GROUNDS OF JUDGMENT

Mohamad Ariff Md Yusof JCA :

Background

[1] This was an appeal from the Judgment of the learned Judicial Commissioner in the High Court, Ipoh, which invalidated three decisions made by the 1st appellant (Persatuan Lung Yen Manjung Perak), pursuant to an Emergency Committee Meeting of the Association held on 31 January 2010. These decisions related to:

(a) a decision allegedly to let out the ground, first, second and third floors of a shophouse with an address at No. 24 Taman Wong Beng Hea, Kampung Koh, Setiawan to a company related to the 2nd appellant (K & L Family Sdn Bhd);

(b) a decision to demote the position of the 1st respondent as the President of the Association to Deputy President;

(c) a decision allegedly to terminate the 2nd respondent as a Committee Member of the Association.

Issues

[2] Two main issues were raised in the appeal. The first was on the question whether the Committee Meeting held on 31 January 2010 was validly held. This question was related to the issue whether the meeting had a proper quorum under the constitution of the Association. The second main issue related to the question whether the 1st and 2nd respondents were given a right of hearing prior to the demotion and termination respectively.

Our Decision

[3] We allowed the appeal by a unanimous decision with costs of RM 10,000.00 here and below to be paid by the respondents to the appellants. We also ordered the deposit to be refunded to the appellants. This was a very short appeal on just two points. We found the case for the respondents to be without merits after considering the evidence in totality. The learned Judicial Commissioner, in our opinion, had clearly misdirected himself on the evidence. There was an insufficient judicial appreciation of some fundamental evidence before the Court, and this failure warranted appellate intervention.

[4] The judgment of the High Court was accordingly set aside.

The Facts

[5] The Emergency Meeting of the Committee held on 31 January 2010 was called by a notice issued on 30 January 2010. See a copy of this important document on page 174 of the Appeal Record. The Committee Meeting was called under Article 10.4 of the Constitution. The notice of the meeting itself was signed by 10 members, including the 1st respondent as the President of the Association. There were altogether 11 items on the proposed agenda. Items 7 and 8 related to the renting of the Kampung Koh building. The translated items 7 and 8 read:

"7) Kg. Koh building's signing contract progress... 8) To approve, nominate and authorise three Committee Members to sign contract with K & L Family Sdn Bhd in accordance to Article 20.44 renting out of Kg. Koh building (Whole)."

[6] The minutes of this Emergency Meeting (6th Emergency Committee Meeting) can be found on pages 175 to 178 of the Appeal Record. The minutes recorded that eight committee members attended, including the 2nd appellant. The 1st and 2nd respondents did not attend. The Secretary General of the Association did. The Secretary General secured the agreement of all committee members present to waive the seven day's notice requirement, and there was unanimous agreement on this by all present.

[7] The normal quorum requirement for the Association is covered under Article 10.3 whereby one-half of the number of committee members shall form a quorum. At the date of the Emergency Meeting there were 15 committee members, out of which 8 were present at the commencement of the meeting.

[8] The respondents argued that this quorum requirement was not satisfied since the 2nd appellant could not be counted as being part of the quorum on the argument that he had a vested interest in the matter of the renting of the shophouse in Kg. Koh.

[9] During the meeting, the committee members observed that the President, Leow Hwa Pak had not turned up despite attempts to contact him. The minutes on this absence (reproduced below in their original form without correction) were very illustrative of the reasons