Back
2011 MarsdenLR 2609
HIGH COURT MALAYA KUALA LUMPUR
WOODSVILLE SDN BHD – Appellant
Versus
TIEN IK ENTERPRISES SDN BHD & ORS – Respondent
[Companies (Winding Up) No: D2-28-187-1990]
A court's review of taxation should only alter costs if an error of principle is identified; otherwise, the registrar's determination is to be maintained.
Headnote:(A) Rules of the High Court 1980 - Order 59 - Review of taxation of legal fees - Applications for review of getting up fee awarded for committal proceedings against liquidator - Court upheld the decision of the Senior Assistant Registrar to award RM12,000.00 as fair and reasonable, asserting no complexity in the case, and the principle of judicial restraint in altering costs without error. (Paras 2, 3, 10, 11, 15)
(B) Costs - Judicial discretion - The reviewing court shall not interfere with the registrar's decision unless there is a demonstrated error of principle by the registrar; the determination of fees is the registrar's prerogative, reflecting the work done and relevant case complexity. (Paras 1, 4, 10)
Facts of the case:
The applicant sought to review the getting up fee awarded to liquidator for contempt proceedings, contending it was excessive, while the liquidator argued it was inadequate, leading to conflicting claims regarding the complexity of the case and the increase in fees.
Findings of Court:
The court affirmed the RM12,000.00 fee, finding both parties' claims of inadequacy or excess unjustified, and maintained that the Senior Assistant Registrar's amount was proportionate to the nature of the application.
Issues: The main issues revolved around whether the getting up fee was excessive or inadequate given the nature of the case, and whether the prior fee review contained an error of principle.
Ratio Decidendi: The court determined that the Senior Assistant Registrar's decision followed sound principles of law and reflected appropriate consideration of the work involved, emphasizing the absence of complexity in the issues at hand.
Result: Applications for review dismissed, and getting up fee of RM12,000.00 affirmed.
| Table of Content |
|---|
| 1. review procedure for liquidator's getting up fee. (Para 1 , 1 , 2) |
[1] Enclosure 482 and 483 respectively are applications to the judge in chambers by both the Petitioner and the Liquidator to review the decision of the Senior Assistant Registrar in awarding RM12.000.00 as getting up fee for an application for leave from the winding up court to proceed with committal proceedings against the liquidator under O 59 r 36 of the Rules of the High 1980.
Background facts
[2] The facts giving rise to these applications are as follows. The 1st respondent was wound upon 9.6.1994 pursuant to a Winding Up Petition No: D2-28-187-1990 applied for by the Petitioner. Mr Gong Wee Ning was appointed as the Liquidator for the 1st respondent. Dissatisfied with the manner the liquidator discharged his duties in completing the liquidation, the petitioner applied to the court to remove the liquidator. The application was dismissed. On 22.6.2001, the Petitioner obtained an ex-parte leave to commit Gong Wee Ning for contempt of court on the ground Gong misled the court in respect of the contents of his affidavit filed in an application to remove himself as the liquidator. The ex-parte order was successfully set aside by Gong on 24.7.2003.The High court held that Gong is an officer of the court and special leave is required from the winding up court before committal proceedings can be taken against him. The court of Appeal upheld the decision of the High court. Subsequent thereto, for the second time, on 1.2.2010, the Petitioner files a motion to obtain leave of court to proceed with committal proceedings against Gong (Enclosure 410) relying on the previous grounds in 2001 ex-parte application and two additional grounds being the flagrant breaches of the court Order dated 21.2.2005 when the liquidators paid themselves remuneration and the court Order dated 4.12.2006 for not being able to complete the liquidation within 4 months from 4.12.2006. Enclosure 410 was dismissed by the learned Judicial Commissioner on 25.6.2010 with cost to the liquidator. On 17.2.2011, the liquidators file their bill of costs in relation to enclosure 410.ln the said bill of costs, the liquidator had asked for RM100,000.00 getting up fee (item 62 on the bill).
