马来西亚公司法

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Provision in the MA may be altered or deleted by a special resolution if the MA does not prohibited such act.
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MA and AA once registered binds the company and the member and both parties must observed all the provisions on the MA and AA. HICKMAN Vs Kent • If a shareholder seeks to enforce a term in the AA in a capacity not as a shareholder (profession services) he/she cannot enforced the provisions in the MA and AA. - Eley vs. Positive Government Security Life Assurance MA and AA operates as a contract between member and member - Rayfileld vs. Hands.
LEGAL ENTITY OF A COMPANY • • • Once incorporate, a company is vested with a corporate personality i.e. the company is treated as a legal person (has personality and status). The company is distinct from its share holder. In contrast with a partnership, where the partners and the partnership is consider as a single entity.
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DIRECTORS - Vested with the responsibility of the management of the company’s affairs. Malaysia law required each company must have at least 2 directors who have its principle residence within Malaysia.
4. Holding and subsidiary companies Hotel Jaya Puri Bhd. VS National Unionnt Workers & Anor.
• TYPES OF COMPANIES 1. Companies limited by share Liability of a member’s contribution to the company’s assets is limited to the amount unpaid of his share. BORLAND’S TRUSTEE vs STEEL BROS. & CO. LTD - A Share is the interest of the share holder in the company measured by a sum of money… 2. Companies Limited by Guarantee Liability of members is limited to such amount as the member have undertaken to contribute to the asset in the event of being wound-up. Companies form to incorporate research association, charitable organization or non profit making organizations. 3. Private and Public Companies Private companies: • Restrict the right to transfer its share • Members not more than 50 • No invitation to public to subscribe its share • No invitation to public to deposit money with the company.
2. Fraudulent Trading. In the course of winding up, the court finds that the company’s business has been carrying out with the intention to defraud creditors, the court will hold any person who has the knowledge be liable for the debts – sec 304 (1) CA . Re William C Leitch Brs Ltd
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Director stand fiduciary relationship with the company – relationship of trust and confidence.
DUTIES OF A DIRECTOR UNDER THE COMMON LAW: 1. To act in bona fide in the interest of the company • Act in good faith in the interest of the company and not personnel interest . Re W & M Roith 2. To exercise power for proper purpose • Should not carry out duties not authorized to do so even for the benefit of the company. • Example – reduced another member voting power Re Micropack Industries Sdn Bhd
3. Publication of Name The issuing of bill of exchange, cheque, other negotiable instruments without the company’s name is mention, that person will be liable to the holder of the instrument.
• The exception to lifting the veil arise in the following situations: 1. Number of member reduced to below 2. A person who is the member and is aware of the this, is liable for all the debts after those 6 months.
MEMORANDUM AND ARTICLE OF ASSOCIATION • Memorandum of association (MA) states the essential components of the company ie the object of which the company is form. The MA provides information to those who do business with the company.
• sec. 16(5) Companies Act – a company once incorporate has the following effect: may sue and be sue in its own name Has perpetual succession May own land Liability of its members may be limited SALOMON vs. SALOMON & CO.LTD Held: the company was not an agent for the member. The members will not liable in respect of the company’s obligation. LEE vs LEE’S AIR FARMING LTD
LlFTING OF THE CORPORATE VEIL • Where the court will look behind the corporate entity and take action as if no entity separate from the members existed. The court will make the company, director or manager liable for debts and obligations.
COMPANY LAW
APPLICABLE LAW • COMPANIES ACT 1965 • SECURITIES COMMISSION ACT 1993 • COMPANIES COMMISSION ACT 2001 WHAT IS A COMPANY Company means a company incorporated pursuant to the Company Act or pursuant to any corresponding previous enactment. Re Stanley ‘the word company … involves two ideas ( a ) the association so numerous as not to be aptly described as a firm; ( b ) the consent of the other members is not required to the transfer of a member’s interest. Association of persons – not less than two person. Person – include a body of persons, corporate or incorporated (sec 3 Interpretation Act 1948)
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Article of Association (AA) is a set of regulations for management of the company
MA and AA must be registered with the Registrar of Companies prior to its incorporation. Failure to register the AA, the Registrar will adopted Table A of the Fourth Schedule of Companies Act.
3. Duty to retain discretion • Should not exercise rigid policy in running the company. 4. • • • • • Duty to avoid conflict of interest Should not allow the interest of the company and their personal interest in conflict. To put the interest of the co. above their personal interest. To declare to the company the interest the director had in the contract/project Sec 131(1) CA – to declare its interest to BOD Sec 132( 2 ) – without consent from the general meting, director is prohibited from using the company’s property, sensitive information of the company, used his position as director to gain benefit for himself.