Counting The Days

The period of notice to be given by a company to its members for convening a general meeting is governed by its articles of association ("articles"). More often than not, the articles follow the requirements set out in the Companies Act 1965 ("CA").

For example, Section 145(1) of the CA provides that the period of notice for a general meeting convened for a purpose other than to pass a special resolution is to be not less than 14 days or such longer period as is provided in the articles.

The courts have on various occasions held that for the purpose of determining whether the minimum notice period specified in the articles have been complied with, the day on which the notice is issued and the day on which the meeting is to be held are to be excluded.

Bennet J in Re Hector Whaling [1936] Ch 208 held that the phrase "not less than twenty-one days" in Section 117(2) of the Companies Act 1929 means "twenty-one clear days exclusive of the day of service and exclusive of the day on which the meeting is to be held."

The principle in Re Hector Whaling was followed in Extreme System Sdn Bhd v Ho Hup Construction Company Bhd and Others [2010] 1 LNS 338. In this case, the Malaysian High Court held that the minimum notice period of 28 days specified in Section 153 of the CA (for resolutions that require special notice) means 28 clear days, exclusive of the date of service of the notice and exclusive of the day on which the meeting is to be held.

The rules of interpretation adopted by the courts in the above-cited cases apply equally to the computation of the time periods specified in Sections 145(2A) and 152(1) of the CA which respectively prescribe a minimum notice period of 21 days for an annual general meeting of a public company and for a meeting convened to pass a special resolution.

It is important to ensure that the minimum time-frame prescribed by the articles of a company is complied with as the failure to do so may result in the proceedings at the meeting being invalidated.

 
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