Macro Resources Sdn Bhd v Tan Shie Khai & Ors
Civil Suit No. BA-22NCC-153-11/2023Under appeal
- Court
- High Court of Malaya at Shah Alam
- Judge
- Quay Chew Soon J
- Decided
- 10 September 2025 (grounds dated 9 October 2025)
- Practice area
- Dispute Resolution
- Our role
- Counsel for the 7th Defendant, the company secretary
- Result
- The claim against the five applying defendants was struck out, with costs awarded to them
- Status
- Under appeal to the Court of Appeal
Background
Macro Resources was the main contractor for a developer, Milsonland Development Sdn Bhd. When two progress certificates went unpaid, it pursued the developer through CIPAA adjudication and then wound the developer up in 2017.
In November 2023, it sued the developer’s former and current directors, the joint-venture landowner, the developer’s auditor and its company secretary. It claimed they had run the developer’s business to defraud it, which is fraudulent trading under section 540 of the Companies Act 2016. Five of the defendants, in four applications, applied to strike out the claim under Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012.
The question for the court
Was the claim time-barred? And could a company secretary be personally liable for fraudulent trading for carrying out her administrative and statutory duties?
What the court decided
The court struck out the claim against the 1st and 2nd Defendants (the former directors), the 5th Defendant (the joint-venture landowner), the 6th Defendant (the auditor) and the 7th Defendant (our client, the company secretary).
- Time bar. The claim was brought outside the six-year limit under section 6 of the Limitation Act 1953. The contractor knew of the developer’s financial position by 2014 to 2017, from company searches and its own affidavits in the winding-up. It therefore could not rely on section 29 to postpone time on the ground of fraud. A bare allegation of fraud is not enough: the claimant must show it could not have discovered the fraud with reasonable diligence.
- The company secretary. Her role was administrative. Registering the change of directors was her duty under section 58 of the Companies Act 2016, and declaring dividends is for the directors under section 132. The contractor pleaded no particulars of any “assistance” she gave. Following Zamzam Arabic Food Holding Sdn Bhd & Anor v Johanjana Corp Sdn Bhd [2022] 5 MLJ 302, a person who is not a director and takes no part in the business should not be named in a section 540 claim.
- The other defendants. The auditor had no link to the alleged fraud. The directors had caused the developer to pay certificates 1 to 28, about 90% of the work, which is inconsistent with an intent to defraud; not paying the last two certificates was at most a breach of contract. The landowner was a separate company that was not party to the contract.
“She did nothing more than what she is statutorily obligated to do under section 58 of the Companies Act 2016.”Quay Chew Soon J, at para 32
Why it matters
For company secretaries and corporate service providers: doing the filings the Act requires does not, by itself, expose you to a fraud claim by the company’s creditors. A claimant has to plead what you actually did.
For contractors and other creditors: an unpaid debt cannot be revived against directors and advisers by recasting it as fraud after the limitation period has run. If you are adjudicating under CIPAA, consider filing the contract claim in court in time as well.
This note is a summary for general information and does not form part of the judgment. It is not legal advice. The decision is under appeal, and this page will be updated when the appeal is decided.
Grounds of decision · 37 pages
Lim Wei Han
Gan Yee Von