vi­tal ad­dress

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.

The Star Malaysia - Star2 - - ENVIRONMENT - BHAG SINGH

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.”

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