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2021 MarsdenLR 4268
HIGH COURT SABAH & SARAWAK KOTA KINABALU
ROWLAND HENRY GOMES & ORS – Appellant
Versus
NOUNTUN APARTMENT & ORS – Respondent
[Originating Summons No: BKI-24-54/7-2020]
Invalidity of an Extraordinary General Meeting due to improper notice results in retention of prior council members in their positions.
Headnote:(A) Land (Subsidiary Title) Enactment 1972 – Sections 2, 9, 10, 14 – Extraordinary General Meeting – Declaration sought regarding the legality of the council's election on 1 March 2020, deemed unlawful as not compliant with statutory provisions requiring proper notice and conduct. The Plaintiffs retained their council seats, having not been duly replaced. (Paras 1-104)
(B) Employment Law – Resignation – 3rd Defendant's resignation accepted on 3 February 2020. Withdrawal of resignation after acceptance deemed ineffective. (Paras 93-102)
Facts of the case: Disputed legality of council members elected during the EGM on 1 March 2020. Plaintiffs remained as council due to invalid elections and disruptions in AGM processes.
Findings of Court: The court held that the election of the 2nd to 12th Defendants was unlawful. The Plaintiffs are entitled to relief asserting their council membership.
Issues: 1. Lawfulness of council members; 2. Termination of 3rd Defendant's employment.
Ratio Decidendi: Court confirmed the necessity of due process in convening meetings and established that elected officials continue in their roles if elections are not validly conducted.
Result: Plaintiffs declared lawful members of the council and the 3rd Defendant confirmed as having resigned.
JUDGMENT
Introduction
[1] By this Originating Summons dated 3 July 2020 (Encl 1), the Plaintiffs are seeking for the following declaratory relief and orders:
(a) A declaration that the committee comprising of the 2nd to the 12th Defendants purportedly elected via an Extraordinary General Meeting on the 1 March 2020 is illegal as it contravenes ss 2, 9 and 10 of the Second Schedule of the Land (Subsidiary Title) Enactment 1972.
(b) A declaration that the Plaintiffs are the present lawful committee duly elected at the 4th AGM of the above named 1st Defendant.
(c) A declaration that the 3rd Defendant is no longer an employee of the 1st Defendant as she has duly resigned on the 15 January 2020 and duly accepted by the Plaintiffs as Council Members of the 1st Defendant on the 3 February 2020.
(d) That the 3rd Defendant be refrained from gaining access to all documents including the computer of the 1st Defendant.
(e) An Order that a 5th Annual General Meeting of the 1st Defendant be carried out pursuant to ss 2, 9, 11, 12, 13 and all other relevant sections pursuant to the Second Schedule of the Land (Subsidiary Title) Enactment 1972 within 60 days from the date of this Order.
(f) An order that the Defendants and/or any of their servants, agents and/or employees be refrained from intruding, obstructing and/or interfere in any manner with the conduct and carrying out of the 5th Annual General Meeting of the 1st Defendant to be held pursuant to the Order of this Court.
(g) An Order that the 2nd to the 12th Defendants personally pay cost for this application into the 1st Defendant's account.
(h) Any other order as deem fit by this Honourable Court.
[2] In support of the application, it has been filed on behalf of the Plaintiffs the following affidavits:
(a) The Affidavit In Support of Rowland Henry Gomes, the 1st Plaintiff affirmed on 2 July 2020 (Encl 2); and
(b) Affidavit In reply of the 1st Plaintiff affirmed on 13 August 2020 (Encl 6)
[3] The Defendants filed one (1) affidavit to oppose the application, namely, the Affidavit In Opposition of Lesley Shawna Jonathan, the 2nd Defendant affirmed on 17 July 2020 (Encl 4)
Brief Background
[4] The 1st Defendant is the management corporation for Nountun Apartment established under s 14 of the Land (Subsidiary Title) Enactment 1972. It is thus body corporate.
[5] During the 4th Annual General Meeting of the 1st Defendant held on 3 December 2017, the 1st, 3rd to 6th Plaintiffs were elected together with two (2) others, namely Stephen Lau @ Lau Chong Chee, and Low Hsiao Lung @ Christopher Low as the members of the council of the 1st Defendant comprising of seven (7) members (see: exhibit RG-1 of Encl 2) to perform the duties and conduct the business of the 1st Defendant. The 1st Plaintiff was elected as the chairperson of its council.
[6] By para 9 of the Second Schedule to the Land (Subsidiary Title) Enactment 1972, the management corporation established thereunder has to hold annual general meeting for consideration of its audited accounts, for election of the members of its council and the transactions of other business. It requires such annual general meeting to be held not more than fifteen months from the last date of the last annual general meeting held.
[7] The 1st Plaintiff as chairperson did call for annual general meeting of the 1st Defendant for the subsequent year. However, the meeting was postponed and adjourned without a concluded election of the members of the council of the 1st Defendant.
[8] Thereafter, the 2nd to 12th Defendants were elected as the members of the council of the 1st Defendant at an extraordinary general meeting held on 1 March 2020 with the 2nd Defendant as the new chairperson.
The Plaintiff's Case
[9] The Plaintiffs claimed that the extraordinary general meeting held on the 1 March 2020 was illegal and thus the election of the 2nd to 12th Defendants as the members of the council of the 1st Defendant was also illegal.
[10] The Plaintiffs claimed that they are st
