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Topic 3 - Meetings
2.1 Introduction
The two decision-making organs:
1. Board of directors
2. The general meeting of members
* GM of members is the most important but BOD
usually has:
Wide powers of management given by AA
Able to control the calling of meetings
Decides matter discussed
Control voting meetings
What happen in Meeting ?
- Will of members is expressed
- Members have opportunities to acquire
information regarding the company’s affairs
The calling and the conduct of meetings are part
of the internal regulations of a company and
thus are governed by the AA.
- CA also sets out requirements which must be
followed
- Listing Requirements of Bursa Malaysia
Securities Berhad impose requirements for the
holding of general meetings for public listed
companies
Eg: SH of listed companies must approve:
Large share placement
Major assets acquisition or disposal
- Corporate Law Reform Committee (CLRC) focus on:
enhancing SH’s right through improving
communications with SH
Make AGM more effective
Nelfi Amiera MizanFOL, MMU 2016
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2.1.1 Meetings
Definition
Dictionary - a private or public gathering or
assembly of people for entertainment,
discussion, legislation etc. + a gathering of 2 or
more persons called to receive a report, take a
decision or lawful action
Sharp v Dawes - a meeting was defined as an
“assembly of people for lawful purpose” or “a
coming together of more than one person”
Re Salvage Engineers - “meeting” envisages 2
persons.
United Investment and Financial Ltd v Tee Chin
Yong -In the absence of authorization in the
articles, a meeting cannot be constituted by one
member and any resolutions purported to be
passed at such a meeting are invalid.
Article 47 - No business shall be transacted at
any general meeting unless a quorum of
members is present at the time when the
meeting proceeds to business. Save as herein
otherwise provided, two members present in
person shall be a quorum. For the purposes of
this regulation “member” includes a person
attending as a proxy or as representing a
corporation which is a member
Questions: Can one person hold a company
meeting? How?
> can through the exception
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2.1.2 Exceptions
(a) Section 150 – “power of High court to order
meeting if it is impracticable to convene a meeting as
prescribed by AA or CA”
May made own motion or application from
director or member entitled to vote
Re El Sombrero Ltd
ES had three shareholders: one owned 90% of the
shares, and the other two held 5% each. The
minority shareholders were the directors of the
company. The company was mismanaged and the
majority shareholder wished to remove the two
directors by ordinary resolution with special notice.
He called a number of EGMs to achieve this;
however, the quorum for the meetings was set at
two and neither director attended. The courts called
an EGM with a quorum of one
Re Noel Tedman Holdings Pty Ltd
All members who are also the directors of the
company have been killed in an accident
Low Son Siang v Lee Kim Yong
Members have deliberately failed to attend a
general meeting so that a proper quorum cannot be
constituted
Foo Tong Eng v. Po Gun Suan
Applicant, Majo SH was also the managing director.
A quorum of at least 2 members was imposed in by
Articles to hold a GM. Applicant sought to convene
EGM, but Resp failed to attend on basis that the
meeting was to oppress the minority rights. Meeting
cannot be held as there is no quorum.
Held: Court allowed. The allegation made by Resp
should be made under s 181.
Tan Guan Eng v. BH Low Holdings Sdn Bhd
Phuar Kong Seng v Lim Hua
Pf and Df were the only SH, holding 51% and 49% of
the issued shares. Any cheques and banking
operation requires signature of both. PF contested
that DF had another similar business and diverted
the co’s customers to his new business. Attempts
for EGM fail due to inquorate.
Held: Co clearly could not function without the
intervention of ct and s. 150 allowed
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Kemunting Tin Dredging (M) Bhd. & Ors v
Baharuddin Ma’arof
Prerequisite: attempt to convene meeting under ss
144 or 145 CA first
Tay Say Geok v Tay Ek Seng Co Sdn Bhd
The power under s 150 CA does not extend to calling
meetings of directors
(b) Class Shares -
East v. Bennett Bros Ltd
all the shares of a particular class in a company are
held by one member, that member alone may
constitute a meeting of members of that class
(c) section 147(6) CA
(6) Where a holding company is beneficially entitled to the whole of the issued shares of a subsidiary and a minute is signed by a representative of the holding company authorized pursuant to subsection (3) stating that any act, matter, or thing, or any ordinary or special resolution, required by this Act or by the memorandum or articles of the subsidiary to be made, performed, or passed by or at an ordinary general meeting or an extraordinary general meeting of the subsidiary has been made, performed, or passed, that act, matter, thing, or resolution shall, for all purposes, be deemed to have been duly made, performed, or passed by or at an ordinary general meeting, or as the case requires, by or at an extraordinary general meeting of the subsidiary
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2.2 Types of Meetings
2.2.1 Annual General Meeting (AGM)
Section 143 - Co must hold AGM:
- at least once in every calender year, and
- not more than 15 months after the last AGM
Section 143 (1) - So long that the first AGM:
- held within 18 months after incorp + company
need not hold AGM in that year or following year
Section 143 (4) - Default offense by the co and
any defaulting officer. Ct may order AGM on
application of any members
Section 169 - The following need to be laid
down on the AGM:
Profit and loss account
Balance sheet
Director’s report
Auditor’s report
Business of AGM:
Consideration of annual financial reports,
directors’ report and auditors’ report
Declaration of dividends - Art 98
Election of directors
Appointment of auditor and fixing the auditor’s
remuneration - s. 172 (1)
Function of AGM:
Obtain information and question the directors
regarding company’s affairs
Main: to remove director - Art 69
Members may meet and pass resolutions
without having to ace the difficulties associated
with calling of an EGM that is not supported by
directors
May transact any other business allowed by AA
Giving SH direct public access to their boards
What board should do at the AGM?1. Items of special business are fully explained to
SH
2. In matter of re-election, board must ensure that
notice of meeting contains information about
the age, experience, list of directorship, date of
appointment to the board, committee
membership and wtr the particular director is
independent
3. Chairperson should encourage question and
provide reasonable time for discussion
4. Business presentation and have a Q&A session
5. Provide summary of meeting’s proceeding (upon
request)
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2.2.2 Statutory Meeting Section 142 (1)
- Public co, limited co and has a share capital
must hold first meeting between 1-3 months after
the date of commencement of business
Purpose: to make SH understand with the facts
about the company
- it contained in the D’s statutory report- directors must send a copy of this report to
ev ery member at least 7 days before meeting
[Section 142(2)] and lodge a copy, together with
auditor’s report with the CCM [Section 142(5)]
Section 142 (3)- Statutory Report must
contain:
Whole number of shares allotted, amount were
allotted and amount paid up on partly paid
shares
Total amount of cash received in respect of
allotted shares
Details of receipt and payments (up to 7 days
before date of report)
Name and addresses of directors and officers
Particulars of any proposed contract
Failure hold meeting + lodge report - may
ground for a compulsory winding up s. 218(1)(b)
2.2.3 Extraordinary General Meeting (EGM)
A general meeting which is NOT statutory
meeting Annual General Meeting
- usually held in between AGM where co may
need to pass resolutions to implement certain
decision.
EGM may be convened by:
Directors
At the requisition of members
By the members
* Secretary or any other officer may not
convened EGM unless has director’s authority to
do so
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2.2.4 Class Meetings Occurs when a company issues different classes
of shares and thus calling of meetings of classes
of shares.
Rights to a class of shares may only be varied
with the consent of the holders of three quarters
of the issued shares of the class
Usually class meeting held separately from
general meetings of the shareholders.
Table A art 4 - If at any time the share capital is
divided into different classes of shares, the rights
attached to any class may, whether or not the
company is being wound up, be varied with the
consent in writing of the holders of three-fourths of
the issued shares of that class, or with the sanction of
a special resolution passed at a separate general
meeting of the holders of the shares of the class. To
every such separate general meeting the provisions
of these regulations relating to general meeting
shall mutatis mutandis apply, but so that the
necessary quorom shall be two persons at least
holding or representing by proxy one-third of the
issued shares of the class and that any holder of
shares of the class present in person or by proxy may
demand a poll. To every such special resolution
section 152 shall, with such adaptions as are
necessary, apply.
2.2.5 Other meetings called by members
s 145(1) -
Two or more members holding not less than one-
tenth of the issued share capital or, if the company
has not a share capital, not less than five per centum
in number of the members of the company or such
lesser number as is provided by the articles may call
a meeting of the company.
- Company with a share capital – at least 2
shareholders with not less than 10% of the issued
share capital.
- Company without a share capital – At least 5%
of the shareholders or such lesser number as
allowed by the articles
s 145 (2)
A meeting of a company or of a class of members,
other than a meeting for the passing of a special
resolution, shall be called by notice in writing of not
less than fourteen days or such longer period as is
provided in the articles.
S 145 (4)
So far as the articles do not make other provision in
that behalf notice of every meeting shall be served
on every member having a right to attend and vote
thereat in the manner in which notices are required
to be served by Table A.
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2.2.6 Meetings called by court order
s 150 CA
If it is impracticable to call a meeting the Court may
call to conduct for a meeting
Leong Ah Hong v Hup Seng Co Ltd
Onus is on applicant to satisfy the court that it is
impracticable to call a meeting of a co
Foo Tong Eng v. Po Gun Suan
Applicant, Majo SH was also the managing director. A
quorum of at least 2 members was imposed in by
Articles to hold a GM. Applicant sought to convene
EGM, but Resp failed to attend on basis that the
meeting was to oppress the minority rights. Meeting
cannot be held as there is no quorum.
Held: Court allowed. The allegation made by Resp
should be made under s 181.
Tay Say Geok v Tay Ek Seng Co Sdn Bhd
The power under s 150 CA does not extend to calling
meetings of directors
Re El Sombrero Ltd
ES had three shareholders: one owned 90% of the
shares, and the other two held 5% each. The
minority shareholders were the directors of the
company. The company was mismanaged and the
majority shareholder wished to remove the two
directors by ordinary resolution with special notice.
He called a number of EGMs to achieve this;
however, the quorum for the meetings was set at
two and neither director attended. The courts called
an EGM with a quorum of one
Low Son Siang v Lee Kim Yong
Members have deliberately failed to attend a general
meeting so that a proper quorum cannot be
constituted
Re Totex-Adon Pty Ltd
One of the 2 directors entitled to vote at meetings
refuse to cooperate in calling a meeting. Held: it was
impracticable to hold a formal meeting. Meeting
therefore be called at the presence of 1 member
2.2.7 Directors’ meetings
Table A (art 79-90)
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2.3 Convening of general meeting
2.3.1 Authority to convene
Meeting convened by Directors
AA provides that director may do so
Power to call for EGM it must be exercised at a
properly convened board meeting
Table A art 44 - Any director may convened EGM
whenever he thinks fit
Pergamon Press Ltd v Maxwell
Power of director to convene an EGM was a fiduciary
one which must be exercised in good faith and best
interest of company
Meeting convened by members
s.145 (1) - two or more members may call a
meeting if:
They hold not less than 1/10 of the issued share
capital or
If co has no share capital, they constitute not
less than 5% in number of the members of the
co or such lesser number as is provided by the
articles
S. 145 (2) - notice in writing of at least 14 days
must be served on all members (4) having the
rights to attend and vote at meetings
S. 152 (1) - if a meeting is convene to pass a
special resolution, at least 21 days written notice
must be given and notice must specify the
intention to propose a special resolution
Granasia Corporation Bhd. & Ors v Choong Wye Lin
“members” – a single member?
meeting in any manner as provided by the
articles”: s 150 CA.
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Meeting requisitioned by members/SH
At CL: members cannot compel directors to call
a general meeting when directors honestly
believe that it is not in the interests of the co to
do so
CA: directors are bound to convene and hold EGM on
the requisition of members as long at the date of
requisition:
s 144 CA – convening of EGM on requisition
(demand)
Has share capital : members holding not less
than 1/10 of the paid up capital carrying voting
rights at GM
If company has no share capital: members
representing not less than 1/10 of the total
voting rights
The provisions for the calling of EGM is contained in
Table A, art 44 and s 144 CA which state the 3 ways
in which an EGM may be convened
(1) A director has the discretionary power to
convene an EGM
(2) The directors must convene an EGM where one is
requisitioned by certain numerical percentage of
shareholders
(3) If the directors make default in convening such a
meeting when properly requisitioned, then the
requisitionists may convene the EGM as provided by
s 144 CA.
(4) Requisition must state the objects of the
meeting, signed by requisition and deposited at the
registered office of the company
(5) Must consists of form each signed by the
requisition - s.144(2)
(6) If within 21 days directors did not convene a
meeting, the requisitionists, or any of them
representing 1/2 of the total voting rights may
themselves convene meeting - s. 144(3). Further,
meeting convene by requisition of members must
not be held more than 3 months after the date of the
deposit of the requisition.
Nelfi Amiera MizanFOL, MMU 2016
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SJA Bhd v HLB Nominees SB
The time calculatingthe 3 months allowed under s.
144(3)runs from the dateof deposit of the requisition
and not from the expiry of 21 days of the date of
deposit
Dato’ Hamzah Abdul Majid v Wembley Industries
Holdings Bhd
Directors must proceed duly to convene an EGM to
be held as soon as practicable, not later than 2
months after the receipt by the co of the requisition.
Meeting held after 2 months period, was not void
but not after 3 months.
Hup Seng Co Ltd v Chin Yin
Requisition requirements – sent by post to the
registered office of the company
SJA Bhd v HLB Nominees Sdn. Bhd.
Interpret the words “shall not be held” in s 144(3) is
a mandatory not merely directory. Later DF apply for
extension and court allowed.
HLB Nominees (Tempatan) Sdn Bhd v SJA Bhd
South Norseman Gold Mines No Liability v
MacDonald
Point of time to determine whether sufficient
number of members have duly made the requisition
S. 144(4) - company shall pay all reasonable
expenses incurred by the requisitioning
members
Humes Ltd v Unity APA Ltd
SH could only be prevented from convening a
meeting where the purpose of calling the meeting
was something other than the passing of the
particular resolutions set out in the notice of
meeting
Turnbull v NRMA
Ct permitted the use of the oppression remedy to
prevent the holding of the meeting and to order that
proposed resolutions not be considered
Credit Development Pte Ltd v IMO Pte Ltd
Directors are not bound to act on a resolution which
is beyond the powers of the meeting. Such
resolution is null and void
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2.3.2 Notice
To enable the members to know what is proposed to
be done at the meeting so they can decide wtr to
attend or not and how to vote
(a) Period of Notice
s 145(2) CA – Meeting of a co for the passing of
an ordinary resolution, shall be called by notice
in writing of not less than 14 days or longer
period provided in AA
s 145(2A) CA – not less than 21 days’ notice –
AGM of public company
s 152(1) CA – Meeting of a co for the passing of
a special resolution – not less than 21 days’
notice
Resolution Length of notice
Ordinary
resolution
Not less than 14 days: s 145(2) CA
Special
resolution
Not less than 21 days: s 152(1) CA
Art 108 - notices may be served personally or by
posting them to members at the addresses
shown in register of members
Re Hector Whaling Ltd
The phrase “not less than 21 days” means “21 clear
days exclusive of the day of service and exclusive of
the day of which the meeting is to be held”.
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(b) Short notice
s 145(3)
A meeting shall, notwithstanding that it is called by
notice shorter than is required by subsection (2) be
deemed to be duly called if it is so agreed—
(a) in the case of a meeting called as the AGM, by all
the members entitled to attend and vote there at;
or
(b) in the case of any other meeting, by a majority in
number of the members having a right to attend
and vote thereat, being a majority which together
holds not less than 95% in nominal value of the
shares giving a right to attend and vote or, in the
case of a company not having a share capital,
together represents not less than 95% of the total
voting rights at that meeting of all the members
s 152(2) CA
Notwithstanding subsection (1), if it is so agreed by
a majority in number of the members having the
right to attend and vote at the meeting, a resolution
may be proposed and passed as a special resolution at
a meeting of which less than twenty-one days’ notice
has been given.
(c) Special notice
The Companies Act 1965 requires a special notice be
given in 3 situations:
(i) Removal of directors or appointment of some
person in place of the removed director: s 128(2)
- special notice shall be required of any resolution
to remove a director or to appoint some person in
place of a director so removed at the meeting at
which he is removed...
(ii) Removal of an auditor of a company: s 172(4)
- An auditor of a company may be removed from
office by resolution of the company at a general
meeting of which special notice has been given, but
not otherwise.
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(iii) Removal of liquidator under a members’
voluntary winding up: s 258(3) CA.
- The company may, in general meeting convened
by any contributory by special resolution of which
special notice has been given to the creditors and
the liquidators, remove any liquidator but no such
resolution shall be effective to remove a liquidator if
the Court on the application of the liquidator or a
creditor has ordered that the liquidator be not
removed.
s 153 CA – special notice.
(i) Not less than 28 days’ notice of the proposed
resolution is given to the company by the proposer
before the meeting; and
(ii) The company then gives notice of the proposed
resolution to the members not less than 14 days
before the meeting.
(d) Servicing of notice
The method of servicing the notice is detailed
under Table A, art 108 – 111.
Art 108 – personal service or posting at address
shown in the register of members
Art 109 - Notice to join holder
Art 110 - Notice given to person entitle to share
in consequence to death or bankruptcy
Art 111 - Given in a manner; member, person
entitle in consequence of death or bankrupt or
auditor
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(e) Content
To perform the function of notifying or
informing.
To provide material which is full and true to
enable a member receiving it to decide whether
it is worthwhile to attend
Bad notice = not frank, not open, not clear and
not in any way satisfactory
Fail = rander the meeting and the resolutions
passed invalid and any consequent act carried
out unlawful
Business transacted at a meeting must
substantially same with the notice otherwise
resolution passed may be rendered ineffective.
Table A art 45 (specific information)
The notice of meeting must specify the place, the
day and hour of meeting
Table A, art 46 (special business)
In case of special business, the general nature of that
business
s 355 CA
Tiessen v. Henderson
Resolution do not bind upon the person who did not
attend
Held: When there was a special resolution passed by
what was a tricky notice, it could not be supported
Test: What is the meaning which this notice would
fairly carry to the ordinary minds?
Cited with approval in Dato Mohd Tahir bin Abdul
Rahman & Ors v Syarikat Permodalan Kebangsaan
Bhd
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Failure to give notice accidentally or
non-receipt of notice
Young v Ladies Imperial Club Ltd
However, see s 145(5) CA – accidental omission to
give notice or non-receipt of notice shall not
invalidate proceedings at a meeting
Hup Seng Co Ltd v Chin Yin
At CL, unless all the members are present or
otherwise consent, a meeting is competent to deal
with special business which is properly notified to all
members in a notice convening the meeting
Re Compaction System Pty Ltd
Musselwhite v CH Musselwhite & Son Ltd
Re West Canadian Collieries Ltd
Section 355 and Validation of Notice
Irregularities
s 355 CA -
(1) No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the Court is of opinion that substantial injustice has been or may be caused thereby which cannot be remedied by any order of the Court.
(2) The Court may if it thinks fit make an order declaring that the proceeding is valid notwithstanding any such defect, irregularity or deficiency.
Chequepoint Securities Ltd v Claremont Petroleum
NL
If the information is misleading, the holding of the
meeting may be restrained
Lee Nyuk Heng v Pembangunan Ladang Hassan
Sdn. Bhd.
Notice of the meeting and subsequent proceedings
will be invalid if the notice misstates the true
purpose of the meeting
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Deveraux Holdings Pty Ltd v Pelsart Resources NL
(No 2)
Courts will not take a legalistic approach in
determining whether the information is misleading.
Judge will scans the docs. Relevant question was
whether the information fully and fairly informs and
instructs SHs about the matter upon which they will
have to vote
(g) Venue and use of technology
s 145A CA – within Malaysia and at more than one
venue using any technology
Problem may occur where large public
companies may be unable to accommodate all
attending SHs at a GM in one venue.
EG: Video Conferencing
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2.3.3 Types of resolutions
(a) Director’ Resolutions
(b) Members’ Resolutions
ordinary resolutionso Re Hector Whaling (1936) Ch 208
o Bushell v Faith [1970] AC 1099
special resolutions:
ss 152(1) - A resolution shall be a special
resolution when it has been passed by a
majority of not less than three-fourths of such
members as being entitled so to do vote in
person or, where proxies are allowed, by proxy,
at a general meeting of which not less than
twenty-one days' notice specifying the intention
to propose the resolution as a special resolution
has been duly given.
154(1) CA -
(1) A printed copy of—
(a) every special resolution; and
(b) every resolution or agreement which effectively binds any class of shareholders whether agreed to by all the members of that class or not,
shall except where otherwise expressly provided by this Act within one month after the passing or making thereof, be lodged by the company with the Registrar.
O
Example:
s 28(1) - altering object clause of memorandum
S 31(1) - a company cannot alter its AA by
ordinary resolution
S 64 - reducing company’s issued capital
o s152(2),
art 4 - special resolution of a class of SH must be
passed before the rights of the holders of that
class
Edwards v Halliwell
The rules of a union provided for an increase in
subscription if a resolution to that effect was passed
by two-thirds majority
hybrid notice:
s 129(6) CA - (6) Notwithstanding anything in this section a person of or over the age of seventy years may by a resolution of which no shorter notice than that required to be given to the members of the company of an annual general meeting has been duly given, passed by a majority of not less than three-fourths of such members of the company as being entitled so to do vote in person or, where proxies are allowed, by proxy, at a general meeting of that company, be appointed or reappointed as a director of that company to hold office until the next annual general meeting of the company or be authorized to continue in office as a director until the next annual general meeting of the company
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Lam Eng Rubber Factory (M) Sdn. Bhd. v Lim Beng
Yew
ordinary resolution with special notice
s 153 - Where by this Act special notice is required of a resolution, the resolution shall not be effective unless notice of the intention to move it has been given to the company not less than twentyeight days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, in any manner allowed by the articles, not less than fourteen days before the meeting, but if after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date twenty-eight days or less after the notice has been given, the notice, although not given to the company within the time required by this section, shall be deemed to be properly given.
ss 128 & 172(4) CA
special resolution with special notice:
s 258(3) CA - (3) Notwithstanding anything in
subsection (1) a company may keep the names and
particulars relating to persons who have ceased to be
members of the company separately and the names
and particulars relating to former members need not
be supplied to any person who applies for a copy of
the register unless he specifically requests the names
and particulars of former members. (4) The register of
members shall be prima facie evidence of any
matters inserted therein as required or authorized by
this Act.
members’ resolution in writing (circular
resolution):
s 152A -
(1) Notwithstanding anything to the contrary in this Act or the articles of the company, a resolution in writing signed by or on behalf of all persons for the time being entitled to receive notice of, and to attend and vote at general meetings of a company shall, for the purposes of this Act and the articles of the company, be treated as a resolution duly passed at a general meeting of the company and, where relevant, as a special resolution so passed.
Informal assent of members
Parker & Cooper Ltd v Reading
Re Duomatic Ltd
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2.3.4 Conduct of Meeting
(a) Quorum
Def: A minimum number of persons who can attend
the meeting so that the meeting is said to have
validly transacted its business.
s 147(1) CA - Unless the AA provides otherwise,
a quorum is 2 members personally present
United Investment & Finance Ltd v Tee Chin Yong
In the absence of authorization in AA, a meeting
cannot be constituted by 1 member and any
resolutions purported to be passed at such a
‘meeting’ are invalid
Sum Hong Kum v Li Pin Furniture Industries Pte Ltd
AA states - no business could be transacted unless a
quorum was present. Pf was removed as director at a
meeting convened without the requisite quorum.
Held: Meeting was invalid. The procedural
irregularity in the meeting caused substantial
injustice to the pf and could not be validated.
Table A, art 47 - if a person present at a meeting
but leaves before business is transacted, leaving
the meeting with less than the required quorum,
it is a metter of construction of the articles as to
whether the meeting is invalid. The AA usually
requires a quorum of members to be present at
the commencement of the meeting in order to
transact business
Re Hartley Baird Ltd [1955] 1 Ch 143
Tan Guan Eng v BH Low Holdings Sdn. Bhd.
HC states that, the AA mean that a quorum was
required only at the time when the meeting
proceeded to business. Given that there was a
quorum when business commenced, the continued
meeting, with the presence of only the holder of a
valid proxy, was a valid meeting and the resolution
passed at the meeting was also valid.
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Re Salvage Engineers Limited
Unless AA authorised a one-person meeting, a
quorum of two is required. A meeting where the
only person presnt holds a proxy from another
member of the company is invalid
Re London Flats
An inadequacy or an absence of quorum may take
place in three ways:
o The requisite quorum is not met: art 48
o quorum not maintained throughout the meeting
o General rule: quorum must be maintained
throughout the meeting
o Incompetent Quorum
Directors’ meeting - art 83
. The quorum necessary for the transaction of
the business of the directors may be fixed by the
directors, and unless so fixed shall be two.
(b) Adjournment of meeting
WHY ?? - if no quorum
“adjournment” and “abandonment”
Directors may have power to adjourn a GM
under AA or at CL
Power must be used for proper purpose
Cepatwawasan Group Bhd v Datul Lo Fui Ming
Require consent of the meeting; if it is not possible
to obtain consent of the meeting, adjournment can
be effective at CL
Table A art 50 - The chairman may, with the
consent of any meeting at which a quorum is
present (and shall if so directed by the meeting),
adjourn the meeting...and notice to be given if
meeting is adjourned for more than 30 days
See “consent of a meeting”, “no business shall be
transacted” “adjourned for thirty days or more”
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Byng v London Life Association Ltd.
power under common law, obligation of chairman
when use this power
- power to adjourn is a residual power vested in
chairperson, exercisable when the machinery in the
AA had broken down. CL rights may be exercise
provided chairperson took into account all relevant
factors and made a decision to adjourn which could
be made by a reasonable chairperson
Followed by: Datuk Johari Abd Ghani v QSR Brands
Bhd - decision to adjourn was unreasonable as
chairman had an interest in at least one of the
resolutions, namely to remove him
Tan Guan Eng v BH Low Holdings Sdn. Bhd.
(c) Chairperson
Table A, art 49 - The chairman, if any, of the
board of directors shall preside as chairman at
every general meeting of the company, or if
there is no such chairman, or if he is not present
within fifteen minutes after the time appointed
for the holding of the meeting or is unwilling to
act, the members present shall elect one of their
number to be chairman of the meeting.
United Investment & Finance Ltd v Tee Chin Yong
Chair has no right to adjourn meeting at his pleasure
Tan Guan Eng v BH Low Holdings Sdn. Bhd.
Table A, art 53 - where votes are equal, the chair
is often given a casting vote in addition to the
normal voting rights of a member
s 156(1) CA - the chair of the meeting or of the
next succeeding meeting is required to sign the
minuts of the meeting
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ASIC v Rich
Chair of a large listed company may have higher
duties
Who is entitled to be chairman?
s 147(1)(b) CA - (1) So far as the articles do not
make other provision in that behalf and subject
to section 55—(b) any member elected by the
members present at a meeting may be chairman
thereof;
Table A article 49 - The chairman, if any, of the
board of directors shall preside as chairman at
every general meeting of the company, or if
there is no such chairman, or if he is not present
within fifteen minutes after the time appointed
for the holding of the meeting or is unwilling to
act, the members present shall elect one of their
number to be chairman of the meeting.
Role and function?
Byng v London Life Association
(d) Voting
Normally the voting is by the show of hands. Table A,
art 54, states that each show of hand represents one
vote.
Tuan Haji Ishak bin Ismail v Leong Hup Holdings
The power to vote is not a fiduciary power and a SH
owes no duty to anybody as to how he or she will
exercise their vote
Table A, art 54 - on a show of hands, each
member or their representative has one vote
Bin Hee Heng v Management Corp Strata Title
“show of hands” includes a ‘voice vote”.
Table A, art 51 - the passing of resoluton with
little or no dissent can be quickly done by a show
of hands. However, i cases involving disputes,
members can demand a poll
Table A , Art 54 - On a poll, every member
present in person or by proxy or attorney usually
has one vote for each share helf
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Right to demand a poll: s 146(1) CA Members has right to demand poll
at GM
s 149(1)(a) CA - proxy can only vote on poll,
unless AA provides otherwise
Table A, art 51 - 51. At any general meeting a
resolution put to the vote of the meeting shall
be decided on a show of hands unless a poll is
(before or on the declaration of the result of the
show of hands) demanded—
(a) By the chairman
(b)by at least three members present in person or by
proxy
(c) by any member present in person or by proxy and
representing not less than one-tenth of the total
voting rights of all the members having the right to
vote at the meeting; or
(d)(d) by a member holding shares in the company
conferring a right to vote at the meeting being
shares on which an aggregate sum has been paid up
equal to not less than one-tenth of the total sum
paid up on all the shares conferring that right.
Unless a poll is so demanded a declaration by
the chairman that a resolution has on a show of
hands been carried or carried unanimously, or
by a particular majority, or lost, and an entry to
that effect in the book containing the minutes of
the proceedings of the company shall be
conclusive evidence of the fact without proof of
the number or proportion of the votes recorded
in favour of or against the resolution. The
demand for a poll may be withdrawn
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(e) Proxies
s 149(1)- proxy need not be a member
S. 149 (2) CA - Notices convening meetings of
companes must state prominrntly that members
are entitled to appoint 1 or 2 proxies who need
not be a memebr
Table A, art 59- The instrument appointing a
proxy shall be in writing (in the common or usual
form) under the hand of the appointor or of his
attorney duly authorized in writing or, if the
appointor is a corporation, either under seal or
under the hand of an officer or attorney duly
authorized. A proxy may but need not be a
member of the company. The instrument
appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll.
Art 61 - The instrument appointing a proxy and
the power of attorney or other authority, if any,
under which it is signed or a notarially certified copy
of that power or authority shall be deposited at the
registered office of the company, or at such other
place within Malaysia as is specified for that purpose
in the notice convening the meeting, not less than
forty-eight hours before the time for holding the
meeting or adjourned meeting at which the person
named in the instrument proposes to vote, or, in the
case of a poll, not less than twenty-four hours before
the time appointed for the taking of the poll, and in
default the instrument of proxy shall not be treated
as valid.
Ansett v Butler Air Transport Ltd (No 2)
Proxy does not vote at that meting but may still vote
at later meeting when the appointing member does
not attend
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Tong Keng Mee v Inno Pacific Holdings Ltd
Spoilt vote- If proxy fails to vote on a particular
resolutins, the instrustion on the proxy from have no
bearing on the outcome of that resolutions. But if
proxy attends and vote in contrtry to the instruction
of the appointer, then to treat the vote as having
been cast in accordance with the instructions would
be ignore what the proxy in fact did
Whitlam v Australian Securities & Investments
Commission
Whitlam, Director and chairman of organization
He deliberately fail to sign proxy voting papers od SH
who had appointed him as their proxy. Failure had
denied the SH vote
Held : when sign not as director but as proxy
Types of proxies
Qualification to be a proxy:
o s 149(1)(b) CA
o art 59
Lim Hean Pin v Thean Seng Co Sdn Bhd & Ors
Tan Guan Eng v BH Low Holdings Sdn. Bhd.
s 146(1)(c) CA and
Table A art 61
s 149(1)(c) CA
Proxy’s power in meeting:
o Can speak: s 149(1) CA
o Cannot vote by show of hands: s 149(1)(a) CA
o Right to demand poll: s 146(2) CA
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Revocation of proxy power
o Table A, article 62
o Cousins v. International Brick Co Ltd
Ansett v. Butter Air Transport
Proxy must be differentiated from corporate
representative: s 147(3) CA
(f) Minutes
A company should have two Minutes Books:
o Minutes Book of Directors Meetings; (Directors`
Meetings)
o Minutes Book of General Meetings of Members.
A company must keep minute of all proceedings
at GM- must be entered in minute books within
14 days of the meeting
s 156(1)- minute must be signed by the chair of
the meeting or by the chair of the next
succeeding meeting. (4) - non compliance with
these requirement constitute an offence by
company or any defaulting officer .(2) - Minute,
which are duly entered are evidence of the
proceedings to which they relate. (3) CA – the
recorder=d proceedings are deemed to have
duly taken place and any recorded appointments
of officers or liquidatord, are deemed to have
been validly made.
Cheu Kuok King v Jurudaya Construction Sdn. Bhd.
Minutes does not have binding contractual force
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Sing Lian Sdn. Bhd. v Lim Jit Teng @ Lim Tin Teng
While the minutes are evidence of the proceedings
to which they relate, they are merely prima facie
evidence
s 157(1)(2) CA – members’ inspection
(g) Irregularities
The proceedings at a meeting could become
irregular for various reasons: absence of
quorum, irregular resolution.
HOWEVER: Such may be validated unless court is of
the opinion that the irregularity has caused or may
cause substantial injustice
Exception: s 355(2) CA - court may declare the
proceeding valid despite such defects,
irregularity or deficiency
s 355(3) CA - Court may exercise its discretion
“where any omission, defects, error or
irregularity has occurred in the management or
administration of a company”
SJA Bhd. v HLB Nominees Sdn. Bhd.
May validate defective proceeding but may not
validate a defective notice convening the meeting
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Lim Hean Pin v Thean Seng Co Sdn. Bhd.
Pf’s proxy was excluded from voting at the
company’s AGM. Pf contended that the meeting shall
be declared void and null and resolution must be set
aside. Df argued that the exclusion of Pf’s proxy was
a mere irregularity which had not been occasioned
substantial injustice and could therefore be cured
under s.355. Held: In favor of Pf. Preventing the
proxy from exercising his statutory rights to vote was
not a mere irregularities.
Jerry Ngiam Swee Beng v Abdul Rahman Mohd
Rashid & Anor
Md Yusoff bin Ahmad v Siti Hajar bt Sarkawi
David Lau Tai Bek v Lau Ek Ching Sdn. Bhd.
A majority has no power to waive formalities except
when the Ac provide so
S. 145 (5)- if company accidentally omits to give
notice to a person entitled to attend a meeting,
proceedings at the meeting are not invalidated.
It is considered as minor irregularities
First Nominee (Pte) Ltd v New Kok Ann Realty Sdn.
Bhd.
An order validating an iregularity will not be made
where there is injustice to members who did not
attend
See Nyuk Fung v Pan Global Equities Bhd.
A director applied s.150 and s355(3) seeking H shall
order the company to have EGM for purpose of
considering, passing 5 resolutions. The directors had
previously approved resolutions even though they
were illegal related-party transactions. HC granted
application.
In SC, minority SH appealed to set aside the order on
grounds that the SM of application was not within
the scope of s.355(3)
Held:allowed appeal as there is no omission,
irregularity or error
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Pekan Nenas Industries Sdn. Bhd. v Chang Ching
Chuen
Aik Meng (M) Sdn. Bhd. v. Chang Ching Chuen
Nelfi Amiera MizanFOL, MMU 2016