Improper service of a statutory notice does not invalidate proceedings if the recipient acknowledges receipt and shows no substantial injustice.

Introduction

[1] The Petitioner filed this Petition to wind up the Respondent pursuant to ss 465(1)(e) and (h) and 466 of the Companies Act 2016 (" CA 2016").

[2] This Petition is premised upon the Respondent's failure to settle a summary judgment obtained by the Petitioner in the Sessions Court. The judgment is for the sum of RM193,090.83 including interests and costs.

[3] The Petitioner vide its solicitor's letter dated 28 November 2023 together with a Notice dated 28 November 2023 made a demand pursuant to ss 465 and/or 466 of the CA 2026 ("the Statutory Notice"). The said demand was served on the Respondent at its purported business address No 15-1, Jalan 4/4C, Desa Melawati, 53100, Ulu Kelang, Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.

[4] Although the Respondent in it's affidavit in opposition raised a few grounds to oppose the Petition, during the last hearing date the Respondent's counsel conceded that the only issue before this Court is the failure by the Petitioner to serve the Statutory Notice on the Registered address or the business address of the Respondent as stipulated by the CA 2016.

[5] The Respondent avers that the Statutory Notice was addressed to No 14-1, Jalan 44C, Desa Melawati, 53100 Ulu Kelang, Kuala Lumpur but the letter enclosing the notice dated 28 November 2023 was in fact sent to No 15-1, Jalan 4/4 Desa Melawati, 3100 Ulu Kelang, Kuala Lumpur which is not the business address of the Respondent.

Petitioners Submission

[6] The Petitioner submits that notwithstanding the alleged irregular service, the Respondent admitted that it did in fact receive the Statutory Notice.

[7] The Petitioner refers to para 5 (b) of the Respondent's Affidavit Opposing the Petition (encl 6) where the Respondent averred:

(b) I shall stop relating the facts here for a while and will aver that upon receipt of the Petitioner's statutory notice issued pursuant to s 466 of the Companies Act 2016 the Respondent appointed the present solicitors who filed an application by way of Kuala Lumpur Hight Court Saman Pemula No WA-24NCC-686-12/2023 (Enc. 1) ex-parte application for an injunction (Enc.2) to injunct the petitioner from acting on the Winding Up Notice.

[8] The Petitioner submits that the Respondent should be estopped form contesting the service of the Statutory Notice when the Respondent had admitted receiving the Statutory Notice and immediately appointed its solicitors who then proceeded to file an application for a Fortuna Injunction based on the alleged defective service of the s 466 notice. The Respondent's application for a Fortuna Injunction was dismissed by the High Court, and the issue of the alleged defective notice had been considered and dismissed by the Court when it heard the application for a Fortuna Injunction. Thus, the issue is barred by Res Judicata.

[9] The Petitioner cites the case of Ann Joo Metal Sdn Bhd v. Pembenaan MY Chahaya Sdn Bhd 1999 MarsdenLR 291 ; 1999 MarsdenLR 1873 where the High Court held:

The question to be considered is whether the respondent has suffered substantial injustice which cannot be remedied by any order of the Court. In this case before me, the respondent did in fact receive the petition and affidavit verifying the petition. Indeed, there is no denial that the respondent had received the notice of demand pursuant to s 218...

Since the notice of demand and the petition together with the affidavit verifying the petition has in fact been served at the principal place of business as stated in the respondent's own return under s 165, and admitted in the respondent's third affidavit filed on 23 June 1999, and since it is nowhere pleaded that any of the docum