2010 MarsdenLR 3234
HIGH COURT, KUALA LUMPUR
SURUHANJAYA SYARIKAT MALAYSIA – Appellant
Versus
ISLES INTERNATIONALE UNIVERSITE (EUROPEAN UNION) LIMITED – Respondent
Judgement Key Points
- The Respondent is a foreign company incorporated in Dublin, Republic of Ireland, and holds a Certificate of Registration of a Foreign Company (Form 83) under Section 332(1A) with Company No. 994097-M, confirming compliance with registration requirements. (!) (!)
- Section 332(1A) provides that the Registrar's certificate of registration for a foreign company is conclusive evidence of compliance with registration requirements. (!)
- Part XI, Division 2 of the Companies Act applies to foreign companies with a place of business or carrying on business in Malaysia, with penal provisions under Section 349 for non-compliance. (!)
- The issuance of a Certificate of Registration indicates the Respondent has a place of business in Malaysia. (!)
- The core issue is whether a registered foreign company can be wound up under Section 218(1) or other provisions of the Companies Act. (!)
- SSM conceded that Sections 218(1)(m) and (n) do not apply to the Respondent and sought amendment under Section 221(2)(e) and (f) or reliance on Section 315. (!) (!)
- Sections 218(1)(m) and (n) allow the Registrar (SSM) to petition for winding up a "company" used for unlawful purposes prejudicial to public order, morality, national security, or public interest. (!) (!) (!)
- "Company" is defined under Section 4 as a company incorporated under the Act or corresponding previous enactment, excluding the Respondent. (!)
- "Foreign company" is defined under Section 4 to include a body incorporated outside Malaysia, applicable to the Respondent. (!)
- Section 315 is in Part X, Division 5 on winding up of unregistered companies, while Section 218 is in Division 2 on court winding up. (!)
- Whether a foreign company qualifies as an "unregistered company" under Section 314 determines jurisdiction for winding up. (!)
- Respondent argued it is a registered foreign company outside Division 5, applicable only to unregistered foreign companies without a place of business in Malaysia. (!)
- Statutory interpretation requires a purposive approach per the Interpretation Act Section 17A, preferring constructions promoting the Act's purpose, considering the entire statute contextually. (!) (!) (!) (!)
- Section 314(1) defines "unregistered company" inclusively to include a foreign company, excluding companies incorporated under the Act. (!) (!) (!)
- Section 314(2) states Division 5 provisions are cumulative and additional to other winding-up provisions. (!)
- Section 315 applies Part X winding-up provisions to unregistered companies with adaptations: principal place of business as registered office, no voluntary winding up, and specific circumstances for court winding up (cessation of business in Malaysia, inability to pay debts, or just and equitable). (!) (!) (!) (!) (!) (!) (!)
- Section 315 does not specify petitioners, referring back to Section 217, but SSM's authority under Section 217 is limited to grounds in Sections 218(1)(m) and (n), which do not apply to foreign companies as they are not "companies," creating a jurisdictional gap for other grounds like just and equitable. (!)
- SSM lacks jurisdiction to present the winding-up petition against the registered foreign company under the relied provisions or any amendment. (!) (!)
| Table of Content |
|---|
| 1. registered foreign company status under malaysian law. (Para 1 , 2) |
In this Winding-Up Petition, brought by the Suruhanjaya Syarikat Malaysia, under
Section 218 (1) (m) and (n) of the
Companies Act , the Respondent is a "foreign company" as defined under the Act. The Respondent has been issued a "Certificate of Registration of a Foreign Company" in Form 83 under
Section 332 (1 A) of the Act , with Company No. 994097-M. There is therefore no dispute that it is properly registered under Malaysia law, and the Certificate of Registration recognises that the Respondent is incorporated in Dublin, Republic of Ireland.
For completeness of analysis, Section 332 (1A) specifies:
"The Registrar shall issue a certificate in the prescribed form of every registration of a foreign company and the certificate shall be conclusive evidence that the requirements as to registration have been complied with."
This provision, it its to be noted, appears in Division 2 PART XI of the Act headed "Various Types of Companies." Division 2 is headed "Foreign Companies" and applies to a foreign company only where it "has a place of business" or "is carrying on business" within Malaysia. There are
Click Here to Read the rest of this document
Back
