Chapter 21
Companies — General Meetings
Meetings of the members
[21.2] Old ss 216A and 216B (register of members) are new ss 168 and 169. Old ss 258 and 259 (minutes) have been replaced by new ss 251A and 251B.
Statutory meeting: old s 244
[21.3] Old s 244 has been repealed and not replaced. As a result, public companies limited by shares and no liability companies are no longer required to hold a statutory meeting after registration of the company, nor to lodge a statutory report.
Annual general meeting: old s 245, new ss 250N and 250P
[21.4] Under new s 250N(1) every public company must hold an annual general meeting within 18 months after its registration. Under new s 250N(2) a public company must hold an annual general meeting at least once in each calendar year, and within five months after the end of its financial year. Public companies that have only one member are not required to hold an annual general meeting: new s 250N(4).
Under new s 250P ASIC may extend the period for holding the annual general meeting on application by the company before the end of that period.
Business of annual general meeting
[21.6] Under new s 250R the business of the annual general meeting may include consideration of the annual financial report, directors’ report and auditor’s report, the election of directors, the appointment of the auditor, and the fixing of the auditor’s remuneration, even if not referred to in the notice of meeting.
Under new s 317 the directors of a public company must lay before the annual general meeting the company’s financial report, the directors’ report and the auditor’s report for the previous financial year. These reports must be sent to members within four months after the end of the financial year and at least 21 days before the annual general meeting: new s 315. A concise financial and auditor’s report may be sent instead of the full reports: new s 314; however, members may request the full reports: new ss 314(2)(e) and 316.
New ss 250S and 250T are important new provisions. Under new s 250S the Chair of the annual general meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask questions about or make comments on the management of the company. Under new s 250T the Chair of the annual general meeting must allow a reasonable opportunity for the members as a whole at the meeting to ask the auditor or auditor’s representative questions about the audit and the auditor’s report, if the auditor is present or represented at the meeting. Paragraph 10.77 of the Explanatory Memorandum to the Company Law Review Act points out that there is no obligation under new ss 250S and 250T for the directors or auditor to answer any questions they may be asked by members. Paragraph 10.78 of the Explanatory Memorandum suggests that the use of the words ‘members as a whole’ in new ss 250S and 250T does not mean that each individual member has a right to ask a question. What is a ‘reasonable opportunity’ will depend on the circumstances of the meeting.
Old s 252 has been replaced by new ss 249N–249P which apply to all general meetings: see [21.15].
Election of directors
[21.7] Table A reg 58 has been repealed and no corresponding provision inserted into the body of the Corporations Law.
Annual return
[21.8] Under new s 345 all companies must lodge an annual return with ASIC by 31 January each year unless the company and ASIC agree to a different lodgment date.
Other general meetings: old ss 246 and 247, new ss 249D–249F
[21.9] The statutory meeting has been abolished: see [21.3].
Convening of general meeting by directors
[21.10] New s 249C provides that any director may call a general meeting. This is a replaceable rule: see [20.9].
In the case of listed companies, new s 249CA provides that any director may call a general meeting. This is not a replaceable rule, and applies despite anything in the company’s constitution.
New s 249R requires general meetings to be held at a reasonable time and place.
Convening of general meeting on requisition of members
[21.11] New ss 249D and 249E are to similar effect as old s 246. However, the requirements for the request (previously requisition) have been simplified. A request may now be made by members holding at least 5 per cent of the votes that may be cast at a general meeting, or at least 100 members entitled to vote at a general meeting. The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company: new s 249D(4). Under new s 249D(2)(b) the request must state any resolution to be proposed at the meeting, rather than the objects of the meeting as previously under old s 246(2).
New s 249F is also to similar effect as old s 247(1). However, unlike old s 247(1) new s 249F is not a replaceable rule and cannot be excluded by the company’s constitution. New s 249F for the first time gives the members an absolute right to call a general meeting without the involvement of the company’s directors. However, the members calling the meeting will be responsible for the costs of calling and holding the meeting: new s 249F(1).
New s 249Q requires general meetings to be held for a proper purpose.
Class meetings
[21.12] Table A regs 2 and 4 have both been repealed. Old s 197 has been replaced by new ss 246B–246E, which clarify and expand the previous provision. If a company has a constitution that sets out the procedure for varying or cancelling class rights, that procedure must be followed: new s 246B(1). If the company does not have a constitution that sets out the procedure for varying or cancelling class rights, those rights may only be varied or cancelled by a special resolution of the company, together with a special resolution passed at a meeting of members of the class or with the written consent of members holding 75 per cent of the votes in the class: new s 246B(2). New s 246B(3) requires the company to give written notice of any variation or cancellation of class rights to all members of the class within seven days of the variation or cancellation.
Meetings convened by order of the court
[21.13] Old s 245(10) has been repealed and not replaced. Old s 251 has been replaced by new s 249G. Any necessary consequential directions are now to be given under s 1319.
Notice of meeting
[21.14] The notice provisions of the Corporations Law have been comprehensively rewritten. New s 249H(1) requires at least 21 days notice of all general meetings, even if a special resolution is not to be proposed, rather than 14 days as previously under old s 247(2). The company’s constitution may still require longer notice: new s 249H(1).
Under new s 249H(2) the 21 day period may be reduced if, in the case of the annual general meeting – all members entitled to vote, and in the case of other general meetings – members holding 95 per cent of the votes that may be cast, ‘agree beforehand’. It would therefore appear that agreement must be reached before the meeting purports to commence.
The 21 day notice period cannot, however, be reduced in the case of general meetings at which a resolution will be moved to remove a director of a public company under s 227, to appoint a director in place of one so removed, to appoint or remove a director who has reached the age of 72 under s 228(7) or (8), or to remove an auditor under s 329: new ss 249H(3) and (4); see also [21.16].
In the case of listed companies, the minimum notice period is 28 days: new s 249HA. That period cannot be reduced.
New s 249J(1) requires notice to be given individually to each member entitled to vote and to each director. This requirement cannot be displaced by the company’s constitution, as it could previously under old s 247(4). In the case of joint members, notice need only be given to one: new s 249J(1). This will be the member named first in the register of members, unless the company’s constitution otherwise provides: new s 49J(2) (replaceable rule).
Under new s 249J(3) notice may be given personally, by post to the address in the register of members or any alternative address nominated by the member, by fax or email to any address nominated by the member, or by any other means permitted by the company’s constitution. Unless the company’s constitution otherwise provides, notices sent by post are deemed to be given three days after posting, and notices sent by fax or email are deemed to be given on the business day after sending: new s 249J(4) (replaceable rule).
Notice continues to be required to be given to the company’s auditor: new s 249K; the auditor continues to be entitled to attend and be heard at any general meeting: new ss 249V(1) and (2).
New s 249L provides:
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.
Unless the company’s constitution otherwise provides, new notice of the resumed meeting must be given if the meeting is adjourned for one month or more: new s 249M (replaceable rule).
Notice of business
[21.15] Table A reg 41(1) has been replaced by new s 249L(b), which requires the notice to ‘state the general nature of the meeting’s business’. In the case of special resolutions, new s 249L(c) requires the notice to state the wording of the proposed special resolution, as well as setting out the intention to propose the special resolution as was required by old s 253(1).
Members have been given greater rights to put resolutions and distribute statements to general meetings. Old s 252, which applied only to the annual general meeting, has been replaced by new ss 249N–249P, which apply to all general meetings. Under new s 249N notice of a resolution proposed to be moved at a general meeting may be given to the company by members holding at least 5 per cent of votes that may be cast or at least 100 members entitled to vote. The percentage of votes that members have is to be worked out as at the midnight before the request is given to the company: new s 249N(4). The notice must set out the wording of the proposed resolution and be signed by the member proposing to move the resolution: new s 249N(2). It may comprise a number of identical copies of the same notice: new s 249N(3). The company must give notice of the resolution at the same time or as soon as practicable afterwards and in the same way as notice of the next general meeting that occurs more than two months after the notice is given to it: new ss 249O(1) and (2). If the notice is received by the company in time for notice of the resolution to be given to members with notice of the meeting, the company bears the cost: new s 249O(3); if not, the ‘members requesting the meeting’ are jointly and individually liable, unless the general meeting resolves that the company meet the cost: new s 249O(4). Presumably ‘members requesting the meeting’ means members requesting or giving notice of the resolution. Under new s 249O(5) the company does not have to give notice of a resolution that is more than 1,000 words long or defamatory, or if the members are required to meet the cost of giving notice and do not give the company reasonably sufficient funds.
New s 249P provides to similar effect as new ss 249N and 249O, but applies to the distribution of statements by members about a resolution that is proposed to be moved at a general meeting or any other matter that may properly be considered at a general meeting.
Special notice
[21.16] Old s 254 has been repealed. However, ss 227(3) and 329(1) continue to require ‘special notice’ for the removal of a director of a public company or auditor, without that term any longer being explicitly provided for. Presumably new ss 227(3A) and 329(1A) are intended to replace old s 254. They require notice to the company of the intention to move a resolution to remove a director or auditor (respectively). That notice must be given at least two months before the general meeting is held, unless after notice has been given the company calls a general meeting to be held within the two month period, in which case the resolution may be passed at that meeting. In the case of general meetings at which a resolution will be moved to remove a director of a public company or auditor, new ss 249H(3) and (4) (respectively) provide that the 21 day notice period may not be reduced under new s 249H(2).
Waiver of notice
[21.17] Old ss 247(3) and 253(4) have been replaced by new s 249H(2): see further [21.14].
Representative of corporation
[21.19] Old s 249 has been replaced by new ss 250D and 249T(2). Under new s 250D(1) a body corporate may appoint an individual to exercise all or any of its powers at meetings of members, creditors and debenture holders, and relating to resolutions to be passed without meetings. If the appointment is by reference to a position held, the position must be identified: new s 250D(2). More than one representative may be appointed, but only one representative may exercise the body’s powers at any one time: new s 250D(3). The appointment may be a standing one: new s 250D(1). The appointment may set out restrictions on the representative’s powers: new 250D(2); but if not the representative may exercise all powers of the body corporate: new s 250D(4).
Unless the company’s constitution otherwise provides, body corporate representatives are to be counted towards quorum, but only if not already counted as a member in their own right or proxy: new s 249T(2) (replaceable rule); see further [21.20].
Use of technology
[21.19A] New s 249S provides that a company may hold a general meeting at two or more venues using any technology that gives the members as a whole a reasonable opportunity to participate. New s 1322(3A) provides that a general meeting held at two or more venues will only be invalid on the ground that a member did not have a reasonable opportunity to participate in the meeting (or part of it) if the court is of the opinion that a substantial injustice has been or may be caused, and the injustice cannot be remedied by any order of the court.
Quorum
[21.20] Unless the company’s constitution otherwise provides, the quorum for a general meeting is two members, and that quorum must be present at all times during the meeting: new s 249T(1) (replaceable rule). The requirement that quorum must be present at all times during the meeting should be contrasted with old Table A reg 42(1), which required a quorum to be present only at the time the meeting proceeded to business. The specific power of the court under old s 251(1) to direct that one member be deemed to constitute a quorum has been repealed and not replaced; however, s 1319 gives the court a general power to give directions with respect to the convening, holding and conduct of meetings ordered by the court: see further [21.13].
Under new s 249T(2) (replaceable rule) individuals attending as proxies and body corporate representatives are counted towards quorum: see further [21.19] and [21.28]. However, if a member has appointed more than one proxy or representative, only one is to be counted; further, individuals attending in multiple capacities (that is, as members in their own right, proxies and/or body corporate representatives) are only to be counted once: new s 249T(2).
If a quorum is not present within 30 minutes, the meeting is adjourned to a date, time and place specified by the directors; if the date is not specified, it is the same day in the next week, if the time is not specified, it is the same time, and if the place is not specified, it is the same place: new s 249T(3) (replaceable rule). If a quorum is not present within 30 minutes at the resumed meeting, the meeting is dissolved: new s 249T(4) (replaceable rule).
Chair of general meeting
[21.21] Unless the company’s constitution otherwise provides, the directors may elect any individual to chair general meetings: new s 249U(1) (replaceable rule). That election must occur at the general meeting itself if the directors have not already elected a Chair, or the Chair is not available or declines to act for the meeting or part of it: new s 249U(2) (replaceable rule). If the directors have not elected a Chair as required by new ss 249U(1) and (2), the meeting must elect a member present to chair the meeting or part of it: new s 249U(3) (replaceable rule).
Paragraph 10.51 of the Explanatory Memorandum to the Company Law Review Act suggests that new s 249U(1) will give the directors an opportunity to appoint an independent person to chair general meetings. However, that person will have no right to attend the meeting, let alone chair it, unless the members present agree.
Resolutions
[21.22] Table A and old s 254 have both been repealed.
Special resolutions
[21.23] In the case of companies, the list of matters now requiring a special resolution under the Corporations Law is as follows:
• Approval of mining on tribute by no liability company: new s 112(4).
• Adoption of constitution by company after registration: new s 136(1)(b).
• Modification or repeal of constitution: new s 136(2).
• Change of company name: new s 157.
• Change of type of company: new s 162.
• Issue of shares by company limited by guarantee changing to company limited by shares: new ss 163(2)(b)(ii) and 167.
• Assignment of office of director of public company: s 238.
• Variation or cancellation of class rights: new s 246B(2).
• Approval of rights attached to preference shares: new s 254A(2).
• Approval of rights attached to preference shares converted from ordinary shares: new s 254G(2).
• Limited company restricting calls on shares to when externally administered: new s 254N.
• Public company providing for different dividend rights: new s 254W(1).
• Approval of selective reduction in share capital: new s 256C(2).
• Approval of selective buy-back of shares: new s 257D.
• Approval of financial assistance by company’s own shareholders: new s 260B(1).
• Approval of financial assistance by shareholders of listed holding corporation: new s 260B(2).
• Approval of financial assistance by shareholders in ultimate Australian holding company: new s 260B(3).
• Winding up by the court: s 461.
• Voluntary winding up: s 491.
• Sanctioning exercise of liquidator’s powers: s 506(1)(f).
• Approval of compromises and agreements by liquidator in members’ voluntary winding up: s 506(1A)(b).
• Sanctioning acceptance by liquidator of shares for sale of property: s 507.
• Making arrangement with creditors binding on company: s 510.
• Conversion of foreign currency amounts in constitution of former non-company: new s 601BH(2).
• Appointment of corporation that is subsidiary as trustee for debenture holders: s 1052(1)(g).
Old s 253 has been repealed. Section 9 now defines ‘special resolution’ to mean, in relation to a company, a resolution of which notice as set out in new s 249L(c) has been given and that has been passed by at least 75 per cent of the votes cast by members entitled to vote on the resolution. Under new s 249L(c) if a special resolution is to be proposed at a general meeting, the notice of meeting must set out an intention to propose the special resolution and ‘state the resolution’. Presumably this means the wording of the proposed special resolution. As to notice and notice of business generally, see further [21.14] and [21.15].
Old s 253(4) has been repealed and there is no longer any specific provision for short notice of a special resolution; however, the general provision for waiver of notice, new s 249H(2), will apply; see further [21.17] and [21.14].
The specific provisions of old ss 253(5) and (6) in relation to the Chair’s declaration of the result and demands for a poll have similarly been replaced by the general provisions of new ss 250J(2) and 250K–250M; see further [21.26] and [21.27].
Old s 256(1) has been replaced by new s 246F(3); however, the new provision does not apply to special resolutions generally, but only those affecting share rights. In the case of public companies, new s 136(5) requires the company to lodge with ASIC within 14 days a copy of any special resolution adopting, modifying or repealing its constitution, together with a copy of any constitution adopted or modification.
Special resolutions may now be passed by ‘resolution without meeting’: see [21.30].
Amendment of constitution
[21.24] Companies are no longer required to have a memorandum and articles of association, but may have a constitution: see [20.9]. There are no requirements as to the content of the constitution, if the company chooses to adopt one. However, the replaceable rules contained in the Corporations Law will apply to companies registered after 1 July 1998 and to companies that repeal their constitutions after that date to the extent that the company’s constitution does not displace or modify the replaceable rules: new ss 135(1) and (2); see further [20.9]. In practice it seems likely that the provisions contained in constitutions will be similar to those previously found in memorandums and articles of association.
The constitution may be adopted by agreement of the first members at the time of registration: new s 136(1)(a), or by special resolution after registration: new s 136(1)(b). Subsequent modification or repeal of the constitution also requires a special resolution: new s 136(2). Under new s 137(1) a special resolution adopting, modifying or repealing a constitution takes effect when the resolution is passed, unless a later date is specified in the resolution. The constitution may provide that a special resolution modifying or repealing the constitution does not take effect unless some further specified requirement has been complied with: new s 136(3); if so, that provision itself may only be modified or repealed if the requirement is complied with: new s 136(4).
In the case of public companies, new s 136(5) requires the company to lodge with ASIC within 14 days a copy of any special resolution adopting, modifying or repealing its constitution, together with a copy of any constitution adopted or modification. ASIC may require the company to lodge a consolidated copy of its constitution: new s 138.
Under new s 139 companies must send a copy of their constitution within seven days to any member who requests in writing and pays any fee required by the company, up to the prescribed maximum of $10.00.
Change of name, change of type of company and variation or cancellation of class rights also require special resolutions: new ss 157, 162 and 246B(2) respectively.
Under new s 256C(1) shareholder approval by ordinary resolution is required for an equal reduction in share capital; however, under new s 256C(2) a selective reduction in share capital requires either a resolution agreed to by all ordinary shareholders, or a special resolution passed without any votes in favour being cast by any person who is to receive consideration as part of the reduction or whose liability to pay amounts unpaid on shares is to be reduced, or by their associates. If the reduction involves the cancellation of shares, it must also be approved by special resolution of those shareholders whose shares are to be cancelled: new s 256C(2). Under new s 256C(4) the notice of a meeting for the purposes of new s 256C(2) must include a statement setting out all information known to the company that is material to the decision on how to vote on the resolution, except for information previously disclosed to shareholders. A copy of the notice and all documents relating to the reduction that will accompany it must be lodged with ASIC before notice of the meeting is sent to shareholders: new s 256C(5). Under new s 256C(3) the company must lodge a copy of any resolution under new s 256C(2) with ASIC within 14 days, and the reduction must not be made until 14 days after lodgment.
Adjournment
[21.25] Unless the company’s constitution otherwise provides:
• the Chair must adjourn a general meeting if the members present with a majority of votes at the meeting agree or direct that the Chair must do so: new s 249U(4) (replaceable rule);
• new notice of the resumed meeting must be given if the meeting is adjourned for one month or more: new s 249M (replaceable rule); and
• only unfinished business is to be transacted at the resumed meeting: new s 249W(2) (replaceable rule).
Under new s 249W(1) resolutions passed at a meeting resumed after an adjournment are deemed to be passed on the day of the resumed meeting. This is not a replaceable rule, and abrogates the common law rule.
The statutory meeting has been abolished: see [21.3].
Voting
[21.26] Unless the company’s constitution otherwise provides, at general meetings:
• in the case of companies with shares – on a show of hands each member has one vote, and on a poll each member has one vote for each share held, subject to any class rights or restrictions: new s 250E(1) (replaceable rule);
• in the case of companies without shares – each member has one vote, both on a show of hands and on a poll: new s 250E(2) (replaceable rule);
• the Chair has a casting vote, in addition to any deliberative vote: new s 250E(3) (replaceable rule);
• in the case of jointly held shares, only the vote of the member whose name appears first in the register of members is to be counted: new s 250F (replaceable rule);
• any challenge to a right to vote must be made at the meeting, and must be determined by the Chair, whose decision is final: new s 250G (replaceable rule);
• voting is on a show of hands, unless a poll is demanded: new s 250H(1) (replaceable rule);
• before a vote is taken the Chair must inform the meeting whether any proxy votes have been received, and how the proxy votes are to be cast: new s 250H(2) (replaceable rule);
• on a show of hands, the Chair’s declaration is conclusive evidence of the result, provided the declaration reflects the show of hands and the votes of the proxies received: new s 250H(3) (replaceable rule); and
• on a show of hands, neither the Chair nor the minutes need to state the number or proportion of votes recorded in favour or against: new s 250H(3) (replaceable rule).
Polls
[21.27] Under new s 250K(1) a poll may be demanded on any resolution. (Presumably this does not include an amendment, as was the case under old s 248(1).) However, the company’s constitution may exclude a demand for a poll on any resolution concerning the election of the Chair or the adjournment of the meeting: new s 250K(2). A demand for a poll may be withdrawn: new s 250K(3).
Under new s 250L(1) a poll may be demanded by at least five members entitled to vote, or by members holding at least 5 per cent of the votes that may be cast. The company’s constitution may specify fewer members or a smaller percentage: new s 250L(2). The percentage of votes that members have is to be worked out as at the midnight before the poll is demanded: new s 250L(4). Under new s 249Y(1)(c) proxies may join in the demand for a poll. Under new s 250D(4) body corporate representatives may join in the demand for a poll, subject to the terms of their appointment.
Under new s 250L(3) the poll must be demanded before the vote is taken, before the result is declared on a show of hands, or immediately after the result is declared on a show of hands.
Unless the company’s constitution otherwise provides:
• a poll on the election of the Chair or on the question of an adjournment must be taken immediately: new s 250M(2) (replaceable rule); and
• a poll on any other matter must be taken when and in the manner the Chair directs: new s 250M(1) (replaceable rule).
Under new s 250H on a poll a person entitled to more than one vote need not cast all their votes, and may cast their votes in different ways. See, however, [21.28] as to new s 250A(4).
Proxies
[21.28] New s 249X is a replaceable rule for proprietary companies, but a mandatory rule for public companies. Under new 249X:
• members who are entitled to attend and vote at a general meeting may appoint a person as proxy and to attend and vote for the member at the meeting: new s 249X(1);
• if the member is entitled to cast two or more votes at the meeting, they may appoint two proxies: new s 249X(3);
• the appointment may specify the proportion or number of votes that the proxy may exercise: new s 249X(2);
• if the member appoints two proxies and the appointment does not otherwise specify, each proxy may exercise half the votes: new s 249X(3); and
• fractions of votes are to be disregarded: new s 249X(4).
Under new s 249Z if members request a proxy appointment form for a general meeting or a list of persons willing to act as proxy at the meeting, the company must send the form or list to all members making the request who are entitled to appoint a proxy; if the company chooses to send a proxy appointment form or a list of persons willing to act as proxy, it must do so for all members entitled to appoint a proxy.
If members are entitled to appoint proxies, new s 249L(d) requires notices of general meetings to state:
• that the member has the right to appoint a proxy;
• whether or not the proxy needs to be a member; and
• that a member entitled to cast two or more votes may appoint two proxies, and specify the proportion or number of votes each proxy is appointed to exercise.
As to notice generally, see [21.14].
In the case of listed companies, new s 250BA also requires the notice of meeting to specify a place and a fax number for the receipt of proxy appointments, and optionally an email address.
Under new s 250A(1) appointments of proxies will only be valid if they are signed by the member and state the member’s name and address, the name of the company, the proxy’s name or the name of the office held by the proxy (for example, Chair of the meeting) and the meeting or meetings at which the appointment may be used. The company’s constitution may provide that an appointment is valid even if it only contains some of the information required by new s 250A(1): new s 250A(2). Appointments of proxies may be standing appointments – that is, appointments applying to more than one meeting: new s 250A(1). Undated appointments are deemed to be dated on the day they are given to the company: new s 250A(3). Appointments do not have to be witnessed: new s 250A(6). A later appointment revokes an earlier inconsistent one: new s 250A(7).
Under new s 250A(4) appointments of proxies may specify the way the proxy is to vote on a particular resolution. If so:
• on a show of hands the proxy need not vote, but if they do so must vote as specified;
• if the proxy holds two or more appointments specifying different ways to vote, the proxy must not vote on a show of hands;
• if the proxy is the Chair, the proxy must vote on a poll as specified; and
• if the proxy is not the Chair, on a poll the proxy need not vote, but if they do so must vote as specified.
The company’s constitution may provide that proxies are not entitled to vote on a show of hands: new s 249Y(2). New s 250A(4) does not affect the way that members who are also proxies cast their own votes: new s 250A(4). It is an offence not to comply with new s 250A(4) if the appointment has resulted from the company sending a form or list to a member under new s 249Z.
New s 250B(1) requires appointments of proxies to be received by the company at least 48 hours before the meeting if they are to be effective; if the appointment is signed by the member’s attorney, it must be accompanied by the authority under which it was signed or a certified copy. In the case of adjourned meetings, appointments and authorities received at least 48 hours before the resumed meeting will be effective for the resumed meeting: new s 250B(2). In each case, the company’s constitution may reduce the 48 hour period: new s 250B(4). Under new s 250B(3) appointments and authorities are received by the company when received at its registered office, including by fax, or at a place, fax number or email address specified for the purpose in the notice of meeting.
Under new s 249Y(1) the proxy has the same rights as the member to speak at the meeting, to vote (but only to the extent allowed by the appointment), and to demand a poll. The company’s constitution may provide that proxies are not entitled to vote on a show of hands; however, they may still demand a poll: new s 249Y(2). Under new s 250C(1) members who are not entitled to vote as members on a resolution can still vote as proxies, if their appointment specifies the way they are to vote. Unless the company’s constitution otherwise provides:
• the proxy’s rights are suspended while the member is present at the meeting: new s 249Y(3); and
• even if the member appointing the proxy has died, become mentally incapacitated, revoked the appointment or their attorney’s authority, or transferred their shares, votes subsequently cast by the proxy will be valid, unless the company has received written notice of the matter before the start or resumption of the meeting: new s 250C(2) (replaceable rule).
Minutes
[21.29] New s 251A requires companies to keep minute books in which it records within one month:
• proceedings and resolutions of all general meetings, directors’ meetings and meetings of committees of directors;
• all resolutions passed by members and directors without a meeting: see further [21.30] and [22.13]; and
• in the case of proprietary companies with only one director – the making of declarations by that director.
The minutes must be signed within a reasonable time after the meeting by the Chair of that meeting or the Chair of the next meeting: new s 251A(2). Similarly, resolutions and declarations must be signed by a director (or, in the case of a proprietary company with only one director, by the director) within a reasonable time after being passed or made: new ss 251A(3) and (4) respectively. The requirement that minutes, resolutions and declarations be signed within a reasonable period is new, cf old s 258(1)(b). Under new s 251A(6) a minute recorded and signed in accordance with new s 251A is evidence of the proceeding, resolution or declaration to which it relates, unless the contrary is proved.
In the case of general meetings of listed companies, new s 251AA requires the minutes to record in respect of each resolution in the notice of meeting:
• the total number of proxy votes exercisable by all proxies validly appointed;
• in the case of resolutions decided on a show of hands – each of the total number of proxy votes directed to vote for the resolution, against the resolution, to abstain on the resolution, or to vote at the proxy’s discretion; and
• in the case of resolutions decided on a poll – as for a show of hands, plus each of the total number of votes cast on the poll in favour of the resolution, against the resolution and abstaining on the resolution.
The company must include this information with any resolution required to be lodged with the ASX: new s 251AA(2).
The minute books must be kept at the registered office or principal place of business in Australia of the company, or another place approved by ASIC: new s 251A(5). Under new s 251B(1) members may inspect free of charge the minutes of general meetings and of resolutions passed by members without a meeting. Under new s 251B(2) members may request the company in writing to send them a copy of any minutes or extracts of minutes of general meetings or of resolutions passed by members without a meeting. Under new s 251B(4) the company may charge up to a prescribed maximum of $0.50 per A4 page or 100 words (whichever the company wishes). The company must send the minutes within 14 days, or any longer period approved by ASIC, of:
• if there is a charge – payment being made: new s 251B(4); or
• if there is no charge – the request being made: new s 251B(3).
The 14 day period was previously 21 days under old s 259.
Resolutions without general meeting
[21.30] In the case of proprietary companies, any resolution that may validly be passed at a general meeting, other than a resolution to remove an auditor under s 329, may be passed by resolution without meeting in accordance with new s 249A. Hence, unlike old s 255, special resolutions and resolutions to remove directors may now be passed by resolution without meeting.
Under new s 249A(2) a resolution may be passed without a general meeting being held if all 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; in the case of joint shareholders, each must sign. Separate copies of the document may be used for signing, provided the wording of the resolution and statement is identical in each copy: new s 249A(3). The resolution is passed when the last member signs: new s 249A(4). Any information or document that in the case of a general meeting would be included in or with the notice of meeting is to be given to members with the document to be signed: new s 249A(5).
In the case of a company that only has one member, a resolution may be passed by the member recording it and signing the record: new s 249B.
Resolutions without meeting must be recorded in the company’s minute books: see [21.29].
Validation of meetings
[21.31] Two new subsections have been inserted into s 1322. New s 1322(3A) deals specifically with the invalidation of a general meeting held at two or more venues where a member has not had a reasonable opportunity to participate: see [21.19A]. In the case of a company that controls an entity that holds shares in the company, new s 1322(3B) deals in similar terms with the invalidation of a meeting or resolution where voting rights have been exercised in contravention of new s 259D(3).
