Notice Periods for Company Resolutions and Meetings in Malaysia

Ask three Malaysian secretarial firms how many days’ notice a special resolution needs and you will get 14, 21 and “depends on the constitution”. Only one of those is right, and the constitution can only ever make it longer.

Here is every notice period in the Companies Act 2016 in one place, each against its section.

The full table

What	Period	Section
Meeting of members, private company	14 days minimum, or longer per the constitution	s.316(1)
AGM, public company	21 days minimum, or longer per the constitution	s.316(2)(a)
Any other meeting, public company	14 days minimum, or longer per the constitution	s.316(2)(b)
Meeting to pass a special resolution	21 days	s.292(1)
Special notice, where the Act requires it	28 days before the meeting	s.322(1)
Notice of an adjourned meeting	Required where the adjournment is 30 days or more	s.318
Directors to call a requisitioned meeting	14 days from the requisition	s.312(1)(a)
Requisitioned meeting to be held	not more than 28 days after the notice convening it	s.312(1)(b)
Members’ own meeting after director default	within 3 months of the requisition	s.313(3)
Circulate a member-requisitioned written resolution	21 days	s.303(3)
Written resolution lapse	28 days from circulation date	s.307(1)
Public company: request to circulate a resolution	received 28 days before the meeting	s.323(3)(d)(i)
Public company: request to circulate a statement	received 7 days before the meeting	s.323(3)(d)(ii)
Deposit a proxy instrument	48 hours before the meeting	s.334(3)
Deposit a proxy for a poll	24 hours before the poll	s.334(3)
Notice of intention to issue shares for an acquisition	14 days before the issue	s.75(2)(d)

Every period expressed as a minimum can be lengthened by the constitution. None of them can be shortened by it — short notice runs through s.316(3) to (5) instead.

Short notice: the thresholds people get wrong

Section 316(4) allows a meeting other than an AGM to be called on shorter notice if agreed by a majority in number of the members entitled to attend and vote, being a majority who together hold not less than the requisite percentage of the shares giving that right, excluding treasury shares.

The requisite percentage under s.316(5) is:

• 90% for a private company — or a higher figure specified in the constitution, capped at 95%
• 95% for a public company

Two features are routinely dropped. First, it is a double test: a majority in number of members, who together hold the requisite percentage. Ninety per cent of the shares held by one of five shareholders is not enough. Second, a private company’s constitution can lift the bar but not beyond 95%.

For an AGM, s.316(3) requires the agreement of all the members entitled to attend and vote. Unanimity, not 95%.

Special notice is 28 days, not 21

Section 322(1) requires notice of the intention to move the resolution to be given to the company at least 28 days before the meeting. It is a member-to-company clock, and it sits on top of the ordinary notice the company then gives members.

Where the Act requires special notice, it says so expressly. The two main instances are s.206(3), removing a director of a public company, and s.277(1), removing an auditor.

Two mechanics are frequently missed:

• Under s.322(4), where it is not practicable to notify members with the meeting notice, the company must give members at least 14 days notice of the resolution by advertising it in one widely circulated Malay-language newspaper and one English-language newspaper in Malaysia, or as the constitution specifies.
• Under s.322(5), if the company calls a meeting for a date 28 days or less after the special notice was received, the notice is deemed properly given anyway. A board cannot defeat special notice by rushing the meeting forward.

What the notice must contain

Section 317(1) is short: the place, date and time, and the general nature of the business. Section 317(2) makes including the text of a resolution optional — with one hard exception.

For a special resolution passed at a meeting, s.292(5)(a) requires the notice to include the text of the resolution and to state that it is proposed as a special resolution. And s.292(5)(b) makes that statement binding: if the notice says special, the resolution can only be passed as a special resolution.

Section 335(1) adds a separate mandatory item — every notice calling a meeting must state prominently the member’s right to appoint a proxy under s.334, on pain of a fine up to RM10,000 for every officer in default. Section 335(3) preserves the validity of the meeting regardless.

Who must receive the notice

Section 321(1) requires notice of a meeting of members to be given to every member, director and auditor of the company. Directors and auditors are routinely left off Malaysian notice lists on the assumption that only shareholders vote — but the section does not limit itself to persons entitled to vote.

Section 321(2) extends the list further. Where a person has become entitled to a share in consequence of the death or bankruptcy of a member, and the company has been notified of that entitlement in writing, that person must receive notice in place of the member who would otherwise have been entitled. Until the written notification arrives, the company may treat the registered shareholder as the only person entitled under s.101(2).

The method is set by s.319: notice must be in writing and may be given in hard copy, in electronic form, or partly in each. Under s.319(2), hard copy goes personally or by post to the address the member supplied for that purpose, and electronic notice goes to the electronic address supplied — or by publishing on a website. Website publication only works if the company also gives a separate written notification under s.320(2) stating that it concerns a meeting of members, the place, date and time, and (for a public company) whether it is an AGM. Section 320(3) then requires the notice to stay on the website from the date of that notification until the meeting concludes.

Common mistakes

Using 21 days for special notice. It is 28 (s.322(1)). The 21-day figure belongs to special resolutions (s.292(1)) and to public company AGMs (s.316(2)(a)).

Treating short notice as a 90% shareholding test. It is a majority in number and the requisite percentage of shares (s.316(4)).

Short-noticing an AGM on 95%. Section 316(3) requires all members entitled to attend and vote to agree.

Omitting the resolution text from a special resolution notice. Section 292(5)(a) requires it. Without it, the resolution is not a special resolution.

Forgetting the proxy statement. Section 335(1) is a standalone offence, easy to comply with and easy to overlook in a template.

What’s next

Counting days matters more than the table does. The Act sets minimum periods but does not itself define whether the day of the notice and the day of the meeting are counted — the safe practice is to exclude both and add clear days, and to check the constitution, which frequently says so expressly.

For the written resolution route, which avoids most of this, see written-resolutions. For who must hold an AGM at all, see agm-requirements. For forcing a meeting the board does not want, see egm-requisition.