# Written Resolutions of a Sdn Bhd: How They Work and What They Cannot Do

> How a private company passes members' resolutions in writing under the Companies Act 2016, the circulation and agreement mechanics, and the two resolutions the Act forbids from being passed this way.

- Category: company-secretary
- Language: en
- Status: published
- Updated: 2026-07-20
- Canonical: https://negaraku.md/en/company-secretary/written-resolutions

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Most Sdn Bhd shareholder decisions in Malaysia never involve a meeting. Papers get
signed, the secretary files them, and nobody thinks about it again. That works —
until the one decision that legally cannot be made that way is made that way, and
the removal of a director is later challenged as a nullity.

There are exactly two such decisions. Knowing which two, and why, is the whole
value of understanding s.297.

## What is a written resolution under the Companies Act 2016?

Section 290(1) gives a private company two routes to a members' resolution: a
written resolution, or a resolution at a meeting of members. Both are equally
valid. Section 290(2) closes the first route to public companies — their members'
resolutions must be passed at a meeting, full stop.

Section 290(3) supplies a useful default: where the Act does not specify what type
of resolution is required, and the constitution is silent, an ordinary resolution
suffices.

A written resolution can be proposed by the Board or by any member of the private
company (s.297(1)). There is no minimum shareholding to *propose* one — the 5%
threshold in s.302 applies only to *forcing the company to circulate* one.

## What cannot be passed by written resolution?

This is the part that matters, and the Act is unusually short about it.
Section 297(2) reads:

> The following shall not be passed as a written resolution:
> (a) a resolution under section 206 to remove a director before the expiration of
> his term of office; or
> (b) a resolution under section 276 to remove an auditor before the expiration of
> his term of office.

**Two items. Nothing else.** A good deal of Malaysian commentary treats the written
resolution route as hedged about with unstated limits — it is not. Anything else a
private company's members may resolve, they may resolve in writing, including
special resolutions, capital reductions, constitution amendments and voluntary
winding up.

The logic behind the two exclusions is the same in each case: the person facing
removal has a statutory right to be heard. Special notice is required of any
resolution to remove a director under s.206 — including a private company removal
under s.206(1)(a) — by s.206(3), and s.207 then gives that director the right to
make oral or written representations. Section 277(3) gives an auditor seven days from receipt of the special
notice to make written representations, and s.277(5) lets the auditor require the
representation be read out at the meeting. Neither right can operate if there is no
meeting. The exclusion protects the hearing, not the vote.

Note the consequence for a private company. Under s.206(1)(a) a private company may
remove a director by *ordinary* resolution, subject to the constitution — a low bar.
But it must still convene a meeting to do it. The threshold is easy; the procedure
is not optional.

## How is a written resolution circulated?

| Step | Requirement | Section |
| --- | --- | --- |
| Identify eligible members | Members entitled to vote on the circulation date | s.298(1) |
| Fix the circulation date | The date copies go out, or the first of those dates | s.299 |
| Choose a medium | Hard copy or electronic form | s.300(1) |
| Send | Personally or by post to the address given, or to the electronic address given | s.300(2) |
| Attach the statement | The agreement procedure and the lapse date | s.301(2), s.303(4) |

Where the Board proposes the resolution, s.301(1) requires copies to go to every
eligible member **at the same time, so far as practicable**. Failure is an offence
carrying a fine up to RM10,000 (s.301(3)) — but s.301(4) preserves the validity of
the resolution if it passes anyway. The same split appears at s.303(5).

Section 298(2) handles the awkward case where the register changes during the day of
circulation: eligibility is fixed at the moment the first copy goes out.

## Can members force the company to circulate a resolution?

Yes, and this is the underused half of the subdivision. Under s.302(1), any member
holding **5% of the total voting rights of all eligible members** — or a lower
percentage if the constitution says so — may require the company to circulate a
resolution that could properly be moved as a written resolution. They may attach a
statement of **up to 1,000 words** (s.302(3)).

The company may refuse only on the four grounds in s.302(2): the resolution would be
ineffective for inconsistency with written law or the constitution, is defamatory,
is frivolous or vexatious, or would not be in the best interest of the company.

Once the request bites, s.303(3) gives the directors **21 days** to send the copies.
If they do not, s.303(6) lets the requisitioning member circulate it instead, and
s.303(7) makes the company reimburse the reasonable expenses — with s.303(8)
allowing the company to claw that sum back out of the defaulting directors' fees.

Costs run the other way by default. Under s.304 the requisitioning members pay the
company's circulation expenses, and the company need not comply unless a sufficient
sum is deposited **not later than one week before** the obligation arises. Section
305 lets the company or an aggrieved person apply to court where the s.302 right is
being abused.

## When is a written resolution actually passed?

A member signifies agreement when the company receives an authenticated document
that identifies the resolution and indicates agreement (s.306(1)). It may be sent in
hard copy or electronic form (s.306(2)). Once signified, **agreement cannot be
revoked** (s.306(3)).

The resolution is passed at the moment the required majority have signified
agreement (s.306(4)) — not when the last signature is chased down, and not when the
secretary compiles the file.

What counts as the required majority depends on the type:

- **Ordinary resolution** — more than half of the members entitled to vote on the
  written resolution (s.291(1)(b)).
- **Special resolution** — not less than 75% of such members (s.292(1)(b)), *and*
  the document must state that it is a special resolution and be passed as one
  (s.292(2)).

That last requirement is the most common technical defect in Malaysian written
resolutions. A document that achieves 90% agreement but never says the words
"special resolution" is, on the face of s.292(2), not a special resolution.

## Does the 21-day special resolution notice apply to a written resolution?

Section 292(1) opens with the words "a resolution of which a notice of not less than
twenty-one days has been given". That notice requirement is directed at meetings —
s.316(1) carves a special resolution meeting out of the ordinary 14-day notice period
precisely because s.292 sets its own longer one.

For the written route, the operative controls are different: the s.303(3) 21-day
circulation duty where members requisition, the s.307(1) 28-day lapse period, and
the s.292(2) labelling requirement. Guides that assert a flat "21 days' notice
before a written special resolution can be signed" are importing a meeting rule into
a mechanism that has no meeting.

## What has to be kept afterwards?

Section 341(1)(a) requires the company to keep records of all resolutions of members
passed otherwise than at a meeting — that is, every written resolution. Section
341(2) requires those records to be kept for **at least seven years**.

There is **no statutory deadline for entering a written resolution into the records**.
Section 341 is a retention provision, not a drafting one. The 60-day rule frequently
attributed to it is s.245(2), which governs accounting entries.

Section 343(1) makes a record of a written resolution signed by a director or the
secretary sufficient evidence that it was passed, and s.343(2) deems the Act's
requirements complied with unless the contrary is proved. That evidential presumption
is why a tidy, signed, dated file is worth more than a perfect procedure nobody
recorded.

## Common mistakes

**Removing a director by circular resolution.** The single most consequential error
in this area, and it happens because s.206(1)(a) makes removal in a private company
so easy that the procedure gets skipped. Section 297(2)(a) is unambiguous. Convene
the meeting.

**Not labelling a special resolution.** Section 292(2) is a formality with real
teeth. Where the resolution is one the Act requires to be special — a constitution
amendment under s.36(1), a capital reduction under s.115 — the label is load-bearing.

**Assuming a public company can use the written route.** Section 290(2) blocks it.
This bites companies that converted from private to public and kept their old
secretarial habits.

**Treating the 5% in s.302 as a threshold to propose.** It is not. Section 297(1)
lets *any* member propose a written resolution; s.302 is about compelling the company
to circulate one against the Board's wishes.

**Circulating to the wrong list.** Eligibility is fixed by the register on the
circulation date (s.298), not on the date the last signature arrives. A transfer
registered mid-circulation does not retrospectively change who was eligible.

**Letting a requisitioned resolution drift past 28 days.** Section 307(2) makes late
agreement ineffective. There is no cure short of re-circulating.

## What's next

Check your constitution first — several of the rules above are expressed as
defaults that the constitution can vary, including the s.302 percentage and the
s.307 lapse period. If your Sdn Bhd has no constitution, the Act's defaults are
your rulebook.

If the decision on the table is a director removal, read `remove-a-director` for
the meeting procedure and the special notice rules. For every other notice period
in one table, see `resolution-notice-periods`. For what the Board does in parallel,
see `board-meetings-and-minutes`.

## Sources

- Companies Act 2016 (Act 777), reprint as at 1 August 2022 — ss.290–308 — https://www.ssm.com.my/Pages/Legal_Framework/Document/Companies%20Act%202016_Akta%20777_BI%20(1.8.2022).pdf (SSM)
- Companies Act 2016 (Act 777) — s.206 removal of directors and s.276 removal of auditors — https://www.ssm.com.my/Pages/Legal_Framework/Document/Companies%20Act%202016_Akta%20777_BI%20(1.8.2022).pdf (SSM)
- Companies (Amendment) Act 2024 (Act A1701) — https://www.ssm.com.my/Pages/Legal_Framework/Document/A1701%20BI.pdf (SSM)

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