Abdul Wahab J

Ann Joo Metal Sdn Bhd had issued a notice of demand under s 218 of the Companies Act 1965 to the respondent Pembenaan MY 1981 Chahaya Sdn Bhd on 13 January 1998. No payment having been made, the petitioner filed a petition on 21 December 1998. The petition was served by leaving it at the registered address shown on the information supplied by the Registrar of Companies on search made on 24 December 1997.

The service above was made at 56A Jalan Burhanuddin Helmi, Taman Tun Dr Ismail, Kuala Lumpur on 8 January 1999.

The respondent filed affidavits opposing the petition on 12 May 1999 ('the first affidavit') and on 31 May 1999 ('the second affidavit').

In the first affidavit the grounds were:

(1) That the notice of demand was served upon the address shown in the notice, which service was defective because the registered address of the Respondent at that time was no longer the address in the notice of demand, but Room 405, 4th Floor, Kompleks Selangor, Jalan Sultan, 50000 Kuala Lumpur as evidenced by the return pursuant to s 165 of the Companies Act 1965 for the period up to 31 December 1996.

(2) The amount in the notice is not accurate, and

(3) The notice of demand does not show how the sum was arrived at and in respect of what the amounts were for.

The second affidavit revised the objections as follows:

(1) The service of the petition on 13 January 1998 was defective because it was not served upon the address shown the copy of the notice in Form 44 of the Companies Act 1965. This notice in Form 44 is the notification of a further change of registered address filed on 28 October 1998 to Suite 2–5–5, 5th Floor, Menara KLH Business Center, No 2 Jalan Kasipillay, 2½ Mile, Jalan Ipoh, 51200 Kuala Lumpur; and

(2) that although payments were made by the respondent, they were not taken into account. The respondent exhibited a statement of account dated 31 December 1997 stating the outstanding balance to be RM170,256.70 after a payment of RM10,000 on 22 December 1997.

There are therefore two issues before the court:

(1) Whether service of the notice of demand and the petition is defective; and

(2) Whether a difference in the amount claimed vitiates the s 218 notice.

Service

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, s 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, and r 25 requires service upon the registered office of the company, or if there is no registered office, then at the principal or last known place of business by leaving a copy with any member, officer, or servant of the company, and if no such person can be found, then by leaving a copy at the registered office or principal place of business.

Section 120 of the Companies Act 1965 is as follows:

Office hours

(1) Notice in the prescribed form of the situation of the registered office, the days and hours during which it is open and accessible to the public, and of any change therein shall be lodged with the registrar within one month after the date of incorporation or of any such change, as the case may be, but no notice of the days and hours during which the office is open and accessible to the public shall be required if the office is open for at least five hours during ordinary business hours on each day, Saturdays, weekly and public holidays excepted.

That notice of any change of registered address has to be lodged with the registrar within one month implies that a change may be effected prior to notification. If registration is to provide public notice of the change, then it must be that notice to the public is effective upon the notification in Form 44 being lodged. This view is supported by the Federal Court in Summit Co (M) Sdn Bhd v Nokko Products (M) Sdn Bhd [1985] 1 MLJ 68