Your SlideShare is downloading. ×
Statutory meeting of company
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Statutory meeting of company

12,909
views

Published on

Published in: Education, Business, Technology

1 Comment
1 Like
Statistics
Notes
  • please give me rules/provisions of statutory meeting.
       Reply 
    Are you sure you want to  Yes  No
    Your message goes here
No Downloads
Views
Total Views
12,909
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
160
Comments
1
Likes
1
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. COMPANY LAW REPORT ON: MEETINGS SUBMITTED TO: M.Z KAYANI SUBMITTED BY: IFIKHAR NABI (12803) M.USMAN ADIL (12843) ALI MUHAMMAD (13192) MUHAMMAD UMAIR
  • 2. Page |2 LETTER OF ACKNOWLEDGEMENTDear Reader:It has been an honor for us to prepare a report on MEETINGS which was assigned to us by Mr. Z.YKAYANI without his rich guidance such a report would not have been any easy task to achieve.We would like to thank Mr. Z.Y KAYANI for providing us valuable information that helped us to completethis report.We would again like to take this opportunity and express our acknowledgement distinctly to Mr. Z.YKAYANI for directing us about the technical aspects of the report and we express sincere gratitude toour parents for their continuous support throughout the preparation of this reportRegards:MUHAMMAD USMAN ADILALI MUHAMMADMUHAMMAD UMAIRIFTIKHAR NABI
  • 3. Page |3ContentsStatutory meeting of company: According to section 157 ........................................................................... 4ANNUAL GENERAL MEETING: ....................................................................................................................... 7ANNUAL GENERAL MEETING: ....................................................................................................................... 8Calling of extra ordinary general meeting .................................................................................................... 9Calling of extra ordinary general meeting .................................................................................................. 10160-A. Circumstances in which proceedings of a General Meeting may be declared invalid .................... 13161. Proxies. – ........................................................................................................................................... 14A sample of proxy form is given below: ...................................................................................................... 16AGM Sample Proxy Form................................................................................................................... 16162. Representation of corporations at meetings of companies and of creditors. – ............................... 17163. Representation of Federal Government, etc., at meetings of Companies. ....................................... 17164. Notice of resolution. - ....................................................................................................................... 18165. Voting to be by show of hands in first instance. ............................................................................... 18166. Chairman’s declaration of result of voting by show of hands to be evidence.- ............................... 19167. Demand for poll.- .............................................................................................................................. 19168. Time of taking poll. –.......................................................................................................................... 20169. Resolution passed at adjourned meeting. – ..................................................................................... 21170. Power of [Commission] to call meetings. –....................................................................................... 21171. Penalty for default in complying with the directions of the [Commission] for holding the meeting:.................................................................................................................................................................... 22172. Filing of resolution, etc.- ..................................................................................................................... 22173. Minutes of proceedings of general meetings and directors.- ........................................................... 23Sample Minutes of Meeting to Adopt Investment Strategy for SMSF ....................................................... 24AS TRUSTEE FOR THE .................................................................................................................................. 24 PRESENT: [insert the names of the directors of the trustee company [OR] the names of the individual trustees] ......................................................................................................................... 24CASE LAW: ................................................................................................................................................... 26
  • 4. Page |4 Statutory meeting of company: According to section 157 Every company limited by shares and every company limited by guarantee and having a sharecapital shall, within a period of not less than three months, nor more than six months, from thedate at which the company is entitled to commence business, hold a general meeting of themembers of the company, which shall be called "the statutory meeting".(2) The directors shall, at least twenty-one days before the date on which the meeting is held,forward a report, in this Ordinance referred as "the statutory report", to every member.(3) The statutory report shall be certified by not less than three directors, one of whom shall bethe chief executive of the company, and shall state-(a) the total number of shares allotted, distinguishing shares allotted otherwise than in cash,and stating the consideration for which they have been allotted;(b) the total amount of cash received by the company in respect of all the shares allotted;(c) an abstract of the receipts of the company and of the payments made there out up to a datewithin seven days of the date of the report, exhibiting under distinctive headings the receipts ofthe company from shares and debentures and other sources, the payments made there out,and particulars concerning the balance remaining in hand, and an account or estimate of thepreliminary expenses of the company showing separately any commission or discount paid orto be paid on the issue or sale of shares or debentures;(d) the names, addresses and occupations of the directors, chief executive, secretary, auditorsand legal advisers of the company and the changes, if any, which have occurred since the dateof the incorporation;(e) the particulars of any contract the modification of which is to be submitted to the meetingfor its approval, together with the particulars of the modification or proposed modification;(f) the extent to which underwriting contracts, if any, have been carried out and the extent towhich such contracts have not been carried out, together with the reasons for their not havingbeen carried out; and(g) The particulars of any commission or brokerage paid or to be paid in connection with theissue or sale of shares to any director, chief executive, secretary or officer or to a privatecompany of which he is a director.
  • 5. Page |5(4) The statutory report shall also contain a brief account of the state of the companys affairssince its incorporation and the business plan, including any change or proposed changeaffecting the interest of shareholders and business prospects of the company. (5) The statutory report shall, so far as it relates to the shares allotted by the company, thecash received in respect of such shares and to the receipts and payments of the company, beaccompanied by a certificate of the auditors of the company as to the correctness of suchallotment, receipt of cash, receipts and payments. (6) The directors shall cause at least five copies of the statutory report, certified as aforesaid,to be delivered to the registrar for registration forthwith after sending the report to themembers of the company.(7) The directors shall cause a list showing the names, occupations, nationality and addressesof the members of the company, and the number of shares held by them respectively, tobeproduced at the commencement of the meeting and to remain open and accessible to anymember of the company during the continuance of the meeting.(8) The members of the company present at the meeting shall be at liberty to discuss anymatter relating to the formation of the company or arising out of the statutory report, whetherprevious notice has been given or not, but no resolution of which notice has not been given inaccordance with the articles may be passed.(9) The meeting may adjourn from time to time, and at any adjourned meeting any resolutionof which notice has been given in accordance with the articles, either before or after theoriginalmeeting, may be passed, and an adjourned meeting shall have the same powers as an originalmeeting. (10) If a petition is presented to the Court in manner provided by Part Xl for winding up thecompany on the ground of default in filing the statutory report or in holding the statutorymeeting, the Court may, instead of directing that the company be wound up, give directions forthe statutory report to be filed or a meeting to be held, or make such other order as may bejust. (11) In the event of any default in complying with the provisions of any of the precedingsubsections, the company and every officer of the company who knowingly and willfullyauthorises or permits such default shall be liable,-(a) if the default relates to a listed company, to a fine not less than ten thousand rupees andnot exceeding twenty thousand rupees and in the case of a continuing default to a further fine
  • 6. Page |6not exceeding two thousand rupees for every day after the first during which thedefaultcontinues; and(b) if the default relates to any other company, to a fine not exceeding five thousand rupeesand in the case of a continuing default to a further fine not exceeding two hundred rupeesforevery day after the first during which the default continues. (12) This section shall not apply to a private company but if any such private company isconverted into a company of either of the classes mentioned in sub-section(1), this section shall become applicable thereto and a reference in that sub-section to the dateof commencement of business shall be construed as a reference to the date of such conversion.[(13) The provisions of this section shall not apply to a public company which converts itselffrom a private company after one year of incorporation.]
  • 7. Page |7ANNUAL GENERAL MEETING:
  • 8. Page |8ANNUAL GENERAL MEETING:SEC 158. Annual general meeting. - (1) Every company shall hold, in addition to any othermeeting, a general meeting, as its annual general meeting, within eighteen months from thedate of its incorporation and thereafter once at least in every calendar year within a period of*[four] months following the close of its financial year and not more than fifteen months afterthe holding of its last preceding annual general meeting: Provided that, in the case of a listed company, the Commission, and, in any other case, theregistrar, may for any special reason extend the time within which any annual general meeting,not being the first such meeting, shall be held by a period not exceeding **[thirty] days.(2) An annual general meeting shall, in the case of a listed company, be held in the town inwhich the registered office of the company is situate: Provided that the Commission, for any special reason, may, on the application of suchcompany, allow the company to hold a particular meeting at any other place.(3) The notice of an annual general meeting shall be sent to the shareholders at least twentyone days before the date fixed for the meeting and, in the case of a listed company, suchnotice, in addition to its being dispatched in the normal course, shall also be published at leastin one issue each of a daily newspaper in English language and a daily newspaper in Urdulanguage having circulation in the Province in which the stock exchange on which the companyis listed is situate.(4) If default is made in complying with any provision of this section, the company and everyofficer of the company who is knowingly and willfully a party to the default shall be liable,-(a) if the default relates to a listed company, to a fine not less than [fifty] Thousand rupees andnot exceeding [five hundred] thousand rupees and to a further fine not exceeding twothousand rupees for every day after the first during which the default continues; and(b) if the default relates to any other company, to a fine not exceeding [one hundred] thousandrupees and to a further fine not exceeding [five] hundred rupees for every day after the firstduring which the default continues.
  • 9. Page |9Calling of extra ordinary general meeting
  • 10. P a g e | 10Calling of extra ordinary general meeting (1) All general meetings of a company, other than the annual general meeting referred to insection 158 and the statutory meeting mentioned in section 157, shall be called extraordinarygeneral meetings. (2) The directors may at any time call an extraordinary general meeting of the company toconsider any matter which requires the approval of the company in a general meeting, andshall, on the requisition of members representing not less than one tenth of the voting poweron the date of the deposit of the requisition, forthwith proceed to call an extraordinary generalmeeting. (3) The requisition shall state the objects of the meeting, be signed by the requisitionists anddeposited at the registered office of the company, and may consist of several documents in likeform, each signed by one or more requisitionists.(4) If the directors do not proceed within twenty-one days from the date of the requisitionbeing so deposited to cause a meeting to be called, the requisitionists, or a majority of them invalue, may themselves call the meeting, but in either case any meeting so called shall be heldwithin three months from the date of the deposit of the requisition.(5) Any meeting called under sub-section (4) by the requisitionists shall be called in the samemanner, as nearly as possible, as that in which meetings are to be called by directors. (6) Any reasonable expense incurred by the requisitionists by reason of the failure of thedirectors duly to convene a meeting shall be repaid to the requisitionists by the company, andany sum so repaid shall be retained by the company out of any sum due or to become due fromthe company by way of fees or other remuneration for their services to such of the directors aswere in default.(7) Notice of an extraordinary general meeting shall be sent to the members at least twenty-one days before the date of the meeting, and in the case of a listed company shall also bepublished in the manner provided for in sub-section (3) of section 158:Provided that, in the case of an emergency affecting the business of the company, the registrarmay, on the application of the directors, authorize such meeting to be held at such shorternotice as he may specify.(8) Every officer of the company who knowingly or willfully fails to comply with any of theprovisions of this section shall be liable,-
  • 11. P a g e | 11(a) if the default relates to a listed company, to a fine not less than ten thousand rupees andnot exceeding twenty thousand rupees and in the case of a continuing default to a further finewhich may extend to two thousand rupees for every day after the first during which the defaultcontinues; and(b) if the default relates to any other company, to a fine which may extend to two thousandrupees and in the case of a continuing default to a further fine which may extend to twohundred rupees for every day after the first during which the default continues.160. Provisions as to meetings and votes. – (1) The following provisions shall apply to the general meetings of a company or meetings of aclass of members of the company, namely:-(a) notice of the meeting specifying the place and the day and hour of the meeting alongwith astatement of the business to be transacted at the meeting shall be given-(i) to every member of the company;(ii) to any person entitled to a share in consequence of death of a member if the interest ofsuch person is known to the company; and(iii) to the auditor or auditors of the company; in the manner in which notices are required tobe served by section 50, but the accidental omission to give notice to, or the non-receipt ofnotice by, any member shall not invalidate the proceedings at any meeting;(b) where any special business, that is to say business other than consideration of the accounts,balance-sheets and the reports of the directors and auditors, the declaration of a dividend, theappointment and fixation of remuneration of auditors, and the election or appointment ofdirectors, is to be transacted at a general meeting, there shall be annexed to the notice of themeeting a statement setting out all material facts concerning such business, including, inparticular, the nature and extent of the interest, if any, therein of every director, whetherdirectly or indirectly, and, where any item of business consists of the according of an approvalto any document by the meeting, the time when and the place where the document may beinspected shall be specified in the statement;(c) Subject to the provisions of this Ordinance so far as they relate to the election andappointment of directors, the provisions of clause (b) shall apply mutatis mutandis to ameeting where ordinary business, being business other than special business, is to betransacted;(d) All the members may participate in the meeting either personally or through proxy.
  • 12. P a g e | 12(2) The quorum of a general meeting shall be- (a) in the case of a public[Listed] company, unless the articles provide for a larger number, not less than[ten] members present personally who represent not less than twenty-five per cent of the totalvoting power, either of their own account or as proxies;(b) in the case of [any other] company, unless the articles provide for a larger number, twomembers present personally who represent not less than twenty-five per cent of the totalvoting power, either of their own account or as proxies; and[(c) in the case of a single member company, single member present in person or by proxy:] Provided that, if within half an hour from the time appointed for the meeting a quorum is notpresent, the meeting, if called upon the requisition of members, shall be dissolved; in any othercase, it shall stand adjourned to the same day in the next week at the same time and place,and, if at the adjourned meeting a quorum is not present within half an hour from the timeappointed for the meeting, the members present, being not less than two, shall be a quorum,unless the articles provide otherwise. (3) The chairman of the board of directors, if any, shall preside as chairman at every generalmeeting of the company, but if there is no such chairman, or if at any meeting he is not presentwithin fifteen minutes after the time appointed for holding the meeting, or is unwilling to act aschairman, any one of the directors present may be elected to be chairman, and if none of thedirectors is present or is unwilling to act as chairman the members present shall choose one oftheir number to be the chairman.(4) In the case of a company having a share capital, every member shall have votesproportionate to the paid-up value of the shares or other securities carrying voting rights heldby him according to the entitlement of the class of such shares or securities, as the case maybe:Provided that, at the time of voting, fractional votes shall not be taken into account. (5) No member holding shares or other securities carrying voting rights shall be debarred fromcasting his vote, nor shall anything contained in the articles have the effect of so debarring him. (6) In the case of a company limited by guarantee and having no share capital, every memberthereof shall have one vote.(7) On a poll, votes may be given either personally or by proxy.
  • 13. P a g e | 13(8) Every officer of the company who knowingly or willfully fails to comply with any of theprovisions of this section shall be liable,-(a) if the default relates to a listed company, to a fine which may extend to[Fifty] thousand rupees and in the case of a continuing default to a further fine which mayextend to two thousand rupees for every day after the first during which the default continues;and(b) If the default relates to any other company, to a fine not exceeding[Ten] thousand rupees and in the case of a continuing default to a further fine which mayextend to two hundred rupees for every day after the first during which the default continues.160-A. Circumstances in which proceedings of a General Meeting maybe declared invalid The Court may, on a petition by members having not less than ten per cent of the voting powerin the company that the proceedings of a general meeting be declared invalid by reason of anymaterial defect or omission in the notice or irregularity in the proceedings of the meeting whichprevented members from using effectively their rights, declare such proceedings or partthereof invalid and direct holding of a fresh general meeting:Provided that the petition shall be made within thirty days of the impugned meeting.
  • 14. P a g e | 14161. Proxies. – (1) Any member of a company entitled to attend and vote at a meeting of the company shall beentitled to appoint another person, as his proxy to attend and vote instead of him, and a proxyso appointed shall have such rights as respects speaking and voting at the meeting as areavailable to a member:Provided that-(a) this sub-section shall not apply in the case of a company not having a share capital;(b) a member shall not be entitled to appoint more than one proxy to attend any one meeting;(c) if any member appoints more than one proxy for any one meeting and more than oneinstruments of proxy are deposited with the company, all such instruments of proxy shall berendered invalid; and(d) a proxy must be a member unless the articles of the company permit appointment of a non-member as proxy.(2) Every notice of a meeting of a company shall prominently set out the members right toappoint a proxy and the right of such proxy to attend, speak and vote in the place of themember at the meeting and every such notice shall be accompanied by a proxy form.
  • 15. P a g e | 15(3) The instrument appointing a proxy shall-(a) be in writing; and(b) be signed by the appointer or his attorney duly authorised in writing, or if the appointer is abody corporate, be under its seal or be signed by an officer or an attorney duly authorised by it. (4) An instrument appointing a proxy, if in the form set out in regulation 39 of Table A in theFIRST SCHEDULE shall not be questioned on the ground that it fails to comply with any specialrequirements specified for such instruments by the articles. (5) The proxies shall be lodged with the company not later than forty-eight hours before thetime of the meeting and any provision to the contrary in the companys articles shall be void.(6) The members or their proxies shall be entitled to do any or all the following things in ageneral meeting, namely:-(a) subject to the provisions of section 167, demand a poll on any question; and(b) on a question before the meeting in which poll is demanded, to abstain from voting or notto exercise their full voting rights; and any provision to the contrary in the companys articlesshall be void.(7) Every member entitled to vote at a meeting of the company shall be entitled to inspectduring the business hours of the company all proxies lodged with the company.(9) The provisions of this section shall apply mutatis mutandis to the meeting of a particularclass of members as they apply to a general meeting of all the members. (10) Failure to issue notices in time or issuing notices with material defect or omission or anyother contravention of this section which has the effect of preventing participation or use of fullrights by a member or his proxy shall make the company and every officer of the company whoknowingly and willfully is a party to the default or contravention liable to a fine which mayextend to five thousand rupees if the default relates to a listed company and to a fine whichmay extend to two thousand rupees if the default relates to any other company.
  • 16. P a g e | 16 A sample of proxy form is given below: AGM Sample Proxy FormI __________________________________________am a financial member of InternetNZ.I assign _____________________________________,a financial member of InternetNZ,to vote my proxy at the AGM/SGM (cross out one) of InternetNZ to be held on________________________ (date).My proxy is valid for the following issues: (cross out the two that do not apply)All Elections onlyPartial (detail here):____________________________________________________________________________________________________________My proxy is assigned FULL/PARTIAL/NO (cross out two) discretion in thecasting of my vote/s.Signed:_______________________________ MemberDate: _______________________________NB All details must be filled in for this to be acceptable as an Instrument of Proxy(Articles of Association 11.3)All Proxies must be received at the Societys Office 48 hours before the scheduledstart of the AGM/SGM either by Posting to:InternetNZPO Box 11-881
  • 17. P a g e | 17Wellingtonor by Fax to: +64 4-495-2115you will need to send your Proxy Holder your online voting login and password aswell. We suggest that you send this to them directly, but you can include it on thisform if you wish and the Office will pass them on to them.Online login:_______________________________Online password:___________________________ 162. Representation of corporations at meetings of companies and of creditors. – (1) A company which is a member of another company may, by resolution of the directors, authorise any of its officials or any other person to act as its representative at any meeting of that other company, and the person so authorised shall be entitled to exercise the same powers on behalf of the company which he represents as if he were an individual shareholder of that other company. (2) A company which is a creditor of another company may authorise any of its officials or any other person to act as its representative at any meeting of the creditors of that other company held in pursuance of this Ordinance or any other meeting to which it is entitled to attend in pursuance of the provisions contained in any debenture or trust deed or any other document and the person so authorised shall be entitled to exercise the same powers as are available to the company which he represents. 163. Representation of Federal Government, etc., at meetings of Companies.- (1) The Federal Government, or a Provincial Government, as the case may be, if a member of acompany, may appoint such person as it thinks fit to act as its representative at any meeting ofthe company or at any meeting of any class of members of the company. (2) A person appointed to act as aforesaid shall, for the purpose of this Ordinance, be deemedto be a member of such a company and shall be entitled to exercise the same rights and
  • 18. P a g e | 18powers, including the right to appoint proxy, as the Federal Government or the ProvincialGovernment, as the case may be, may exercise as a member of the company. 164. Notice of resolution. -(1) With the notice for a meeting, the company shall send to the members copies of draftresolutions, other than routine or procedural resolutions, which are proposed fo considerationin the meeting. (2) The members having not less than ten per cent voting power in the company may givenotice of a resolution and such resolution together with the supporting statement, if any, whichthey propose to be considered at the meeting, shall be forwarded so as to reach the company-(a) in the case of a meeting requisitioned by the members, together with the requisition for themeeting;(b) in any other case, at least fifteen days before the meeting; and the company shall forthwithcirculate such resolution to all the members. (3) In the event of any default in complying with any of the provisions of this section, thecompany and every officer of the company who is knowingly or willfully a party to such defaultshall be liable to a fine which may extend to five thousand rupees if the default relates to alisted company and to a fine which may extend to two thousand rupees if the default relates toany other company. 165. Voting to be by show of hands in first instance.- At any general meeting, a resolution put to the vote of the meeting shall, unless a poll isdemanded, be decided on a show of hands.
  • 19. P a g e | 19 166. Chairman’s declaration of result of voting by show of hands to be evidence.-At any general meeting, a declaration by the chairman that on a show of hands, a resolution hasor has not been carried, or has or has not been carried eitherunanimously or by a particularmajority, and an entry to that effect in the bookscontaining the minutes of the proceedings ofthe company, shall, until the contrary is proved, be evidence of the fact, without proof of thenumber or proportion of the votes cast in favour of or against such resolution. 167. Demand for poll.-(1) Before or on the declaration of the result of the voting on any resolution on a show ofhands, a poll may be ordered to be taken by the chairman of the meeting of his own motion,and shall be ordered to be taken by him on a demand made in that behalf by the persons orperson specified below, that is to say,-
  • 20. P a g e | 20(a) in the case of a public company, by at least five members having the right to vote on theresolution and present in person or by proxy;(b) in the case of a private company, by one member having the right to vote on the resolutionand present in person or by proxy if not more than seven such members are personallypresent, and by two such members present in person or by proxy if more than seven suchmembers are personally present;(c) by any member or members present in person or by proxy and having not less than one-tenth of the total voting power in respect of the resolution; or(d) by any member or members present in person or by proxy and holding shares in thecompany conferring a right to vote on the resolution, being shares on which an aggregate sumhas been paid up which is not less than one-tenth of the total sum paid up on all the sharesconferring that right. (2) The demand for a poll may be withdrawn at any time by the person or persons who madethe demand. 168. Time of taking poll. – (1) A poll demanded on the election of a chairman or on a question of adjournment shall betaken forthwith and a poll demanded on any other question shall be taken at such time, notmore than fourteen days from the day on which it is demanded, as the chairman of the meetingmay direct.(2) When a poll is taken, the chairman or his nominee and a representative of the membersdemanding the poll shall scrutinize the votes given on the poll and the result shall beannounced by the chairman.(3) Subject to the provisions of this Ordinance, the chairman shall have power to regulate themanner in which a poll shall be taken.(4) The result of the poll shall be deemed to be the decision of the meeting on the resolutionon which the poll was taken.
  • 21. P a g e | 21 169. Resolution passed at adjourned meeting. – Where a resolution is passed at an adjourned meeting of-(a) a company;(b) the holders of any class of shares in a company;(c) the directors of a company; or(d) the creditors of a company;the resolution shall, for all purposes, be treated as having been passed on the date on which itwas in fact passed, and shall not be deemed to have been passed on any earlier date. 170. Power of [Commission] to call meetings. – (1) If default is made in holding the statutory meeting, annual general meeting or anyextraordinary general meeting on the requisition of members in accordance with section 157,section 158 or section 159, as the case may be, the[Commission] may, notwithstanding anything contained in this Ordinance or in the articles ofthe company, either of[its] own motion or on the application of any director or member of the company, call, or directthe calling of, the said meeting of the company in such manner as the[Commission] may think fit, and give such ancillary or consequential directions asthe[Commission] thinks expedient in relation to the calling, holding and conducting of themeeting and preparation of any document required with respect to the meeting.Explanation:-The directions that may be given under sub-section (1) may include a direction that one member of the company present in person or by proxyshall be deemed to constitute a meeting. (2) Any meeting called, held and conducted in accordance with any such direction shall, for allpurposes, be deemed to be a meeting of the company duly called, held and conducted, and allexpenses incurred in connection thereto shall be paid by the company unless the [Commission]directs the same to be recovered from any officer of the company which he ishereby authorisedto do.
  • 22. P a g e | 22171. Penalty for default in complying with the directions of the[Commission] for holding the meeting: If default is made in complying with anydirections of the [Commission] under section 170, the company and every officer of thecompany who is in default shall be liable to a fine which may extend to ten thousand rupeesand in the case of a continuing default to a further fine which may extend to two hundredrupees for every day after the first during which the default continues.172. Filing of resolution, etc.- (1) A printed or typed copy of every special resolution shall, within fifteen days from thepassing thereof, be filed with the registrar duly authenticated by the chief executive orsecretary of the company. (2) Where articles have been registered, a copy of every special resolution for the time beingin force shall be embodied in or annexed to every copy of the articles issued after the date ofthe resolution.(3) A copy of every special resolution shall be forwarded to any member at his request onpayment of such fee not exceeding the prescribed amount as the company may determine.(4) In the event of any default in complying with the provisions of subsection (1), the companyand every officer who is knowingly and wilfully in default shall be liable to a fine which mayextend to one hundred rupees for every day during which the default continues.(5) In the event of any default in complying with the provisions of subsection (2) or (3), thecompany and every officer who is knowingly and wilfully in default shall be liable to a fine whichmay extend to one thousand rupees for each default.
  • 23. P a g e | 23 173. Minutes of proceedings of general meetings and directors.- (1) Every company shall cause a fair and accurate summary of the minutes of all proceedings ofgeneral meetings and meetings of its directors and committee of directors, along with thenames of those participating in such meetings, to be entered in properly maintained books. [Acopy of the minutes of meeting of the board of directors shall be furnished to every directorwithin fourteen days of the date of meeting.] (2) Any such minute, if purporting to be signed by the chairman of the meeting at which theproceedings were had, or by the chairman of the next succeeding meeting, shall be evidence ofthe proceedings. (3) Until the contrary is proved, every general meeting of the company or meeting of directorsor committee of directors in respect of the proceedings whereof minutes have been so madeshall be deemed to have been duly called and held, and all proceedings had thereat to havebeen duly had, and all appointments of directors or liquidators shall be deemed to be valid. (4) The books containing the minutes of proceedings of the general meetings of a companyand those of the meetings of the directors and committee of directors shall be kept at theregistered office of the company. (5) In the event of failure to comply with the provisions of sub-section (1) or sub-section (4),the company and every officer of the company who is knowingly in default shall be liable to afine which may extend to five thousand rupees and to a further fine which may extend to onehundred rupees for every day after the first day during which the failure continues. (6) The books containing the minutes of proceedings of the general meetings shall be open toinspection by members without charge during business hours, subject to such reasonablerestrictions as the company may by its articles or in general meeting impose so that not lessthan two hours in each day be allowed for inspection. (7) Any member shall at any time after seven days from the meeting be entitled to befurnished, within seven days after he has made a request in that behalf to the company, with acertified copy of the minutes of any general meeting at such charge not exceeding theprescribed amount as may be fixed by the company.(8) If any inspection required under sub-section (6) is refused, or if any copy required undersub-section (7) is not furnished within the time specified therein, the company and every officerof the company who is knowingly and willfully in default shall be liable in respect of eachoffence to a fine which may extend to one thousand rupees and to a further fine which mayextend to fifty rupees for every day after the first day during which the default continues, andthe registrar may direct immediate inspection or supply of copy, as the case may be.
  • 24. P a g e | 24 Sample Minutes of Meeting to Adopt Investment Strategy for SMSF [Insert corporate trustee name [OR] individual trustee name(s)] AS TRUSTEE FOR THE [insert name of Superannuation Fund] SUPERANNUATION FUND MINUTES OF MEETING OF THE [insert name of Superannuation Fund] SUPERANNUATION FUND HELD AT [insert address] ON THE [insert date, month, year]PRESENT: [insert the names of the directors of the trustee company [OR] the names of the individual trustees]CHAIRPERSON: Resolved that [insert name of appointed chairman of the meeting] to be appointed chairperson of the meeting.BUSINESS: To discuss and formulate objectives and strategies and the investment plan for funds received for members.OBJECTIVES: Resolved that investment of members’ funds be selected so as to give a return on investment at least equal to the current year CPI and in accordance with the attached memorandum [insert name of document containing the Investment Policy Objectives and Strategy].STRATEGY: Resolved that members’ funds be so invested that on retirement dates of members the payments due on retirement may be made without affecting the objectives of the fund in accordance with the attached memorandum [insert name of document containing the Investment Policy Objectives and Strategy].
  • 25. P a g e | 25INVESTMENT PLAN: Resolved that the attached memorandum [insert name of document containing the Investment Policy Objectives and Strategy] be adopted as full range of available approved investment opportunities for members’ funds as well as being an overview of investment policy, objectives and strategy.CONFIRMATION: Resolved that these minutes be accepted as true and correct record of the proceedings in this meeting.Dated this day of 20_____…………………………………………..Chairperson
  • 26. P a g e | 26 CASE LAW:COMPANIES AND CORPORATIONS Meetings – Creditors meeting – Scheme of arrangement –Likelihood of scheme being rejected – Court would not give its sanctionSummary :The applicant, by an ex parte originating summons, applied for and was granted, inter alia, anorder granting it liberty to convene meetings for its creditors and shareholders to consider andapprove a scheme of arrangement proposed to be made between the applicant and itscreditors, and an order to restrain the plaintiffs from all actions or proceedings, including theappointment of receivers and managers. Three secured creditors, including the Bank ofCommerce (M) Bhd (BOC), applied to set aside the orders obtained. BOC also applied toappoint certain persons as receivers and managers. A preliminary objection was raised againstBOCs application on the ground that a committal order was ensuing against its president andvice-president for contempt of court. As the contempt had not been purged, BOC could not beheard. The court had dismissed this preliminary objection as that rule did not apply to anapplication to set aside an injunction granted ex parte if the object of such an application wasto clear the very contempt complained of and to set aside the very order upon which thealleged contempt was founded. The court next proceeded to rule on the main application of theintervenors.Holding :Held, allowing the application: (1) a proper reading of the proposed scheme clearly showedthat the proposed scheme of arrangement was not viable, feasible, workable or intelligible; (2)even if the meeting was allowed to be held, with the three secured creditors, who formed morethan the three-fourths statutory majority of the creditors, canvassing their objections, it wouldcertainly result in the proposed scheme being rejected. It was more proper and logical,therefore, not to have the scheduled meeting at all.Digest :Twenty First Century Oils Sdn Bhd v Bank of Commerce (M) Bhd & Ors (No 2) [1993] 2 MLJ 353High Court, Kuala Lumpur (Abdul Malek J).252 Meetings -- Directors meeting3 [252] COMPANIES AND CORPORATIONS Meetings – Directors meeting – Quorum – Absencefrom meeting of directors of certain group – Articles of association requiring presence of
  • 27. P a g e | 27director from that group to form quorum – No disinterested quorum present – Whetherresolution passed validDigest :Sarawak Building Supplies Sdn Bhd v Director of Forests & Ors [1991] 1 MLJ 211 High Court,Kuching (Haidar J).See COMPANIES AND CORPORATIONS, Vol 3, para 104.253 Meetings -- Ex parte injunction3 [253] COMPANIES AND CORPORATIONS Meetings – Ex parte injunction – Restrainingrespondent company from raising any form of capital and/or loan stocks and/or altering itspaid-up capital – Whether injunction prohibited holding of a meeting contrary to O 29 r 1(2c)of the Rules of the High Court 1980 – Rules of the High Court 1980, O 29 r 1(2c)Summary :In winding-up proceedings, an ex parte injunction was granted to restrain the respondentcompany from raising any form of capital and/or loan stocks and/or altering its paid-up capital.The respondent applied to set aside the injunction, raising a preliminary objection that thepetition should be heard by the Penang High Court. The respondent also objected to theinjunction on the ground that it had the effect of prohibiting the holding of a meeting of a bodycorporate contrary to O 29 r 1(2c) of the Rules of the High Court 1980.Holding :Held, dismissing the application: (1) by virtue of the definition of local jurisdiction in s 3 of theCourts of Judicature Act 1964, the plaintiff was entitled to file an action in any branch of theHigh Court in Malaya. A branch of the High Court located in any state has concurrentjurisdiction to entertain any civil proceedings; (2) the injunction was to be construed byreference to the intention as expressed in the injunction itself. If the words contained in theinjunction were precise and unambiguous, there was no room for any construction other thanthe one expounding those words in their ordinary and natural meaning; (3) upon properconstruction, the injunction did not restrain the respondent from holding a meeting at all.Digest :Goh Boon Kim v Taman Sungai Dua Development Sdn Bhd [1995] 4 MLJ 553; (1994) CSLRIX[1627] High Court, Kuala Lumpur (Low Hop Bing JC).254 Meetings -- Extraordinary general meeting
  • 28. P a g e | 283 [254] COMPANIES AND CORPORATIONS Meetings – Extraordinary general meeting –Adjournment by chairman – Whether chairman could adjourn EGM without consent ofmeeting – Adjournment – Whether EGM could be continuedDigest :Tan Guan Eng v BH Low Holdings Sdn Bhd & Ors and other actions [1992] 1 MLJ 105 High Court,Penang (Wan Adnan J).See COMPANIES AND CORPORATIONS, Vol 3, para 363.255 Meetings -- Extraordinary general meeting3 [255] COMPANIES AND CORPORATIONS Meetings – Extraordinary general meeting –Agreement with a Singapore company disposing substantial portion of companys propertywhich materially affects its financial position – Approval of Foreign Investment Committee oncondition that shareholders approve agreement after circulation of detailed information –Notice, circular and executive chairmans letter on extraordinary general meeting were sentto shareholders – Whether information given by notice, circular and letter is adequate tocomply with articles of association and condition imposed by Foreign Investment Committee– Whether notice, circular and letter are calculated to mislead and are invalid – CompaniesAct 1965, s 132CSummary :P1-P12 were shareholders of D1 company. D3 is D1s executive chairman. D2 company, awholly-owned subsidiary of D1, was incorporated for the purpose of developing land belongingto D1. D2 entered into an agreement with Y Pte Ltd, a Singapore company, whereby Y Pte Ltdundertook to develop D1s land. The Foreign Investment Committee (FIC) had no objection toD2s agreement with Y Pte Ltd subject to conditions, inter alia, that D1 obtained approval of itsshareholders after detailed information of the proposed development had been circulated tothe shareholders. Subsequently a notice with an Explanatory Circular was issued to D1sshareholders, giving notice of an extraordinary general meeting (EGM) to ratify D2s agreementwith Y Pte Ltd and to approve Y Pte Ltds use of the land as security to raise funds for theproposed development. The notice was followed by a letter from D3 in his capacity as D1sexecutive chairman to each of D1s shareholders. D3s letter referred to the need for theshareholders to ratify the agreement. P applied, inter alia, for a declaration that the notice ofthe EGM and the circular were misleading and invalid.Holding :
  • 29. P a g e | 29Held, granting the declaration: (1) D1s EGM had to be called because of s 132C of theCompanies Act 1965 and the condition imposed by the FIC. Under D1s articles of association,D1s shareholders should have been furnished with a notice of at least the general nature of thebusiness to be transacted at the EGM but the FIC condition required the notice to condescendto detailed information; (2) D3s letter was meant to deal with and dealt with the business tobe transacted at the EGM. D3s letter had to be treated as part of the information given by D1pursuant to its articles of association and pursuant to the condition imposed by the FIC; (3) theinformation given by the notice, the circular and the letter was most artfully framed to misleadD1s shareholders. TheÊ agreement was also most artfully framed to conceal its true naturewhich was far from being a joint venture. It was actually an outright sale of D1s land and wasone-sided in favour of Y Pte Ltd.Digest :Dato Mohd Tahir bin Abdul Rahim & Ors v Sharikat Permodalan Kebangsaan Bhd & Ors (1990)CSLR IX[1004] High Court, Kuala Lumpur (VC George J).256 Meetings -- Extraordinary general meeting3 [256] COMPANIES AND CORPORATIONS Meetings – Extraordinary general meeting –Requisition for – Whether requisition null and void – Whether an attempt to effect take-overof company – Whether requisitionists entitled to issue requisition – Companies Act 1965, ss144(1), (2) & 179 – Pender v Lushington (1877) 6 Ch D 70 (cited); Siemens Brothers & Co Ltd vBurns [1918] 2 Ch 324 (cited); Dominion Mining NL v Hill & Anor[ei[ (1971-76) 27 ACLC 272(apprvd); Chan Chwen Kong v PP [1962] MLJ 307 (distd); Jayaram v PP [1982] 2 MLJ 306(distd); The King and the A-G of the Commonwealth v Associated Northern Collieries &Ors (1911) 14 CLR 387 (distd); American Cyanamid Co v Ethicon Ltd [1975] 2 WLR 316(distd);Cayne & Anor v Global Natural Resources [1984] 1 All ER 225 (apprvd); Matang HoldingsBhd & Ors v Dato Lee San Choon & Ors [1985] 2 MLJ 406 (cited); Last & Anor & Buller &Co (1919-20) 36 TLR 35 (cited); Burland & Ors v Earle & Ors [1902] AC 83 (cited); Humes Ltd vUnity APA Ltd & Anor (1987) 5 ACLR 15 (cited); Punt v Symons & Co Ltd [1983] 2 Ch 506 (cited).Summary :P applied for an injunction to restrain D1 and D2 from (a) convening, calling holding orconducting an extraordinary general meeting (EGM) of P for the purposes and objects set out inthe notice of requisition issued by D1 and D2; and (b) removing or taking any steps to alter thecomposition of Ps board of directors. The resolutions contained in the notice of requisition tobe considered at the EGM were for the purpose of removing the five existing directors of P andto appoint in their stead D7-D12. D1 and D2 were the registered holders of ordinary shares in Prepresenting more than 10% of the total rights of all members having a right to vote at general
  • 30. P a g e | 30meetings of P. D1 and D2 were informed by P that the board of directors would not convenethe EGM. In the letter, it was stated that the requisition lacked formal particulars and that thenotice was illegal, null and void and of no effect and was not binding upon the board ofdirectors. Subsequent to this letter, P had filed a writ against D and the present application foran injunction was filed subsequent to the writ.Holding :Held, dismissing Ps application: (1) in the instant case, the requisition and the special noticewere not bad in law as alleged by P. As required by s 144(2) of the Companies Act 1965, therequisition had expressly and clearly stated that the meeting was for the purpose of consideringthe resolutions stated therein. The requisition and the special notice were signed by theauthorized officers and served on P. Section 144(2) does not require the documents to bear thecommon seals of D1 and D2. The articles of association of P also did not contain such arequirement. The requisition and the special notice had, accordingly, complied with therequirements of s 144(2) and the articles of association of P; (2) in the instant case, D1 and D2were registered members holding more than 10% of Ps paid-up capital and, accordingly, theywere entitled to issue the requisition and the special notice under s 144(1) of the CompaniesAct 1965; (3) Ps allegation that the deposit of the requisition and the special notice was not abona fide move to hold a meeting of Ps shareholders but that it was an attempt to take over Pin contravention of s 179 of the Companies Act 1965 was rejected by the court. The court foundthat there was no acquisition of shares by D in the instant case. Since D already owned 34.46%of the paid-up capital of P, the question of acquiring more shares for the purpose of taking overunder s 179 did not arise at all. There was, accordingly, no reason for D to act in concert in viewof the total number of shares registered in their names; (4) in the instant case, P should not begranted the injunction because that would mean giving P judgment in the case against D. Dwould have no opportunity to bring the case to trial as the requisition in the face of theinjunction would have no effect with the result that there would be no EGM and no trial of theaction. As D1 and D2 had complied with the provisions of the law and the articles ofassociation, they should be given the liberty to proceed with the EGM of the shareholders. Inthe circumstances of the case, the tests laid down in [bi[American Cyanamid Co v Ethicon couldnot be applied as the risk of doing an injustice was greater if the injunction was granted.Digest :Roxy Electric Industries (Malaysia) Bhd v Syarikat Nominee Bumiputra Sdn Bhd & Ors [1989] 3MLJ 231 High Court, Kuala Lumpur (Zakaria Yatim J).257 Meetings -- Extraordinary general meeting
  • 31. P a g e | 313 [257] COMPANIES AND CORPORATIONS Meetings – Extraordinary general meeting –Requisitions made requiring company to convene an extraordinary general meeting forremoval of company directors – Injunction granted restraining holding of meeting – Whetherinjunction should be extendedSummary :The plaintiffs had obtained loans from various foreign banks and, as security for the loans, haddeposited, by themselves or by third parties, an aggregate of 41,133,875 shares withLandmarks, in the first defendant company. The plaintiffs were in default of the loan agreementand liabilities had arisen thereunder. The defendant banks had then caused the shares to beregistered in their or their nominees names and thereafter requisitioned for an extraordinarygeneral meeting of the first defendant company to remove certain directors. The plaintiffsmoved for and obtained, ex parte, an interim injunction restraining the holding of the meeting.The present hearing is for an application of extension of the injunction. Among the groundsadvanced for the injunction were that the plaintiffs were then preparing for a scheme ofreconstruction to which the defendant banks were privy, and that the defendant banks hadattempted to obtain certain confidential information and, having failed, had then requisitionedthe extraordinary general meeting which showed that there was an ulterior motive on theirpart in so requisitioning.Holding :Held, dismissing the application with costs: (1) as the defendant banks commanded only 18% ofthe share capital of Landmarks, if the resolution proposed for the extraordinary generalmeeting was not in Landmarks interest, there was every reasonable expectation that thedefendant banks would fail in their attempt; (2) the damage that plaintiffs were complaining ofwas monetary and therefore, damages were not only an adequate remedy but the onlyremedy. As the defendants are able to satisfy any claim the plaintiffs can prove against them attrial, therefore the learned judge was not disposed to continue the ex parte injunction he hadgranted earlier; (3) in view of the fact that the grant of the relief sought would have disposed ofthe whole action, the court would apply the tests propounded inCayne & Anor v GlobalNational Resources [1984] 1 All ER 225 and NWL Ltd v Woods [1979] 3 All ER 614 and dismissthe application; (4) there was no evidence whatsoever with regard to the allegations that therewas a fraud on the defendants statutory power to requisition an extraordinary generalmeeting. As the evidence did not show any fraud or oblique motive, the right to requisition wasexercised bona fide. The pledgee is entitled to do everything he reasonably can to realize hissecurity. As the pledgees here have a right to sell, the buyer would have acquired all the rightsof a registered shareholder. The express right to call for the extraordinary general meeting andto vote thereat need not be looked for in the pledge documents. They are conferred by the
  • 32. P a g e | 32Companies Act 1965 (Act 125) and the memorandum and articles of association of thecompany.Digest :Canopee Investment Pte Ltd & Ors v Landmarks Holdings Bhd & Ors [1989] 2 MLJ 469 HighCourt, Kuala Lumpur (Shankar J).258 Meetings -- Extraordinary general meeting3 [258] COMPANIES AND CORPORATIONS Meetings – Extraordinary general meeting –Whether shareholder of Indonesian company had authority to convene EGM – Appointmentof president director of company at EGM – Whether valid – No authority to representcompany if appointment invalid – Expert evidence on Indonesian corporate law calledSummary :The fourth defendant filed an application (the first application) requesting leave to join PTKwala Gunung (the company) as a defendant to this action. The application was supported byan affidavit filed by A, a director of the company who was also the third defendant. Before theapplication could be heard, the first defendant and certain other individuals filed an application(the second application) praying, inter alia, that A be restrained from purporting to representthe company in a suit without the written consent and sanction of the companys shareholdersobtained in accordance with the companys articles of association and from conveningmeetings of the companys board of directors. The main issue in this case was whether A wasvalidly appointed the president director of the company at an EGM of the company of 11January 1995, when G resigned as president director of the company in December 1994. As thevacancy had to be filled by calling an EGM within one month thereof, pursuant to art 10(5) ofthe companys articles of association, A (who held less than 25% of the issued shares in thecompany and which did not allow him to requisition for an EGM under art 14(3)) went ahead tocall for an EGM on 11 January 1995 by inserting a notice in an Indonesian paper. At the EGM on11 January 1995, A was the only shareholder who attended. He appointed himself as presidentdirector, his wife as director and his son and two others as commissioners. The first defendantcontended that there were formal as well as material defects with regard to the EGM and theresolutions adopted thereat. A argued, inter alia, that a single shareholder could validly passresolutions to appoint a new board of directors and new commissioners. Furthermore, since hisappointment as a commissioner in 1979 continued to be valid even after it lapsed after a two-year term in 1981, as there was no appointment of a new commissioner by the general meetingof shareholders, A being the sole commissioner was required under the articles to convene anEGM to appoint a new board of directors. Both sides called expert evidence to support theirpositions.
  • 33. P a g e | 33Holding :Held, allowing the second application: (1) the court could not accept As expert evidence thathe remained as a commissioner of the company after the expiration of his two-yearappointment in 1981 as art 10(3) clearly stated that the office of a commissioner was only to befor a period of two years; (2) as the court found that A was not a commissioner of the companysince 1981, he could not have properly requisitioned the EGM of 11 January 1995 under art 14;(3) A was not validly appointed as the president director of the company at the EGM of 11January 1995. As a consequence, he neither had the authority to represent the company in anylegal proceeding in Singapore nor to instruct solicitors to file the first application seeking to jointhe company as a defendant to these proceedings.Digest :Banque Indosuez v Madam Sumilan Awal, also known as Aw Kim Lan & Ors OriginatingSummons No 811 of 1994 —High Court, Singapore (Lai Siu Chiu J).259 Meetings -- Injunction to restrain holding of annual general meeting3 [259] COMPANIES AND CORPORATIONS Meetings – Injunction to restrain holding of annualgeneral meeting – Application for – Director denied access to accounting records and tax files– Suspicion of irregularities in management of funds – Directors absolute right to inspectaccounts and books of company – Shareholders to know true financial position of company –Company can still hold annual general meeting within statutory period if injunction granted –Companies Act 1965, s 167(3)Summary :Since his appointment as a director of the defendant company, the plaintiff had requested themanaging director, general manager and chairman of the board of directors respectively forinformation and access to the accounting records, tax files and other relevant records but hadbeen refused. He alleged that he, together with some other shareholders of the company,discovered that there were certain irregularities in the management of the funds of thecompany by the board of directors. The plaintiff then applied to the court for an order that thedefendant company be restrained from holding its annual general meeting until his previousapplication for an order that the accounting records and tax files of the company be opened forinspection by an approved company auditor is disposed of. The defendant company arguedthat it was not satisfied with the bona fide of the plaintiffs intention in seeking to examine thecompanys books. It claimed that the plaintiffs request was merely to assist him in his pursuit ofalleged claims against the other directors of the company.
  • 34. P a g e | 34Holding :Held, allowing the plaintiffs application: (1) the plaintiff had an absolute right to inspect theaccount books of the company. This is clearly provided by s 167(3) of the Companies Act 1965.This right was denied to him. If the injunction is not granted, he will be unable to perform hisduties and discharge his responsibilities as a director because his term of office as director willexpire on the date of the annual general meeting; (2) the court considers the injunctionessential in order to protect the interests of the company, namely, that the shareholders willknow what is exactly the true financial position of the company. On the other hand, if theinjunction is granted, the court can see no harm to the company because the injunction soughtfor is an interim injunction and the company can still hold its annual general meeting within therequired statutory period.Digest :Leong Sun Wing v Wah Hup Engineering Works Sdn Bhd (No 1) Originating Summons No C166of 1984 High Court, Malaysia (Zakaria Yatim J).260 Meetings -- Irregularities3 [260] COMPANIES AND CORPORATIONS Meetings – Irregularities – Managementcorporation – Lack of notice – Lack of quorum – Levy of contributions – Contributionsauthorized by meeting – Challenge to validity of meetingSummary :P, a management corporation, sued D, a sub-proprietor of one of the units on the estate underPs control, in respect of unpaid contributions. P claimed that resolutions were passed at twogeneral meetings duly levying on each sub-proprietor certain contributions. D challenged thevalidity of the meetings and the resolutions.Holding :Held, allowing Ps claim: (1) even if Ds claim that the notice for the first meeting was less thanseven days, this omission would not invalidate the meeting as it was an accidental omission andD had not suffered any prejudice as he had attended the meeting; (2) the resolution passed atthe meeting, although by voice vote, was valid as the entry in the minutes of the meeting bythe chairman was prima facie evidence of the passing of the resolution and the correctnessthereof; (3) Ds claim that the quorum at that meeting was not present was not accepted andeven if his claim was true, the persons present would constitute a quorum after half an hourafter the time appointed for the meeting; (4) the failure of P to convene an annual generalmeeting within a year of the prior meeting did not invalidate the later meeting. Even if the two
  • 35. P a g e | 35meetings were invalid, D had waived the irregularities by failing to apply for an injunction torestrain P from proceeding with the meetings. Also, D had allowed himself to be elected as acouncil member; (5) in addition, once the resolutions are passed and acted upon and carriedinto effect many years after the meeting, the lack of quorum will not affect the validity of theresolutions. The resolutions were also ratified at a later meeting.Digest :Bin Hee Heng v Management Corporation Strata Title No 647 (1988) CSLR IX[753] District Court,Singapore (Liew Thiam Leng, District Judge).261 Meetings -- Irregularities3 [261] COMPANIES AND CORPORATIONS Meetings – Irregularities – Managementcorporation – Validity of meeting and resolutions imposing maintenance contribution –Notice of meeting below mandatory period of seven days – Whether there is quorum –Persons forming quorum – Persons entitled to vote – Whether include proxies – Resolutioncarried by voice vote and not show of hands – Annual general meeting more than 15months after last annual general meeting – Land Titles (Strata) Act (Cap 277, 1976 Reprint), ss3, 28(8), 29(1), 34 and First Schedule, paras 11, 12(1), (2), 14, 15 and 16 – Smyth v Darley(1849) 9 ER 1293 (refd); Re Railway Sleepers Supply Co (1885) 29 Ch D 204 (refd); MercantileInvestment and General Trust Co v Mining Co Ltd [1893] 1 Ch 484 (refd); Woolf v East NigelGold Mining Co Ltd (1905) 21 TLR 660 (refd); Re Hector Whaling Ltd [1936] Ch 208 (refd);Musselwhite v CH Musselwhite & Son Ltd [1962] 1 Ch 964 (folld); Watt v Thomas [1947] 1 AllER 582 (folld); Howbeach Coal Co v Teague (1860) 5 H & N 151; 157 ER 1136 (refd); ReRomford Canal Co (1883) 24 Ch D 85 (refd); M Harris Ltd (1956) SC 207 (refd); ReWolverhampton Borough Councils Aldermanic Election [1962] 2 QB 460 (refd); R v Epsom &Ewell Corp [1964] 1 WLR 1060; [1964] 2 All ER 832 (refd); London v Clydeside Estates Ltd vAberdeen District Council [1979] 3 All ER 876 (refd); Montreal Street Railway Co v Normandin[1917] AC 170 (folld).Summary :This was an appeal from the decision of the district court awarding judgment to therespondents/plaintiffs, the management corporation (MC) of a condominium which comprisesa walk-up apartment block (Skyvilla) and two high-rise blocks (Skyscraper). The appellant, BinHee Heng (BHH), was the subsidiary proprietor of a flat in Skyvilla and was sued by the MC forarrears in contribution to the maintenance fund together with interest thereon, both of whichwere levied in accordance with resolutions passed at an extraordinary general meeting ofmembers of the MC held on 3 March 1984 (the EOGM), and confirmed at the adjournedsecond annual general meeting (the second AGM) held on 3 February 1985. The dispute arose
  • 36. P a g e | 36from the EOGM called by the MC to pass, among others, a resolution to levy contribution to themaintenance fund on the basis of the share value for each subsidiary lot. This would have theeffect of raising and bringing the contribution due from the subsidiary proprietors of Skyvillaunits to the same level as that for Skyscraper owners although the Skyscraper units were largerin area, and the maintenance and repair costs for the Skyscraper blocks with lifts would behigher. The notice in respect of the EOGM was served about three days before the meetingwhen the minimum period stipulated was seven days. BHH nonetheless attended the EGOMand took an active role in objecting to the raise in the then existing contribution. As a result ofthe objection, it was resolved that the matter on contribution was to be suspended for threemonths and the issue as to whether contribution should be determined solely by the sharevalue of the subsidiary proprietor or by any other method, referred to the High Court. It wasalso minuted that if the referral to the High Court was not finalized within three months,contribution to maintenance fund shall be at the rate proposed by the MC and if the High Courtfinally decided that the contribution from subsidiary proprietors of Skyvilla should be lowerthan that from subsidiary proprietors of Skyscraper, the excess in contribution paid bysubsidiary proprietors of Skyvilla, shall be treated as a loan to the MC. After the High Courtsconfirmation that the only method for levying contribution under the Land Titles (Strata) Act(the Act) was to be in accordance with the share value of the subsidiary proprietor, theminutes of the EOGM regarding the contribution to be levied was put up for consideration atthe second AGM of the MC on 27 January 1985. This meeting was adjourned to the followingweek, 3 February 1985, when the minutes of the EOGM was confirmed by a poll, and it was alsoresolved that maintenance contribution towards the management fund shall be $74 per shareunit per month, payable quarterly in advance. As BHH refused to pay, the MC sued him for thecontributions amounting to the total sum of $5,093.94. BHH in return counterclaimed for thecosts incurred in replacement of awnings to his flat and the clearing of blockage to some pipes.The district court awarded judgment to the MC on the whole sum sued for while allowing BHHonly a part of his counterclaim. BHH submitted 68 grounds of appeal which can be broadlysummarized as follows: (1) the EOGM was invalid because there was a failure to give thenecessary seven days notice, there was no quorum, some subsidiary proprietors wereimproperly disqualified from voting; (2) as the EOGM was invalid, all the resolutions were nulland void and could not be ratified; (3) the adjourned second AGM was invalid as it was notcalled within 15 months of the first annual general meeting; (4) all the defects could not bewaived by BHH.Holding :Held, dismissing the appeal with costs: (1) the EOGM was valid for although the required sevendays notice had not been given, this was an accidental omission which did not prejudiceanyone; (2) there was a valid quorum. The term persons entitled to vote included proxies. This
  • 37. P a g e | 37must necessarily be so as otherwise the legislature could use the term proprietors entitled tovote and furthermore, companies who are subsidiary proprietors must vote by proxies; (3) theword contribution includes contributions whether pursuant to a resolution of the MC orotherwise, and thus included the sums payable to the developer as maintenance contribution,prior to the setting-up of the MC. Thus, as the said sums had not been paid by BHH at the dateof the EOGM, he was properly disqualified from voting at the EOGM; (4) voting by show ofhands is not restricted to its literal meaning of raising of hands but, in fact, bears a widermeaning of a show or demonstration by the meeting that it is in support of a resolution, so asto contrast with the more exacting procedure of a vote by poll. While the recording in theminutes of a formal declaration by the chairman that a resolution had been carried by a showof hands would be preferred, the failure to do so did not per se make a resolution invalid. In thecircumstances, the recording in the minutes that the proposal was approved was sufficientevidence of a valid resolution; (5) if there was any doubt as to the validity of the resolution atthe EOGM, the resolution at the second AGM approving the minutes of the EOGM was effectiveto carry into effect the resolution regarding the contribution. As BHH had not paid thecontribution, he was properly disqualified from voting at the second AGM; (6) the fact that theresolution fixing the rate of interest in respect of late payment of contribution at 10% hadincorrectly described the rate as the statutory rate was immaterial. Any damage resulting fromsubsidiary proprietors being misled was minimal. The rate of 10% was within the powers of theMC to fix; (7) the validity of the adjourned second AGM was not affected by the fact that it wasnot called within 15 months of the last annual general meeting. To hold otherwise would meanthat no valid meeting could be held once the 15-month period had lapsed. The only effect ofsuch non-compliance with the law is that the corporation and its officers laid themselves opento prosecution.COMPANIES AND CORPORATIONS Meetings – Notice – Defective notice – Insufficient detailsof business to be transacted – Requisition for general meeting under s 115 of the CompaniesOrdinance – Failure by directors to convene meeting – Meeting, called by requisitions under s115(3) – Notices of requisitions meeting – Failure in notices to comply with Articles ofCompany – Effect of such failure – Companies Ordinance 1940, s 115(1), (2) and (3).Summary :Some dissatisfied members of a company registered under the Companies Ordinance served arequisition on the directors under s 115 of the ordinance to call a general meeting. The draftresolutions to be discussed at the meeting were sent with the requisition. The directors havingfailed to call a meeting in due time, the requisitionists under the provisions of s 115(3) of theordinance proceeded to convene a meeting themselves. In the notices that were sent out by
  • 38. P a g e | 38the requisitionists for their meeting, the date, time, place of the meeting were specified andadditionally it has stated the business before the meeting will be to discuss and vote upon theresolutions set out in the notice of requisition. No copy of the notice of requisitionaccompanied the notices calling a meeting. In an action by the company for a declaration thatthe resolutions passed at the subsequent meeting convened by the requisitionists were invalidand of no effect.Holding :Held: the notices calling the meeting failed to comply with art 61 of the company, in that thesenotices did not specify the general nature of the business to be transacted at the meeting. Thiswas a fatal flaw to the validity of the meeting and the proceedings of the meeting must be heldvoid and of no effect.Digest :Hup Seng Co Ltd v Chin Yin & Ors [1962] MLJ 371 High Court, Federation of Malaya (Suffian J).267 Meetings -- Notice