Diploma of Corporate Administration

(AM120)

LAW AND PRACTICE OF MEETINGS (ADM231)

TITLE: CONVENING OF MEETING

PREPARED BY
HAJAH MAY SAPURA MOHD SHAZILLI

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 PROPERLY CONVENED

(1) NOTICE

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 NOTICE
LEARNING OBJECTIVES:
1) DEFINITION
2) THE AUTHORISED CONVENER FOR BOARD OF DIRECTORS
MEETING AND MEMBERS MEETING
3) IMPORTANCE/PURPOSE
4) DUTY OF SECRETARY
5) MANNER IN WHICH NOTICE TO BE GIVEN
6) CONTENT OF NOTICE
7) FORMAT OF NOTICE
8) ENTITLEMENT TO NOTICE
9) OMISSION TO SEND NOTICE
10) NOTICE PERIOD
11) VENUE/PLACE OF MEETING
12) AGENDA
13) FAILURE TO CONVENE
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 INTRODUCTION :
NOTICE
• A meeting must be properly convened, and giving proper
notice is a fundamental requisite for a valid meeting-
Young v Ladies Imperial Club (1920)
• A notice needs to be issued with proper notice
• The Companies Act (or Constitution) of the company
usually lay down the form and method of giving notice of
meeting
• No meeting shall be held valid if the notice of meeting is
invalid-Isetan Ltd v Wisma Development Pte Ltd (1992)

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 1.DEFINITION OF NOTICE

• Any form or method of communication

adopted by the convenor(s) to summon to
the meeting all persons entitled to attend

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2.THE AUTHORISED CONVENER
Statutory
• Board Meeting convened by directors/secretary -Para
3,4,5,6 Third Sch of Companies Act 2016
• Members Meeting convened by directors- section 310(a)
CA 2016
• Members meeting convened by members
(sec 310(b) CA 2016)
• Members meeting upon requisitioned by members (sec
311 CA 2016)
• Members Meeting convened by court
(sec 314 CA 2016)
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 Authorised Convener
- Common law
• By the person or body authorised to do so by the regulations
governing the meeting concerned

• No meeting shall be held if the notice is invalid (Isetan (S) Ltd v

Wisma Development Pte Ltd (1992)

• A meeting summoned without authority is invalid: Re State of

Wyoming Syndicate (1901)

• Where a notice in proper form has been sent out without due
authority- sending of notice may be subsequently ratified by the
persons with authority to convene and ensuing meeting will be
validly held: Hopper v Kerr, Stuart & Co.(1900)

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 3.PURPOSE OF NOTICE

• To summon to the meeting all persons

entitled to attend

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 4.DUTY OF SECRETARY

❑ Preparing the notice

of the meeting
❑ Despatching notices
to all persons entitled
to attend the meeting

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5. MANNER
IN WHICH NOTICE IS TO BE GIVEN TO MEMBERS

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 Sec 320 (2) If notice is
published on a website, the
company must notify
members of the publication of
the notice of meeting on the
website
(a) in hard copy or
(b) in electronic The notification to
form or (c) partly in members shall be
both forms (d) by in hard copy or in
publishing on a electronic form
(unless otherwise stated in the
website constitution)

-sec 319(1) Sec. 319 – Notice

-sec 319 (2)
of General
Meetings may be
given

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Source: Adapted from Kenneth Foo, 2017 COPYRIGHT MAY SAPURA 11
2018
 6.CONTENTS OF NOTICE
Best practices for all kinds of meeting:
❑ Place of meeting
❑ Date, day, and time of meeting
❑ Business to be transacted
❑ Details of any special business to be transacted
❑ Kind of meeting
❑ Date of notice
❑ Signature of the person concerning the meeting

Contents of Notice of Meeting of Members (Section 317 CA2016):

(a) place, date and time of meeting, and
(b) The general nature of the business of meeting
Notice may include text of any proposed resolution and other information as
the directors deem fit.
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 7.FORMAT OF NOTICE
(name of entity & registration no)

NOTICE IS HEREBY GIVEN THAT the………………..be held on..(day,date,time)

at…(venue) to transact the business on the agenda set hereunder:

…
;……
…..

By Order of the ……………,

………………
(name)
Secretary (membership)
Date:

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 8.ENTITLEMENT TO
NOTICE
▪ Notice of members’ meeting must be given to every
member, director and auditor of the company (321 CA
2016)
▪ “Member” includes: any person who is entitled to a share
in consequence of the death/bankruptcy of a member &
the company has been notified of the person’s
entitlement in writing
• Failure to do so affect the validity of the meeting: R v
Shrewbury (1735), John v Rees (1970)

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 9. OMMISSION TO SEND NOTICE

• Section 316(6) CA 2016 said any accidental omission to

give notice to or the member who did not receive the
notice shall not invalidate the meeting
• At common law, if a member was not given notice of a
meeting, the omission might prima facie invalidate the
proceedings of the meeting
(Young v Ladies & Musslewhite v CH Musslewhite &
Sons Ltd)

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 OMISSION MAY BE EXCUSED IN
COMMON LAW
Where all persons entitled to attend are present without notice, and all
expressly assent to that which is being done: Re Express Engineering
Works(1920)
1) Where those not summoned were beyond summoning distance,
eg: where a member was abroad: Smyth v Darley (1849)
2) Where a member was too ill to attend in any case: Young v Ladies
Imperial Club (1920)

Note:
It is always advisable to send proper notice to all persons entitled to
attend a meeting and not rely upon the apparent disability of a
member at the time as an excuse for failing to summon him.

Even if the member informs the convenors that he will not be able
to attend the meeting- should not be relied upon as waiver of
notice: Re Portuguese Copper Mines (1889); Rex v Langhorn

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 10) NOTICE PERIOD
• OVERALL:
Length of notice required is usually provided for in the rules and depending
on type of meeting and as stated in the Constitution. Otherwise, reasonable
notice must be given
• Notice required for members meeting of :
a. Private company : sec 316(1) /Constitution
14 days (ordinary resolution)
21days (special resolution)
b. Public company : sec 316(2)/Constitution
21 days (AGM),
14 days ordinary resolution
21days special resolution
c. 28 days (Resolution with special notice) – sec 322
d. Shorter notice period for both public and private company members
meeting if agreed by members with terms and condition (sec 316(3),(4)(5))

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NOTICE PERIOD…cont.
“CLEAR DAYS”:
• It is implied that the number of days stated are clear
days, i.e they are exclusive of the day of service of the
notice and the day of meeting (Interpretation Act 1967 &
Re Railway Sleepers Supply Co. (1885))

• Rules may indicate where notice is deemed to have

been served e.g. 24 hours after posting or at the time of
posting

• If rules are silent on the subject, reference must be made

to the Interpretation Act 1967- “in the ordinary course of
post”

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10.1 SHORTER NOTICE

• Section 316 CA 2016:

A meeting that is called by shorter notice deemed to be duly called if it
is
a) AGM-agreed by all members entitled to attend and vote
b) Any other meeting (eg.EGM, class meeting) – agreed by majority in
number of members having the right to attend and vote together
hold not less than the requisite percentage in the number of shares
(or total voting rights at the meeting in the case of company without
share capital)
- private company: together holds 90% -95% no of shares with
voting right& in the case of company having Constitution-<95%
(sec 316(5)(a))
-public company: together holds 95% (sec 316(5)(b))
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10.2 RESOLUTION REQUIRING SPECIAL
NOTICE
Section 322
• 28 days written notice given by any member to a company before
the meeting
• Must ensure the resolution can be properly moved at the meeting ,
otherwise company is not required to forward notice to members
• Then, company shall give its members notice of such resolution in
the same manner and at the same time as it gives notice of the
meeting [sec 322(3)]
• If not practicable,
➢ Company give its members notice of resolution at least 14 days
before the meeting in 2 widely circulated newspaper in Malaysia
in national language and in English language, or in any other
manner as specified in the constitution (sec 322(4))

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10.2 RESOLUTION REQUIRING SPECIAL
NOTICE..continued
• After notice of the intention to move a
resolution has been given to the company,
a meeting is called on a date 28 days or
less, the notice is deemed to have been
properly given.
• Resolution requiring special notice:
- Removal of auditor (sec 276)
- Removal of director of public company (sec 206)

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Power of members to require circulation
of statements
-section 323
• Members of public company may require company to
➢ (a) circulate a statement of 1000 words to matter referred to in the
proposed resolution and other business dealt at the meeting or
(b) give notice of a resolution which may be properly moved and is
intended to move at the meeting, to members of the company
entitled to receive
• Directors are required to do the above once company received the
requisition form from (Requisitionists) :
❖ Members representing 2.5% paid up capital carrying the right of
voting(excluding treasury shares)
❖ 50 members with right to vote and hold shares paid up shares
RM500
❖ Co. not having share capital, 2.5% of total voting rights of all
members having the right of voting
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 Power of members to require circulation
of statements ..continued
-section 323
• The request shall be :
✓ In hardcopy/electronic form
✓ Accompanied with the statement to be circulated
✓ Signed/authenticated by the person making it

• Received by company :
✓ In the case of requisition requiring notice of resolution-28 days
before meeting
✓ In the case of any other statement - 7 days before meeting

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 11. VENUE OF MEETING

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Members’ meeting at two or more venues- section 327 of CA 2016
• subject to the constitution, a company may hold a meeting
of members at more than one venue using any technology
and method that enables the members of the company to
participate and to exercise their rights to speak and vote at
the meeting.

• The main venue of the meeting shall be in Malaysia where

the chairperson is present.

Case law:
Byng v London Life Association Ltd [1990] Ch 170: the courts have
taken the view that “meet together” means a “meeting of minds”
and not necessarily a “meeting of bodies”.
Wagner v International Health Promotions Pty Ltd [1994] 15 ACSR
419. : telephone
Re GIGA investments Pty Ltd [1995] 17 ACSR 472: video
conferencing
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Board Meeting - Para 6 of Third Schedule of Sec 212 CA 2016

“physically meeting” - by a number of directors who constitute a quorum

being assembled together at the place, date and time appointed for the
meeting, or

Using technology - by means of audio, or audio and visual, communication by

which all directors participating and constituting a quorum can simultaneously
hear each other throughout the meeting.

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 (12) AGENDA

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 AGENDA
▪ Definition: The word ‘agenda’ means ‘things to be done’
Agenda paper is the lists of items of business to be dealt with at the
meeting

▪ Functions of Agenda
i) To enable matters or businesses to be transacted in an orderly
manner, within an appropriate time allocated for the meeting;
ii) it enables the business to be arranged in a logical flow which
promotes efficiency and harmony in a business
iii) it provides a restraint on members from raising matters which are to
be discussed at a later heading or which are irrelevant;
iv) to enable members to decide whether to attend the meeting or not.
v) to assist the chairman in conducting the meeting
vi) it will also facilitate and provides a basis on which to write the minutes
of the meeting.

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Form of agenda

1. A Skeleton form of agenda- bare outline/summary

form (giving heading of the items to be dealt with only)
2. A Detailed form of agenda- with a complete heading
to identify the meeting,& setting out the resolution to
be submitted to the chairman
3. A Bell Curve structure- recommended for agendas.
Items of a simple nature comes first before the items
which may be difficult or contentious
4. The Chairman’s copy of the agenda paper-
chairman is supplied with more detail than copies
issued to those attending the meeting, and a wide
margin may also be left on his copy for the purpose of
taking- note

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Contents of agenda paper

1. Heading - should be suitably headed, to indicate the

kind of meeting, also where and when it is to be held
2. Arrangement - items must be arranged in the order (if
any) indicated in the rules governing the meeting. Items
ought to be arranged in logical flow
3. Items of business included - no business should be
placed on the agenda paper unless it comes within the
scope of the notice convening the meeting, and is within
the power of the meeting to deal with it : e.g:
appointment of treasurer at AGM
4. Any other business - its use is not advisable; causes
problems
5. Ease of reference
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Preparation
1. Ensure that no relevant item of business is omitted
- Consult with the chairman and any other officials
who may have business to include
- Refer to the minutes of the last meeting for any
business of the routine annual, half-yearly and
quarterly recurring items
- Keeping a special file or folder of documents
2. Refer to the rules governing the meeting
- Properly drawn up, and well-arranged, prevent
confusion
3. Where the motions are to be submitted in writing,
ensure that they are received within any time limit
imposed by the rules
4. Obtain approval of the agenda in its final form from the
chairman
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Retention of agenda papers
• Chairman’s copy of the agenda paper may be of
assistance to the secretary when writing up his/her
minutes. After the minutes having been approves and
signed, the chairman’s copy of agenda paper ought to be
destroyed to avoid confusion
• At least one copy of the agenda paper should be
retained by the secretary from which to prepare his/her
minutes

(see Sample Agenda )

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 13. FAILURE TO CONVENE

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 UNDER COMMON LAW

Failure to ensure proper convening of meeting cause the

meeting invalid

The validity of meeting might be questioned by any defects

involving notice

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13.1 Failure of notice due to defects or
irregularities

1. Omission to send notice to every person entitled to attend where there are
no grounds for excusing the omission. This is in contrary to the general
rule that notice must be given to all persons entitled to attend the meeting:
John v Rees

2. Inadequacy (short) notice,

- e.g. only 7 days notice is given instead of 21 days notice required by the
regulations concerned.Failure to give adequate notice may result in the
meeting being rendered invalid.

However, inadequacy of notice may be excused if all, or some specified

proportion of the members entitled to attend the meeting so agree:
Re Oxted Motor Co. (1921) & section 316(3) & (4) CA 2016

3. Ambiguity of the notice- notice must be free from anything calculated to

confuse or mislead
Kaye v Croydon Tramsways (1898).
Henderson v Bank of Australasia (1890)
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13.1 Failure of notice due to defects &
irregularities..continued
4. Omission of important contents
e.g. failure to mention that special business to be transacted.
Matters of which appropriate notification has not been given
cannot be dealt with at the meeting unless they are of an informal
character: Smith v Deighton and Billington (1852), Young v
Ladies Imperial Club (1920)

5. Unauthorised issue of notice – issue of notice by the secretary

without the authority of the convening body is inadequate and the
meeting rendered invalid: Re Haycraft Gold Reduction Co. (1900)

If notice is adopted and ratified by the proper convening body before

the meeting is held, it may become a good notice, in which case the
meeting is not considered invalid: Hooper v Kerr (1900), see also
Breackland Group Holdings Ltd v London and Suffolk Properties Ltd
(1988)
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13.2 THE IRREGULARITIES PRINCIPLE

• Person who is present and who votes at the meeting will not be
entitled to challenge the invalidity of notice: Re British Sugar
Refining Co. (1857)
• Members wishing to challenge the validity of a notice must act with
promptness: Re Vale of Neath (1852)
• Lawfulness of a decision taken by a meeting may not be questioned
of the only factor alleged to make it unlawful on the basis of mere
informality or mere irregularity while the intention of the members is
clear: Burland v Earle (1902)
• If any irregularity could be cured by issuing another notice, the court
may not interfere: Bentley Stevens v Jones (1974).
• Sect 582 CA 2016

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 End of presentation

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