Summit Co (M) Sdn Bhd

- vs -

Nikko Products (M) Sdn Bhd

Judgment

Wan Suleiman FJ

(delivering the Judgment of the Court)

1. The appellants sought to effect service of a writ pursuant to Ord. 62 r 4(1)(a) on 1 July 1982 by leaving a copy of it at No 42–2A City Tower, Jalan Alor, Kuala Lumpur, which the appellants believed to be the registered address of the respondent company.

2. Unknown to the appellants respondents had changed the situation of its registered office from the aforementioned address to Room 1201, 12th Floor Komplek Selangor on 8 February 1982. In accordance with the requirements of s 120 of the Companies Act respondents had duly notified the Registrar of Companies of the change by lodging with the Registrar on 20 February 1982 the requisite Form 44 in which the particulars of the change of registered office had been set out. This notification of change was not entered into the register, according to the Registrar’s letter annexed as an exhibit to the affidavit of appellants’ solicitor, until some seven months later i.e. on 24 September 1982.

3. It is not clear whether there was indeed a register maintained by the Registrar of Companies into which is entered the particulars from the Form 44 which respondents have sent him or whether as the learned trial Judge conjectured, the alleged “registration” was merely emplacement as an enclosure in a file pertaining to the respondent company.

4. To proceed with the facts, appellants, having left a copy of the writ at No 42–2A, no appearance having been entered by respondents, moved the Court for and entered judgment in default for the amount claimed. Execution proceedings then followed and land belonging to the respondent company was attached. It was then, according to respondents, that they came to know of the writ. They then took out a summons to set aside the writ on the grounds that they had not been served.

5. Section 119 of the Companies Act requires a company to have a registered office within Malaysia to which all communications and notices may be addressed. Section 120 provides for the Registrar to be notified of the situation of registered office and of any change of the situation of such office within one month of the incorporation of the company or such change, as the case may be.

6. The learned trial Judge took the view that the change of situation of the registered office took effect from the day that the actual change was made, and not on the day of the lodgment of the notice required by s 120, (since that can take up to one month after the actual change), and also not on the date of the registration of such notice, if indeed registration had taken place. He therefore held that leaving a copy of the writ at No 42–2A City Tower was not good service and set aside the judgment.

7. In England notice of change in the situation of the office must be given to the Registrar of Companies within fourteen days under the 1948 Companies Act, 1972, s 9(3). A third party without actual knowledge is not affected unless the notice is published within 15 days of the change and even within the 15 days, is not affected if he is unavoidably prevented from knowing of the change (European Communities Act, 1972, s 9(4). (See Modern Company Law by LCB Gower, 4th Ed p 312, Footnote 23 and pp 499, 500).

8. Having drawn our attention to the English statute law, counsel for appellants submitted that the effective date of change of address would be the date of registration, perhaps by analogy with the English requirement for gazetting.

9. Such stringent requirements governing change of situation of registered office of companies may perhaps have been dictated by the United Kingdom’s entry into the larger European Community and the need to facilitate dealings between firms in UK and those of other EEC countries.

10. Two authorities were cited to us which are not quite helpful, because the facts therein are materially different.

11. In PT Pelajaran Nasional Indonesia v Joo Seang & Co Ltd [1958] MLJ 113 the plaintiffs had served the writ at the wrong address because of mis-information from the Registrar of Companies, who had registered the change of address by the defendants over two years earlier.

12. In Kwong Kum Sun Chan Glass Merchant v Ahong Construction Co (Malaya) Ltd [1968] 1 MLJ 29 the defendants had moved, leaving a notice at the main door of the old premises regarding the change of address but the writ was served within the period of one month he had under s 120 of the Companies Act 1965 to notify the Registrar, no such notification having yet been sent.

13. Mr. Wong for the respondents maintains that the date of the lodgment of the s 120 notice to the Registrar should be the effective date. We are inclined to agree with him. Whether the particulars are in due course (and as in this case very much later), entered into any register, is in our view irrelevant. Once the notice of change under s 120 has been lodged, anyone who wishes to ensure that a writ is served at the proper address can on payment of the prescribed fee avail himself of his right under s 11(2)(a) of the Act to “inspect any document filed or lodged with the Registrar”.

14. We would therefore dismiss the appeal with costs.

    Judgment below

    George J

15. The provisions for the service of a writ against a corporation is found in Ord. 62 r 4. In the instant case the plaintiffs sought to effect the service of the writ pursuant to r 4(1)(a), on 1 July 1982, by leaving a copy of it at No 42–2A City Tower, Jalan Alor, Kuala Lumpur, thought by the plaintiffs to be the registered office of the defendants.

16. It turned out that unknown to the plaintiffs the defendants had changed the situation of its registered office from No 42–2A City Tower to Room 1201, 12th Floor, Komplek Selangor on 8 February 1982. Pursuant to the requirements of s 120 of the Companies Act the company had duly notified the Registrar of Companies of the change by lodging with the Registrar on 24 February 1982 the requisite Form 44 in which the particulars of the change of the registered office was set out. It was said that the registration of this change was not effected until 24 September 1982. What was to be understood by that was not clear as I was not aware that a register was maintained by the Registrar of Companies for registering the particulars set out in a Form 44 [as is maintained for example for registering charges created by a company (see ss 108 and 111 of the Companies Act)]. It perhaps meant that the Form 44 having been lodged on 24 February 1982 was not placed as an enclosure in the file pertaining to the company until 24 September 1982! What I have accepted is that anyone making a search in the file pertaining to the company at the office of the Registrar of Companies prior to 24 September 1982 would have been left with the impression that the registered office of the defendant company continued to be at the said City Tower.

17. Having left a copy of the writ at No 42–2A and when no appearance was entered the plaintiffs moved the Court for and entered judgment in default for the amount claimed, interest and costs. That was followed by execution proceedings — land belonging to the defendant company was attached. The defendants claimed they only came to know that a writ had been issued against them as a result of the attachment of the land. They took out a summons to set aside the judgment on the grounds they had not been served with the writ. For reasons not make known to me service of the summons was not effected for almost a year. The summons was adjourned on a number of occasions on the ground that it had not been served.

18. On behalf of the plaintiffs it was contended that the registered office of the defendants continued to be at No 42–2A City Tower until “the registration” of the change of address and since “the registration” took place only on 24 September the registered office of the company continued to be at No 42–2A City Tower until that date and that therefore leaving a copy of the writ at that address was good service.

19. Section 119 of the Companies Act provides for a company to have a registered office. Section 120 provides for the Registrar to be notified of the situation of the registered office and of any change of the situation of such office within one month after the date of incorporation of the company or of any such change as the case may be. In my view the change of the situation of the registered office (which is what we are concerned with in the instant case) takes effect on the day that the actual change is effected and not on the day of lodgment of the s 120 notice (since that can be done within one month of the actual change) or on the date of “registration” of the s 120 notice if such an event takes and took place. At best, it may be argued that until the s 120 notice is given to the Registrar the company would be stopped from relying on the fact of change of registered office.

20. On 1 July 1982 No 42–2A City Tower was not the registered office of the company and accordingly leaving a copy of the writ at that address was not good service. And accordingly the defendants were entitled to have the default judgment set aside ex debito justitiae. That the defendants having taken out the summons did not have it served on the plaintiffs for as long as they did has not had the effect of prejudicing this right. The judgment was set aside and I ordered the plaintiffs to pay the costs of and incidental to the application to set aside the judgment.

Cases

PT Pelajaran Nasional Indonesia v Joo Seang & Co Ltd [1958] MLJ 113; Kwong Kum Sun Chan Merchant v Ahong Construction Co (Malaya) Ltd [1968] 1 MLJ 29

Legislations

Companies Act 1965: s.119, s. 120

RHC 1980: Ord. 62, r 4(1)(a)

European Communities Act, 1972: s.9(4)

Authors and other references

Modern Company Law by LCB Gower, 4th Ed

Representation

Wong Ngee Heong for the dependents/applicants.

Matthias Chang Wen Chieh for the plaintiffs/respondents.