DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) RAYUAN SIVIL NO. R3(1)-12A-15-2008
SEAGROATT & CAMPBELL SDN BHD … PERAYU/
(NO. SYARIKAT: 134631-U) PLAINTIF
LOW ENG CHEONG
(NO. K.P: 5158200) … RESPONDEN/
GROUNDS OF DECISION
This was an appeal against the decision of the decision of the learned Sessions Court Judge who dismissed the Appellant’s/Plaintiff’s application for leave to amend the judgment of the Sessions Court dated 12th December 2005.
The amendment sought was in relation to a change in the name of the Plaintiff from Seagrott & Campbell Sdn Bhd to KAF-Seagrott &
Campbell Securities Sdn Bhd. The amendment application was filed on 5th April 2007, more than a year and three months after the date of the judgment.
The change of name is recorded in Form 13 of the Companies Act 1965, i.e. “Perakuan Perbadanan Atas Pertukaran Nama Syarikat” dated 6th May 1998. See page 16 of the Appeal Record. Hence the change of name was properly done under section 23(2) of the Companies Act 1965, and by this provision the change of name “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” (section 23(6)).
On the facts the change of name was effected after the company had filed its Summons on 22nd April 1998.
The application for leave to change its name was objected to by the Respondent, principally on the ground of delay said to have caused prejudice to the Respondent. The application for leave to change the name in the judgment was made in 2007, while the change of name was effected in 1998. Hence there was a delay of 9 years.
The Respondent argued the application for leave to amend the judgment to reflect the change of name was made only after bankruptcy proceedings were initiated and ROAO recorded against the Respondent, and after the Respondent had indicated it intended to challenge the validity of the ROAO on the ground that it had not been amended although the bankruptcy proceedings had been commenced in the name of KAF-Seagrott & Campbell Securities Sdn Bhd. The Respondent cited inter alia Bank Utama (Malaysia) Bhd v Sistem Bis Komputer Sdn Bhd & Ors  3 MLJ 452 where the court held that where there was a delay in filing an application where no time was specified, the longer the delay the greater the likelihood of prejudice to the opposite party. The issue of laches was also advanced, citing Halsbury’s Laws of England:
“A Plaintiff in equity is bound to prosecute his claim without undue delay…A court of equity refuses its aid to stale demands, where the Plaintiff has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his laches.”
Further, the Respondent claimed the Appellant had not provided any reason for the delay in its application.
On the facts of the application for leave to amend the judgment so as to reflect the correct name of the company, there was no element of prejudice to the Respondent or any element of surprise causing prejudice. The proposed amendment did not purport to
amend any fundamental aspect of the judgment. For that matter, whether or not the formal amendment in the change of name was allowed, the provisions of section 23(6) continue to apply.
Leave to amend being a matter of the court’s discretion, I was of the view that a proper exercise of judicial discretion would be to allow the application. Delay per se could not be a good ground to refuse what would otherwise be an application with merit. It was difficult to appreciate what prejudice would be occasioned to the Defendant/Judgment Debtor if the judgment was amended to reflect the new name of the Plaintiff. The Company Number remained unchanged. The Corporate Identity remained unaltered.
For these reasons, the appeal was allowed, but no order on costs was made since this was formal amendment without any real prejudice to the Defendant/Judgment Debtor.
Dated 27th August 2009
(MOHAMAD ARIFF BIN MD YUSOF) PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR
For the appellant:
Messrs Kassim Tadin, Wai & Co.
For the respondent:
Counsel tidak hadir Messrs Wan Zainuddin & Co.