Rabinider Singh a/l Inderjit Singh and Syereen Tang Li Choo for the Applicant [Messrs Rabinder Budiman & Associates] v Gary Ng Cheng Yip for the Respondent [Messrs Dennis Nik & Wong] (WA-28PW-285-10/2021)

In the matter before me, the Applicant has applied to this Court vide the Amended Notice of Motion dated 10.12.2021 in Enclosure 16 (Motion) for an order inter alia that the decision of the Liquidator, Chong Chuan Long (Liquidator) in rejecting the Applicant’s Proof of Debt dated 6.7.2018 (POD) to the extent of RM7,438,542.85 be reversed and /or varied.

From the documents before me, the following are in brief the Applicant’s case in support of the Motion:-

2.1 the Respondent herein, Patent View Development Sdn Bhd, was wound up on 15.3.2016 and pursuant thereto, Mr Chong Chuan Long was appointed as the Liquidator of the Respondent 2.2 thereafter on 6.7.2018, the Applicant submitted 2 proof of debts (POD’s) duly affirmed by the Applicant for a sum of RM7,438,542.85 3

2.3 on 18.7.2018 a Creditors Meeting was held to discuss the process and any other pertinent issues with regards the liquidation of the Respondent 2.4 during the said meeting, deliberations were made on the sale of 6 condominiums located at Menara Bukit Ceylon, No. 2 Jalan Ceylon, 50200 Kuala Lumpur 2.5 At the said meeting a total of five creditors including the Applicant attended the said Creditors Meeting (“Creditors Meeting”). It was alleged that the Liquidator duly acknowledged at the said Creditors Meeting that there is a total debt of RM11,337,240.61 including the Applicant’s debt of RM7,438,542.85 2.6 However, during the period starting from 18.07.2018 to 20.09.2021, it was alleged that there was no update forthcoming from the Liquidator to the Applicant being the creditor on the liquidation of the Company.

2.7 It was further alleged that based on the search conducted by the Applicant, that the Liquidator at all times failed to include and inform the Applicant of the status of the sale of the said condominium despite having full knowledge that the Applicant is one of the unsecured creditors of the Respondent and that such conduct clearly shows that the Liquidator had at all times acted in bad faith which was prejudicial against the Applicant’s interest and right 2.8 Thereafter on 21.09.2021, the Applicant received a letter from the Liquidator enclosing the Notice of Rejection of Proof of Debt. Based on the letter dated 21.09.2021, wherein it was mentioned that the rejection of Proof of Debt was made in light of:- 4 “the Federal Court order dated 03.03.2020 which has set aside the Kuala Lumpur High Court Order dated 19.06.2017 granting leave to the Applicant to tax Applicant’s bills against Lim Kian Peet, Lim Kian Seng and the Respondent which formed the basis of the Applicant’s claim against the Respondent”. and based on the Notice of Rejection of Proof of Debt, the only ground mentioned is that:- “(i) That the Federal Court by an order dated 3.3.2020 has set aside the Kuala Lumpur High Court Order dated 19.06.2017 granting leave to you to tax your bills against Lim Kian Peet, Lim Kian Seng and the Company which formed the basis of your claim against the company”.

2.9 Based on the above, the Applicant contends that such simplistic approach taken by the Liquidator in rejecting the Proof of Debt dated 06.07.2018 clearly demonstrates a misconceived and ignorant attitude on the part of the Liquidator as to the law.

2.10 It is the Applicant’s main bone of contention is that the Federal Court decision is in truth and in fact premised on a taxation proceeding which is a procedural safeguard pertaining to the quantum of the amount of costs sought to be recovered by the advocate and solicitor namely the Applicant in this case.

2.11 The taxation proceedings concerned merely the issue on the quantum of costs and liability was not an issue for determination of the court, which was well within the Liquidator’s knowledge who had deposed and admitted in and affidavit filed in the very taxation proceedings vide Civil Suit WA-71D-47-11/2016, that the Applicant is at liberty to the file Proof of Debt and adduce supporting documents with regard 5 to the debt claimed by the Applicant considering that the Respondent was wound up 2.12 it is submitted that the Proof of Debt filed is valid and the Respondent is now estopped from denying otherwise.

I have noted that there were 2 POD’s filed by the Applicant which were allegedly for the services rendered by the Applicant as per exhibit MK-2 of enclosure 1 wherein the same was based on an Order for Taxation dated 19.6.2017 (Taxation Order) obtained at the Kuala Lumpur High Court vide Originating Summons No. WA-71D-47- 11/2016 (OS 47) for the bill of costs to be assessed on a solicitor client basis between the Applicant and the Respondents in OS 47 who were (i) Lim Kien Seng, (ii) The Estate of Lim Kian Peet (deceased) and (iii) the Liquidator herein as Liquidator for the Patent View Development Sdn Bhd (Company).

It is settled law that the Courts do not normally interfere with any decision of the Liquidator unless the act complained of was so unreasonable and/or absurd that no reasonable person would have acted that way. This principle was reiterated recently by the Court of Appeal in Sunrise Megaway Sdn Bhd (In liquidation) v Kathryn Ma Wai Fong [2021] 3 MLJ 602.

On the issue of whether the Liquidator had acted in bad faith by not informing the Applicant of the sale of the 6 condominium units at Menara Bukit Ceylon, I hold that the Liquidator is not duty bound nor legally obliged under the law to inform the Applicant of the same and 6 I am unable to find nor am I provided by learned counsel for the Applicant with any authority which shows such an obligation or duty to do so. In any event, I note the explanation given by the Liquidator at Enclosure 5 that the updates relevant to the same only came in after the 3.3.2020 Federal Court Order.

I have since examined the Federal Court Order dated 3.3.2020 (3.3.2020 Federal Court Order) obtained vide Civil Appeal no. 02(f) - 44-04/2019 wherein (i) Lim Kien Seng, and (ii) The Estate of Lim Kian Peet (deceased) were the appellants therein and the Applicant herein was the Respondent thereto. The said Federal Court Order dated 3.3.2020 had pronounced inter alia that;

6.1 the appeal by (i) Lim Kien Seng, and (ii) The Estate of Lim Kian Peet (deceased) was allowed

6.2 a further/subsequent order that that sum of RM5,026,607.60 be paid to the said appellants therein within 14 days from the date of the said Order

From the documents before this Court, in particular exhibit MK-5 which is the Liquidator’s letter of 21.9.2021 in Enclosure 1, it is clear that the 3.3.2020 Federal Court Order was the reason given by the Liquidator in rejecting the POD’s.

In furtherance thereto, the Applicant herein contends that the Liquidator was wrong to reject its POD’s and that the 3.3.2020 Federal Court Order merely concerned the issue on the quantum of 7 costs and liability was not an issue for determination of the Federal Court.

Learned counsel for the Liquidator had however referred this Court to the case of Lim Kien Seng and Anor v Manoharan A/L Kandasamy (practicing under the name & style of Tertuan K. Mano & Associates) [2021] 2 MLJ 501 which were the written grounds in relation to the 3.3.2020 Federal Court Order where the Federal Court had held inter alia as follows: “[3] Having heard arguments by both sides, both written and oral, we unanimously allowed the appellants’ appeal on the following broad grounds. The central issue in this appeal was whether or not the letter dated 2 April 2012 amounted to a consent by the appellants as found by both courts below. We found the findings to be unsupported by the evidence as the letter properly construed does not constitute consent as it merely asked whether the other party consented to taxation pursuant to s 126(3) of the LPA. Question three therefore assumes a fact that is not borne out by the evidence. …. [22] It is clear to us that the respondent had not fulfilled the requirement of delivering a bill of costs and as such was not entitled to seek an order of taxation. On that basis alone, the amended originating summons ought to have been dismissed. The proforma invoices were not bills of costs within the meaning of s 126(1) of the LPA. No bills of costs were ever delivered to the appellants. The respondent did not provide any reason for his failure to do so. [2021] 2 MLJ 501 at 513Given that more than six years had lapsed since 8 the completion of work, the respondent would no longer be entitled to take any of the foregoing steps. [23] Even if the respondent can be taken to have delivered bills of costs within the meaning of s 126(1) of the LPA, he was not entitled to seek an order of taxation after one year from the date of delivery of the bills. The purported bills were delivered on 16 March 2012 and the one year period lapsed on 16 March 2013. The originating summons was filed on 21 November 2016. [24] The question of consent did not arise. The appellants had merely enquired whether the respondent was open to having the bills taxed. The respondent did not reply. He only filed the originating summons five years later. [25] It was for all the reasons as submitted by the appellants that we unanimously allowed the appeal with costs of RM50,000 including costs for the leave application, subject to payment of the allocator fee. We also made an order that a sum of RM5,026,607.60 be paid to the appellant within 14 days from the date of decision.”

With respect, after reading the said case of Lim Kien Seng and anor v Manoharan A/L Kandasamy (practicing under the name & style of Tertuan K. Mano & Associates) (supra), this Court holds that the 3.3.2020 Federal Court Order and the above cited case is clear. The end effect of it is that the Taxation Proceedings which were commenced by the Applicant and which led to the said 3.3.2020 Federal Court Order was that the Applicant herein was not entitled to seek an order of taxation as he had not fulfilled the requirement of delivering a bill of costs and as such was not entitled to seek an order of taxation. 9

In light of my said findings, I thus find that Applicant’s contention of inter alia that the Respondent herein had failed to appeal against the High Court Order dated 19.6.2017 in OS 47 (19.6.2017 High Court Order) and therefore is deemed to have accepted the decision of the 19.6.2017 High Court Order or that the Liquidator had failed to examine the claim in the said POD’s and/or that the Taxation Order remains intact and binding on the Respondent herein are therefore misconceived as the effect of the 3.3.2020 Federal Court Order is as stated in the preceding paragraph of my judgment i.e the Applicant herein was not entitled in the first place to seek an order of taxation for the reasons mentioned in Lim Kien Seng and Anor v Manoharan A/L Kandasamy (practicing under the name & style of Tertuan K. Mano & Associates) (supra). Following from this, I find no prejudice occasioned on the Applicant herein.

I have also read the Federal Court case of Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587 relied upon by the learned counsel for the Applicant wherein it was contended that a court could not pronounce any judgment or order that bound non-parties who were not properly brought before the Court unless it was a case involving injunctions or where the non-party was the alter-ego of the person already impleaded and before the court. I find that the said case was decided on the question posed to the Federal Court therein which was: “If several defendants separately sued by the same plaintiff on a common cause of action agreed to abide by the verdict at trial of one of those cases as a ‘test case’, and if the defendant in the 10 test case lost, could the rest of the defendants consider themselves as included in the notice of appeal filed by the defendant in the test case or did they have to individually file their own notices of appeal against the trial court’s decision? This was the central question in the instant appeal.”

Consequently, I hold that Lim Choon Seng (supra) is not applicable before this Court as the facts of the matter before me does not show that the matter herein had involved a situation where the Liquidator had ‘agreed to abide by the verdict” at the High Court or that the facts before this Court concerns several parties who had ‘agreed to abide by the verdict at trial of one of those cases as a ‘test case’’.

As to the Garnishee proceedings, I hold that it is not a separate debt as claimed by the Applicant and I agree with counsel for the Liquidator that it is irrelevant whether it is a separate debt from the Applicant’s claim in the POD as I find that both claims are premised on the Taxation Order.

Based on all of my above findings, I hold that the Liquidator had;

not made any error of law

(ii) had addressed himself to the correct questions and

(iii) did not take into consideration any irrelevant considerations.

In the circumstances, the Applicant’s Motion is hereby dismissed with costs Dated: 19th day of September 2022 11 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: Rabinider Singh a/l Inderjit Singh and Syereen Tang Li Choo for the Applicant [Messrs Rabinder Budiman & Associates] Gary Ng Cheng Yip for the Respondent [Messrs Dennis Nik & Wong]