#10833 - Decision Making By The General Meeting - Business Associations 1

Division 1

S 249A Circulating resolutions of proprietary companies with more than one member

1. [Scope] The section applies to resolutions of the members of proprietary companies that this Act/it’s constitution requires or permits to be passed at a general meeting – it doesn’t apply to auditor removal (s329)

2. [Resolution passed without meeting] Company may pass resolution without a GM if all members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution in the document. Each member of a joint membership must sign

3. [Multiple copies] can be used if the wording of the resolution is identical in each copy

4. The resolution is passed when the last member signs

5. [requirements] A company that passes a resolution under this section without a meeting satisfies any requirements in this Act to:

   1. Give members information relating to the resolution – by giving them the document to be signed

   2. Lodge with ASIC a copy of a notice of meeting to consider the resolution – by so lodging

   3. Lodge a copy of a document accompanying the notice of meeting to consider the resolution – byso doing

6. [Satisfaction of constitution] The passage of the resolution satisfies any requirements in this Act or a constitution that the resolution be passed at a GM

7. This section doesn’t affect any rule of law relating to the assent of members not given at a GM

S 249B – Resolution of 1 Member companies

1. A company that has only one member may pass a resolution by the member recording it and signing the record

2. If the Act requires information or a document relating to the resolution be lodged with , then it is satisfied by lodging it once signed

Division 2 – Who may call meeting of members

**S 249C – A director may call a meeting of the company’s members

S 249C – Calling of meetings of members of a listed company by a director

1. A director may call a meeting of the company’s members

2. This section only applies to listed companies

3. It applies despite anything in the company constitution

S 249D Calling of GM by directors when requested by members

1. The directors of a company must call and arrange to hold a general meeting at the request of

   1. Members with at least 5% of votes that can be cast at a GM

   2. At least 100 members entitled to vote at a GM

(1A) The regulations can provide different numbers for (1)(b) to particular companies/classes

2. The request must a) be in writing b) state any resolution to be proposed c) be signed by members making it and d) be given to the company

3. Separate copies of the document setting out the request can be used if identical

4. Percentage of votes that members have is to worked out as at the midnight before the request

5. Directors must call the meeting within 21 days after the request

(Notes here come back later)

S 249E – Failure of directors to call a GM

1. Members with 50%+ votes of all members who make a request under s 249D can call and arrange to hold a GM if the directors don’t do so within 21 days of request

2. The meeting must be called in the same was as a GM, not later than 3 months after the request

3. To call a meeting the members requesting it may ask under s 173 for a register of members

4. The company must pay the reasonable expenses of the members incurred because the directors failed to call the meeting

(4A) Offence based on (3) or (4) is a strict liability offence

5. The company may recover the amount of expenses from directors but the director isn’t liable if they prove they took all reasonable steps to make other directors comply with s 249D [others are jointly/severally liable]

S 249F – Calling of general meetings by members

1. Members with at least 5% of the votes that may be cast at a GM can call a GM and must pay expenses for it

2. The meeting must be called in the same was as a GM of the company may be called

3. The percentage of votes is calculated as at the midnight before the meeting is called

S 249G – Calling of meetings of members by the court(Notes here come back later)

1. Court may order a meeting of company’s members to be called if it is impractical to do so any other way

2. The court can make an order on application of a) any director or b) any member entitled to vote at a meeting

Division 3 – How to call meetings of members

S 249H Amount of notice to meetings

General rule (1) Subject to (2) at least 21 days notice must be given of a meeting of company’s members – the constitution can supply a longer minimum period

Calling on shorter notice

2. A company can do so for [not for the type of meeting in (3) or (4)

   1. An AGM if all members entitled to vote agree beforehand

   2. Any other GM if members with at least 95% of the votes agree beforehand

Shorter notice not allowed – removing or appointing a director

3. At least 21 days notice must be given of a meeting of the members of a public company at which a resolution will be moved to a) remove a director under s 203D b) Appoint on in his place

Shorter notice not allowed – removing order

4. At least 21 days notice must be given of a GM where it is sought to remove an auditor under s 329

S 249HA Amount of notice of meetings of listed company

1. Despite 249H at least 28 days must be given of a meeting of company members

2. This section only applies to a company that is listed

3. It applies despite anything in a constitution

S 249J Notice of meetings of members to members and directors

Notice to members and directors individually (Notes here come back later)

1. Written notice of a meeting of a company’s members must be given individually to each member entitled to vote at the meeting and to each director (and only once to a joint membership)

2. **Notice must be given to the joint member named first in the register of members

3. A company may give notice of a meeting: a) personally b) post c) fax ca) electronic means nominated by the member cb) notifying in accordance with 3A, d) any other means the constitution provides

(3A) Electronic Notification Can be nominated by the member

4. ** Notification by post or fax is taken to be given 3 days after it is posted , by fax or electronic means on the business day after it is sent

5. Notice under (3)(cb) is taken to be given on the business day after which the member is notified that the notice of meeting is available

S 249K Auditor entitled to notice and other communications – (1) Companies have to give their orders notice of a GM just like a member, and any other communication relating to a GM that a member is entitled to. (2) Offence under (1) is strict liability

S 249L – Contents of notice of meetings of members

1. Notice must set out a) place/date/time/technology b) state its general nature, c) the nature of any proposed SR; d) if a member is entitled to appoint a proxy i) that they have such a right, ii) if the proxy has to be a member, iii_ that a member entitled to cast 2+ votes can appoint 2+ proxies

2. The notice of AGM of a listed company must also inform members that the resolution referred to in s 250R(2) on remuneration reports will be put at the AGM

3. The information included in the notice of meeting must be presented in a clear, concise and effective manner

S 249LA Notice of meeting not required to contain certain information = Under the applicable regulations [p287.7]

**S 249M – Notice of adjourned meetings - if a meeting is adjourned, new notice of the resumed meeting must be given if the meeting is adjourned for a month or more

Division 4 – Members rights to put resolutions etc. at general meetings

S 249N Members’ resolutions

1. The following members may give a company notice of a resolution that they propose to move at a GM: a) members with 5% votes that can be cast at a GM, b) At least 100 members entitled to vote

(1A) Regulations can modify the number to particular company/classes of company

2. The notice must a) Be in writing b) Set out the wording of the proposed resolution, c) be signed by the members proposed to move the resolution

3. Can have multiple copies – must all be identical in wording

4. Calculation of percentage of votes is taken the night before members give notice

S 249O Company giving notice of members’ resolutions

1. If a company has been given notice of a resolution under s 249N, the resolution is to be considered at the next GM that occurs more than 2 months after notice is given

2. The company must give all members notice of the resolution at the same time or as soon as practicable afterwards, in the same way it gives notice of the meeting

3. The company is responsible for cost of giving members notice if it receives it in time to send it out

4. Members requesting it are jointly liable if the company doesn’t receive it in time to send

5. The company needn’t give notice if a) it is 1000+ words or defamatory; or b) members making the request bear the expenses of sending it out

S 249P – Members’ Statements to be distributed

1. Members can request the company to give to all members a statement provided by them making a request about a) a resolution proposed to be moved at the GM, b) any other matter properly considered at a GM

2. The request must be made by a) members > 5% votes or b) at least 100 [(2A) regs can modify a diff number]

3. Request must be a) in writing b) signed by the members making it c) given to the company

4. Separate copies can be used for signing if identical

5. Percentage of votes as worked out the night before the request

6. The company has to distribute to members at the same time (/as practicable after) and in the same way GM notices are given

7. The company is responsible for costs to send it out...