company law meetings

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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.


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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


(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


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


23

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


24

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


25

(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


26

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


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


27

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


28

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


29

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


30

Pekan Nenas Industries Sdn. Bhd. v Chang Ching

Chuen

Aik Meng (M) Sdn. Bhd. v. Chang Ching Chuen
