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Decision Making By The General Meeting Notes

Law Notes > Business Associations I Notes

This is an extract of our Decision Making By The General Meeting document, which we sell as part of our Business Associations I Notes collection written by the top tier of University Of New South Wales students.

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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 section 329 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 section 250D). Note 2: Passage of a resolution under this section must be recorded in the company's minute books (see section 251A). 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 section 250D). Note 2: Passage of a resolution under this section must be recorded in the company's minute books (see section 251A). 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 section 249D 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 section 173 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 section 6.1 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 section 249D. 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. CORPORATIONS ACT 2001 - SECT 249F Calling of general meetings by members (1) Members with at least 5% of the votes that may be cast at a general meeting of the company may call, and arrange to hold, a general meeting. The members calling the meeting must pay the expenses of calling and holding the meeting. (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. (3) The percentage of votes that members have is to be worked out as at the midnight before the meeting is called. CORPORATIONS ACT 2001 - SECT 249G Calling of meetings of members by the Court (1) The Court may order a meeting of the company's members to be called if it is impracticable to call the meeting in any other way. (2) The Court may make the order on application by: (a) any director; or (b) any member who would be entitled to vote at the meeting. Note: For the directions the Court may give for calling, holding or conducting a meeting it has ordered be called, see section 1319. CORPORATIONS ACT 2001 - SECT 249H Amount of notice of meetings General rule (1) Subject to subsection (2), at least 21 days notice must be given of a meeting of a company's members. However, if a company has a constitution, it may specify a longer minimum period of notice. Calling meetings on shorter notice (2) A company may call on shorter notice: (a) an AGM, if all the members entitled to attend and vote at the AGM agree beforehand; and (b) any other general meeting, if members with at least 95% of the votes that may be cast at the meeting agree beforehand. A company cannot call an AGM or other general meeting on shorter notice if it is a meeting of the kind referred to in subsection (3) or (4). Shorter notice not allowed--removing or appointing 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 section 203D; or (b) appoint a director in place of a director removed under that section. Shorter notice not allowed--removing auditor (4) At least 21 days notice must be given of a meeting of a company at which a resolution will be moved to remove an auditor under section 329. CORPORATIONS ACT 2001 - SECT 249HA Amount of notice of meetings of listed company (1) Despite section 249H, at least 28 days notice must be given of a meeting of a 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 249J Notice of meetings of members to members and directors Notice to members and directors individually (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. Notice need only be given to 1 member of a joint membership. Notice to joint members (replaceable rule--see section 135) (2) Notice to joint members must be given to the joint member named first in the register of members. How notice is given (3) A company may give the notice of meeting to a member: (a) personally; or (b) by sending it by post to the address for the member in the register of members or the alternative address (if any) nominated by the member; or (c) by sending it to the fax number or electronic address (if any) nominated by the member; or (ca) by sending it to the member by other electronic means (if any) nominated by the member; or (cb) by notifying the member in accordance with subsection (3A); or (d) by any other means that the company's constitution (if any) permits. Note: A defect in the notice given may not invalidate a meeting (see section 1322). (3A) If the member nominates: (a) an electronic means (the nominated notification means ) by which the member may be notified that notices of meeting are available; and (b) an electronic means (the nominated access means ) the member may use to access notices of meeting; the company may give the member notice of the meeting by notifying the member (using the nominated notification means): (c) that the notice of meeting is available; and (d) how the member may use the nominated access means to access the notice of meeting. This subsection does not limit subsection (3). When notice by post or fax is given (replaceable rule--see section 135) (4) A notice of meeting sent by post is taken to be given 3 days after it is posted. A notice of meeting sent by fax, or other electronic means, is taken to be given on the business day after it is sent. When notice under paragraph (3)(cb) is given (replaceable rule--see section 135) (5) A notice of meeting given to a member under paragraph (3)(cb) is taken to be given on the business day after the day on which the member is notified that the notice of meeting is available. CORPORATIONS ACT 2001 - SECT 249K Auditor entitled to notice and other communications (1) A company must give its auditor: (a) notice of a general meeting in the same way that a member of the company is entitled to receive notice; and (b) any other communications relating to the general meeting that a member of the company is entitled to receive. Note 1: For when a company must have an auditor, see Part 2M.3. Note 2: An auditor may appoint a representative to attend a meeting (see subsection 249V(4)). (2) An offence based on subsection (1) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . CORPORATIONS ACT 2001 - SECT 249L Contents of notice of meetings of members (1) A notice of a meeting of a company's members must: (a) set out the place, date and time for the meeting (and, if the meeting is to be held in 2 or more places, the technology that will be used to facilitate this); and (b) state the general nature of the meeting's business; and (c) if a special resolution is to be proposed at the meeting--set out an intention to propose the special resolution and state the resolution; and (d) if a member is entitled to appoint a proxy--contain a statement setting out the following information: (i) that the member has a right to appoint a proxy; (ii) whether or not the proxy needs to be a member of the company; (iii) that a member who is entitled to cast 2 or more votes may appoint 2 proxies and may specify the proportion or number of votes each proxy is appointed to exercise. Note: There may be other requirements for disclosure to members.

(2) The notice of the AGM of a listed company must also inform members that the resolution referred to in subsection 250R(2) (resolution on remuneration report) will be put at the AGM. (3) The information included in the notice of meeting must be worded and presented in a clear, concise and effective manner. CORPORATIONS ACT 2001 - SECT 249LA Notice of meeting not required to contain certain information (1) The regulations may provide that a notice of a meeting of a company's members is not required by section 249L or otherwise to include information specified in the regulations if any conditions specified in the regulations are satisfied. (2) Without limiting subsection (1), the regulations may specify different conditions for: (a) different kinds of information; and (b) a notice of meeting given by a company or a class of companies. (3) If: (a) regulations are made for the purposes of subsection (1); and (b) a notice of meeting does not include particular information in accordance with those regulations; the information is taken to be included in the notice of meeting. CORPORATIONS ACT 2001 - SECT 249M Notice of adjourned meetings (replaceable rule--see section 135) When a meeting is adjourned, new notice of the resumed meeting must be given if the meeting is adjourned for 1 month or more. CORPORATIONS ACT 2001 - SECT 249N Members' resolutions (1) The following members may give a company notice of a resolution that they propose to move at a general meeting: (a) members with at least 5% of the votes that may be cast on the resolution; or (b) at least 100 members who are entitled to vote at a 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 notice must: (a) be in writing; and: (b) set out the wording of the proposed resolution; and (c) be signed by the members proposing to move the resolution. (3) Separate copies of a document setting out the notice may be used for signing by members if the wording of the notice is identical in each copy. (4) The percentage of votes that members have is to be worked out as at the midnight before the members give the notice. CORPORATIONS ACT 2001 - SECT 249O Company giving notice of members' resolutions (1) If a company has been given notice of a resolution under section 249N, the resolution is to be considered at the next general meeting that occurs more than 2 months after the notice is given. (2) The company must give all its members notice of the resolution at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a meeting. (3) The company is responsible for the cost of giving members notice of the resolution if the company receives the notice in time to send it out to members with the notice of meeting. (4) The members requesting the meeting are jointly and individually liable for the expenses reasonably incurred by the company in giving members notice of the resolution if the company does not receive the members' notice in time to send it out with the notice of meeting. At a general meeting, the company may resolve to meet the expenses itself. (5) The company need not give notice of the resolution: (a) if it is more than 1,000 words long or defamatory; or (b) if the members making the request are to bear the expenses of sending the notice out--unless the members give the company a sum reasonably sufficient to meet the expenses that it will reasonably incur in giving the notice. CORPORATIONS ACT 2001 - SECT 249P Members' statements to be distributed (1) Members may request a company to give to all its members a statement provided by the members making the request about: (a) a resolution that is proposed to be moved at a general meeting; or (b) any other matter that may be properly considered at a general meeting. (2) The request must be made by: (a) members with at least 5% of the votes that may be cast on the resolution; or (b) at least 100 members who are entitled to vote at the meeting.

(2A) The regulations may prescribe a different number of members for the purposes of the application of paragraph (2)(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. (3) The request must be: (a) in writing; and (b) signed by the members making the request; and (c) given to the company. (4) 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. (5) The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company. (6) After receiving the request, the company must distribute to all its members a copy of the statement at the same time, or as soon as practicable afterwards, and in the same way, as it gives notice of a general meeting. (7) The company is responsible for the cost of making the distribution if the company receives the statement in time to send it out to members with the notice of meeting. (8) The members making the request are jointly and individually liable for the expenses reasonably incurred by the company in making the distribution if the company does not receive the statement in time to send it out with the notice of meeting. At a general meeting, the company may resolve to meet the expenses itself. (9) The company need not comply with the request: (a) if the statement is more than 1,000 words long or defamatory; or (b) if the members making the request are responsible for the expenses of the distribution--unless the members give the company a sum reasonably sufficient to meet the expenses that it will reasonably incur in making the distribution. CORPORATIONS ACT 2001 - SECT 249Q Purpose A meeting of a company's members must be held for a proper purpose. CORPORATIONS ACT 2001 - SECT 249R Time and place for meetings of members A meeting of a company's members must be held at a reasonable time and place. CORPORATIONS ACT 2001 - SECT 249S Technology A company may hold a meeting of its members at 2 or more venues using any technology that gives the members as a whole a reasonable opportunity to participate. Note: See section 1322 for the consequences of a member not being given a reasonable opportunity to participate. CORPORATIONS ACT 2001 - SECT 249T Quorum (replaceable rule--see section 135) (1) The quorum for a meeting of a company's members is 2 members and the quorum must be present at all times during the meeting. Note: For single member companies, see section 249B. (2) In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than 1 proxy or representative, count only 1 of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once. Note 1: For rights to appoint proxies, see section 249X. Note 2: For body corporate representatives, see section 250D. (3) A meeting of the company's members that does not have a quorum present within 30 minutes after the time for the meeting set out in the notice of meeting is adjourned to the date, time and place the directors specify. If the directors do not specify 1 or more of those things, the meeting is adjourned to: (a) if the date is not specified--the same day in the next week; and (b) if the time is not specified--the same time; and (c) if the place is not specified--the same place. (4) If no quorum is present at the resumed meeting within 30 minutes after the time for the meeting, the meeting is dissolved. CORPORATIONS ACT 2001 - SECT 249U Chairing meetings of members (replaceable rule--see section 135) (1) The directors may elect an individual to chair meetings of the company's members. (2) The directors at a meeting of the company's members must elect an individual present to chair the meeting (or part of it) if an individual has not already been elected by the directors to chair it or, having been elected, is not available to chair it, or declines to act, for the meeting (or part of the meeting).

(3) The members at a meeting of the company's members must elect a member present to chair the meeting (or part of it) if: (a) a chair has not previously been elected by the directors to chair the meeting; or (b) a previously elected chair is not available, or declines to act, for the meeting (or part of the meeting). (4) The chair must adjourn a meeting of the company's members if the members present with a majority of votes at the meeting agree or direct that the chair must do so. CORPORATIONS ACT 2001 - SECT 249V Auditor's right to be heard at general meetings (1) A company's auditor is entitled to attend any general meeting of the company. Note: Section 250RA imposes on the auditor of a listed public company an obligation to attend or be represented at the AGM. (2) The auditor is entitled to be heard at the meeting on any part of the business of the meeting that concerns the auditor in their capacity as auditor. (3) The auditor is entitled to be heard even if: (a) the auditor retires at the meeting; or (b) the meeting passes a resolution to remove the auditor from office. (4) The auditor may authorise a person in writing as their representative for the purpose of attending and speaking at any general meeting. Note 1: At an AGM, members may ask the auditor questions (see section 250T). Note 2: For when a company must have an auditor, see Part 2M.3. CORPORATIONS ACT 2001 - SECT 249W Adjourned meetings When resolution passed (1) A resolution passed at a meeting resumed after an adjournment is passed on the day it was passed. Business at adjourned meetings (replaceable rule--see section 135) (2) Only unfinished business is to be transacted at a meeting resumed after an adjournment CORPORATIONS ACT 2001 - SECT 249X Who can appoint a proxy (replaceable rule for proprietary companies and mandatory rule for public companies--see section 135) (1) A member of a company who is entitled to attend and cast a vote at a meeting of the company's members may appoint a person as the member's proxy to attend and vote for the member at the meeting. (1A) The person appointed as the member's proxy may be an individual or a body corporate. Note: A body corporate may appoint a representative to exercise the powers that the body corporate may exercise as the member's proxy, see section 250D. (2) The appointment may specify the proportion or number of votes that the proxy may exercise. (3) Each member may appoint a proxy. If the member is entitled to cast 2 or more votes at the meeting, they may appoint 2 proxies. If the member appoints 2 proxies and the appointment does not specify the proportion or number of the member's votes each proxy may exercise, each proxy may exercise half of the votes. (4) Disregard any fractions of votes resulting from the application of subsection (2) or (3). CORPORATIONS ACT 2001 - SECT 249Y Rights of proxies Rights of proxies (1) A proxy appointed to attend and vote for a member has the same rights as the member: (a) to speak at the meeting; and (b) to vote (but only to the extent allowed by the appointment); and (c) join in a demand for a poll. Proxy's right to vote (2) If a company has a constitution, the constitution may provide that a proxy is not entitled to vote on a show of hands. Note: Even if the proxy is not entitled to vote on a show of hands, they may make or join in the demand for a poll. Effect of member's presence on proxy's authority (3) A company's constitution (if any) may provide for the effect that a member's presence at a meeting has on the authority of a proxy appointed to attend and vote for the member. However, if the constitution does not deal with this, a proxy's authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting. CORPORATIONS ACT 2001 - SECT 249Z Company sending appointment forms or lists of proxies must send to all members (1) If a company sends a member a proxy appointment form for a meeting or a list of persons willing to act as proxies at a meeting: (a) if the member requested the form or list--the company must send the form or list to all members who ask for it and who are entitled to appoint a proxy to attend and vote at the meeting; or

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