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2025 MarsdenLR 4853
HIGH COURT MALAYA KUALA LUMPUR
ADAM PRIMUS VARGHESE ABDULLAH – Appellant
Versus
KHEE SAN FOOD INDUSTRIES SDN BHD – Respondent
[Originating Summons No: WA-24NCC-455-09/2024]
The court concluded that factual disputes over an Interim Judicial Manager's remuneration claims could be resolved with existing documentation, supporting efficiency in judicial processes without necessitating trial conversions.
Headnote:(A) Companies Act 2016 - Section 407(4) - Judicial management - Remuneration of Interim Judicial Manager - Application to convert originating summons into a writ action was dismissed; court found no substantial factual disputes warranting a trial, as comprehensive documentation was provided, making oral evidence unnecessary - The Plaintiff claimed remuneration of approximately RM2 million for work performed, supported by detailed statement of work and relevant documents - Defendant's request for conversion was based on allegations of misconduct and disputes over the reasonableness of charges, which the court determined could be adequately assessed based on existing documentation and cross-examination if required. (Paras 11, 17, 35, 118)
Facts of the case:
The Plaintiff, appointed as Interim Judicial Manager, claimed RM2 million for remuneration based on a composite hourly rate, while the Defendant contested this claiming disputes of fact exist requiring trial; the Plaintiff had managed the company effectively during his tenure, with improvements noted in financial operations.
Findings of Court:
Dismissed the application for conversion to a writ action, ruling that comprehensive documentation was sufficient for determining remuneration claims without necessitating a trial.
Issues: Whether substantial factual disputes existed that would require conversion to a writ action or if the remuneration claim could be decided on documentary evidence.
Ratio Decidendi: The court ruled that the documentation provided was sufficient to assess the remuneration claim and that the Defendant had not met the burden of proving necessary factual disputes that would justify a conversion.
Result: Application for conversion dismissed with costs awarded to the Plaintiff.
| Table of Content |
|---|
| 1. application for remuneration of interim judicial manager (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. defendant's argument for conversion to writ action based on factual disputes (Para 11 , 12 , 13 , 14) |
| 3. court's analysis of witness testimony necessity (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 4. cross-examination sufficiency under order 38 (Para 23 , 24 , 25 , 26) |
| 5. criteria governing remuneration assessment (Para 27 , 28 , 29 , 30) |
| 6. justification of composite hourly rate (Para 34 , 35 , 36 , 37) |
| 7. inclusion of pre-appointment and post-termination work in claim (Para 68 , 69 , 70 , 71 , 72 , 73 , 74) |
| 8. assessment of company's financial performance during management (Para 90 , 91 , 92 , 93 , 94 , 96) |
| 9. documentary evidence supporting third-party interactions (Para 98 , 99 , 100) |
| 10. approval of remuneration without taxation-like process (Para 109 , 110 , 111 , 112) |
[1] Before the court is an application to convert an originating summons seeking remuneration of a former Interim Judicial Manager to a writ action. The former Interim Judicial Manager claims remuneration of approximately RM2.00 million for work done over a 10-month period while managing the Defendant company, based on a composite hourly rate of RM800.00 for himself and his team members. The Defendant opposes the remuneration claim and seeks conversion to a writ action on grounds that there are substantial factual disputes requiring trial, particularly regarding the reasonableness of the time spent and work done, while also seeking to pursue a counterclaim challenging the validity of the Interim Judicial Manager's appointment.
Background Facts
[2] The Plaintiff, Dato' Adam Primus Varghese bin Abdullah, was appointed as the Interim Judicial Manager of the Defendant, Khee San Food Industries Sdn Bhd, by way of an ex parte order dated 17 November 2021 in Kuala Lumpur High court Originating Summons No WA-28JM-21-11/2021 ("JM Suit') [ Maybank Islamic Berhad v. Khee San Food Industries Sdn Bhd; Khee San Berhad (Intervener) ]. The JM Suit was commenced by Maybank Islamic Berhad ("Maybank"), which held 3.34% of the Defendant's total debt.
[3] The Defendant is a wholly owned subsidiary of Khee San Berhad ("KSB"), a public listed company. The Defendant is involved in manufacturing candy confectionery and wafer products. Its registered address is at No 5-9A, The Boulevard Offices, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur, while its business address is at Lot 1819-1824 and 1832, Jalan Kolej, Seri Kembangan, 43300.00 Selangor.
[4] The Plaintiff served as Interim Judicial Manager from 17 November 2021 to 1 September 2022. During this period, he was assisted by five personnel from his firm: Dato Nabhesh Khanna (Director), Macpherson Simon and Iswari Manokharan (Associate Directors), and Natasha Sophia and Jo Gan Pee Hui (Consultants).
[5] On 4 March 2022, the Plaintiff filed an application in the JM Suit for his remuneration ("First Remuneration Application") covering work carried out from 17 November 2021 to 4 March 2022, totalling 1,336.5 hours at a composite rate of RM800.00 per hour.
[6] On 1 September 2022, Maybank withdrew the JM Suit following a settlement reached between the financial institution creditors and KSB. This effectively terminated the Plaintiff's position. On the same date, the High court allowed RM2.00 million of the Defendant's funds to be held by the Plaintiff's then-solicitors, Messrs Zaid Ibrahim & Co ("Z/CO"), pending determination of the First Remuneration Application. The court also ordered the Defendant to set aside RM55,505.00 in a separate account.
[7] On 20 March 2023, the High court dismissed the First Remuneration Application as premature, finding that the Plaintiff had not complied with the prerequisites under s 407(4) of the Companies Act 2016 as the Plaintiff filed his first remuneration application without attempting to first obtain the Defendant's or the creditors' approval for
