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Decision Making By The General Meeting Notes

Law Notes > Business Associations 1 Notes

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Class 5 - Decision making by the general meeting Part 2G.2 - Meetings of Members of Companies 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: a. Give members information relating to the resolution - by giving them the document to be signed b. Lodge with ASIC a copy of a notice of meeting to consider the resolution - by so lodging c. 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 a. Members with at least 5% of votes that can be cast at a GM b. 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) a. An AGM if all members entitled to vote agree beforehand b. 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 if it receives the statement in time (8) If not the members are jointly responsible (9) The company need not comply if it is a) 1000+ words/defamatory or b) members making it are responsible for expenses Division 5- Holding of Meetings of Members S 249Q [Purpose] - Meeting of members must be held for a proper purpose S 249R [Time and Place] - Meeting of company's members must be held at a reasonable time and place S 249S [Technology] - Company can hold with members at 2+ venues using technology giving members a reasonable opportunity to participate
**S 249T (Quorum) - (1) 2 members and must be present at all times during the meeting (2) [determining quorum] - count individuals attending as proxies + body corporate reps (if 2 proxies for 1, count 1)

(3) [Time in which to achieve quorum] - If not present in 30 minutes, the meeting is adjourned to the time/date/place the directors specified (if not a)b)c) a week later, same time and place) (4) The meeting is dissolved within 30 minutes after the resumed meeting starts

**S 249U (Chairing meetings of members) (1) Directors may elect an individual to chair meetings (2) Chair must be present -directors must elect a chair if not already elected or elected one isn't available/declines to act (3) Members elect a member to chair if a) a chair isn't previously elected to chair b) previously elected chair isn't available...
(4) The chair must adjourn a meeting of the company's members if the members present with a majority agree the chair do so 249V - Auditor's right to be heard at general meetings (see 290) S249W - Adjourned Meetings (1) A resolution passed at a meeting resumed after an adjournment is passed on the day it was passed (2) Only unfinished business is to be transacted at a meeting resumed after adjournment Division 6 - Proxies and Body Corporate Representatives
***S 249X - Who can appoint a proxy (1) Voter - member entitled to attend and cast a vote can appoint a proxy to attend and vote [(1A) individual or a body corporate]
(2) The appointment can specify the proportion of votes the proxy may exercise (3) Each member may appoint a proxy; if entitled to cast 2+ votes they can appoint 2 - if they don't specify proportions of power they exercise half each (4) Fractions of votes are disregarded S 249Y - Rights of Proxies (1) Proxy appointed has the same rights as a member (speak meeting, vote, join in demand for a pooll_ (2) A constitution can provide that a proxy isn't entitled to vote on a show of hands (3) Constitution can provide for effect if member and proxy are present - else the proxy's authority is suspended S 249Z - Company sending appointment forms or lists of proxy must send to all members [strict liability]
S 250A - Appointing proxy (1) An appointment is valid if it is signed/(authenticated as prescribed by reg.) by the member if it contains the members a) name and address, b) company's name, c) proxy's name ( or name of his office) d) meetings at which it may be used (1A) Reg. made for (1) can prescribe different requirements for authentication

(2) IF a company has a constitution it can provide an appointment is valid even though it doesn't give all the information in (1) (3) An undated appointment is taken to be dated on the day it is given to the company (4) AN appointment can specify the way the proxy is to vote - if it does: a. The proxy doesn't have to vote on a show of hands, but if they do, must vote that way b. If the proxy has 2+ appointments specifying different ways to vote on a resolution; must not vote on a show of hands c. If the proxy is char; must vote on a poll and must vote that way and; d. If not the chair - need not vote on poll but if does so must vote that way If the proxy is also a member, this subsection doesn't affect the way they can cast any of their "member" votes (5) Person who contravenes (4) is guilty of an offence if their appointment resulted from a) the company sending a list of person willing to act as proxies or b) a proxy appointment form holding them to be willing to act as such [5A - strict liability]
(6) Appointment doesn't have to be witnessed (7) A later appointment revokes an earlier one if they cannot both be validly exercised at the meeting S 250B - Proxy Documents (1) For an appointment of a proxy to be effective for a meeting, the company has to receive 48 hours before, documents: a) the proxy's appointment, b) if signed by the appointors attorney the authority under which it was signed (2) If meeting of members is adjourned, an appointment and any authority received 48 hours before resumption of the meeting is effective for the resumed part of the meeting (3) A company receives document if a)it is received at (office, fax, e-address specified) b) any other specified electronic means (4) Company's constitution can reduce the period of 48 hours referred to in (1) and (2) S 250BA Proxy Documents - Listed Companies (1) In a notice of meeting for a meeting of members, the company a. Has to specify a place/fax no. for purposes of receipt of proxy appointments and authorities and b. May specify; (i) An e- address for receipt of these, (ii) other emeans to give them these (2) This only applies to a listed company (3) This applies despite anything in the constitution S 250C - Validity of proxy vote (1) Proxy not entitled to vote on a resolution as a member, may vote as a proxy for another member who can vote if their appointment specified the way they are to vote on the resolution, and they vote that way (2) Unless the proxy receives written notice before start/resumption of the meeting at which they vote, it will be valid even if a) member died b) gets mentally incapacitated c) revokes appointment d) revokes authority under which they were appointed by a third party e) member transfers the shares in respect of which the proxy was given

S 250D - Body Corporate Representative (1) A body corporate can appoint an individual as a representative to exercise their powers at a) a meeting of members' b) creditors/debenture holders, c) relating to resolutions passed without meetings d) in capacity of a proxy under s 249X(1) (2) Appointment can set out restrictions on their power (3) Can appoint more than 1 representative but only 1 can exercise its powers at any time (4) Unless otherwise specified, the representative can exercise all the powers the body could exercise at a meeting or voting Division 7 - Voting at Meeting of Members
**S 250E - How many votes a member has Company with share capital - (1) Subject to rights/restrictions on classes of shares, members have a) 1 vote for a show of hands, b) 1 vote for each share held in a poll Company without share capital - (2) Each member has one vote both on a show of hands and a poll Chair's casting vote - (3) The chair has a casting vote; if they are a member they have any vote in their capacity as a member
*s 250F Jointly held shares- If a share is held jointly and more than 1 member votes, only the name first appearing on the register of members counts
*s 250G Objections to right to vote- A challenge to a right to vote at a meeting of members; a) can only be made at the meeting b) must be determined by the chair s 250H Votes need not all be cast - On a poll a person voting entitled to 2+
votes a) need not cast all of them and b) can cast them in different ways
**s 250J How voting is carried out - By show of hands (1) Resolution put to the vote at a meeting of company member's is determined by show of hands unless poll is demanded (1A) Before vote is taken the chair must inform the meeting if any proxy votes are received and how they are to be cast (2) Declaration by chair on show of hands is evidence of the result if it reflects the show of hands and the votes of proxies received S 250K - Matters on which a poll may be determined (1) Any resolution (2) If a company has a constitution it can provide that a poll cannot be determined on resolutions concerning a) election of a chair b) adjournment of a meeting (3) A demand for a poll may be withdrawn S 250L - When a poll is effectively demanded (1) At a meeting of a company's members, a poll may be demanded by a) at least 5 members entitled to vote on a resolution, b) members with at least 5% of votes that may be cast on a resolution/polls, c) the chair
**S 250M When and how polls must be taken (1) A poll demanded on a matter other than election of a chair or adjournment must be taken as the chair directs (2) A poll on the election of a chair or on adjournment must be taken immediately

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