Any change in the registered address of a company must be conveyed to the Registrar of Companies. Failure to do so can have serious consequences.
Any change in the registered address of a company must be immediately conveyed to the Registrar of Companies.
BEFORE a court makes a decision on a dispute before it, all parties will have an opportunity to be heard. The dispute may involve a simple claim for the recovery of a debt or it may involve a more complex transaction.
This opportunity is facilitated through the service of the Summons and the mechanism for responding to it.
It provides for a defendant to appoint solicitors and file an Appearance and thereafter a Statement of Defence before other steps are taken.
However, the filing of an Appearance and later a Statement of Defence will only occur where the defendant has received the court papers. If these have not been received, the defendant will ordinarily not even know about the matter. Yet unknown to the defendant, judgment may be obtained on a deemed service basis.
An example is provided by a company that had moved away from its previous location which it has used as its business address and registered address. A creditor filed an action and obtained default judgment unknown to the company. Was this a proper judgment?
Great significance is attached to the registered address of a company incorporated under the Companies Act 1965. That is why it is very important that any change in the registered address is immediately conveyed to the Registrar of Companies.
Section 119(1) of the Companies Act 1965 stipulates that a company must, as from the day on which it begins to carry on business or as from the 14th day after the date of its incorporation, whichever is earlier, have a registered office within Malaysia to which all communications and notices may be addressed.
Such a registered office must be open and accessible to the public for not less than three hours during ordinary business hours on each day, except for Saturdays, Sundays and public holidays.
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 must be lodged with the Registrar within a month after the date of incorporation or of any such change, as the case may be.
Section 350 of the Companies Act 1965 then goes on to provide that a document may be served on a company by leaving it or sending it by registered post to the registered office of the company.
Not only does the Companies Act 1965 within itself provide for documents to be served at the registered office, but the High Court rules and Subordinate Courts rules also provide, in the case of a company, for service to be effected at the registered address by being delivered there.
Thus in the case of the company referred to earlier, it would be the position that the Summons would be deemed properly served if there had been no notification of change of address.
In A/S Cathrineholm vs Norequipment Trading Ltd, the plaintiff A/S Cathrineholm was a company incorporated under the law of Norway. Its solicitors issued a Summons on July 15, 1971, claiming against the defendants, an English company, Norequipment Trading Ltd, the sum of $6,609.49 being the balance of the price of goods sold and delivered.
The address of the defendant to which the writ was addressed was that disclosed by the register kept by the relevant department relating to registration of companies. It was given as “3435, Norfolk Street, London, W.C.2.”
On July 21, the solicitors sent the Summons by first class mail in a prepaid envelope addressed to the company at “34-35, Norfolk Street, London, W.C.2.” Later the defendants received a copy of the default judgment the plaintiffs had obtained. The defendant was caught by surprise as no Summons had been received. This was because four weeks earlier, on June 24, 1971, the company had moved from the said address.
It was a finding of the court that in July, 1971, the building at Norfolk Street was handed over to demolition contractors. By July 22, when the postman arrived with the letter, the premises was derelict, the windows were broken and boarded up, the letter-box had been removed, and there was a pneumatic drill working outside the door.
One of the judges said: “We do not know what the postman did with the letter. Perhaps he threw it away. At any rate, it was not returned through the dead letter office to the plaintiffs.”
The plaintiffs, of course, knew nothing of all this. Having obtained default Judgment, they sent it to the same address. This second letter reached the defendants because they had, in the meantime, made arrangements with the post-office to have all correspondence redirected.
The question that arose was whether under the circumstances, the Summons was properly served on the defendant. The plaintiffs said that it was obtained regularly and that it should not be set aside except on an affidavit of merits. The High Court agreed.
So the case went to the Court of Appeal and there it was reaffirmed that the Summons had been, under the circumstances, properly served. It was served in the way stipulated and to an address stated.
Lord Denning MR went on to say: “Accordingly when the plaintiff sends a copy of the writ by prepaid post to the registered office of the company, and it is not returned – and he has no intimation that it has not been delivered – it is deemed to have been served on the company, and to have been served on the day on which it would ordinarily be delivered.”
Of course, this position in law is in relation to setting aside the default judgment as a matter of right. A defendant in such a situation can sometimes succeed in setting aside the judgment if it can be shown that there are merits in the defence.
However, what happened could have been avoided if immediate steps had been taken to file the necessary change of address. And better still, to inform all parties with whom it had dealings. As was said by Lord Denning in the case above: “The defendants have brought it all on themselves through their own fault. They did not enter the change of address on the register as they should have done. If they wish to set aside this judgment, they must show merits.”