A Liquidator can only be removed by the court for proven cause, with a significant conflict of interest required, and excessive fees must be shown to be unjustified.

JUDGMENT

Nadzarin Wok Nordin J:

(Enclosure 1)

Introduction

[1] Before this Court is a Notice of Motion dated 26 April 2022 in encl 1 (Motion) whereby the applicants, Eng Kee Wat @ Ng Ye Siang & 4 others (Applicants), who are all creditors of the Company, are applying to this Court for inter alia an order that Tharma Iswara a/l Subramaniam, the Liquidator ("Liquidator") of the Respondent (Company) be forthwith removed as the Liquidator of the Company and Dawin Tang Keng Wai be appointed as the new Liquidator of the Company.

[2] The grounds of the Motion are summarised as follows:

2.1 the Liquidator has failed to faithfully discharge his statutory duty as a Liquidator and has failed to display a reasonable amount of skill and diligence in conducting the affairs of the Company.

2.2 the Liquidator has blatantly disregarded statutory obligations such as inter alia the requirements for lodging 6 monthly statement of payments and receipts and of the position of winding up, to adjudicate upon proofs of debt lodged and settling the list of contributories and creditors

2.3 the Liquidator has displayed a lack of probity in his dealings and has failed to keep the creditors updated on the progress of the liquidation

2.4 the Liquidator has vested pecuniary interest in the liquidation as evidenced by his charging exorbitant and onerous fees for the transfer of strata titles held by the Company to unit owners.

[3] I had on 11 August 2021 considered a number of preliminary objections (PO) raised by the Liquidator and after hearing the respective learned counsels on the PO's, this Court had dismissed the same.

Factual Background

[4] The Respondent was wound up on 9 August 2019 by this Honourable Court and Tharma Iswara was appointed as the Liquidator of the Respondent.

[5] The composite of the directors and contributor/shareholder of the Respondent prior to it winding up are as follows:

[6] Mr Tharma had paid the security that was required by the Insolvency Department and a certificate that Liquidator had given security was issued on 13 September 2019.

[7] On 22 August 2019, Mr Tharma had lodged with the Companies Commission of Malaysia (CCM), the notice of the appointment and the situation of office of Liquidator pursuant to s 513(1) of the Companies Act 2016 and similarly on 10 September 2019, Mr Tharma had lodged with the Insolvency Department the notice of appointment and situation of office of the Liquidator.

[8] After the winding up of the Respondent, Mr Tharma had advertised on 13 August 2019 in the New Straits Times and the Berita Harian of his appointment as the Liquidator and had called for all creditors of the Respondent to lodge their Proof of Debts with him.

[9] The Statement of Affairs was lodged by the director of the Respondent only on 1 December 2021 after several reminders and the extension of time was given to the Director. However, in relation to the list of creditors appearing in the Statement of Affairs, some of the details and the description of the debts owing to the creditors were left blank and/or incomplete. On 16 February 2022 the Liquidator had written to the director of the Respondent to provide the information as required.

[10] The Liquidator had also written to the auditor of the Respondent on 29 August 2019, to all financial institution and also the Respondent's bankers on 6 March 2020 requesting for the bank balance and latest bank statement.

[11] The List of creditors in the Statement of Affairs show the total debts are RM5,540,106.66.

[12] The creditors who had lodged their respective proof of debts with the Liquidator as at 12 July 2022 whereby there are a total debts of RM43672,345.11 is as shown below:

[13] Based on the CCM search, there is an unsatisfied charge. On 11 August 2021, the Liquidator had written to Malayan Banking Berhad and had enquired on the status of the unsatisfied charges as reflected in the search and requested them to update the said information and/or provide the details of the charge.

[14] Pursuant to t