CONDUCT OF A MEETING
CONDUCT OF MEETING
1. QUORUM
Unless
the AOA provide otherwise, a quorum is two members personally present – Section
147(1)
Therefore
in the absence of authorization in the AOA, a meeting cannot be constituted by
one member and any resolution purpoted to be passed at such a ‘meeting’ are
invalid.
Case:
UNITED INVESTMENT & FINANCE LTD v TEE CHIN YONG & ORS [1967]1 MLJ 31
The
issue in this case whether one person present can constitute a valid meeting.
The plaintiff claimed payment of balances due from the defendants to the
company for shares in the company upon forfeiture of their shares. The
resolution to forfeit the shares and institute proceedings was taken at AGM of
the company attended only by two members of whom one had paid up his shares.
The meeting was and adjourned meeting and article 35 provided that at an
adjourned meeting “the members present should be a quorum”.
On
the question of the validity of the resolution, the court held that as the
meeting of the company could not be constituted by one member there was no
quorum and therefore the resolution purpoted to have been passed thereat was
invlid.
Case:
SUM HONG KUM v LI PIN FURNITURE INDUSTRIES PTE LTD [1996] 1 SLR(R) 529
The AOA of a company provided that
no business could be transacted unless a quorum was present. The plaintiff was
removed as a director at a meeting convened without the requisite quorum. The
Singapore High Court granted a declaration that the meeting was invalid. The
court held that the procedural irregularity in the meeting caused substantial
injustice to the plaintiff and could not be validated.
Where
a person is present at the commencement of meeting, but leaves before the business
is transacted, leaving the meeting with less than the required quorum, it is a
matter of construction of the AOA as to whether the meeting is valid /invalid.
In
TAN GUAN ENG v BH LOW HOLDINGS SDN BHD & ORS, [1992] 1 MLJ 105, the High
Court construed the relevant AOA to mean that a quorum was required only at the
time when the meeting proceeded to business. Given that there was a quorum
present when the meeting proceeded business, ie the continued meeting with the
presence of only the holder of a valid proxy was a valid meeting. Therefore the
resolution passed was a valid resolution
For
the purpose of determining whether a quorum is present, a person attending as a
proxy or as a representative of a member corporation is usually deemed to be a
member: Table A article 47. However, if
the AOA authorizes one person meeting, a quorum of two is required. A meeting where one person present but holds
a proxy from another member of the company is invalid - RE SALVAGE ENGINEERS
LIMITED [1962] MLJ 438
A
corporation that is a member of a company may, by resolution of its directors,
authorizes a person to act as its representative at meetings of the company.
That person is entitled to exercise the same powers as the member corporation
would have been entitled to exercise:
Section 147(3)
The
AOA usually require a quorum to be present at the commencement of the meeting
in order to transact business: Table A
article 47. If a quorum is not present within half an hour after the appointed
time of a requisitioned meeting, the meeting is dissolved.
In
the case of other meeting, the meeting is adjourned to the following week at
the same time and place.
The
court may order that a meeting be convened and it may direct that one member
present be deemed to constitute a quorum: Section 150
2. CHAIRMAN
Any member present at the meeting may be elected to
chair the meeting, Section 147(1).
Normally the chairman of the Board of Directors shall
also act as chairman at every general meetings.The chairman’s duty is to direct
the meeting and to preserve order and
ensure that the proceeding are conducted in a proper manner
3. VOTING
The power to vote is not a fiduciary power and a
shareholder owes no duty to anybody as to how he or she will exercise their
vote: TUAN HAJI ISHAK BIN ISMAIL &
ORS v LEONG HUP HOLDING BHD
Unless the AOA provide otherwise, voting is by show of
hands, in the first instance.Table A art 54 states that, by providing a show of
hands, each member or representative of a member has one vote. Proxy votes are
usually not counted on a show of hands.
In BIN HEE HENG v MANAGEMENT CORP STRATA TITLE NO 647,
it was held that the term ‘show of hands’ included a ‘voice vote’
In
cases involving disputed questions, members can demand a poll: Table A article 51.
On
a poll, every member present in person or by proxy or attorney usually has one
vote for each share held: Table A,
article 54. Because of this, only a poll
can give an accurate indication of the will of the meeting. Members have the
right to demand a poll at a general meeting on any question or matter other
than the election of the chairman of the meeting or the adjournment of the
meeting. Any provision in the AOA excluding this rights is void: Section 146(1)
In
some cases, the chairman and certain categories of members may demand a poll
where a resolution has been defeated on a show of hands: Table A, article 51.
Section
149(1)(a): A Proxy is entitled to vote only on a poll, unless the AOA provides
otherwise.
Members
are generally entitled to exercise their voting rights in their own interest.
This is subject to qualification that they do not commit a ‘fraud on the
minority’.
4. PROXIES
A
proxy is a person authorized to vote on behalf of the appointing member. It
also describes the instrument of appointment. Members who are entitled to
attend and vote at meeting of the company are entitled to appoint a proxy to
attend and vote in their stead.
Section
149(1) - The proxy need not be a member.
Section
149(2) - Notice convening meetings of companies must state prominently that
members are entitled to appoint one or two proxies who need not be members.
Section
149(1)(a): A proxy has the same right to speak at a meeting as the appointing
member, but can only vote on poll, unless the AOA allows the proxy to vote on a
show of hands. AOA cannot exclude the statutory right to appoint a proxy.
Table
A, article 59 requires the instrument appointing the proxy to be deposited with
the company not less than 48 hours before the meeting at which the proxy
purposes to vote, or not less than 24 hours before the taking of a poll. A
member who appoints a proxy may still elect to attend a meeting and vote in a
person. The proxy then does not have vote at that meeting but may still vote at
later meetings when the appointing member does not attend.
Case: ANSETT v BUTLER AIR TRANSPORT LTD [1958] 75
WN (NSW) 306
Proxies
were given for meeting on 31 Dec 1957, which was then adjourned on 21 Jan 1958.
Many shareholders who had given proxy for December attended meeting personally,
issue raised was whether the proxies of the shareholder present at the meeting
had been revoked or valid for poll. Court held that it is clear that
notwithstanding their personal attendance, their wishes are their proxy should
vote for the poll.
5. MOTIONS
A motion is a proposal which is being put forward at a
meeting for discussion before it is formally accepted, passed or adopted.
A motion is moved by a ‘mover’ or ‘proposer’ and
unless it is a formal motion, it does not require a ‘seconder’ unless the AOA
so provide. However, it is common for the Chairman to ask for a seconder to
gauge whether or not there is support for the motion. If there is no seconder, it may imply that
there is no support for the motion and the Chairman usually proceeds to the
next business.
The manner in which a motion may be adopted or
rejected is by way of a vote by those present at the meeting and entitled to
vote. The commonly used methods are:
- by voice
- by show
of hand
- by poll
- by ballot
Under Section 145(1), minutes of all
proceedings of the general meetings and of meetings of directors and of
managers (if any) must be entered or recorded in books kept for that purpose
within 14 days after the meeting was held.
The minutes is to be signed by the
Chairman of the meeting at which the proceedings were had or by the Chairman of
the next succeeding meeting.
6. RESOLUTION
A
resolution is a motion or proposal that has been accepted or passed by the
necessary majority at a meeting duly convened and held.
For a resolution to be validly passed or
adopted we have to consider several other aspects such as:
- the
contents and duration of any notice required to be given.
- the
majority required for adopting the motion as a resolution.
- the
persons affected by the resolution.
- the
proper person having been in the chair.
- the
presence of a quorum.
Ordinary resolutions are passed by a simple majority
of those present and voting.
Special resolutions are resolutions passed at meetings requiring written
notice of at least 21 days and the approval of a majority of ¾ of such members
of the company present at the meeting and voting in person or by proxy.
7. MINUTES
Minutes are records of proceedings and resolutions
passed at the meetings.
The minutes that have been signed and entered in the record are
conclusive evidence that a meeting has been duly held and convened that all
appointments of officers shall be deemed to be valid and that all proceedings
were duly conducted.
The minutes book shall be kept at the registered
office and any member could inspect them without charge.
CONDUCT OF A MEETING
Reviewed by Kamaruddin Mahmood
on
10:24:00 PTG
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