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Charges of Malaysia Companies

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Charges of Malaysia Companies

In Malaysia, companies frequently create charges over their assets as security for loans or other financial obligations. Understanding the definition, types, registration requirements, and priority ranking of charges is essential for business owners, creditors, and legal practitioners. This article provides an overview of the legal framework governing charges under the Companies Act 2016.

  1. Definition of Charge

    A charge is a security interest over a company’s assets, securing the repayment of a debt or fulfillment of an obligation. It grants the lender (chargee) rights over the specified assets, which may be enforced if the borrower (chargor) defaults on payment or fails to meet the obligation.

  2. Types of Charges

    Charges are typically classified into two main types:

    (1)
    Fixed Charge

    A fixed charge is a security interest attached to specific, identifiable assets such as land, buildings or machinery. The borrower is restricted from selling or disposing of these assets without obtaining the lender’s approval. This type of charge grants the lender a direct claim over the secured asset, allowing immediate enforcement in the event of default. During insolvency proceedings, fixed charges take precedence over floating charges.

    (2)
    Floating Charge

    A floating charge is a security interest over assets that fluctuate in the ordinary course of business, such as inventory, receivables and cash. Unlike a fixed charge, the borrower is free to use, sell or trade these assets until a triggering event (e.g., default or liquidation) causes the charge to "crystallise" into a fixed charge, restricting further use. Floating charges rank below fixed charges during insolvency priority.

  3. Registration of Charges in Malaysia

    Under Section 352 of the Companies Act 2016, a company must register a charge with the Companies Commission of Malaysia (“CCM”) within 30 days from the date of its creation with a prescribe fee.

    Failure to register a charge within 30 days may result in penalties, subjecting the company and its officers to fines. Additionally, the charge may become unenforceable, rendering it void against liquidators and creditors, which may cause the lender to lose priority in insolvency proceedings.

    The following are the general steps in registration of charge:

    (1)
    Preparation of Required Documents

    Before submitting the charge for registration, the company must prepare and compile the necessary documents. These include a notice of Statement Of Particulars To Be Lodged With Charge pursuant to Sections 352(1), 354 & 356(1) of the Companies Act 2016; an Instrument Creating the Charge, which is a legally binding document outlining the terms and conditions of the charge, signed by both the company and the lender (chargee); and a Board Resolution approving the creation of the charge.

    (2)
    Submission to CCM

    The prepared documents must be submitted to CCM within 30 days from the date the charge is created. Submission needs to be done physically at the CCM office and accompanied by a prescribed fee by CCM.

    (3)
    Issuance of Certificate of Registration

    Upon successful registration, CCM will issue a Certificate of Registration of Charge as proof that the charge has been duly registered. This certificate serves as official confirmation and may be required for future legal or financial transactions.

  4. Priorities of Repayment

    In the event of company liquidation, the repayment priority is determined as follows:

    (1)
    Fixed Charges - rank highest, taking precedence over floating charges and unsecured creditors.
    (2)
    Preferential Creditors - include employee wages, outstanding tax liabilities, and unpaid statutory contributions.
    (3)
    Floating Charges - once crystallised, rank below fixed charges but above unsecured creditors.
    (4)
    Unsecured Creditors – any remaining funds go to unsecured creditors like suppliers without collateral and trade creditors.
    (5)
    Shareholders – if there is still anything left (rare), it is distributed to shareholders according to their rights.

Understanding the creation, registration, and implications of charges is important for corporate financing and creditor protection in Malaysia. Ensuring compliance with statutory requirements can safeguard the enforceability of security interests and maintain financial stability for businesses.

Kaizen, together with its associate firms in Malaysia, can help the clients to perform these compliances formalities so as to maintain the Malaysia company in good standing. Please call and talk to our professional accountants in Kaizen for further clarification.

Disclaimer

All information in this article is only for the purpose of information sharing, instead of professional suggestion. Kaizen will not assume any responsibility for loss or damage.

If you wish to obtain more information or assistance, please visit the official website of Kaizen CPA Limited at www.kaizencpa.com or contact us through the following and talk to our professionals:

Email: info@kaizencpa.com
Tel: +852 2341 1444
Mobile : +852 5616 4140, +86 152 1943 4614
WhatsApp/ Line/ WeChat: +852 5616 4140
Skype: kaizencpa

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