Decision Making By The General Meeting Notes

Class 5: Decision making by the General Meeting

Corporations Act Chapter 2G.2 ‘Meetings of Members’.

Circulating resolutions of proprietary companies with more than 1 member

(1) This section applies to resolutions of the members of proprietary companies that this Act or, if a company has a constitution, the company's constitution requires or permits to be passed at a general meeting. It does not apply to a resolution under section329 to remove an auditor.

(2) A company may pass a resolution without a general meeting being held if all the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. Each member of a joint membership must sign.

(3) Separate copies of a document may be used for signing by members if the wording of the resolution and statement is identical in each copy.

(4) The resolution is passed when the last member signs.

(5) A company that passes a resolution under this section without holding a meeting satisfies any requirement in this Act:

(a) to give members information or a document relating to the resolution--by giving members that information or document with the document to be signed; and

(b) to lodge with ASIC a copy of a notice of meeting to consider the resolution--by lodging a copy of the document to be signed by members; and

(c) to lodge a copy of a document that accompanies a notice of meeting to consider the resolution--by lodging a copy of the information or documents referred to in paragraph(a).

(6) The passage of the resolution satisfies any requirement in this Act, or a company's constitution (if any), that the resolution be passed at a general meeting.

(7) This section does not affect any rule of law relating to the assent of members not given at a general meeting.

Note 1: A body corporate representative may sign a circulating resolution (see section250D).

Note 2: Passage of a resolution under this section must be recorded in the company's minute books (see section251A).

CORPORATIONS ACT 2001 - SECT 249B

Resolutions of 1 member companies

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

(2) If this Act requires information or a document relating to the resolution to be lodged with ASIC, that requirement is satisfied by lodging the information or document with the resolution that is passed.

Note 1: A body corporate representative may sign such a resolution (see section250D).

Note 2: Passage of a resolution under this section must be recorded in the company's minute books (see section251A).

CORPORATIONS ACT 2001 - SECT 249C

Calling of meetings of members by a director (replaceable rule--see section 135)

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

CORPORATIONS ACT 2001 - SECT 249CA

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 a company that is listed.

(3) This section applies despite anything in the company's constitution.

CORPORATIONS ACT 2001 - SECT 249D

Calling of general meeting by directors when requested by members

(1) The directors of a company must call and arrange to hold a general meeting on the request of:

(a) members with at least 5% of the votes that may be cast at the general meeting; or

(b) at least 100 members who are entitled to vote at the general meeting.

(1A) The regulations may prescribe a different number of members for the purposes of the application of paragraph(1)(b) to:

(a) a particular company; or

(b) a particular class of company.

Without limiting this, the regulations may specify the number as a percentage of the total number of members of the company.

(2) The request must:

(a) be in writing; and

(b) state any resolution to be proposed at the meeting; and

(c) be signed by the members making the request; and

(d) be given to the company.

(3) Separate copies of a document setting out the request may be used for signing by members if the wording of the request is identical in each copy.

(4) The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company.

(5) The directors must call the meeting within 21 days after the request is given to the company. The meeting is to be held not later than 2 months after the request is given to the company.

CORPORATIONS ACT 2001 - SECT 249E

Failure of directors to call general meeting

(1) Members with more than 50% of the votes of all of the members who make a request under section249D may call and arrange to hold a general meeting if the directors do not do so within 21 days after the request is given to the company.

(2) The meeting must be called in the same way--so far as is possible--in which general meetings of the company may be called. The meeting must be held not later than 3 months after the request is given to the company.

(3) To call the meeting the members requesting the meeting may ask the company under section173 for a copy of the register of members. Despite paragraph 173(3)(b), the company must give the members the copy of the register without charge.

(4) The company must pay the reasonable expenses the members incurred because the directors failed to call and arrange to hold the meeting.

(4A) An offence based on subsection(3) or (4) is an offence of strict liability.

Note: For strict liability , see section6.1 of the Criminal Code .

(5) The company may recover the amount of the expenses from the directors. However, a director is not liable for the amount if they prove that they took all reasonable steps to cause the directors to comply with section249D. The directors who are liable are jointly and individually liable for the amount. If a director who is liable for the amount does not reimburse the company, the company must deduct the amount from any sum payable as fees to, or remuneration of, the director.

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