeals is therefore not so much the basis and standard of reviewing or sanctioning of these monies taken by the liquidator as fees, but the failure of the liquidator to comply with the provisions of section 232(3) of the CA ’65. [66] In other words, the liquidator was not entitled to unilaterally withdraw monies he claimed were due to him for work done in the absence of the concurrence of the contributories as a whole, and more significantly, in the absence of the sanction of the Court. We have earlier explained that the order of the court of 9 April 2014 handed down during the winding up of the five companies does not give the liquidator unbridled powers to bill and draw fees as he deems fit. The power so granted is circumscribed (as it necessarily 45 must be) by the provisions of the CA ’65. Therefore the power so granted to the liquidator is to be exercised in accordance with that provision. As such we are of the view that the Interim Remuneration appeals brought by the minority contributories ought to be, and are allowed. [67] Any attempts by the liquidator to obtain sanction ex post facto should be viewed with considerable caution. [68] The learned Judge erred in failing to recognise that the liquidator was not entitled to bill and draw monies as he saw fit. Other Reasons Why the Interim Remuneration and Injunction Appeals are allowed [69] First of all, as submitted by learned counsel for the minority contributories, the learned Judge had determined in the course of the removal decision that there was no justification for the sum of RM659,000-00 which the liquidator had taken by way of remuneration within an eight month period. He further determined that such payment would seriously prejudice the minority contributories. The learned Judge’s decision was upheld by the Court of Appeal. [70] To that extent the learned Judge was bound by his own initial finding that the sum sought by way of fees was excessive. It could hardly then be reasonable. However the learned Judge then went on to allow the liquidator to retain these very sums, which he had found to be excessive. These monies were also paid out in contravention 46 of section 232(3) of the CA ‘65. Given these circumstances, it is apparent that the Judge, in concluding that the interim remuneration could be retained by the liquidator, was making a completely contradictory decision. He was bound by his own finding in the removal decision (see Hartecon JV Sdn Bhd v Hartela Contractors Limited [1997] 2 CLJ 104). [71] A second similar reason is that at the time when the Interim Remuneration Appeals were heard, the learned Judge had dismissed the liquidator’s appeals seeking the sanction of the court ex post facto for the monies that he had already taken by way of remuneration. The learned Judge’s reasoning in dismissing these applications was that as the liquidator had been removed on grounds of misconduct, the Court had exercised its discretion to refuse any payment of remuneration to the liquidator. [72] Therefore in dismissing the Interim Remuneration application filed by the minority contributories, the learned Judge was once again, with respect, taking a contradictory position/decision in relation to his earlier decision to refuse to sanction the monies taken and retained by the liquidator by way of remuneration. The decisions were inconsistent, and with respect, the learned Judge ought to have similarly refused to sanction the liquidator’s unilateral taking of monies by way of remuneration. His Lordship did not, with the result that his decision comprises the subject matter of the Interim Remuneration Appeals. It therefore follows that these appeals ought to be allowed. 47 [73] The Injunction appeals are allowed because they comprise the natural consequence of the finding that the liquidator was not entitled to draw monies by way of remuneration as he deemed fit. Those bills require review and /or taxation by the Court. As such it is only correct that any monies wrongfully retained by the liquidator are paid back to the companies, and if allowed, bills tendered to the Court for a full taxation exercise. Therefore the Injunction Appeals should similarly be allowed. [74] With respect to OCC Lorry Transport, the learned Judge had also refused the sanction sought for remuneration taken for the period April 2014 until March 2015 yet allowed in part some of that remuneration in one of the Interim Remuneration appeals, namely Appeal 2330, which is again contradictory. This too comprises a reason for allowing the Interim Remuneration and Injunction appeals filed by the minority contributories. Conclusion in relation to the Interim Remuneration Appeals and the Injunction appeals filed by the minority contributories [75] For the many reasons we have elucidated above, we order that the appeals in categories (a) and (b), namely the Interim Remuneration appeals and the Injunction appeals filed by the minority contributories ought to be, and are allowed with costs. [76] By reason of our decision in allowing the Injunction Appeals it follows, and we order that: 48 The liquidator is to return all monies drawn and retained by him as remuneration for work claimed to have been done during his tenure as liquidator of the five related companies. The monies so drawn and retained by him are to be returned to the relevant companies through the current liquidator within thirty days of the service of the sealed order on the liquidator, Yew Fooi. The Refusal to Sanction Remuneration Appeals, the Further Remuneration Appeals and the Liquidator’s Appeal against the Injunction brought by the liquidator comprising categories

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(ii) An important aspect of time estimation in relation to costs will be the rate levied by the liquidator. In this context, the test is what would be the adequate remuneration for a similarly experienced and qualified insolvency professional. As there was no benchmark available from any relevant body or association the Court applied the parameters equivalent to solicitors. Industry practice might provide a guide.

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(iii) The value contributed by the liquidator is highly relevant. The Court will want to ascertain what difference the liquidator has made to the entire matter.

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(iv) Scope of work – a straightforward liquidation will necessarily involve less work and effort than a convoluted matter where, accordingly, different rates will be reflected. [110] The Court concluded by stating that it remains open for the court in any matter to decide on the optimum mode of assessing fair remuneration, albeit on a time basis, a realisation basis or an all encompassing basis where all of the said criteria are considered. 58 However, whatever the basis adopted, it must be characterised by fairness and reasonableness. It was also emphasised that determination by the court ought to be a matter of last resort, invoked only when no agreement with the creditors can be reached. The decision appears, with respect, to set out comprehensively the approach to be adopted in relation to the assessment of the quantum of remuneration for them. [111] A recent decision from New South Wales, Australia namely Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38 is also persuasive. There the Court set out the general principles and test to be adopted when assessing remuneration to be accorded to a liquidator: “It is well settled that the onus is on the liquidator to establish that the remuneration claimed is reasonable and that it is the function of the Court to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; (1998) 16 ACLC 1653; Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams (2008) 65 ACSR 521; [2008] WASCA 61 at [28]-[29]. Although these two cases related to the legislation as it stood prior to the 2007 amendments, the principles referred to in them remain applicable. Further it will be expected that the liquidator in supplying material to enable the Court to assess whether a remuneration claim was reasonable, would supply material by reference to the matters referred to in s.473(10).” [112] Although the legislative provisions differ, the principles applicable namely that: 59

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(1998) 16 ACLC 1653. In that case too, the liquidator provided a statement of work done in very general terms. The description of the statement bears a close resemblance to the summaries provided ex post facto in the instant case: “ The respondent’s claims for remuneration as regards the fees of his firm were based on hourly rates. The respondent produced to the learned Master for example, an invoice showing that as regards Plant for the period from 2 October 1997 to 31 January 1998, he and employees of his firm had spent between 50 and 60 hours working on tasks relating to his duties as provisional liquidator. Thus for instance a manager was said to have worked for 16.10 hours and 11.50 hours, a secretary or word processor operator was said to have spent 14.30 hours and 2.50 hours, a computer 1.20 hours and a supervisor 7.60 hours. Various rates were then accorded to the hours spent and the aggregate of the fees charged for all persons specified was calculated………………… Attached to this invoice was a document which purported to set out: “details of work performed for the periods 2 October 1997 to 31 January 1996”. This document was in very general terms. It identified in an all embracing fashion certain tasks that were performed but did not specify who performed them and how long each task took. Furthermore, many of the tasks were described in such a way that it was impossible to discern whey they were necessary, what precisely was involved in performing them, and what level of complexity or responsibility attached to them. The descriptions tended more to conceal this kind of detail rather than reveal 61 information essential to the court’s function of determining whether the remuneration charged was fair and reasonable. Typical examples of the descriptions were the following: “Discussions and correspondence to Smith Broughton and Sons regarding retention for plant and equipment pursuant to lien to satisfy outstanding fees and disbursements. ……………………………………………..” [116] The liquidator’s summary of work done and the time costing summaries bore a close resemblance to that described above. These documents certainly did not constitute material that could possibly assist the court to arrive at a fair and reasonable determination of remuneration due for work done. [117] The time costing method is of no utility to the court when it is expressed on terms as in the present case. It simply does not afford any usable information for the court to ascertain the remuneration that is fair and reasonable for work done. When such meagre and shoddy material is handed in as the basis for a claim, it is not possible for the court to undertake any useful analysis with a view to arriving at a reasonable quantum by way of remuneration. The court cannot then be faulted for turning to the assets realised method as in the case of Woodville (above). And as specified in the Singapore decision of Re Econ (above), the liquidator is not entitled as of right to demand that his remuneration be evaluated on the basis of time costs. In the instant case therefore the time cost method is not a suitable mode of assessing remuneration due to the liquidator. 62 [118] We conclude that in order to give effect to our decision that the liquidator is entitled to some degree of remuneration for work undertaken. The Further Remuneration Appeals are remitted to the High Court for a full exercise of taxation to be undertaken in respect of the sums claimed for work done during his tenure as liquidator. The liquidator is required to present full particulars to substantiate his claims for remuneration, such that the Court is able to make an accurate assessment of reasonable compensation. Such an exercise is to be applied for within 4 weeks from the date of full payment of all monies drawn and retained by the liquidator. This means that repayment is to be made within 30 days of the date of service of the sealed order on the liquidator, Yew Fooi, and the application for taxation of his bills may be made after that. Conclusion on the Further Remuneration Appeals [119] We allow the appeals by the liquidator in respect of the further remuneration appeals to the extent only that the applications for further remuneration are remitted to the High Court to be taxed in full ONLY AFTER and provided that full repayment by the liquidator of the monies drawn and retained by him, to the respective companies that are owed such monies, through the current liquidator is made within 30 days of the service of the sealed order on the liquidator, Yew Fooi. [120] TO THIS END the liquidator is at liberty to furnish further particulars of work done for the five related companies during his tenure as liquidator, such documents to be utilised in the review and taxation to be undertaken and sanctioned by the 63 High Court as provided under the Companies Act 1965 and the Companies (Winding Up) Rules 1972. The Release Appeal [121] The learned Judge to our minds erred in allowing the release and effective discharge of the liquidator in respect of OCC Capital. In law, such release would effectively release him from liability in respect of any act done or default made by him in the course of carrying out his duties while managing OCC Capital as a liquidator, save in the event of fraud or some other serious misdemeanour. It effectively has the effect of absolving the liquidator for acts of negligence etc during the tenure of his term as liquidator. [122] A second point to note is that such release was granted notwithstanding the pendency of an application for his removal. No such discharge ought to have been allowed at that juncture as the allegations made against him had not even been heard. The discharge was, to that extent, premature. [123] It would further appear that the application for discharge was defective as the minority contributories were not notified by the liquidator of his intention to apply for release until the unsealed copy of the application for release and dissolution together with his affidavit in support affirmed on 7 July 2015 were served on the minority contributories on 7 July 2015. This contravenes Rule 149 of the Winding-Up Rules. The rule requires a liquidator seeking release to give notice of his intention to do so to all contributories, and to be given a summary of all receipts and payments in the 64 winding up. No such report was given to the minority contributories until the service of the application itself. As such they was deprived of an opportunity to query and verify the substance of the repot, in breach of the principles of natural justice. [124] In all these circumstances we are of the unanimous view that the learned Judge erred in allowing the liquidator’s release. We therefore allow the appeal of the minority contributories in respect of the Release Appeal with costs. The Examination of Sale of Business Appeals in appeals numbered 2325 and 2327 brought by the majority contributories [125] This leaves us with the two appeals brought by the majority contributories. We had, on the date of the hearing of these appeals, collectively dismissed these appeals and provided short grounds for the same. We reiterate those grounds and reproduce them below:

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(ii) Appeals numbered 2133, 2259, 2328 and 2329 relating to the refusal to grant injunctions ordering the liquidator to refund monies drawn and retained by him filed by the minority contributories are allowed.

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(iii) The costs in respect of both these categories of appeals, namely appeals numbered 907, 908 and 2133, 2259, 2328 and 2329 is RM10,000-00 to the appellants, i.e. the minority contributories, such costs to be borne by the liquidator personally;

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(iv) Appeal number 2134 granting the release and discharge of the liquidator of OCC Capital, lodged by the minority contributories is allowed with costs of RM7,500-00 to the appellants, i.e. the minority contributories, such costs to be borne by the liquidator personally;

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(vi) Appeals numbered 2562, 2563, 2564, 2565 and 2566 relating to the refusal to allow the liquidator to seek further remuneration post-removal are allowed in part only in so far as the orders of the High Court are set aside. These matters are remitted to the High Court to be taxed in full only after and provided that full repayment is made by the liquidator of the monies drawn and retained by him to the respective companies that are owed such monies, through the current liquidator within 30 days of the service of the sealed order on the liquidator, Yew Fooi. TO THIS END the liquidator is at liberty to furnish further particulars of work done for the five related companies during his tenure as liquidator, such documents to be utilised in the review and taxation to be undertaken and sanctioned by the High Court as provided under the Companies Act 1965 and the Companies (Winding Up) Rules 1972.

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(vii) Appeal numbered 2331 relating to the High Court’s grant of an injunction to restrain the liquidator from drawing monies from OCC Lorry Transport without procuring the consent of the Court is dismissed with no order as to costs;

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(viii) Appeals numbered 2135 and 2327 relating to the refusal of the High Court to examine the business sales agreements are dismissed with costs of RM7,500-00 68 each to the respondents, i.e. the minority contributories; All costs awarded are subject to allocatur and the deposits in respect of all appeals are refunded. Nallini Pathmanathan Judge Court of Appeal Malaysia Dated : 11.12.2018 Bagi pihak Pelikuidasi terdahulu S.Bhuvanes (Chan Wai Shi with him) Tetuan Bhuvanes Peguamcara & Peguamcara 27-6 Oval Damansara 685 Jalan Damansara 60000 Kuala Lumpur Bagi pihak Pelikuidasi Faizal Khalid (Afifah Azman with him) Tetuan Sabri Ahmad & Co Peguamcara & Peguamcara UOA Centre, Suite 19A-16-01 16th Floor No. 19 Jalan Pinang 50450 Kuala Lumpur Signed 69 Bagi pihak penyumbang Minoriti Michael Chow (Wendy Yeong with him) Tetuan Michael Chow Peguamcara & Peguamcara No. 58A Jalan Bukit Raja Off Jalan Taman Seputeh Taman Seputeh 58000 Kuala Lumpur Bagi pihak penyumbang Majoriti A Kanesrau Tetuan Seah Balan & Co Peguamcara & Peguamcara Unit A, Tingkat 3 Wisma 1Alliance No. 1 Lorong Kasawari 4B Taman Eng Ann 41150 Klang Selangor Darul Ehsan