Strike off
and Winding up a company
For companies
that will be winding up, it requires number of procedures that have been set
accordance with the Companies Act 2016
There are two
ways to close a company:
1.
Striking off- Section 550
2.
Winding up- Section 431
Striking
Off
Pursuant to
Section 550, subject to Section 549, Registrar may remove a company from the
register either on his own motion or on the application of a Director, Member
or Liquidator of the company.
The company can
be strike off if:
i)
The company does not carry on
business or does not operate;
ii)
The company has contravened the
Companies Act 2016;
iii)
The company is being used for
an unlawful purpose or any purpose prejudicial to or incompatible with peace,
welfare, security, public interest, public order, good order or morality in
Malaysia;
iv)
In any case where the company
is being wound up and the Registrar has reasonable cause to believe that
–
No action is taken by the
liquidator
–
The affairs of the company are
fully wound up and for a period of six months the liquidator has been in
default in lodging any return required to be made by him; or
–
The affairs of the company have
been fully wound up under a winding up by the Court and there are no assets or
the assets available are not sufficient to pay the cost of obtaining an order from
the Court to dissolve the company.
Notice of
intention to strike off company
Notice will be
given by the Registrar to the company or liquidator stating that if a reply for
any reason shows otherwise is not received within 30 days of the notice given,
notification to the public will be published in the manner determined by the
Registrar to strike off the company name from the register.
The issued
notice will be sent to the liquidator using its last known address, while for
the notice that will be sent to the company will be sent to the registered
company address or the company officer whose address is known by the registrar.
As for if no address is known, the registrar can send the notice to each person
who established the company according to the last address known.
The Registrar
may remove the company name from the register after expiration of 30 days from
the publication of the notice if:
–
The Registrar receives
confirmation that the company is no longer in business or does not operate
–
The Registrar did not receive
any response from the company on regard of the notice given
–
The Registrar did not receive
any objections to the notice and the notice that had been published
–
The Registrar is not satisfied
with the reason given by the company.
The name of the
company that has strike off will be published in the Gazette and the company
shall be dissolved.
Cost that
is incurred in the process of striking off the company
|
No |
Matter |
Fee (RM) |
|
1 |
Application to strike off
company from register under section 550 of the Companies Act 2016
|
100.00 |
|
2 |
Lodgement of objection to strike
off company from register under section 552
|
300.00 |
|
3 |
Lodgement of notice of
withdrawal of application to strike off company from register under section
553
|
500.00 |
|
4 |
Application under section 556 of
the Act: a) for the Registrar to represent dissolved company b) for the Registrar to execute or sign any relevant instrument or
document relating to the representation of dissolved company
|
500.00 500.00 for each
execution or signature of instrument or document |
|
5 |
Application for the Registrar to
sell or dispose of property of dissolved company under section 558 |
30% from the proceed
of sale or disposal of the property + cost incurred incidental to the sale or
disposal of the property |
|
Notice will be issued by the
Registrar to the company or liquidator |
Summary to strike off a company:
|
The name of the company will be
published in the Gazette (conditional) and the company will have to
dissolved |
|
30 days period will be given for
the company to respond to the Registrar |
Winding
Off-Seksyen 431
For companies to
be wound up, there are two methods specified in the Companies Act 2016, which
are
1.
Voluntary winding up (S 431)
2.
Winding up by order of the
Court (S 464)
Voluntary
winding up
Voluntary
winding up can be implemented if
1.
A company has set a period for
the company to be terminated (S 433)
2.
The company through the
voluntary winding up of member (S 445)
3.
The company through the
voluntary winding up of liquidator (S 449)
The process of
voluntary winding up are:
i)
The company needs to make a
declaration of solvency before the meeting related to the winding up of the
company is held.
ii)
A company meeting related to
the wind up is held and the appointment of the liquidator or interim liquidator
is made.
iii)
The liquidator must submit a
copy of the voluntary wind-up resolution to the Registrar within 7 days before
the resolution being circulated
iv)
The company should publish a wind-up
resolution notice on one newspaper widely distributed in Malaysia using Bahasa
Malaysia and one newspaper widely distributed in Malaysia using English within
10 days after the ruling is circulated.
There are
several eligible conditions outlined in Section 433 of the Companies Act 2016
to guide the members to appoint a liquidator to manage the winding up of the
company. There are few restrictions on appointing a liquidator such as the
liquidator must obtain permission from the Court to act as a liquidator, not
bankrupt and not convicted of fraud and dishonesty
Winding up
made by order of the Court
The winding up
of the Company on the order of the Court can be implemented if the Court
receives a petition from any party specified in Section 464 of the Companies
Act 2016 such as creditors, liquidators, companies and others. Apart from that,
the Court can also wind up the company through a special resolution issued by
the company, the Court is of the opinion that it is fair and equitable for the
company to be wound up and other situations mentioned in Section 465 of the
Companies Act 2016