1. Amir Hazzri Bin Jamaludin AC0907342. Mohammad Mustaqim Bin Zainal Abidin

AC0912853. Nabilatul Husna Bt Hamid Khan

AC0907154. Nurul Nabila Izzaty Bt Adnan AC090678

DEREGISTRATION, RECEIVERSHIP &

WINDING UP

DEREGISTRATION

(i)Struck off the register as a defunct company by the Companies Commission of Malaysia (CCM) – deregistered under Sec 308 of the act.

(i)Dissolved as a result of winding up either voluntary or by court order.

INTRODUCTION

A company is an artificial person. The adage “A company cannot die – it must be killed” is true.

The company’s existence can only be terminated if it is :-

The requirement for deregistration under Sec 308 are exclusively for a company that :-

(i)Are inactive i.e no longer carrying on any business or not in operation.(ii)Does not hold any assets.(iii)Does not have any liabilities.(iv)Has not been put under receivership.

Requirements for DEREGISTRATION

Deregistration of companies under Section 308 can be initiated by the following ways :-

(i)CCM’s own initiative(ii)Written application from the company(iii)The company is in the process of winding up

DEREGISTRATION

(i) Initiative of the CCM:- • CMM will initiate the re-registration of

companies without any application from any parties in the following circumstances :-

1. There is no record shown in the Register’s Office on

lodgment of annual returns and any other statutory

documents for six (6) consecutive years.2. A report from an investigating officer of the

Registrar’s Office showed that the company is no longer in operation.

3. The company can no longer be communicated at the Registered Office or that its directors cannot be traced.

(ii) Application from company:-

• Deregistration can also be initiative through written application from directors or shareholders or company secretary, accountant or lawyer of the company.

• Written application can be made any time after the company is not in operation (without having to wait for six (6) six years) using an ordinary letter addressed to the CCM, upon which the CCM will take further action.

(iii) Company in the process of winding up :-

• Deregistration can also be initiated and conducted by the CCM on companies in the process of winding up in any of the following circumstances :-

(i) No liquidator is acting.(ii) The affairs of the company is fully wound up

and for 6 months the liquidator has been defaulted in lodging any returns.

(iii)The affairs of the company have been fully wound up and there is no assets or insufficient assets to obtain a Court order for dissolution.

Deregistration procedures

Deregistration procedures

RECEIVERSHIP

Who is receiver?

A company is said to enter into receivership when a receiver is appointed in respect or some or all of its property, under the terms of charge.

The Co. Act does not define who is a receiver but it does state who can and cannot be a receiver.A receiver can be defined as a person appointed to take into his possession the property of the company which is the subject of a charge and to deal with it primarily for the benefit of the holder of the charge.

Qualification of receiver

(1) Must be approved by the Minister of Finance according to Sec. 8 of CA as a liquidator.

(2) Official receiver means Official Assignee, Deputy Official Assignee, Senior Assistant Official Assignee, Assistant Official Assignee, Bankruptcy Officer and any other officer appointed under Bankruptcy Act 1967 Act 1967.

Disqualifications of receiver

(2) An undischarged bankrupt.

(3) A mortgagee of any property of the co, an auditor of the company or any officer of the company or of any corporation which if a mortgagee of the property of the company.

Section 182(1) lists out certain categories of person who are disqualified from being appointed as a receivers :-

(1) A corporation.

(4) Any person who is not an approved liquidator or the Official Receiver.

APPOINTMENT OF receiver

Appointment by The

High Court

Appointment by A secured creditor who

wishes to enforce his

security

APPOINTMENT BY THE HIGH COURT

The High Court has the jurisdiction to appoint a receiver on the application of a secured creditor when the security is in jeopardy, for repayment of a debt or where the interest is in arrears.A court appointed receiver is an officer of the court.

The duties are those of a public official namely to act with honesty and fairness rather than a private person whose duties are owed to respective individual.

APPOINTMENT BY SECURED CREDITOR

The receiver derives his status & power from the contract between the company & the creditor that creates the security interest over the property of the company.

The creditor may appoint a receiver at any time after the loan secured by the charge becomes payable.

When an event of default occurs, it triggers the power to appoint a receiver.

Duties & responsibilities

A receiver must comply with sec 187 & 188 of

the Co. Act with regard:-

• To giving notice of appointment to CCM & publicizing the fact of the appointment after the name of the company in all business document.

• A duty to obtain the best market price for the sale of the charged properties.

Power of receiver

• He is entitled to be reimbursed by the company unless it as insufficient funds.

• However, it only applies to debts for services rendered, goods purchased or property hired, leased, used or occupied and wages of employees of the co.

liabilities of receiver

Sec 183 (1) of the Co. Act provides that a receiver, whether or not appointed as agent for the co., is liable for certain debt incurred by him in the course of this receivership :-

WINDING UP

introduction

A winding up (liquidation) involves an insolvency practitioner, selling off a company’s assets & distributing the proceeds among the company’s creditors and if there are any funds left over, among its members.

As a result, the co’s existence comes to an end when it is deregistered.

Methods of winding up

1.Voluntary winding up

2. Compulsory winding up

(a)Member’s voluntary winding up

(a)Creditor’s voluntary winding up

(a)In insolvency

(a)On another ground

Sec 254 (1) of the Co Act provides circumstances in which a co may be wound up voluntarily :-

•When a period fixed for the duration of the co. by the M&A expires, or when the occurrence of an event in which the M&A provide that the company is to be dissolved, and the company in general meeting has passed and ordinary resolution requiring the co. to be wound up voluntarily.

•A voluntary winding up involves the members passing a special resolution.

1.Voluntary winding up

(a) Member’s voluntary winding up

•It can only take place if the co is solvent.

•The liquidation is fully under the control of the members themselves and they will appoint liquidator.

•The creditors will be paid in full and they play no part in the winding up.

Procedures for member’s voluntary winding up

(b) Creditor’s voluntary winding up

•If the directors are unable to file a declaration of solvency, the winding up will proceed as a creditors voluntary winding up.

•The co. will be required to summon a meetings of its creditors to be held on the same day or the next following the day on which the EGM of the co to pass a resolution for winding up will be held.

•The creditors have control and appoint the liquidator.

Procedures for creditor’s voluntary winding up

Procedures for creditor’s voluntary winding up

(i) The directors appointed by the board to attend the meeting shall preside and disclose to the meeting the co’s affair and the circumstance leading up to the proposed winding up.

(ii) A full statement of the co’s affairs together with a list of the creditors and the estimated amount of their claims must be laid before the meeting.

(iii) To nominate a liquidator. If the creditors nominate a different person, then the one appointed by the creditors shall be the liquidator.

(iv) To appoint a committee of inspection consisting of not more than 5 persons to supervise the act of liquidator.

•It is a winding up of a insolvent company that begin with the court order on the application of 1 or more parties stated in sec 217.

•The practitioner must establish one of the grounds stated in sec 218.

•Sec 219 provides that the commencement of the winding up is at the time of the presentation of the petition.

•After that, any disposition of the company’s property, transfer of shares and alteration in the status of members are void.

2. Compulsory winding up

Grounds for compulsory winding up

Grounds for compulsory winding up

Procedures for compulsory winding up

Who is liquidator?

•Section 4(1) of the Act defined an “ approved liquidator” as an approved company auditor who has been approved by the Minister under Sec 8 of the act and he has given his written consent to act as liquidator of the company.

Power & statutory Duty of liquidator

ii) To write to all directors notifying and advising them of the cessation of their powers as directors.

i) To take control of the company’s seal and all books and paper, particularly documents of title and other documents of value.

iii) To pay the debts of the company which have priority to other debts. (i.e wages and salary of the employees)

Section 269 of the Act lists the power and statutory duties, which are :-

Page 321-322

Disqualifications of liquidator

3- An officer of the company

1- not an approved liquidator

5- Becomes bankrupt

2- Indebted to the company in amount exceeding

RM2,500

4- A partner, employer and employee of an officer of

the company

6- Convicted of an offence

remunerations of liquidator

In a members’ voluntary winding up, the remuneration of a liquidator is fixed by:-

• the company in general meeting • the Committee of Inspection or the creditors if there is no committee.

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