COMPANY AS A CORPORATION & THE VEIL OF INCORPORATION

1. Introduction & The Concept of Incorporation

A. Statutory Definition

B. Meaning of Incorporation

C. Statutory Effects of Incorporation: Section 18 & Section 20 CA 2016

2. The Six Primary Characteristics / Effects of Incorporation

                    ┌────────────────────────────────────────┐
                    │        EFFECTS OF INCORPORATION        │
                    └───────────────────┬────────────────────┘
                                        │
         ┌──────────────────────────────┼──────────────────────────────┐
         ▼                              ▼                              ▼
┌─────────────────┐            ┌─────────────────┐            ┌─────────────────┐
│ Separate Legal  │            │    Perpetual    │            │    Unlimited    │
│    Entity       │            │   Succession    │            │    Capacity     │
└─────────────────┘            └─────────────────┘            └─────────────────┘
         │                              │                              │
         ├──────────────────────────────┼──────────────────────────────┤
         ▼                              ▼                              ▼
┌─────────────────┐            ┌─────────────────┐            ┌─────────────────┐
│Limited Liability│            │   Common Seal   │            │   Control &     │
│ of Shareholders │            │   (Optional)    │            │   Management    │
└─────────────────┘            └─────────────────┘            └─────────────────┘

The company and its members are two distinct legal bodies. This prevents creditors, workers, or suppliers from bypassing the company to sue internal shareholders or officers directly.

Key Case Law:

💡 ADDITIONAL EXTENSIVE CASE FOR SEPARATE LEGAL ENTITY:

Macaura v Northern Assurance Co Ltd [1925] AC 619

  • Facts: Macaura owned a timber estate. He sold all the timber to a company he formed, taking all its shares. He then insured the timber against fire, but crucially kept the insurance policy in his own personal name, not the company’s name. The timber was destroyed in a fire. The insurance company refused to pay.

  • Held: Shareholders have no proprietary interest (ownership) in the assets of the company. The timber belonged to the company, not Macaura. Therefore, he had no insurable interest in the property, and the insurance policy was void.

II. Perpetual Succession

The life and existence of a company are completely unaffected by the death, bankruptcy, insanity, retirement, or transfer of shares of any of its members or directors. A company only dies when it is formally wound up or struck off the register by the Registrar of Companies (ROC) (Section 20 CA 2016).

Key Case Law:

III. Unlimited Capacity

Key Case Law (Ability to Sue):

IV. Limited Liability of Shareholders

Liability of Directors/Officers:

Directors and officers are also generally protected from personal liability for company obligations or breaches of contract, provided they act within their authority and without fraud.

V. Common Seal

VI. Control and Management

3. Lifting the Veil of Incorporation

The Corporate Veil is a legal metaphor representing the dividing barrier between the company and its members/officers.

                  ┌────────────────────────────────────────┐
                  │      LIFTING THE CORPORATE VEIL        │
                  └───────────────────┬────────────────────┘
                                      │
         ┌────────────────────────────┴────────────────────────────┐
         ▼                                                         ▼
┌─────────────────────────────────┐               ┌─────────────────────────────────┐
│     STATUTORY CATEGORIES        │               │       JUDICIAL CATEGORIES       │
└────────────────┬────────────────┘               └────────────────┬────────────────┘
                 │                                                 │
                 ├─► S.539(3) & S.540(2): Insolvent Debts          ├─► Evading Legal Obligations
                 ├─► S.540(1): Fraudulent Trading                  ├─► Committing Fraud / Sham
                 ├─► S.186(4): Minimum Subscription Failure        ├─► Agency / Alter Ego
                 ├─► S.123(4): Financial Assistance Breach         ├─► Interest of Justice / Equity
                 ├─► S.140(1) Income Tax Act: Tax Avoidance        └─► Single Economic Unit (Groups)
                 ├─► S.46(1) EPF Act: Unpaid EPF
                 └─► S.108A SOSCO Act: Unpaid SOCSO

A. Statutory Lifting of the Veil

The Companies Act 2016 and other corporate/tax statutes explicitly mandate lifting the veil in the following situations:

  1. Contracting Debts with No Ability to Pay [Section 539(3) read with Section 540(2) CA 2016]

    • If an officer signs off or borrows money on behalf of the company when they know the company has no reasonable prospect or ability to repay it, that officer faces criminal penalties (imprisonment up to 5 years, a fine up to RM500,000, or both) and can be made personally liable for the payment of the whole debt.
  2. Fraudulent Trading [Section 540(1) CA 2016]

    • If the business of a company is carried on with intent to defraud creditors or for any fraudulent purpose, the individuals knowingly involved can be held personally responsible for all or any of the debts/liabilities of the company.

    • Chin Chee v Toling Corporation [2016]: The company ordered a massive supply of raw materials while facing severe financial distress, knowing there was no realistic prospect of paying. The court held this was fraudulent trading meant to defraud creditors, lifting the corporate veil.

  3. Failure of Minimum Subscription [Section 186(4) CA 2016]

    • If a public company raises money via a prospectus but fails to reach its minimum subscription target within 4 months, all money received must be refunded. If not refunded within 5 months, the directors become jointly and severally liable to repay that money with 10% interest per annum.
  4. Breach of Financial Assistance Rules [Section 123(4) CA 2016]

    • Generally, a company cannot give financial assistance (loans, guarantees, security) to anyone to help them purchase shares in that company. Any officer convicted of breaching this rule must pay compensation to the company or any party suffering loss.
  5. Tax Avoidance Arrangements [Section 140(1) of the Income Tax Act 1967]

    • Where an arrangement is made to alter, relieve, evade, or hinder tax liabilities, the Inland Revenue Board (LHDN) can look past the corporate shell. The company and its officers are held jointly and severally liable for the outstanding tax.
  6. Failure to Remit EPF Contributions [Section 46(1) of the EPF Act 1991]

    • If an employer company fails to pay its statutory employee EPF contributions (e.g., 12%/11%), the directors at the time of non-payment are held jointly and severally liable alongside the company.
  7. Failure to Remit SOCSO Premiums [Section 108A of the Employees Social Security Act 1969]

    • If a company fails to remit contributions to SOCSO, the directors are pinned with joint and several personal liability.

B. Judicial Lifting of the Veil (Common Law)

Courts will exercise equitable discretion to lift the corporate veil based on the following case law principles:

1. Use of Company to Evade Existing Legal/Contractual Obligations

If a person sets up a company or uses an existing one as a device/façade to escape an obligation under a contract or a legal restriction, the court will treat the individual and the company as a single entity.

2. Use of Company to Commit Fraud or Improper Purpose

3. Company Employed as an Agent or Alter Ego of its Controllers

Where a subsidiary company has no real independence and acts purely as a mechanical agent for the parent company, an agency relationship is inferred.

4. Where the Court is Asked to Promote Justice / Exercise Equitable Discretion

5. Group of Companies Acting as a Single Economic Unit

The general rule is that a parent company and its subsidiaries are distinct legal entities (Ebbw Vale Urban District; The People’s Insurance Co). However, functional interdependency can lead courts to view them as a single economic unit.

PART 2: THE ILAC APPLICATION METHOD

When answering a corporate law problem question, organizing your thoughts using the ILAC structure ensures you do not miss critical arguments. Below is the framework broke down for this specific topic:

1. I – Issue

Identify the core legal dispute presented in the scenario.

2. L – Law

State the general legal principles, sections, and case authorities without talking about the facts of the question yet.

3. A – Application

This is where you bridge your Law section with the Facts given in the prompt. Compare the actions of the characters in the problem to the characters in the case law.

4. C – Conclusion

Provide a final, clear answer to the issue raised.

🛠️ Quick Exercise: Put ILAC into Action

To test your grasp of these notes, try structuring an ILAC answer for this hypothetical problem:

Scenario: Ali is an IT consultant who signed a contract with ‘TechCorp’ promising not to offer consulting services to TechCorp’s clients for 12 months after leaving. Ali leaves TechCorp and immediately registers a new private company called ‘Alpha Digital Sdn Bhd’. Ali is the sole director, and his retired mother holds all the shares. Alpha Digital Sdn Bhd begins signing consulting contracts with TechCorp’s clients. TechCorp wants to sue Ali personally for breach of contract. Advise TechCorp.

TUTORIAL MODEL ANSWERS (ILAC FORMAT)

QUESTION 1: RAMLI & SUDIN (HEALTHY & FRESH GROCERS SDN BHD)

(JUN 2018)

Ramli and Sudin are grocers. They originally operated their respective business as sole traders. On 1 February 2014, they decided to combine their experience and resources to form a company called Healthy & Fresh Grocers Sdn Bhd (the company).

They run their business on the premises previously purchased by Ramli. Upon incorporation, they transferred the entire assets of their respective business including the premises to the company.

In April 2017, Ramli received a quit rent notice from the Land Office for payment of land tax which has been in arrears since the acquisition of the premises by the company. Ramli refuses to pay on the ground that he is not the owner of the premises.

Currently, the company is facing financial problems and has to go into liquidation. Ramli now seeks your advice as regards to his liability towards the company.

PART A: Liability for Quit Rent Notice

1. Issue

Whether Ramli is personally liable to pay the outstanding quit rent (land tax) arrears on the business premises after transferring the ownership of the property to Healthy & Fresh Grocers Sdn Bhd.

2. Law

3. Application

4. Conclusion

Ramli is not personally liable for the land tax arrears that accrued after the transfer. Healthy & Fresh Grocers Sdn Bhd is the sole owner of the premises and is legally responsible for paying the outstanding quit rent.

PART B: Liability Towards the Company in Liquidation

1. Issue

What is the extent of Ramli’s personal liability towards the debts of Healthy & Fresh Grocers Sdn Bhd now that the company is facing financial distress and entering liquidation?

2. Law

3. Application

4. Conclusion

Ramli should be advised that his liability is strictly limited under Section 192 of the CA 2016. If his shares are fully paid, he bears no personal liability for the company’s debts during liquidation.

QUESTION 2: NUH & PREMIUM INSURANCE CO. (MOTORSPEED SDN BHD)

Nuh and Joe incorporated a private limited company known as Motorspeed Sdn Bhd (“MSB”). They are the sole directors and shareholders of the company. MSB is engaged in the importation and marketing of luxury motorcycles from Japan. In order to protect the company’s investment, Nuh obtained insurance coverage for the motorcycles under his own name from Premium Insurance Company.

In January 2020, MSB’s business premises were burgled, resulting in the theft of three motorcycles. Nuh subsequently submitted an insurance claim for the stolen motorcycles. However, Premium Insurance Company rejected the claim on the ground that Nuh lacked an insurable interest in the subject matter.

Advise Nuh on his legal position with reference to the relevant principles of company law.

1. Issue

Whether Nuh has a valid claim against Premium Insurance Company for the theft of the three motorcycles, or whether the insurer is legally entitled to reject the claim on the ground that Nuh lacks an “insurable interest” in the company’s assets.

2. Law

3. Application

4. Conclusion

Nuh is advised that his legal position is weak. Premium Insurance Company is legally justified in rejecting his claim because Nuh lacks an insurable interest in MSB’s motorcycles. The policy should have been taken out in the name of Motorspeed Sdn Bhd to be legally enforceable.

QUESTION 3: MEGAT V HARUN & BRILLIANT SDN BHD

(JAN 2024)

Harun agreed to sell two acres of his palm oil plantation to Megat at the price of RM180,000. Megat had paid the 10% deposit to Harun upon signing the sale and purchase agreement. Later, Harun changed his mind and refused to transfer the said plantation to Megat. To avoid the plantation from being transferred to Megat, Harun incorporated a new company known as Brilliant Sdn Bhd (the company) and transfer the said plantation to the company. The company was wholly owned and controlled by Harun. Megat was frustrated and wishes to seek a specific performance from the court to compel the company to transfer the plantation to him.

Advise Megat on whether he can take legal action for specific performance against Brillant Sdn Bhd.

1. Issue

Whether Megat can successfully obtain an order of specific performance against Brilliant Sdn Bhd to compel the transfer of the palm oil plantation by asking the court to lift the corporate veil.

2. Law

3. Application

4. Conclusion

Megat is advised that he can successfully sue for specific performance. The court is highly likely to lift the corporate veil of Brilliant Sdn Bhd, declaring it a sham, and order both Harun and Brilliant Sdn Bhd to transfer the two acres of palm oil plantation to Megat.

QUICK SUMMARY OF EXAM RULES

Case Authority Legal Issue Addressed Main Judicial Finding
Salomon v Salomon & Co Ltd Separate Legal Entity / Debt Liability The company is a separate legal entity; members are not personally liable for its debts.
Macaura v Northern Assurance Property Ownership / Insurable Interest Shareholders do not own corporate assets; they have no insurable interest in company property.
Jones v Lipman Evading Contractual Obligations The court will lift the corporate veil if a company is used as a mask to evade existing contracts.