Hi,
I have failed to lodge the Annual Return and hold AGM since financial year 2001. ACRA is after me for more than 50 months. May I have your thoughts? If you could, play the devil advocates. I have written many emails to ACRA with at least 100 pages of correspondence. The latest one to ACRA was dated 13 Jun’08, which is partly reproduced as in below:
Summons No. 2007068049 against Phua Tiak Chuang of 3P Access Pte Ltd:
Two Charges under the Companies Act for financial year 2002:
1. Fail to hold AGM on or about 31 Dec’03 under Section 175(4).
2. Fail to lodge the Annual Return on or about 31 Jan’04 under Section 197(7).
The Perspective:
1. The Company was incorporated as Singstar Datanet Pte Ltd in 1997. Its name was changed to its current name, 3P Access Pte Ltd, in 27 Jun’01 for the purpose of a Joint Venture. At that time, Johnson Ho introduced myself to Cai Mao(a director the company since 1998), and Derek Goh and the 3 parties decided to start a Joint Venture(JV) business together.
2. The nominal capital of the Company is $132,000, divided into 132,000 shares of $1 each. The amount of the capital paid up or credited as paid up is $132,000.
3. The JV agreement was signed on 4 July 2001 and comprised 2 groups of shareholders with its own appointed directors. I was in the 1st group and hold 78% of the shares in the Company with Winston Lau and myself as the appointed directors. Global Voice Pte Ltd (GV) was in the 2nd group and hold the remainder, 22% of the shares in the Company, with Cai Mao remained as a director. Derek Goh was a major shareholder of GV. GV had an internet telephony and international communication services in Singapore and the Company was to engage in the business of marketing and promoting GV’s services.
4. I was also appointed as the General Manager of the Company. The JV business was operated from GV’s premises and around 7 staff was recruited.
5. In Dec’01, the JV business was not doing as well, and although there was a cash balance of $30,000 left in the bank account, there was an outstanding debt of $35,000. The debt included 7 staff salaries and more than 6 creditors. GV was one of the creditors.
6. I proposed several restructuring plans for the Company, however, the plans were not agreed to. The Company ceased operations on 15 Jan’02 and the staff were not paid their salaries for Dec’01 and Jan’02. The Company had unsettled debts and liabilities of around $35,000 when it ceased operations.
7. I suggested that the Company be liquidated since the JV Business had ceased. For this purpose, I had engaged a liquidator with my own money to advise the Company. GV was not agreeable to the liquidation unless the debt of $17,397.91 owing to them was settled by the Company before other creditors. I did not agree to the amount claimed by GV, and in any event, I felt strongly that if any of the creditors were to be paid, the staff had to be paid first and not the shareholders. I, being the co-signatory of the cheques for the Company with GV, refused to sign the cheque to pay GV.
8. The independent liquidator needed to see the financial statements of the Company before he could give his advice on the liquidation of the Company. However, I was barred from having access to the accounts of the Company unless I agreed to sign the cheque to pay GV. I refused to sign the said cheque.
9. All this while, I made many attempts to see Derek Goh of GV so as to convince Derek Goh to liquidate the Company voluntarily. I was not successful in my attempts.
10. On or about Jan’03, Johnson Ho called me and informed me that Mr Derek Goh was agreeable to resolve the Company expeditiously. Cai Mao and I got together for a discussion. Essentially, it was proposed that the monies left in the bank account was to be utilised towards paying the auditors to file the annual returns, that I will forego my claim for salary, and to convince the other creditors to accept a proportional payment of the debt. Thereafter, GV was to transfer its shares to me, and Cai Mao be allowed to resign as the Company director. The proposal was rejected by Ng Cher Yan, the company secretary for the Company. The alternative proposal made by me to liquidate the Company using the monies left in the bank account was met with silence.
11. Winston Lau and I then received a notice from ACRA. The notice stated that Cai Mao had ceased to be a director of the Company since 25 Sep’02 and the Company had failed to file the Notice of Change of Directors with ACRA within the requisite time and was therefore liable to a fine. I was shocked with this new turn of events as both Winston and I did not know of Cai Mao’s resignation, and as late as Jan’03 to Mar’03, the company restructuring proposals had touched upon Cai Mao’s resignation as director only after the matters of the Company had been settled. Immediately, I took the issue up with ACRA and lodged my objections to the resignation of Cai Mao as a director of the Company.
12. Until today, no audited accounts of the Company had been filed since 2001. On 24 Mar’04, Winston and I have since been summoned to Court to answer to ACRA summons for financial year 2001. Cai Mao was not issued with the summon although he was a director in the financial year 2001.
13. I wrote to ACRA in Apr’04 to put into perspective the make-up of the Company. In the write-up, I had included an email from Cai Mao dated 25 Jan’03 detailing about point (10) above. As this email was dated 25 Jan’03, Cai Mao could not have ceased to be a director on 25 Sep’02 as mentioned in point (11) above.
14. On 21 Apr’05, I called for an EOGM for a members’ voluntary liquidation to be resolved. Notice of the EOGM was given to GV but GV failed to attend the meeting.
15. I had written to ACRA on 27 Apr’05 and said that the cause of the delay was due to ACRA acceptance of Cai Mao’s resignation.
16. In a letter dated 11 May’05, I had asked GV, through my solicitor, if they were agreeable to a voluntary winding up of the Company as the Articles of the Company (as set out in the JV agreement) provides that the Company needs to obtain an affirmative vote of 80% by the shareholders before a voluntary winding up can commence. There was no response from GV.
17. ACRA and I had agreed earlier in May’05 to allow an adjournment so that I could work on the voluntary liquidation. ACRA objected during the appearance in court. I was shocked at ACRA inconsistency.
18. On 20 May’05, ACRA was impatience and wrote, “…the case has dragged on too long. I regret that we are unable to accede to your request to compound the charges as the situation has not changed since the last adjournment. Please note that we will NOT consent to any further adjournment of the summonses against both the directors.”
19. On 24 May’05, ACRA had made up the mind and wrote, “…as I have advised you previously, there is not need to keep us updated regularly. Our position and course of action has already been made know to you.”
20. I gave ACRA a summary of recent events on and about 25 May’05. In addition, I wrote that I could not understand why ACRA had to accept Cai Mao’s resignation.
21. On 16 Jun’05, my solicitor had filed a winding up petition for the Company in court, reference CWU120/2005/H.
22. On 17 Jun’05, I had written to ACRA for an adjournment as I was in the midst of the proceeding in winding up the Company. In addition, I wrote that by accepting Cai Mao’s resignation, ACRA had removed the need of GV and Cai Mao to co-operate.
23. At the 2nd session in high court on 16 Aug’05 to wind up the Company, we had to withdraw the petition. The company secretary, Ng Cher Yan, had registered myself as the majority shareholder with 78% of the shares in the Company and transferred my shares to BlueSky Access in Nov’01. I was the major shareholder of BlueSky Access. Until today, in the ACRA business profile, GV still hold 100% of the shares. The petition was in my name.
24. In Jan’06, my solicitor was working on the voluntary winding up of the Company with the solicitor of GV.
25. In May’06, the voluntary winding up did not work out. I wrote to ACRA to request for filing of Annual Return without AGM and with an unaudited account.
26. ACRA and I met on 17 Jun’06 to discuss further on the above point (25). We had a grave concern on the separate account that I was trying to build.
27. Winston and I had been summoned to Court on 13 Sep’07 to answer to ACRA summons for financial year 2002. Cai Mao was not summoned although he was a director for financial year 2002.
28. The Pre-Trial Conference(PTC) was set up on 19 Nov’07. As listed below, ACRA asked for 5 adjournments on:
· 19 Nov’07 for ACRA to look into my reply.
· 7 Jan’08 as the attending ACRA officers did not know about the issues.
· 21 Jan’08 for ACRA to summon Cai Mao.
· 18 Feb’08 as ACRA said the case was complicated and more time needed.
· 14 Apr’08 as ACRA said about new evidence. ACRA had not summoned Cai Mao. ACRA requested for 12 weeks adjournment but was given 6 weeks.
29. ACRA wrote to me on 20 May’08 and said that the new evidence was surfaced by me. They had examined in detail and Winston and I would have to rectify the summons for financial year 2002.
30. I was shocked. The said evidence in point (29) above, was given to ACRA in Apr’04. It was an email written by Cai Mao on 25 Jan’03, which was also highlighted in point (13) above.
31. In the Pre-Trial Conference on 26 May’08, I requested ACRA to show the new evidence. The request was rejected. A trial date was set on 30 June 2008, Court 14, at 10am.
My thought:
ACRA is unfair. ACRA only summon Winston and me. ACRA did not summon Cai Mao for the financial year 2001 and 2002, despite that ACRA had accepted Cai Mao as the director for these 2 years in the Company.
Private company may dispense with annual general meetings
(2) Notwithstanding any other provision of this Act, a resolution referred to in subsection (1) shall only be treated as passed at a general meeting if it has been passed by all of such members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy present at the meeting.
(3) A resolution under subsection (1) has effect for the year in which it is made and subsequent years, but does not affect any liability already incurred by reason of default in holding an annual general meeting.
(4) In any year in which an annual general meeting would be required to be held but for this section, and in which no such meeting has been held, any member of the company may, by notice to the company not later than 3 months before the end of the year, require the holding of an annual general meeting in that year.
(5) The power of a member under subsection (4) to require the holding of an annual general meeting is exercisable not only by the giving of a notice but also by the transmission to the company at such address as may for the time being be specified for the purpose by or on behalf of the company of an electronic communication containing the requirement.
(6) If such a notice is given or electronic communication is transmitted, section 175 (1) and (4) shall apply with respect to the calling of the meeting and the consequences of default.
(7) A resolution referred to in subsection (1) shall cease to be in force if the company is converted to a public company.
(8) If the resolution referred to in subsection (1) ceases to be in force, the company shall not be obliged under section 175 to hold an annual general meeting in that year if, at the time the resolution ceases to have effect, less than 3 months of the year remains.
(9) Subsection (8) does not affect any obligation of the company to hold an annual general meeting in that year in pursuance of a notice given under subsection (4) or an electronic communication transmitted under subsection (5).
(10) Unless the contrary intention appears —
(a) a reference in any provision of this Act to the doing of anything at an annual general meeting shall, in the case of a company that has dispensed with holding an annual general meeting in accordance with this section, be read as a reference to the doing of that thing by way of a resolution by written means under section 184A; and
(b) a reference in any provision of this Act to the date or conclusion of an annual general meeting of a company that has dispensed with holding an annual general meeting in accordance with this section shall, unless the meeting is held, be read as a reference to the date of expiry of the period within which the meeting is required by law to be held.
(11) In this section, an address of a person includes any number or address used for electronic communication.
[UK, 1985, s. 366A]
Maybe you can pass a retrospective resolution dispensing AGM.