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68 Pages • Complete Study Notes • Year Uploaded: 2018
Topics covered: Share Capital, Corporate Contracting. Directors Duties and Defences Member Remidies, Corporate Groups, Registrations of company, flow chart. CORPORATE GROUPS Contract Between Members and the Company Replaceable Rules Directors, Members and Decision-Making Variation of Class Rights • Step 1: What share does the party have? • Ordinary shares v Preference shares (s254(2)) • Step 2: Is there a variation of a class right? • Variation of class rights at common law: Theses focus on legal rights not effects. Greenhalgh v Adrerne ; White v Bristol Aeroplane • Statute proceedings: s246C sets out what constitutes a variation of rights. • Step 3: Has the proper process been followed? • Has the company’s constitution been followed? If the constitution is silent on the matter, than s 246B sets out the default process for variations or cancellation of shares. • s 246B(2) Otherwise the company may change it only (c) by special resolution and (d) with the written consent of members with at least 75% of the votes in the class. (s 246B(2) & (c) & (d)). • Step 4: Minority to apply to court • Members ( who did NOT agree to the variation) may apply to the court to have it set aside if they have 10% of the votes of the class concerned. NOTE: GAMBOTTO if they don’t have more than 10% • Step 5: Remedies Injunction & see members remedies i.e. s 232 Oppression remedy and SDA. Registration of a Company 1. A company can be formed with one or more members (s 114) (cf old requirements of 7+) 2. Apply for registration using ASIC Form 201 and pay the fee (s 117(4)) 3. The form must contain the required information per s 117(2): a. The type of company; and b. Details and consents of individuals who are to be members, directors, and secretary; and c. Address of the company’s registered office and principle place of business; and d. Details of shares or guarantees (if applicable); and e. State/territory in which the company is to be registered; and f. The proposed name (if any, noting that a name can just be the ACN see s 148); Requirements for a Valid Name: Name must be available (National Business Names Register) (s 148(1)(a)). Limited Public C must have Limited at the end of its name, Pty Ltd Co’s must have Pty Ltd (s.148(2)) Unlimited Proprietary must have the Pty (s.148(3)) No Liability company must have 'No Liability' (s.148(4)) Public Company must NOT include Pty in their name (s.148(5)) • Exception: charities or if direction unpaid or if director pay must be approved (s 150) 1. Only acceptable abbreviations can be used: Ltd, Pty, Co, NL (s 149) 2. Application can be made to ASIC for a reservation for an available name, upon which they must reserve it for two months (s 152) (or longer if requested and approved: sub-s (2)) 3. Sets out requirements for using a name (and ACN) on all public documents (s 153) 4. Exception: ACN not required on receipts 5. To change a name, must pass a special resolution adopting that name and submit the relevant form to ASIC (s 157) 6. If the company has a common seal, it must have the name and ACN (s 123) 7. Cannot end with “Limited”, “No Liability” or “Proprietary (s 156)
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