Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
IN THE MATTER OF AUSTRAL AMALGAMATED BHD vs .
"] ["NG CHOONG WEI vs KCK DAFU CONGEE SDN BHD & ORS - High Court
"] [](https://supremetoday.ai/doc/judgement/MYS_MARSDENLR_1998_2554) ["IN THE MATTER OF AUSTRAL AMALGAMATED BHD & ORS - High Court
"]LOH ENG LEONG & 2 ORS vs LOH MU SEN & SONS (SDN) BERHAD & 3 ORS - 2008 MarsdenLR 4015
"] [](https://supremetoday.ai/doc/judgement/MY_MLRH_2008_8_MLRH_27) [](https://supremetoday.ai/doc/judgement/MYS_MARSDENLR_2008_4015)NG CHOONG WEI vs KCK DAFU CONGEE SDN BHD & ORS - High Court
"] ["NG CHOONG WEI vs KCK DAFU CONGEE SDN BHD & ORS - High Court
"] [](https://supremetoday.ai/doc/judgement/MY_MLRH_2001_8_MLRH_550) ["KANCILTEK (M) SDN BHD vs MAYBAN FINANCE BHD (NO 1) - High Court
"] ["FAZARUDIN SUJAIRI MD RADZI vs BADAN PENGURUSAN BERSAMA PANGSAPURI CASMARIA - High Court
"]IN THE MATTER OF AUSTRAL AMALGAMATED BHD vs .
"] ["KANCILTEK (M) SDN BHD vs MAYBAN FINANCE BHD (NO 1) - High Court
"]No source specifies s.540 CA (1965/2016), but general rule mandates originating summons for non-excepted CA applications (e.g., not winding up/capital reduction), per O.88 r.2 (CA 1965)/Appendix C (CA 2016) and O.5 r.3 ROC; writ only if factual disputes necessitate conversion. [](https://supremetoday.ai/doc/judgement/MY_MLRH_1998_7_MLRH_689) ["
IN THE MATTER OF AUSTRAL AMALGAMATED BHD vs .
"] ["NG CHOONG WEI vs KCK DAFU CONGEE SDN BHD & ORS - High Court
"] ["FAZARUDIN SUJAIRI MD RADZI vs BADAN PENGURUSAN BERSAMA PANGSAPURI CASMARIA - High Court
"]
In the complex world of corporate litigation in Malaysia, choosing the correct mode to commence proceedings can make or break a case. A common query arises: for matters under , should you file an (OS) or a ? This question is pivotal, as selecting the wrong method may lead to procedural challenges or dismissal. While no document directly addresses Section 540, general principles under the Rules of the 1980 (RHC) provide clear guidance. This post breaks down the rules, exceptions, and best practices—remember, this is general information, not specific legal advice. Consult a qualified lawyer for your situation.
Section 540 typically deals with court powers in company or investigations, though specifics aren't detailed here. The key issue is the : OS for straightforward applications or for disputed facts? Understanding this requires examining Orders 5 and 88 of the RHC, which govern and Companies Act applications.
Under , generally begin by or , except as provided otherwise.
originated as a simplified Chancery procedure for non-contentious matters, substituting summons for writs in chambers. 2012 0 Supreme(Bom) 2122
is decisive: Unless otherwise provided in the Act, and except in rr 3,4, and 5, every application under the Act must in accordance with O 5, r 3, be made by .
This presumptive rule applies to Sections like 540, absent exceptions. For instance:- (rectification of register): Allows OS or —no mentioned.
- (oppression): Sometimes uses petition, indicating section-specific variations.
No sources contradict OS for unspecified sections like 540. Thus, OS is the default for pure applications or document construction without factual disputes.
OS is a for simple issues of construction or interpretation, avoiding full trials. Courts have discretion to refuse if facts are complex or contentious. 2012 0 Supreme(Bom) 2122
From comparative insights:- Rules emphasize OS for straightforward issues of construction, but relegate factual complexities to ordinary suits. If unsuitable, courts may dismiss and direct a . 2012 0 Supreme(Bom) 2122- In trust deeds, OS suits non-contentious interpretations but fails where mixed facts/law require evidence or where parallel proceedings exist (e.g., suppression of material facts breaches uberrima fides). 2001 0 Supreme(Cal) 254- Customary practices, like trustee appointments, can be resolved via OS if evidence isn't overly complex. 1995 0 Supreme(Bom) 125
These principles align with Malaysian RHC: OS thrives on affidavits, not oral testimony, unless ordered.
Switch to if:- Substantial factual disputes arise ()—e.g., contested events needing .
- Specific O.88 exceptions (rr.3-5) apply, like petitions for oppression.
Proceedings in which a substantial dispute of fact is likely to arise shall be begun by .
In company service contexts, proper summons delivery (e.g., at registered office per ) is crucial, overriding general CPC rules—failure invalidates proceedings. 1991 0 Supreme(Cal) 136
One case noted: invalid if not authorized—defaults to OS or .
For s.540:1. Default to OS if seeking court application under the Act without factual fights—file with affidavit on legal points.2. Use for disputed facts.3. Verify O.88 exceptions; consider if akin to s.162.4. Ensure service at registered office. 1991 0 Supreme(Cal) 1365. Disclose all material facts to avoid dismissal. 2001 0 Supreme(Cal) 254
Strict compliance is key—no flexible validation.
| Mode | When to Use | Examples ||------|-------------|----------|| | Legal construction, undisputed facts, Companies Act apps (O.88 r.2) | s.162 rectification
|| | Substantial fact disputes () | Contentious company disputes
|
In summary, is typically the mode for s.540, per general Companies Act rules, unless exceptions or facts dictate otherwise. This streamlines justice for non-adversarial matters, echoing global OS principles.
Disclaimer: This overview draws from cited sources but isn't exhaustive or tailored advice. Laws evolve; always seek professional counsel. For more on Malaysian corporate law, explore our blog.
References:1.
– O.88 core authority.2.
– Reinforces OS mandate.3.
– O.5 rules.4.
– triggers.5.
– General modes. #CompaniesAct #OriginatingSummons #MalaysiaLaw
GROUNDS OF JUDGMENT The Applicants filed an Ex-parte Originating Summons for a Scheme of Arrangement and Reconstruction under section 176(1) of the Companies Act. ... , originating summons, originating motion or Petition . ... mentioned in rules 3, 4 and 5 , every (other) application under the Act must, in accordance with Order 5, rule 3, be made by Originating Summons. ... [3] Order 5 Rule 4(1) reads :- Except in ....
GROUNDS OF JUDGMENT The Applicants filed an Ex-parte Originating Summons for a Scheme of Arrangement and Reconstruction under section 176(1) of the Companies Act. 2. ... or by or under any written law are required to be begun ... proceedings may be begun either by writ or by Originating Summons .. .". ... in accordance with Order 5, rule 3, be made by Originating Summons. ... Court :- Order 5 Rule (1) - "Subject to the provision....
GROUNDS OF JUDGMENT The Applicants filed an Ex-parte Originating Summons for a Scheme of Arrangement and Reconstruction under section 176(1) of the Companies Act. Except in the case of proceedings which by these rules or by or under any written law are required to be begun ... proceedings may be begun either by writ or by Originating Summons .. .". ... in accordance with Order 5, rule 3, be made by Originating Summons. ... Court :....
GROUNDS OF JUDGMENT The Applicants filed an Ex-parte Originating Summons for a Scheme of Arrangement and Reconstruction under section 176(1) of the Companies Act. , every (other) application under the Act must, in accordance with Order 5, rule 3, be made by Originating Summons. ... proceeding in the High Court :- Order 5 Rule (1) - "Subject to the provisions of any written law and of these rules , civil proceedings .. be begun by writ, orig....
Companies Act 2016 , reads as follows: Companies Act 2016 on the basis that, among others, the First Defendant had unfairly oppressed, discriminated against and/or prejudiced the Plaintiff as a minority shareholder. ... Choong Yeow Choy JC:Introduction ROC to treat or continue proceedings that are specifically required to be commenced by originating summons as if they had been begun by writ. Courts should only do so if it is necessary to ensure the just disposal of ....
Companies Act 2016 , reads as follows: 2. Except for the proceedings specified in Appendix C relating to the winding up of companies and capital reduction under the Act, proceedings under the Act shall be commenced by originating summons. ... JUDGMENT Choong Yeow Choy JC: Introduction ROC to treat or continue proceedings that are specifically required to be commenced by originating summons as if they had been begun by wri....
Syed Ahmad Helmy JC: The question for determination in this application is whether the mode of commencement by way of originating motion by the applicant for the production of the application form relating to the third party charge is the proper mode. ... and at para h of p. 469 he concluded: As mentioned earlier, originating motion not being the required or authorised mode, and the nature of the application is not one to be made by a petition, so what is left is the origina....
(v)some applications under the Companies Act 1965 (Act 125), eg for rectification of the company register see O. 88 r. 3. (vi)applications under the Trade Marks Act 1976 (Act 175). ... and at para h of p. 469 he concluded: As mentioned earlier, originating motion not being the required or authorised mode, and the nature of the application is not one to be made by a petition, so what is left is the originating summons or a #HL_ST....
and at para h of p. 469 he concluded: As mentioned earlier, originating motion not being the required or authorised mode, and the nature of the application is not one to be made by a petition, so what is left is the originating summons or a writ. ... JUDGMENT Syed Ahmad Helmy JC: The question for determination in this application is whether the mode of commencement by way of originating motion by the applicant for the production of the applicatio....
(v)some applications under the Companies Act 1965 (Act 125), eg for rectification of the company register see O. 88 r. 3. (vi)applications under the Trade Marks Act 1976 (Act 175). ... Upon a careful analysis of all the eight rules of O. 12 I find that the requirement of entry of appearance under the RHC, is only confined to writ of summons and originating summons. ... or a writ. ... JUDGMENT Syed Ahmad Helmy JC:....
The Court of Appeal noted: “What, then, was an “originating summons” at that time? This procedure was further simplified by the Act of 1852 under which in certain cases the commencement of a suit in Chancery was contemplated by a summons originating proceedings in chambers. It still meant a summons which originated proceedings in Chancery, the summons being substituted for a writ in a suit or an action, which had by the Judicature Act taken the place of a suit” It was a method of commencing proceedings in Chancery by a summons in chambers instead of by bill. Under the Gener....
If the questions raised in this Originating Summons fall for consideration in any other proceedings, the court or authority is bound, absent anything else, to consider and decide the same. 56(A). A Division Bench of this Court in the case of Mazda Theaters Limited v. Gordhandas, (1954) 56 BLR 1080 held as under :- This judgment is, therefore, of no assistance to Mr. Setalwad. The nature and purpose of an Originating Summons also indicates the fundamental difference between an Originating Summons and other proceedings. "The right contemplated by that rule is any right, and t....
It was stated in the affidavit it was urged that the plaintiff. respondent was trying to harass the family members by initiating various civil and criminal proceedings against the appellants and a suit had been filed by the plaintiff-respondent being Title Suit No. 1856 of 1996 in the City Civil Court at Calcutta claiming a declaration that he is a Trustee of the said Trust Property. 4. In the said proceedings for Originating Summons, numbered as O.S. Suit No. 269 of 1997, an affidavit was filed by the appellants raising various contentions.
The only question that is raised by the plaintiffs in this originating summons relates to the mode of appointment of the President. Clause (g) of the said Rule clearly empowers the Court to determine any question arising in the administration of the estate or Trust. In my opinion, unless it is shown that the disputed facts are of such complexity as to involve a considerable amount of oral evidence, the jurisdiction to decide the question of the mode of appointment of the President, application of Rule 238 cannot be excluded on the basis of a bald plea that the facts are dis....
That the expression "document" used in Section 51 of the Companies Act includes summons is clear from section 2(15) of the Companies Act. 8. SECTION 51 of the Companies Act, which deals with service of documents on companies enjoins that a document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post or by leaving it at its registered office. The result is that the provision of section 51 would prevail over Rule 2 of Order 29, Civil proced....
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