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2021 MarsdenLR 4174
HIGH COURT MALAYA KUALA LUMPUR
GANESARETHINAM S KANARATNAM & ORS – Appellant
Versus
PENDAFTAR PERTUBUHAN MALAYSIA & ORS – Respondent
[Judicial Review Application No: WA-25-107-03/2020]
The court affirmed that membership in the VIOBA does not automatically confer membership in the Foundation, emphasizing the necessity for compliance with the Foundation's Constitution.
Headnote:(A) Societies Act 1966 – Section 3A – This application for judicial review seeks the quashing of the 1st Respondent's order regarding membership validity of the VIOBA Foundation, affirming the significance of compliance with association’s Constitution. (Paras 1-6)
(B) Joint Membership Practice – The court clarified that membership to VIOBA does not automatically grant membership to the Foundation and emphasized the legal obligation to adhere to the Constitution. (Paras 10-12)
(C) Procedural Fairness – The court found no breach of natural justice, given that the applicants failed to plead certain issues and the 1st Respondent was entitled to act based on documents provided. (Paras 50-56)
Facts of the case: The case involved a dispute over the membership status of the VIOBA Foundation members after the 1st Respondent found certain contraventions in their constitution during an investigation. (Paras 1-9)
Findings of Court: The court validated the 1st Respondent's order under s 3A of the Act, which was issued appropriately to ensure compliance with the Foundation's Constitution. (Paras 56)
Issues: The court examined whether VIOBA members were automatically members of the Foundation and if the 1st Respondent acted beyond his powers. (Paras 29-31)
Ratio Decidendi: The 1st Respondent acted lawfully in issuing directives for remedying constitutional contraventions, emphasizing that decisions must adhere strictly to the rules of the association. (Paras 35-57)
Result: Application dismissed with costs.
JUDGMENT
[1] This is an application for judicial review under O 53 Rules of 2012 ("ROC 2012") filed by the Applicants challenging the 1st Respondent's order made pursuant to s 3A of the Societies Act 1966 ("the Act").
[2] The reliefs sought by the Applicants herein are for certiorari to quash the 1st Respondent's order as contained in the letter dated 30 January 2020 (the "Order") and a declaration that the membership of the all the Victoria Institution Old Boys' Association Foundation (the "Foundation") as at 30 January 2020 are valid members of the said Foundation and the said members' membership as the valid members of the said Foundation does not breach the said Foundation's Constitution in any way whatsoever.
Salient Facts
[3] The 1st and 2nd Applicants are the current President and Honorary Secretary of Victoria Institution Old Boys' Association ("VIOBA"). The 3rd Applicant is the former President of VIOBA.
[4] The 2nd to 9th Respondents are the Board members of the Foundation (Collectively referred to as the "Board Members")
[5] VIOBA was registered under the Act on 3 October 1951 as an alumni association with its objectives as stated in cl 3 of the VIOBA's Constitution.
[6] The VIOBA Foundation was registered under the Act on 25 October 1966 as an association and/or foundation with its objectives as stated in cl 3 of the Foundation's Constitution. The Foundation's objectives listed are, inter alia, to raise funds and to provide financial support for the advancement of education including the improvement of youth recreational facilities and the provision of scholarship, bursaries and educational loan funds as well as schemes to relieve poverty and to ameliorate the condition of sick, aged and physically or mentally handicapped persons.
[7] The Board Members revealed that at the 2019 Annual General Meeting ("AGM") of VIOBA and the Foundation (which are normally held on the same day and venue), specifically during the AGM of the Foundation, some members voiced out concern on the lack of clarity in the entry of the descriptions of the Foundation's accounts causing the passing of the accounts being postponed. A committee was appointed to clarify the accounts with the auditors. This led to the Extra Ordinary General Meeting ("EGM") dated 17 August 2019 being called to approve the externally audited accounts and for the election of the new office bearers of the Board of the said Foundation.
[8] However, when the Honorary Secretary of the Foundation requested VIOBA for the membership list from its database to enable the Foundation to directly issue the Notice for the EGM to the members, the Honorary Secretary of VIOBA refused to provide the membership list and said to have given excuses that they are in the midst of updating the membership list as there are quite a number of Victorians who claimed that they were registered by third parties but their names and membership fees were not extended to the Honorary Secretary and that VIOBA shall arrange for the notice to be sent on behalf of the Foundation since membership is automatic and that the membership particulars are private and confidential.
[9] The grounds of refusal by VIOBA to provide the membership list was not accepted by the Foundation as the EGM was arranged by the Foundation and the Honorary Secretary of the Foundation is the right person to issue the notice of EGM instead of the Honorary Secretary of VIOBA.
[10] Upon perusal of the Foundation's Constitution, the Board Members discovered that VIOBA members are not automatically members of the Foundation as the Foundation must register its own members required by cl 4 of the Foundation's Constitution. Similarly, it was also discovered that the Foundation's Constitution does not state that VIOBA's member automatically becomes a member of the Foundation as cl 4 of the Foundation's Constitution states that the members of VIOBA eligible to apply to be members of the Foundation.
[11] Following the matters aforesaid
