Navamalar for the Applicant Joint Liquidator [Messrs Anad & Noraini] Mong Chun Seng and Chia Oh Sheng for RHB Bank Berhad [Messrs Lee Hishamuddin, Allen & Gledhill]

Navamalar for the Applicant Joint Liquidator [Messrs Anad & Noraini] Mong Chun Seng and Chia Oh Sheng for RHB Bank Berhad [Messrs Lee Hishamuddin, Allen & Gledhill]

No concluded binding fee agreement existed between the applicant and the chargee bank; charged property is subject to the secured creditor's rights and not company assets; accordingly the applicant is not entitled to draw remuneration or costs from proceeds of sale until the secured debt is fully paid and only then from any surplus; the court has jurisdiction to determine a reasonable remuneration to be taxed and payable from any such surplus; the applicant is released as joint liquidator and must tender bills for full taxation.

Citation
POST WINDING UP NO. WA-28PW-446-11/2020 (Mahkamah Tinggi)
Parties
Applicant Joint Liquidator: Datuk Duar Tuan Kiat; Company (in Liquidation): Sineo Enterprise Sdn Bhd (In Liquidation); Chargee Bank / Respondent: RHB Bank Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 June 2021
Case Number
POST WINDING UP NO. WA-28PW-446-11/2020 (Mahkamah Tinggi)
Procedural Posture
Winding Up / Post Winding Up / Notice of Motion for Release of Liquidator and Taxation of Fees
Outcome
Motion partly allowed: applicant released as joint liquidator; remuneration and costs to be taxed and payable only from surplus proceeds of charged assets after secured debts are fully settled; certain prayers dismissed; costs awarded against applicant
Legal Topics
Liquidator Release, Liquidator Remuneration, Priority of Secured Creditors, Taxation of Costs, Charged Assets and Foreclosure
Source Language
Malay/English
Company Law Insolvency Law Secured Transactions Civil Procedure Liquidator Release Liquidator Remuneration Priority of Secured Creditors Taxation of Costs +1 more

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Parties

Datuk Duar Tuan Kiat

Applicant Joint Liquidator

Sineo Enterprise Sdn Bhd (In Liquidation)

Company (in Liquidation)

RHB Bank Berhad

Chargee Bank / Respondent

Procedural Posture

Winding Up / Post Winding Up / Notice of Motion for Release of Liquidator and Taxation of Fees

Legal Issues

  1. 1 Whether the applicant liquidator is entitled to remuneration and costs from proceeds of charged assets prior to satisfaction of secured creditor's debt
  2. 2 Whether there was a concluded fee agreement between the liquidator and the chargee bank
  3. 3 Whether the court can determine and award liquidator's fees where no agreement exists

Ratio Decidendi

No concluded binding fee agreement existed between the applicant and the chargee bank; charged property is subject to the secured creditor's rights and not company assets; accordingly the applicant is not entitled to draw remuneration or costs from proceeds of sale until the secured debt is fully paid and only then from any surplus; the court has jurisdiction to determine a reasonable remuneration to be taxed and payable from any such surplus; the applicant is released as joint liquidator and must tender bills for full taxation.

Court Disposition

Motion partly allowed: applicant released as joint liquidator; remuneration and costs to be taxed and payable only from surplus proceeds of charged assets after secured debts are fully settled; certain prayers dismissed; costs awarded against applicant

Orders

  • Applicant released forthwith as one of the joint liquidators of Sineo Enterprise Sdn Bhd
  • Dispense with separate meetings of creditors and contributories to consider resignation