Section 23 of the Companies Act 1965 provides for change of name. S. 23(6) provides that, ‘A change of name pursuant to this Act shall not affect the identity of the company or any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced by or against it by its former name may be continued or commenced by or against it by its new name.’ The term ‘may’ denotes that it is not mandatory/compulsory to do so

In Lee Siew Thong & Ors v United Merchant Finance Berhad [2009] MLJU 14, the appellant’s counsel submitted that the financial institution which gave the loan facility to the Borrower is United Merchant Finance Bhd. As United Merchant Finance Bhd no longer exists it cannot continue with the claim against the appellants. In the event of any change of name, the respondent’s name will also have to be amended in the summons. In reply, the counsel for the respondent submitted that when the summons was filed on 15.5.2001 and on 18.6.2001 the date of the order the respondent was then known as United Merchant Finance Bhd. On 25.6.2001 the respondent’s name was changed to Southern Finance Bhd. The change of name is evidenced by the Form 13 Perakuan Pemerbadanan Atas Pertukaran Nama Syarikat dated 25.6.2001 (S. 23 Companies Act 1965)

 On that issue the Court found that ‘the change of the respondent’s name did not have any effect on the proceedings commenced against the appellants. A change of name does not affect the legal proceedings commenced by the respondent’s former name. The proceedings may be continued in the respondent’s former or new name (S. 23(6) Companies Act 1965). In the premises, the appellants’ contention is misconceived and groundless.’

 Whereas, Chapter 5 of the Companies Act 2006 states in S. 81 that (1) A change of a company’s name has effect from the date on which the new certificate of incorporation is issued, (2) The change does not affect any rights or obligations of the company or render defective any legal proceedings by or against it, (3) Any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.

The case of Shackleford, Ford & Co. Ltd. v. Dangerfield, Shackleford, Ford & Co Ltd v Owen (1868) LR 3 CP 407 referred to this particular section in the Companies Act 1962. in this case it was held that the plaintiffs were well advised in bringing the actions in their old name of Shackleford, Ford, & Co. Reason being, until the certificate of incorporation had not been obtained; the corporation did not exist under its new name but is considered as still existing under its original name. This case was cited in Lin Pac Containers (Scotland) Ltd. v. Kelly 1982 SC 50. However, it is to be noted that both these cases focused on the technicalities of a change of name in deciding that an action brought in the company’s old/original name was a valid one.

 

 

 

 

 

Advertisements