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Malaysian Company Law

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Submitted By shalinijp93
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Part A
Potential Liability
Since the House of Lords decision in Salomon v Salomon & Co Ltd, it has been recognised that an inflexible application of the concepts of separate entity and limited liability will imply that can lead to undesirable consequences. Under certain occasionally, the court will go behind the corporate veil. In refer to cases of Yap Sing Hock v Public Prosecutor where the Supreme Court Peh Swee Chin SCJ would suggest the veil to be lifted by statutes, e.g. the Companies Act 1965 itself for certain specific purposes. The lifting of veil clearly constitute there a violation of the primary principle but this has come to be treated correctly as an exception to the primary principle. There are two situation where Act has provided that the court can lift or pierce the corporate veil related to the facts.
Firstly would be the duty to not trade while insolvent. As general directors’ duties, to prevent company trading if it is insolvent. This means much consideration is required before incurring a new debt under reasonable grounds to suspect that the company is insolvent or will be insolvent as a result of incurring the debt. Under Section 304(2) conjunction with S303(3), The Act would makes an officer personally liable to creditors for debts incurred by the company knowingly the contract has no reasonable or probable ground of expectation of the company being able to pay the debt is guilty of an offence. An understanding of the financial position of the company only when sign off on the yearly financial statements is insufficient whereas constantly aware of company’s financial position. Applying to the fact, where Samy should have known the financial position and signing of new debt might possibly held Samy personal liable.
Secondly, the failure to act of the implicit duties of the non-executive director. Non-executive directors have the important

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