The court may restore a dissolved company's name if it serves the interest of justice, particularly when ongoing litigation is involved.

Headnote:(A) Companies Act 1965 - Section 308(5) - Petition to restore company's name to register following dissolution by striking off - Court has discretion to order restoration if company was carrying on business at the time of striking off or if otherwise just - Applicants, founders and directors, argued for restoration due to ongoing litigation against third party - Ongoing claim justifies restoration under persuasively cited Australian case law - Restoration ordered as it would be unjust to hinder litigation process owing to company’s prior status - Intervener's claims of prejudice denied - Costs awarded to petitioners. (Paras 1-21)

(B) Discretion of the court in restoration applications - Court to consider if restoration serves justice for all parties involved, including potential third-party interests. (Paras 14-19)

Facts of the case:
The first petitioner company was struck off the register on 25 February 2011 for failing to file annual returns since 1999. The petitioners claimed restoration was necessary to pursue an ongoing counterclaim against another company for RM17,210,128.90. The proposed intervener sought to challenge the restoration and filed an application to intervene.

Findings of Court:
The court found it just to allow the restoration in light of continuing claims and potential prejudice to the petitioners, stating that the application by the proposed intervener was dismissed, with a directive for annual reports to be filed and penalties to be paid.

Issues: The main issues included determining the justice of restoring the company’s name amidst ongoing litigation and the necessity of including the intervening party’s interests.

Ratio Decidendi: The court affirmed that while restoration serves to facilitate ongoing litigation, it must also weigh the rights of third parties who may be adversely affected, ultimately ruling in favor of the petitioners based on prior established rights and the principle of justice.

Result: Restoration of the company's name to the register was granted, and costs were imposed on the proposed intervener.

Table of Content
1. restoration of company name after striking off (Para 1 , 2 , 3 , 4)
2. ongoing litigation justifying company name restoration (Para 5)

[1] The main application in this suit was originally filed by the 1st petitioner under s 308(5) of the Companies Act 1965 to have the name of the company restored to the register. The name of the company has been struck off the register by the SSM on 25 February 2011 upon the publication of the striking off in the Federal Gazette dated the same day. Pursuant to s 308(4), upon the publication of the notice of the striking off, the company "shall be dissolved".

[2] An oral amendment to add the name of the 2nd petitioner was allowed by this court, and that corrected the initial flaw in the application. The company itself, being struck off the register and dissolved, could not therefore be the proper party to file this petition, but the 2nd petitioner as a contributory and director, could.

[3] Section 308 (5) allows "any person [who] feels aggrieved by the name of the company having been struck off the register" to make an application at any time within 15 years after the striking off for an order of the court to have the name of the company restored to the register. On its wording, the court "may" order the restoration of the name of the company to the register if the court is satisfied (a) that the company was, at the time of the striking off, carrying on business or in operation, or (b) "otherwise that it is just that the name of the company be restored to the register".

[4] The court is therefore vested with the discretion to order the restoration of the name of the company to the register and in so doing the court "may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off." The section also says that upon an office copy of the order being lodged with the SSM, "the company shall be deemed to have continued in existence as if its name had not been struck off."

[5] The petitioners have argued that at the time of the striking off of the company's name, the petitioner was pursuing an ongoing claim against another company, Demag (Malaysia) Sdn Bhd ("Demag") for a sum of RM17,210,128.90. This was on a counterclaim. Demag is now before the court in an application to intervene in this proceeding and to argue, should the court allow its application, that the name of the company should not be restored to the register.

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2012 MarsdenLR 495

HIGH COURT MALAYA, KUALA LUMPURGREENLINX SDN BHD & ANOR – AppellantVersusSURUHANJAYA SYARIKAT MALAYSIA – Respondent[Petition No: D26NCC-39-03/2012]

The court may restore a dissolved company's name if it serves the interest of justice, particularly when ongoing litigation is involved.

HIGH COURT MALAYA, KUALA LUMPUR
GREENLINX SDN BHD & ANOR – Appellant
Versus
SURUHANJAYA SYARIKAT MALAYSIA – Respondent
[Petition No: D26NCC-39-03/2012]