The mandatory requirement for a 30-day notice under Section 348 of the Companies Act 2016 is crucial, and failure to comply results in a breach of natural justice if a party is denied the right to be heard.

JUDGMENT

Mariana Yahya JCA:

Introduction

[1] The Appellant in this appeal is appealing the whole decision of the Shah Alam High Court delivered on 16 January 2023 in dismissing the Appellant's Originating Summons dated 12 April 2022 (Enclosure 1) with costs of RM3,000.00.

[2] The 2nd Respondent is a private limited company incorporated on 1 November 2017.

[3] The 2nd Respondent consists of 3 shareholders, namely:-

(a) the Appellant who holds 1,000,000 units of shares or 50% of shares;

(b) the 1st Respondent who holds 700,000 units of shares or 35% of shares; and

(c) the son of the 1st Respondent, Tan Jin Xue, who holds 300,000 units of shares or 15% of shares.

[4] At all material times, the 2nd Respondent only has 2 directors, namely, the Appellant and the 1st Respondent. The 2nd Respondent is currently under liquidation.

[5] On 12 April 2022, the Appellant filed an Originating Summons No: BA-24NCC-36-04/2022 (OS 36) in encl 1, to set aside an Order granted by the Shah Alam High Court in Saman Pemula No: BA-24NCC-21-03/2022 (OS 21) between the 1st Respondent and the 2nd Respondent

[6] In OS 21, the 1st Respondent applied for derivative action leave to defend the 2nd Respondent in legal proceedings on the grounds that:-

a) the 1st Respondent was ousted from the 2nd Respondent's management;

b) fraud against 2nd Respondent; and

c) Judicial Manager's breach of duties.

[7] On 9 March 2022, Justice Choo Kah Sing granted the Order in OS 21 which inter alia, as follows:-

"a) Bahawa Pemohon berhak untuk memfailkan Saman Pemula ini;

b) Bahawa masa untuk Pemohon memberikan notis kepada pengarah lain Responden, Encik Wong Cheng Houng dipendekkan (abridged) supaya teratur dengan s 348(2)) Akta Syarikat 2016;

c) Bahawa Pemohon diberikan kebenaran untuk membela bagi pihak dan atas nama Responden yang dinamakan di atas dalam mana-mana petisyen-petisyen penggulungan dan prosiding-prosiding undang- undang yang dibawa terhadap Responden;

d) Bahawa Pemohon diberikan kebebasan untuk memohon; dan

e) Tiada perintah terhadap kos."

[8] In OS 36, the Appellant sought to set aside OS 21 Order ex-debito justitiae on the grounds that:-

a) the 1st Respondent purportedly failed to comply with s 348 of the Companies Act 2016 ( CA 2016);

b) the 1st Respondent purportedly failed to name the Appellant in OS 21; and

c) OS 21 Order is purportedly in breach of natural justice as the Appellant was purportedly denied the right to be heard.

[9] The High Court heard and dismissed OS 36 with costs of RM3,000.00 in favor of the 1st Respondent.

[10] Dissatisfied with Order OS 36, the Appellant filed this appeal.

Salient Facts

[11] The Appellant's affidavit dated 12 April 2022 summarised the following facts:-

(i) On 4 March 2022, the Appellant received a statutory notice dated 4 March 2022 (Notice) pursuant to s 348 of the CA 2016 signed by the 1st Respondent in which the 1st Respondent purportedly gave notice of her intention to apply for leave to defend Winding Up Petition No: WA-28NCC-127-02/2022 and all other winding up petitions and/or legal proceedings made against the 2nd Respondent, on behalf of the 2nd Respondent.

(ii) On 8 March 2022, the Appellant was informed by the company secretary of the 2nd Respondent that they were served with OS 21 and the affidavit in support of OS 21. OS 21 was fixed for hearing on 9 March 2022 online by the Zoom application.

(iii) On 9 March 2022 at about 7.55 a.m., the Appellant sent an e-mail to the solicitors for the 1st Respondent and requested that they provide the Appellant the 'Zoom' link for the hearing of OS 21. Since there was no response from the solicitors for the 1st Respondent, the Appellant called the solicitor for the 1st Respondent and spoke to one Joel Chua, and informed the Appellant that OS 21 was an ex-parte application and the Appellant was not entitled to attend the hearing.

(iv) Finally, at about 9.30 a.m., the Deputy Registrar of the Shah Alam High Court sent an e-mail to the Appellant with the Zoom link for the hearing and t