You own a business? Do you know what is defined as a company according to the Companies Act 2016 (Act 777)?
Section 2:
“Company means a company incorporated under this Act or under
any corresponding previous written law.”
A company exists when it is registered under the Companies Commission of Malaysia.
Section 9 of the Companies Act 2016 states that a company must have:
i) Name
ii) One or more members, who have limited or unlimited liability for the company’s obligations
iii) In the case of a company limited by shares, one or more shares
iv) One or more directors
COMPANY REGISTRATION
A company must first be registered and this must be done by the company secretary.
Among the information required for registration are:
-Provide a minimum of 3 preferred company names
-3 main business activities
-Official business address, email and phone number
-The share percentage of each shareholder
– Copies of identification cards of board members and shareholders
-Name of company check signatory
IS A COMPANY AN ENTITY?
Based on section 20(a) of the Companies Act 2016, a company has a legal personality separate from that of its members.
This means that a company can be likened to an individual who has his own personality.
Because of that, a company can also take legal action against any party or be brought against it. This is in accordance with section 21(1)(a) of the Companies Act 2016.
For example:
– Syarikat Maju Sdn Bhd v Meon
– Syarikat Mantap Sdn Bhd v Syarikat Power Sdn Bhd
CESSATION OF COMPANY
A company will continue to exist as long as it is in the registration list under the Companies Commission of Malaysia.
According to section 20(b) of the Companies Act 2016, it provides that an incorporated company shall continue to exist until it is removed from the register.
Ways to remove a company from the register are:
– Winding up of the company
There are 2 types namely voluntary winding up and compulsory winding up
– Striking off the company’s name
The Companies Commission of Malaysia has power to remove the company’s name from the register
WHAT ARE VOLUNTARY WINDING UP AND COMPULSORY WINDING UP?
Voluntary winding up and compulsory winding up are some of the ways to remove a company from the Companies Commission of Malaysia register based on section 432 of the Companies Act 2016.
If a company has been wound up, its business operations will cease and be dissolved.
Voluntary winding up:
Occurs when the company’s members have passed a resolution to wind up or dissolve the company.
Compulsory winding up:
Occurs when the court has ordered the company to be wound up through a winding up petition by any entitled party.
LAWSUIT AGAINST A COMPANY THAT MISUSE INDUSTRIAL DESIGNS WHICH OWNED BY OTHER COMPANY!
Kayu Industries (M) Sdn Bhd v Jaya Corp Sdn Bhd [2011] 8 MLJ 572
Kayu Sdn Bhd and Jaya Sdn Bhd run the business of making, designing and selling flower pots in Malaysia and abroad.
Kayu Sdn Bhd then became the owner of the registered design under the Industrial Design Act 1996 after the original registered owner of the industrial design, had assigned whole right, title and interest of the industrial design to them through a deed of assignment in 2002.
Kayu Sdn Bhd stated that Jaya Sdn Bhd applied for Kayu Sdn Bhd’s industrial design for its own flower pots without a license from Kayu Sdn Bhd and/or the previous owner.
Therefore, a court action was filed by Kayu Sdn Bhd due to the violation of its industrial design, which caused the passing off of flower pots produced by Jaya Sdn Bhd which are similar as those belonging to Kayu Sdn Bhd.
The court decided that Kayu Sdn Bhd successfully proved their case for the tort action against Jaya Sdn Bhd because of the industrial design used by Jaya Sdn Bhd illegally.
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