MAH YUEN SHI 1. ) WONG KOON HUNG 2. ) WONG KIEN CHOONG 3. ) MAK CHOOI PENG 4. ) MASERA REALTY SDN BHD

MAH YUEN SHI 1. ) WONG KOON HUNG 2. ) WONG KIEN CHOONG 3. ) MAK CHOOI PENG 4. ) MASERA REALTY SDN BHD

Members' Written Resolution dated 20.7.2022 was invalid to appoint an additional director because Article 67 required appointment by ordinary resolution passed at a general meeting and s302(2)(a) renders a written resolution ineffective where inconsistent with the constitution; appointment of the company secretary...

Source-derived case information.

Citation
WA-24NCC-831-08/2022 (Mahkamah Tinggi)
Parties
Plaintiff: Mah Yuen Shi; 1st Defendant: Wong Koon Hung; 2nd Defendant: Wong Kien Choong; 3rd Defendant: Mak Chooi Peng; 4th Defendant: Masera Realty Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 August 2023
Case Number
WA-24NCC-831-08/2022 (Mahkamah Tinggi)
Procedural Posture
Companies Act 2016 Oppression (s346) Originating Summons / Judgment (interlocutory Injunction Earlier Granted; Final Reliefs Granted)
Outcome
Originating Summons allowed. Members' Written Resolution of 20.7.2022 and the appointments made thereby set aside; records to be rectified; costs awarded to Plaintiff; interim injunction continued on same terms.
Legal Topics
Minority Oppression, Appointment of Directors, Appointment of Company Secretary, Company Constitution Vs Statute, Rectification of Company Records, Costs
Company Law Civil Procedure Injunctions Minority Oppression Appointment of Directors Appointment of Company Secretary Company Constitution Vs Statute Rectification of Company Records +1 more

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Parties

Mah Yuen Shi

Plaintiff

Wong Koon Hung

1st Defendant

Wong Kien Choong

2nd Defendant

Mak Chooi Peng

3rd Defendant

Masera Realty Sdn Bhd

4th Defendant

Procedural Posture

Companies Act 2016 Oppression (s346) Originating Summons / Judgment (interlocutory Injunction Earlier Granted; Final Reliefs Granted)

Legal Issues

  1. 1 Whether a Members' Written Resolution can validly appoint an additional director where Articles require appointment by general meeting
  2. 2 Whether appointment of company secretary by members' written resolution is valid where Articles and statute vest appointment with the board
  3. 3 Whether Article 67 is inconsistent with the Companies Act 2016 and displaced by s32(2)

Ratio Decidendi

Members' Written Resolution dated 20.7.2022 was invalid to appoint an additional director because Article 67 required appointment by ordinary resolution passed at a general meeting and s302(2)(a) renders a written resolution ineffective where inconsistent with the constitution; appointment of the company secretary by members' written resolution was invalid because Articles and s236 vest that power in the board. The 1st Defendant's conduct in effecting those appointments and withholding company information amounted to oppressive conduct under s346 CA 2016; consequent reliefs including setting aside the appointments, rectification of records and costs were appropriate.

Court Disposition

Originating Summons allowed. Members' Written Resolution of 20.7.2022 and the appointments made thereby set aside; records to be rectified; costs awarded to Plaintiff; interim injunction continued on same terms.

Orders

  • Members' Written Resolution dated 20.7.2022 (circulated 19.7.2022) appointing the 2nd Defendant as additional director and the 3rd Defendant as company secretary is invalid, null and void and is set aside and cancelled
  • The appointment of the 2nd Defendant as an additional director of the Company is invalid, null and void and is set aside and cancelled