EFFECTIVE CHAIRMANSHIP OF MEETINGS

& PARLIAMENTARY PROCEDUREBy Lee Swee SengBy Lee Swee Seng

LLB, LLM, MBA.LLB, LLM, MBA.

Advocate & SolicitorAdvocate & Solicitor

Patent Agent & Notary PublicPatent Agent & Notary Public

sweeseng@tm.net.mysweeseng@tm.net.my

© Copyright Lee Swee Seng© Copyright Lee Swee Seng

Meaning of ‘Meeting’

An assembly of people for a lawful An assembly of people for a lawful purpose.purpose.

A valid meeting is one which has been A valid meeting is one which has been properly convened and constituted and in properly convened and constituted and in which there is a chairman and from which which there is a chairman and from which no persons who are entitled to attend are no persons who are entitled to attend are excluded.excluded.

Physical Presence at Meeting Physical presence of people is not always Physical presence of people is not always

necessary, as long as the persons whose necessary, as long as the persons whose concurrence is necessary did so concur by concurrence is necessary did so concur by correspondence, transmission of messages or correspondence, transmission of messages or by other means.by other means.

Eg. Seal Incorporated Berhad by it's Co's Eg. Seal Incorporated Berhad by it's Co's 41st AGM held on 18/12/03, has by a special41st AGM held on 18/12/03, has by a specialresolution amended its article to insert the resolution amended its article to insert the following:-following:-

““A director shall be deemed to be present at A director shall be deemed to be present at a directors’ meeting if his attendance is by a directors’ meeting if his attendance is by tele-conferencing or video-conferencing or tele-conferencing or video-conferencing or such other means as provided in art 104”such other means as provided in art 104”

Malaysian Resources Corporation Berhad (MRCB) MRCB by its circular to shareholders dated MRCB by its circular to shareholders dated

4/2/02 proposed to amend the Co’s articles 4/2/02 proposed to amend the Co’s articles to incorporate the relevant provisions of the to incorporate the relevant provisions of the Listing Requirements as required by the Listing Requirements as required by the BMLR, in particular Chapter 7 and other BMLR, in particular Chapter 7 and other relevant regulatory requirementsrelevant regulatory requirements(resolution was approved in the Co's 31st (resolution was approved in the Co's 31st AGM) AGM)

Chapter 7 of the BMLR

7.01(1) - Parts B to N of this chapter set out the 7.01(1) - Parts B to N of this chapter set out the provisions which an applicant or a listed company provisions which an applicant or a listed company must ensure are contained in tis articles of must ensure are contained in tis articles of association and those of its subsidiaries (where association and those of its subsidiaries (where applicable)applicable)

7.17 – Notice of meetings shall be given at least 7.17 – Notice of meetings shall be given at least 14 days or 21 days before the meeting and where 14 days or 21 days before the meeting and where special business is to be considered, the Notice special business is to be considered, the Notice must state the effect of any proposed resolution in must state the effect of any proposed resolution in respect of such special business.respect of such special business.

Circumstances where presence not necessary S95(3) Offshore Companies Act 1990 – deemed to be S95(3) Offshore Companies Act 1990 – deemed to be

present at a Meeting if he participates by telephone or present at a Meeting if he participates by telephone or other electronic means and all members participating other electronic means and all members participating in the Meeting are able to hear each otherin the Meeting are able to hear each other

Where actual presence cannot be procured (Where actual presence cannot be procured (In re In re Bonnelli’s Telegraph Co Colliers’ Claim (1871) LR Bonnelli’s Telegraph Co Colliers’ Claim (1871) LR 12 Eq 24612 Eq 246, Sir James Bacon VC), Sir James Bacon VC)

Art 90, Table A – resolution signed by all directors is Art 90, Table A – resolution signed by all directors is valid and effectual as if it had been passed at a valid and effectual as if it had been passed at a meeting of directors duly convened and heldmeeting of directors duly convened and held

Meetings of Bodies Corporate

Creatures of StatutesCreatures of Statutes Eg. The Bar Council must act and conduct Eg. The Bar Council must act and conduct

their affairs within the framework of the their affairs within the framework of the Legal Profession Act 1976, the Local Legal Profession Act 1976, the Local Authority under the Local Government Act Authority under the Local Government Act 1976, and the Securities Commission under 1976, and the Securities Commission under the Securities Commission Act 1993. the Securities Commission Act 1993.

General Types of Meeting

Statutory Meetings-eg Company ActStatutory Meetings-eg Company Act Committee Meetings and sub-committee Committee Meetings and sub-committee

meetings.meetings. Informal Meetings eg dialoguesInformal Meetings eg dialogues Formal Meetings eg conventions, Formal Meetings eg conventions,

conferences and congresses.conferences and congresses. Impromptu Meeting.Impromptu Meeting.

Types of Company Meetings under the CA Board of Directors Meeting/ Committee Board of Directors Meeting/ Committee

MeetingMeeting General Meeting (AGM & EGM)General Meeting (AGM & EGM) Class MeetingClass Meeting Statutory Meeting under s142 CAStatutory Meeting under s142 CA Power of Court to convene meeting under Power of Court to convene meeting under

s150s150

Board of Directors Meeting/ Committee Meeting

- Table A, art.83 – the quorum necessary Table A, art.83 – the quorum necessary for the transaction of business of the for the transaction of business of the directors may be fixed by the directorsdirectors may be fixed by the directors

- Table A, art. 86 – the directors may Table A, art. 86 – the directors may delegate their powers to the committee delegate their powers to the committee consisting of such member or members of consisting of such member or members of their body they think fit.their body they think fit.

Annual General Meeting

S143 CA1965 - Must be held once in every S143 CA1965 - Must be held once in every calendar year and not more than 15 months calendar year and not more than 15 months from the last preceding AGMfrom the last preceding AGM

Annual General Meeting

Business transacted at the AGM (Table A, art Business transacted at the AGM (Table A, art 46):-46):-- declaration of dividendsdeclaration of dividends- presentation of audited accounts(s169(1)CA)presentation of audited accounts(s169(1)CA)- Consideration of balance-sheetsConsideration of balance-sheets- Consideration of director’s & auditor’s reportConsideration of director’s & auditor’s report- election of directors, andelection of directors, and- appointment of auditors and fixing auditor’s appointment of auditors and fixing auditor’s

fees(s172(2)CA)fees(s172(2)CA)

Audited Accounts s169(1)

The CA does not require members to The CA does not require members to approve the accounts. All that needs to be approve the accounts. All that needs to be done is that the accounts are laid before the done is that the accounts are laid before the general meeting.general meeting.

Extraordinary General Meeting

Table A, art.43 – the provision to convene Table A, art.43 – the provision to convene an EGM is usually stated in the company’s an EGM is usually stated in the company’s articles articles

Business transacted at the EGM - Increased Business transacted at the EGM - Increased in Authorised Capital, Change in Name of in Authorised Capital, Change in Name of the Company, alteration of company’s the Company, alteration of company’s articles, appointment of managing director, articles, appointment of managing director, enabling resolution for charge creation.enabling resolution for charge creation.

Class Meeting

these are meetings of the holders of a class these are meetings of the holders of a class of shares of a company, for e.g. Preference of shares of a company, for e.g. Preference shares, redeemable preference shares, class shares, redeemable preference shares, class A ordinary shares etc.A ordinary shares etc.

Statutory Meeting under s142 CA S142 CA 1965 – to be held not less than 1 month S142 CA 1965 – to be held not less than 1 month

and not more than 3 months after the date at and not more than 3 months after the date at which it is entitled to commence business (for the which it is entitled to commence business (for the adoption of statutory report)adoption of statutory report)

S142(2) CA 1965 – statutory report to be S142(2) CA 1965 – statutory report to be forwarded to every member at least 7 days before forwarded to every member at least 7 days before the meetingthe meeting

Statutory report shall state the shares allotted and Statutory report shall state the shares allotted and cash received. See s142(3) CA 1965 for contents cash received. See s142(3) CA 1965 for contents of the Statutory Reportof the Statutory Report

Power of Court to Convene Meeting

S150 CA 1965 – The Court, either on its S150 CA 1965 – The Court, either on its own motion or on the application of any own motion or on the application of any director or any member entitled to vote at director or any member entitled to vote at the meeting, may call for an AGM or EGM the meeting, may call for an AGM or EGM or class meetingor class meeting

Power of Court to Convene Meeting Where it is impracticableWhere it is impracticable Where there is only one member present in Where there is only one member present in

person or by proxyperson or by proxy Where affairs of the company would be Where affairs of the company would be

paralysed paralysed Where statutory duties have to be Where statutory duties have to be

dischargeddischarged

Cases utilising s150 CA

Low Son Siang v Lee Kim Yong [1999] 1 Low Son Siang v Lee Kim Yong [1999] 1 CLJ 529 CLJ 529 - there were only 2 shareholders in - there were only 2 shareholders in the company, and the Plaintiff could not the company, and the Plaintiff could not proceed with an EGM to investigate the proceed with an EGM to investigate the alleged criminal breach of trust by the alleged criminal breach of trust by the Defendant due to the latter’s failure to Defendant due to the latter’s failure to attend the EGM. (referred to attend the EGM. (referred to Re Sticky Re Sticky Fingers Restaurant Ltd [1992] BBC 754)Fingers Restaurant Ltd [1992] BBC 754)

Cases utilising s150 CA

See Nyuk Fung & Ors v Pan Global Equities Bhd See Nyuk Fung & Ors v Pan Global Equities Bhd [1991] 1 CLJ 452[1991] 1 CLJ 452 – “ – “the Court has no power to the Court has no power to rectify anything which has yet to occur, or to rectify anything which has yet to occur, or to validate any act which is not yet in breach of the validate any act which is not yet in breach of the Companies Act”Companies Act”

Kemunting Tin Dredging (M) Bhd & Ors v Kemunting Tin Dredging (M) Bhd & Ors v Baharuddin Ma’arof & Ors [1985] 1 CLJ 442Baharuddin Ma’arof & Ors [1985] 1 CLJ 442 - - The court refused to intervene since the applicant The court refused to intervene since the applicant can call for a general meeting under s143(3) and can call for a general meeting under s143(3) and s145(1)CA.s145(1)CA.

Preliminaries of Meetings

Power to convene meeting.Power to convene meeting. Period of Notice to be sent out.Period of Notice to be sent out. People to whom notice is to be given.People to whom notice is to be given. Place and time of meeting.Place and time of meeting. Purpose of Meeting-Agenda.Purpose of Meeting-Agenda. Proxies and PollProxies and Poll

Power to Convene Meeting

Board of DirectorsBoard of Directors Any Director may convene an EGM (Table Any Director may convene an EGM (Table

A, article 44)A, article 44) Two or more members holding not less than Two or more members holding not less than

10% of the issued share capital of the co.10% of the issued share capital of the co. members holding not less than 10% of the members holding not less than 10% of the

paid-up voting share capital of the co may paid-up voting share capital of the co may call for an EGM.call for an EGM.

Requisition for a Meeting(s 144, CA) Requisition shall state the objects of the Requisition shall state the objects of the

meeting and shall be signed by the meeting and shall be signed by the requisitionists and deposited at the registered requisitionists and deposited at the registered office of the company. The requisition need office of the company. The requisition need not be under corporation’s sealnot be under corporation’s seal

Roxy Electric Industries (Malaysia) Bhd v Roxy Electric Industries (Malaysia) Bhd v Syarikat Nominee Bumiputra Sdn BhdSyarikat Nominee Bumiputra Sdn Bhd [1989] 3 MLJ 231.[1989] 3 MLJ 231.

Requisition for a Meeting (s 144, CA) Upon receipt of requisition the director Upon receipt of requisition the director

must convene an extraordinary general must convene an extraordinary general meeting not later than two months.meeting not later than two months.

If the directors do not convene a meeting If the directors do not convene a meeting within 21 days, the requisitionists may do within 21 days, the requisitionists may do so themselves (s 144(3)) within 3 months.so themselves (s 144(3)) within 3 months.

Requisition for a Meeting (s 144, CA) Any reasonable expenses incurred by the Any reasonable expenses incurred by the

requisitionists in calling the meeting are to requisitionists in calling the meeting are to be paid by the company, which may be paid by the company, which may reimburse itself out of any sums due to the reimburse itself out of any sums due to the defaulting directors by way of fees or other defaulting directors by way of fees or other remuneration: sub-s (4). remuneration: sub-s (4).

Case Law HLB Nominees (Tempatan) Sdn Bhd v SJA HLB Nominees (Tempatan) Sdn Bhd v SJA

Bhd & Anor [2005] 1 CLJ 23 – the word Bhd & Anor [2005] 1 CLJ 23 – the word “shall not be held after the expiry of 3 months “shall not be held after the expiry of 3 months from that date” in s 144(3) CA 1965 are from that date” in s 144(3) CA 1965 are mandatory and incapable of being enlargedmandatory and incapable of being enlarged

SJA Bhd & Anor v HLB Nominees SJA Bhd & Anor v HLB Nominees (Tempatan) Sdn Bhd [2002] 7 CLJ 580 – the (Tempatan) Sdn Bhd [2002] 7 CLJ 580 – the word “from that date” is taken to mean the word “from that date” is taken to mean the date of the deposit of the requisition.date of the deposit of the requisition.

Cases Utilizing s144 CA Removal of directors;Removal of directors; Removal and proposed nomination of Removal and proposed nomination of

auditors (Eksons Corp Bhd auditors (Eksons Corp Bhd -http://announcements.bursamalaysia.com/li-http://announcements.bursamalaysia.com/linkwebmainpage.nsf/lca.htm)nkwebmainpage.nsf/lca.htm)

Convene EGM for purpose of considering if Convene EGM for purpose of considering if thought fit passing with or without thought fit passing with or without modification resolution to exempt obligation modification resolution to exempt obligation to undertake any mandatory offers that could to undertake any mandatory offers that could arise (Magnum Corpn Bhd)arise (Magnum Corpn Bhd)

Eg of a notice under s 144

NOTICE OF EXTRAORDINARY GENERAL MEETINGNOTICE OF EXTRAORDINARY GENERAL MEETING

NOTICE IS HEREBY GIVEN THAT an NOTICE IS HEREBY GIVEN THAT an Extraordinary General Meeting of the Company Extraordinary General Meeting of the Company will be held pursuant to Section 144 of the will be held pursuant to Section 144 of the Companies Act, 1965 at [location] on [date] at Companies Act, 1965 at [location] on [date] at [time] for the purpose of considering and if [time] for the purpose of considering and if thought fit to pass the following ordinary thought fit to pass the following ordinary resolutions:-resolutions:-

Call for meetings (s 145, CA)

Meetings called by shareholders as Meetings called by shareholders as provided by the articles where it may provided by the articles where it may provide that the directors have power to provide that the directors have power to convene extraordinary general meetings.convene extraordinary general meetings.

The section gives members holding of at The section gives members holding of at least 10% of the voting rights in the least 10% of the voting rights in the company, the power to convene a meeting company, the power to convene a meeting themselves. themselves.

Call for Meetings (s 145, CA)

Differs from s 144 in that the directors are Differs from s 144 in that the directors are not involved in this section.not involved in this section.

At least 14 days’ notice must be given of At least 14 days’ notice must be given of meetings other than a meeting to pass a meetings other than a meeting to pass a special resolution.special resolution.

Eg of a notice under s 145 "We, HLB Nominees (Tempatan ) Sdn Bhd "We, HLB Nominees (Tempatan ) Sdn Bhd

(Company No.47697-U) and Mr. Cheong Heng Choy (Company No.47697-U) and Mr. Cheong Heng Choy (NRIC No.571002-10-5287), holders of not less than (NRIC No.571002-10-5287), holders of not less than one-tenth of the paid-up share capital of SJA Berhad one-tenth of the paid-up share capital of SJA Berhad ("Company") intend to convene an extraordinary ("Company") intend to convene an extraordinary general meeting of SJA Berhad ("Meeting") pursuant general meeting of SJA Berhad ("Meeting") pursuant to Section 145 of the Companies Act 1965 on 2 July to Section 145 of the Companies Act 1965 on 2 July 2003. The objects of the Meeting are as follows:-2003. The objects of the Meeting are as follows:-To Appoint with Immediate Effect by way of To Appoint with Immediate Effect by way of Ordinary Resolution the Following Persons as Ordinary Resolution the Following Persons as Directors of the Company:-Directors of the Company:-

Period of Notice

Determined by Statute for Companies Determined by Statute for Companies Meeting.Meeting.

Annual General Meeting S143(1) CAAnnual General Meeting S143(1) CA Not more than 15 months from last meetingNot more than 15 months from last meeting All general meetings other than AGM shall All general meetings other than AGM shall

be called Extraordinary General Meeting be called Extraordinary General Meeting (EGM)(EGM)

Period of Notice

14 days notice for AGM and EGM where 14 days notice for AGM and EGM where ordinary resolutions need to be passed.ordinary resolutions need to be passed.

21 days notice for AGM and EGM where 21 days notice for AGM and EGM where special resolutions need to be passed.special resolutions need to be passed.

28 days notice for AGM and EGM where 28 days notice for AGM and EGM where ordinary resolutions requiring special notice ordinary resolutions requiring special notice need to be passed.need to be passed.

Service of Notice Service is on every member who has a right to Service is on every member who has a right to

attend and vote at meeting.attend and vote at meeting. Deeming clause service of notice. Table A, Deeming clause service of notice. Table A,

Article 108; Abdul Aziz Mohamad J in TA Article 108; Abdul Aziz Mohamad J in TA Securities Bhd v Ng Yen Ling [2001] 1 CLJ 102 Securities Bhd v Ng Yen Ling [2001] 1 CLJ 102

‘‘..service of notice shall be deemed to be ..service of notice shall be deemed to be effected by….posting the letter containing the effected by….posting the letter containing the notice…’notice…’

Place of service-last known address.Place of service-last known address.

Contents of Notice Name and co number of Company.Name and co number of Company. Type of Meeting.Type of Meeting. Date, day and time of Meeting.Date, day and time of Meeting. Place of Meeting.Place of Meeting. The business of the meeting as set out in the The business of the meeting as set out in the

agenda.agenda. Date of the Notice.Date of the Notice. Signature and name of ConvenorSignature and name of Convenor Notes to the Notice on Proxy.Notes to the Notice on Proxy.

Case Law

Hup Seng Co Ltd v Chin Yin [1962] Hup Seng Co Ltd v Chin Yin [1962] MLJ 371 – If a material fact is not MLJ 371 – If a material fact is not disclosed in the Notice, any resolution disclosed in the Notice, any resolution passed may be invalidated by a passed may be invalidated by a member. The Notice in this case did member. The Notice in this case did not spell out the draft resolutions to be not spell out the draft resolutions to be proposed at the extraordinary general proposed at the extraordinary general meeting.meeting.

Place of Meeting

The CA states that it should be held in the The CA states that it should be held in the state where the registered office is situated state where the registered office is situated S145A CA.S145A CA.

However, meeting is not null and void if not However, meeting is not null and void if not so held.so held.

But company will be liable to a fine.But company will be liable to a fine.

People Present - Quorum

Quorum is defined as the minimum number Quorum is defined as the minimum number of members who must be present at a meeting of members who must be present at a meeting before business can be legally transacted.before business can be legally transacted.

Article 47, Table A-Two members present in Article 47, Table A-Two members present in person shall be a quorum for a general person shall be a quorum for a general meeting. Member includes a person attending meeting. Member includes a person attending as a proxy.as a proxy.

S.147(1) CA Two members shall constitute S.147(1) CA Two members shall constitute quorum.quorum.

Quorum for Directors Meeting

Article 83, Table A - The quorum necessary Article 83, Table A - The quorum necessary for the transaction of the business of the for the transaction of the business of the directors may be fixed by the directors, and directors may be fixed by the directors, and unless so fixed shall be two.unless so fixed shall be two.

However under new Bursa Malaysia Listing However under new Bursa Malaysia Listing Requirement, a Director who is absent for Requirement, a Director who is absent for more than 50% of the Meetings will be more than 50% of the Meetings will be disqualified as a Director.disqualified as a Director.

Voting Methods By show of hands - each person at the meeting By show of hands - each person at the meeting

has one vote. has one vote. Table A, art. 51Table A, art. 51 provides that at provides that at any general meeting a resolution put to vote shall any general meeting a resolution put to vote shall be decided by show of hands in the first instance, be decided by show of hands in the first instance, unless a poll is demanded (before or on the unless a poll is demanded (before or on the declaration of the result of the show of hands).declaration of the result of the show of hands).

By PollBy Poll By Voices, by ballot, by division and by By Voices, by ballot, by division and by

acclamation acclamation

Voting Methods (Cont) It is interesting to note of a recent case reported It is interesting to note of a recent case reported

in in The Star, Business, Friday, April 1, 2005The Star, Business, Friday, April 1, 2005 where a minority shareholder questioned the where a minority shareholder questioned the resolution on a voluntary general offer (VGO) resolution on a voluntary general offer (VGO) passed by a show of hands instead of a poll at passed by a show of hands instead of a poll at the EGM. As a result of that, the acquiree the EGM. As a result of that, the acquiree company, Golden Hope Plantations Bhd filed an company, Golden Hope Plantations Bhd filed an application in the Kuala Lumpur High Court application in the Kuala Lumpur High Court seeking legal interpretation of the Company’s seeking legal interpretation of the Company’s article of association. article of association.

Voting Methods (Cont)

PollPoll Article 51 The following can call for a poll:Article 51 The following can call for a poll: ChairmanChairman At least 3 members present At least 3 members present Any member/s representing not less than Any member/s representing not less than

one-tenth of the total voting rights one-tenth of the total voting rights

Proxies Section 149 Co ActSection 149 Co Act If a proxy is not a member of the company If a proxy is not a member of the company

then the proxy has to be An advocate & then the proxy has to be An advocate & solicitor or an approved co auditorsolicitor or an approved co auditor

A member shall not be entitled to appoint A member shall not be entitled to appoint more than 2 proxies to attend and vote at more than 2 proxies to attend and vote at the same meetingthe same meeting

Revocation of Proxies

Death/ insanity of the appointorDeath/ insanity of the appointor Attendance of the appointor at the meetingAttendance of the appointor at the meeting Proxy revokedProxy revoked Appointment of new proxyAppointment of new proxy Transfer of shares by appointorTransfer of shares by appointor Verbal notice to the Chairman of the Verbal notice to the Chairman of the

meetingmeeting

Relationship between Appointor and Proxy Proxy acts as an agentProxy acts as an agent Chairman may be appointed as proxy by the Chairman may be appointed as proxy by the

shareholders shareholders Second Consolidated Trust v Ceylon Second Consolidated Trust v Ceylon

Amalgamated Estates [1943] 2 All ER 567Amalgamated Estates [1943] 2 All ER 567 - - Chairman is the professional adviser of the Chairman is the professional adviser of the appointor and owes a fiduciary duty to the appointor and owes a fiduciary duty to the shareholders to cast vote as stated shareholders to cast vote as stated

Case Law Lim Hean Pin v Thean Seng Co. Sdn Bhd & Ors [1992] Lim Hean Pin v Thean Seng Co. Sdn Bhd & Ors [1992]

2 CLJ 8282 CLJ 828 – “By s149 CA 1965, the plaintiff was – “By s149 CA 1965, the plaintiff was entitled to appoint a solicitor as a proxy and entitled to appoint a solicitor as a proxy and hence Article 51 of the articles of association hence Article 51 of the articles of association was void and ineffective as it seeks to contract was void and ineffective as it seeks to contract out of the said Act” out of the said Act”

Low Son Siang v. Lee Kim Yong [1999] 1 CLJ 529Low Son Siang v. Lee Kim Yong [1999] 1 CLJ 529 - - “A “A proxy paper signed in blank and handed over to a proxy paper signed in blank and handed over to a person in authority who then fills up the blank is person in authority who then fills up the blank is effective if the blank has been properly filled up effective if the blank has been properly filled up when the proxy paper is deposited or used.”when the proxy paper is deposited or used.”

Postponement of Meeting

Postponement means that the Postponement means that the commencement of a meeting is itself commencement of a meeting is itself deferred.deferred.

Adjournment of a meeting means the Adjournment of a meeting means the suspension of the entire proceeding and suspension of the entire proceeding and assumes that the proceeding has once assumes that the proceeding has once commenced.commenced.

Adjournment of Meeting

where a quorum is not present where a quorum is not present where accounts are not ready for AGM where accounts are not ready for AGM Chairman to obtain consent of the Chairman to obtain consent of the

meeting meeting Chairman may at his own accord adjourn Chairman may at his own accord adjourn

the meeting if it is necessary to maintain the meeting if it is necessary to maintain order order

Adjournment of Meeting (Cont)

Cepatwawasan Group Bhd v Datuk Lo Fui Cepatwawasan Group Bhd v Datuk Lo Fui Ming & Ors; Ho Hee Chung (Intervening Ming & Ors; Ho Hee Chung (Intervening Respondent) [2004] 4 CLJ 453Respondent) [2004] 4 CLJ 453 - “A chairman’s - “A chairman’sinherent power to adjourn a meeting is only available to be inherent power to adjourn a meeting is only available to be exercised when it proves " impossible " to put into operation exercised when it proves " impossible " to put into operation whatever provisions for adjournment there are in the rules. If whatever provisions for adjournment there are in the rules. If it is possible to obtain a resolution to adjourn, the chairman it is possible to obtain a resolution to adjourn, the chairman does not have the power to adjourn, and if he adjourns does not have the power to adjourn, and if he adjourns without a resolution the adjournment is wrong even if done in without a resolution the adjournment is wrong even if done in good faith”.good faith”.

Postponement of Meeting

Where Meeting is not properly Where Meeting is not properly convened (no quorum/ no proper convened (no quorum/ no proper Notice given/ members who are Notice given/ members who are entitled to attend are excluded/ there’s entitled to attend are excluded/ there’s no chairman) – Kang Shew Meng in no chairman) – Kang Shew Meng in Directors’ & Shareholders’ Guide on Directors’ & Shareholders’ Guide on AGM. AGM.

When Quorum is not present

Article 48 Table A CA “…if within half an Article 48 Table A CA “…if within half an hour from the time appointed for the hour from the time appointed for the meeting…it shall stand adjourned to the meeting…it shall stand adjourned to the same day in the next week at the same time same day in the next week at the same time and place or to such other day at such other and place or to such other day at such other time and place as the directors may time and place as the directors may determine.”determine.”

Legal Profession Act 1976, s 67(2)

The recent 59th AGM of the Malaysian Bar on The recent 59th AGM of the Malaysian Bar on 19/3/2005 was allegedly held to be unlawful as it 19/3/2005 was allegedly held to be unlawful as it did not meet the quorum required of 2,280 i.e. one-did not meet the quorum required of 2,280 i.e. one-fifth of the Bar’s 11,700 membership. Former fifth of the Bar’s 11,700 membership. Former president Datuk Param Cumaraswamy and a few president Datuk Param Cumaraswamy and a few other members walked out of the meeting when the other members walked out of the meeting when the current president decided to go ahead with the current president decided to go ahead with the meeting. “The proper thing to do is to go to court meeting. “The proper thing to do is to go to court and get a declaration on this interpretation rather and get a declaration on this interpretation rather than risk holding an AGM without a quorum” as than risk holding an AGM without a quorum” as stated by the former presidentstated by the former president

Power of Court to Cure Irregularities in Proceedingss 355 CA 1965 Substantial injustice must not have been Substantial injustice must not have been

causedcaused Covers defect, irregularity or deficiency of Covers defect, irregularity or deficiency of

notice or timenotice or time

Power of Chairman

The Chairman has the duty to The Chairman has the duty to preserve orderpreserve order ensure that meeting is properly convened and ensure that meeting is properly convened and

conducted-notice of meeting and quorumconducted-notice of meeting and quorum ascertaining the sense of the meeting-putting ascertaining the sense of the meeting-putting

relevant question to vote, causing a poll to be relevant question to vote, causing a poll to be taken when duly demanded and declaring taken when duly demanded and declaring result of poll.result of poll.

Power of the Chairman Confining discussion within the scope of the Confining discussion within the scope of the

meeting and reasonable timemeeting and reasonable time Deciding point of order and incidental Deciding point of order and incidental

questions raised at the meetingquestions raised at the meeting Putting relevant question to the meeting and Putting relevant question to the meeting and

taking a vote thereontaking a vote thereon Normally chairman has a casting voteNormally chairman has a casting vote Declaring meeting closed when its business is Declaring meeting closed when its business is

completed.completed.

Malaysian Code of Corporate Governance on AGM The Chairman should :The Chairman should : provide reasonable time for discussion at provide reasonable time for discussion at

the meeting.the meeting. Not attempt to limit discussion of genuine Not attempt to limit discussion of genuine

questions.questions. Undertake to provide the questioner with a Undertake to provide the questioner with a

written answer to any significant question written answer to any significant question that cannot be answered on the spot.that cannot be answered on the spot.

Corporate Governance and the Chairman Chairman’s role in sifting the genuine Chairman’s role in sifting the genuine

questions from the vexatious ones is crucial.questions from the vexatious ones is crucial. There should be a clearly accepted division There should be a clearly accepted division

of responsibilities at the head of the of responsibilities at the head of the company. Where the roles of a chairman company. Where the roles of a chairman and chief executive officer are combined and chief executive officer are combined there should be a strong independent there should be a strong independent element on the board & it should be element on the board & it should be publicly explainedpublicly explained

Summary of Discussion at AGM

Companies should provide Shareholders Companies should provide Shareholders upon request, with a summary of the upon request, with a summary of the discussion at the AGM.discussion at the AGM.

Companies should prepare a resume of Companies should prepare a resume of discussion to be sent to shareholders upon discussion to be sent to shareholders upon request as a matter of best practice.request as a matter of best practice.

Motion

It is a proposal put forward at a meeting for It is a proposal put forward at a meeting for discussion before it is duly passed.discussion before it is duly passed.

It is moved by a ‘proposer’ and generally a It is moved by a ‘proposer’ and generally a ‘seconder’ is required.‘seconder’ is required.

It should be in definite terms and free from It should be in definite terms and free from ambiguity.ambiguity.

Resolution

It is a motion that has been accepted or It is a motion that has been accepted or voted and agreed by the necessary majority.voted and agreed by the necessary majority.

An ordinary resolution is passed by a An ordinary resolution is passed by a simple majority.simple majority.

A special resolution is passed by not less A special resolution is passed by not less than three-fourths of such members as than three-fourths of such members as being entitled to vote.being entitled to vote.

Types of Resolutions

Ordinary ResolutionOrdinary Resolution Special ResolutionSpecial Resolution Resolution requiring special notice (eg. Resolution requiring special notice (eg.

Removal of auditor from office, Removal of auditor from office, removal of director before the removal of director before the expiration of his term)expiration of his term)

Registration of Resolution

s154(1) CA 1965s154(1) CA 1965 - Every special - Every special resolution and every resolution which resolution and every resolution which binds any class of shareholders whether binds any class of shareholders whether agreed to by all the members of that class agreed to by all the members of that class or not shall be lodged with the Registrar or not shall be lodged with the Registrar within 1 month after the passing or within 1 month after the passing or making thereof, except otherwise making thereof, except otherwise expressly provided by this Act.expressly provided by this Act.

Practical Pointers

Calling Meeting to Order.Calling Meeting to Order. Welcome those present.Welcome those present. Encouraging participation.Encouraging participation. Adoption of Agenda.Adoption of Agenda. Approval of minutes.Approval of minutes. Order of the Day.Order of the Day. Question/Point of Privilege.Question/Point of Privilege.

Practical Pointers

Point of Information.Point of Information. Point of Order.Point of Order. Lay on the Table.Lay on the Table. Take from the Table.Take from the Table. Appeal from Chairman’s decisionAppeal from Chairman’s decision

Point of Information

It is a question not an answerIt is a question not an answer you request the information by asking a you request the information by asking a

point of information point of information red cards are used for points of information red cards are used for points of information

Point of Order

used to call a violation to the rules to the used to call a violation to the rules to the attention of the chair and the conferenceattention of the chair and the conference

If a particular kind of motion is not If a particular kind of motion is not debatable, it's appropriate to use a point of debatable, it's appropriate to use a point of order if the conference is in fact debating order if the conference is in fact debating such a motion such a motion

Lay on the Table

Removes the question from the assembly's Removes the question from the assembly's consideration temporarily in order to take consideration temporarily in order to take up something else of immediate urgencyup something else of immediate urgency

A motion laid on the table can be A motion laid on the table can be considered again by the use of the motion considered again by the use of the motion Take from the Table Take from the Table

Take from the Table

When taken up, the question with When taken up, the question with everything adhering to it is before the everything adhering to it is before the assembly exactly as when it was laid on the assembly exactly as when it was laid on the tabletable

If the question is taken up on the day it was If the question is taken up on the day it was laid on the table, members who have laid on the table, members who have exhausted their right of debate cannot again exhausted their right of debate cannot again speak on the questionspeak on the question

Appeal from Chairman Decision Once a chairman made a ruling in good faith Once a chairman made a ruling in good faith

and no dissent from that ruling in the meeting, and no dissent from that ruling in the meeting, it cannot subsequently be challenged – it cannot subsequently be challenged – Corpique (No.20) Pty Ltd & Ors v Eastcount Corpique (No.20) Pty Ltd & Ors v Eastcount Ltd & Ors (1989) 7 AUC 794Ltd & Ors (1989) 7 AUC 794

The Chairman must show impartiality, i.e. not The Chairman must show impartiality, i.e. not to deny the rights of members to vote, to act to deny the rights of members to vote, to act in good faith, not to act out of personal in good faith, not to act out of personal interest and not to make arbitrary decision interest and not to make arbitrary decision

Appeal from Chairman Decision

Wishart v Henneberry (1962) 3 FLR 171Wishart v Henneberry (1962) 3 FLR 171 , , per Joske J “If a public meeting is per Joske J “If a public meeting is dissatisfied with a chairman’s rulings, the dissatisfied with a chairman’s rulings, the situation can be overcome by the meeting situation can be overcome by the meeting passing a resolution that some other person, passing a resolution that some other person, who is mentioned by name in the who is mentioned by name in the resolution, take the chair.” resolution, take the chair.”

Robert’s Rules of Order

A set of Parliamentary rules for conduct at A set of Parliamentary rules for conduct at meetingsmeetings

Allows everyone to be heard and to make Allows everyone to be heard and to make decisions without confusiondecisions without confusion

Robert’s Rules of Order

These rules are, in effect, default rules; These rules are, in effect, default rules; that is to say, they govern only if there that is to say, they govern only if there are no contrary provision in any federal, are no contrary provision in any federal, state or other law applicable to the state or other law applicable to the society or in the society’s bylaws or in society or in the society’s bylaws or in any special rules of order that the any special rules of order that the society may have adopted.society may have adopted.

Robert’s Rules of Order

The whole set of rules is set out in the The whole set of rules is set out in the website at:website at:

www.constitution.org/www.constitution.org/rrorrror//rrorrror--00.--00.htmhtm

Principles of Parliamentary Procedure Only one subject may claim the attention of Only one subject may claim the attention of

the assembly at one time.the assembly at one time. Each proposition presented for Each proposition presented for

consideration is entitled to a full and free consideration is entitled to a full and free debate.debate.

Every member has rights equal to every Every member has rights equal to every other member.other member.

Principles of Parliamentary Procedure The will of the majority must be carried out, The will of the majority must be carried out,

and the rights of the minority must be and the rights of the minority must be preserved.preserved.

Though the majority may have their way, Though the majority may have their way, the minority must be given their say.the minority must be given their say.

Adoption of Robert’s Rules By a majority vote through a motion By a majority vote through a motion

(Robert’s Rules of Order Newly Revised, (Robert’s Rules of Order Newly Revised, RONR, p.529)RONR, p.529)

If the company has bylaws already (instead If the company has bylaws already (instead of amending it) may adopt a parliamentary of amending it) may adopt a parliamentary authority through a resolution i.e. by a 2/3 authority through a resolution i.e. by a 2/3 vote (with Notice) or vote of majority of vote (with Notice) or vote of majority of entire membership (without Notice) – entire membership (without Notice) – RONR, p15, 1. 25-27; p17, 1. 28-31RONR, p15, 1. 25-27; p17, 1. 28-31

FAQ go to:- http://www.robertsrules.com/faq.html

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