Directors cannot be deemed to have retired without convening a general meeting, as retirement by rotation is closely linked to eligibility for re-election, upholding principles of corporate governance and shareholder democracy.

Introduction

[1] These appeals concern the narrow issue of whether a company director who is due to retire under the articles of association of the company in an impending general meeting of the shareholders can be deemed to have retired upon the completion of the period the meeting ought to have been convened if the meeting could not be held for some reason.

[2] Three appeals were heard together before us as they raised the aforesaid same issue where the facts are similar. In order to follow the submissions made and the judgment delivered by the High Court, the focus, however, was on Appeal W-02(NCC)(A)-605-04/2022 ("Appeal 605") in respect of the action at the High Court in WA-24NCC-574-10/2019 ("OS 574"), although counsel at the hearing before us also agreed to refer to the articles of association of the 1st respondent in Appeal W-02(NCC)(A)-602-04/2022 ("Appeal 602") in respect of the action at the High Court in WA-24NCC-642-11/2019 ("OS 642"), as representative for the articles for all the respondent companies.

[3] Having examined the appeal records and deliberated on the submissions of counsel for parties before us, we found that there are merits in Appeal 602, Appeal 605 and Appeal W-02(NCC)(A)-604-04/2022 ("Appeal 604") in respect of the action at the High Court in WA- 24NCC-609-11/2019 ("OS 609"), and unanimously decided to allow the same.

[4] These are our reasons.

Key Background Facts

[5] In this appeal, the 1st respondent company which operates an oil palm plantation wholly owns the 2nd respondent company which runs a palm oil mill. These operations are in Pahang.

[6] The appellant was a director of the two respondents, each of which also has four other directors on their respective board of directors at the material time in September 2017.

[7] A month earlier, on 7 August 2017, each of the respondents issued a notice to convene their respective extraordinary general meetings, stated to be held on 6 September 2017. Relevant to this appeal, these EGMs were called to consider and vote on, among others, a motion to remove the appellant as their director.

[8] In response, the appellant filed a writ vide Kuala Lumpur High Court Civil Suit No: WA-22NCC-352-09/2017 ("Suit 352") against, inter alia, both the respondents. This was swiftly followed by an injunction application to, inter alia, restrain the respondents from removing him as a director and from holding any general meeting. The appellant secured an ad interim injunction to such effect on 6 September 2017, which was later affirmed on 29 March 2018.

[9] Whilst the injunction was still in force (and we understand it no longer is given subsequent developments), on 14 May 2019, the appellant served two letters, both of which were dated 10 May 2019 on each of the respondents, requesting for their financial statements, ledgers and certain contractual documents. These were refused by the respondents who explained in their respective replies dated 28 May 2019 that the appellant was no longer a director in the respective respondent companies and therefore had no locus to make such demands. They also claimed that the appellant made the request for an ulterior motive which was detrimental to the companies. The appellant disagreed as he took the position that the injunction had the effect of preserving his status as a director in both companies.

[10] This then wit