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Introduction

Corporate Constitution. Meaning: e.g., ASX; BHP BillitonCompanies registered before 1 July, 1998 Memorandum of associationArticles of associationForms under the CA: s 134. Replaceable Rules. Meaning: s135 (2)Replaceable

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Introduction

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Presentation Transcript

    1. Introduction Meaning and forms of corporate constitution Replaceable rules Nature of corporate constitution The ultra vires doctrine

    2. Corporate Constitution Meaning: e.g., ASX; BHP Billiton Companies registered before 1 July, 1998 Memorandum of association Articles of association Forms under the CA: s 134

    3. Replaceable Rules Meaning: s135 (2) Replaceable & mandatory: s135 (1)(b) Failure to comply: s135(3) Table of replaceable rules: s141

    4. Application of Replaceable Rules Types of companies: s 135 (1) Each company formed after 1 July 1998: s 135 (1)(a)(i) Any company formed before 1 July 1998 that repeals its constitution after that day: s 135 (1)(a)(ii) Limitations for mere use of the replaceable rules Companies wishing to control their own affairs Replaceable rules not dealing with every aspect of corporate governance Companies wishing to bring corporate governance rules into one place Public companies listed on the ASX must have a constitution: ASX LR 15.11 Not applicable to sole shareholder companies: s 135 (1)(b)(iv); special provisions for such companies: ss198E, 201F & 202C

    5. Adoption of Constitution: s136 On registered: s136(1)(a) After registration by special resolution: s 136(1)(b) By court order: s 136(1)(b) Lodgment of special resolution and constitution with ASIC: s 136(5)

    6. Contents of Constitution No special requirement except for special types of companies Special requirements for special companies: Companies limited by guarantee omitting the word Limited in its name: s 150 (1) No liability companies: s 112 (2)(b)&(c) Listed companies having a constitution in consistent with the ASX listing rules: ASX LR 15.11

    7. Modification of Constitution By special resolution: s 136(2) Special resolution (at least 75% of votes by members): s 9 By court order: s 233(1)(b) Restrictions on modification: s136(3)&(4), e.g.: Higher majority than 75% Consent of a specified person Modification affecting members: s 140(2) Common law tests: bona fide for the benefit of the company as a whole: Allen v Gold Reefs of Wes Africa [1900] 1 Ch 656, 671; Fair in all the circumstances, and for a proper purpose: Gambotto v WCP Ltd (1995) 182 CLR 432

    8. Gambotto v WCP Ltd (1995) 182 CLR 432

    9. Constitution as Statutory Contract: s 140 (1) Between company & member: s 140 (1)(a) Hickman v Kent and Romney Marsh Sheep-Breeders Assoc [1915] 1 Ch 881 Between company & each director & company secretary: s 140 (1)(b) Between members inter se: s 140 (1)(c) Rayfield v Hands [1958] 2 All ER 194 Re Caratti Holdings Co Pty Ltd (1975) 1 ACLR 87 Not between members & directors & company secretary Not between the company & outsiders: Eley v Positive Government Security Life Assurance Co Ltd (1976) 1 Ex D 88

    10. Rayfield v Hands [1958] 2 All ER 194

    11. Re Caratti Holdings Co Pty Ltd (1975) 1 ACLR 87

    12. Eley v Positive Government Security Life Assurance Co Ltd (1876) 1 Ex D 88

    13. Ultra Vires Doctrine Meaning: object clause in the constitution: s125 (2) Abolition of the doctrine of ultra vires Acts contrary to the objects stated in the constitution not invalid: s125 (2)&(1) Act by company not in best interests: s 124 (2) Companies having the capacity of human beings: s 124 (1) Abolition of doctrine of constructive notice: s 130 (1) ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (1990) 8 ACLC 980

    14. ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (1990) 8 ACLC 980

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