CORPORATIONS LAW SUMMARY

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1 CORPORATIONS LAW SUMMARY LAWSKOOL PTY LTD

2 Cntents INTRODUCTION 5 Frms f Legal Assciatin 5 Administrative and Legislative Structure f Australian 5 Crpratins Law SEPARATE LEGAL ENTITY 7 Classifying Cmpanies 7 Separate Legal Entity 9 CORPORATE CONSTITUTION 12 CORPORATE GOVERNANCE 14 Definitin 14 The Frmal Legal Mdel 14 CORPORATE FINANCE: CONTROL 18 CORPORATE FINANCE: DEBT CAPITAL 27 Charges 32 CORPORATE FINANCE: SHARE CAPITAL 37 Preference shares: 37 Redeemable preference shares 38 Emplyee shares 39 Bnus shares 39

3 CORPORATE FINANCE: DIVIDENDS 47 Surce f dividend payments 48 Limitatins 49 Payment f dividends 50 CORPORATE CONTRACTING 53 Crprate Capacity 53 Plicy Prblems 53 Authrity f Peple t enter K n C s behalf 54 Agency 55 Direct Crprate Cntracting 60 MEMBERS S RIGHT AND REMEDIES 62 The Cmmn Law Psitin 64 DIRECTOR S DUTIES 78 Appintment and Numbers f Directrs 78 General Duties fr Directr 78 Duties wed t the Cmpany 78 Directrs nt t act fr an imprper purpse 79 Directrs t act with unfettered discretin 79 Duty t act in gd faith and avid cnflicts f interest 80 Disclsure f Interests 80

4 Abuse f Crprate Opprtunity 80 The Cmmn Law Duty f Care and Skill 81 Statutry Duties f Care business judgement rule 81 Breach f Duty 83 INSOLVENCY, CORPORATE RESCUES & WINDING UP 84 Receivers and Vluntary Administratin 84 SOURCES CONSULTED 103

5 INTRODUCTION Frms f Legal Assciatin There are 3 brad categries f cmpanies: Sle Trader; Unincrprated Assciatin; and A Crpratin: there are a number f ways t structure and type f cmpany. They can be Prprietary (Pty) r Public. Administrative and Legislative Structure f Australian Crpratins Law The regulatin f Australian Crpratins law has a lng and cntrversial histry which has lead t the pint t the current regime f unifrm crpratins laws thrughut all Australian states under the Crpratins Act 2001 (Cth) (referred t as the Act). Crpratins law is regulated by: 1. Legislatin: The Australian Cnstitutin prvides that the states have jurisdictin ver crpratins but the current arrangement has seen unifrmity thrughut the states; New Suth Wales v Cmmnwealth (1990): Reaffirmed states cntrl ver Crpratins as there was fund t be n cnstitutinal pwer fr Cth cntrl ver crps; Cth can pass legislatin that regulates the trading f crpratins if incrprated by states;

6 Cth test case since split system between states. Cth passed the Crpratins Law 1990, and the States challenge and fund law uncnstitutinal. The current legislative arrangement has since been agreed t by the states (2001). 2. Administratin: law applied r enfrced in different ways in states as a result f administrative structures but the Act is unifrmly applied; R v Hughes (2000): Dubts abut unifrmity f administratin between the states: prblems that Cth bdies cannt undertake functins cnferred upn them by state law unless in s.51 Cnstitutin. This has since been eased because f the State referral f pwer ver crpratins t the Cth. 3. Curt jurisdictin: there are n differences in interpretatins t law thrughut the states: there is the same jurisdictin between the states. Re Wakim (1999): Parts f scheme invalid: state judicial pwer in Federal Curt invalid exercise f pwer. Crpratins cases are all heard in Supreme Curts f states because f striking dwn f crss vesting scheme. But see nw that Federal and State Curts can exercise federal judicial pwer as a result f crpratins nw being an area f Cth cntrl.

7 SEPARATE LEGAL ENTITY Classifying Cmpanies: There are tw questins t ask when addressing any situatin invlving a crpratin: 1. Is the cmpany a public cmpany? Or is it 2. A Prprietary Cmpany (Pty). In rder t determine this status there are five specific areas t lk fr in infrmatin abut the cmpany in questin. These are cntained in the Crpratins Act 2001 (Cth). 5 Features in Crps Act f Prprietary nt Public Cmpany: i. Share Capital (s.112(1)): where a persn becmes a member f Pty cmpany by btaining shares in the cmpany, this is said t be a Pty cmpany; and ii. A Pty cmpany has btw 1-50 members (but n mre than 50): s113(1) and s114(1) this limitatin des nt apply t members wh are emplyee sharehlders; and iii. There is at least ne directr f the cmpany (s.201a(1)): nt emplyees f cmpany; then a Pty cmpany is iv. Frbidden frm ffering shares fr public subscriptin (s113(3)); and v. A Pty cmpany can be distinguished frm a public cmpany because it has Pty as part f name (s148(2)) and s149 family cmpanies are usually Pty cmpanies. cs).

8 Features f a Public Cmpany: A public cmpany is defined in s9 as a cmpany ther than a Pty cmpany. That is, if the cmpany des nt meet the five criteria utlined abve then the cmpany by definitin is a public ne. Therefre: A public Cmpany must have: i. A minimum f ne member (s.114); there is n maximum number f members; and a ii. Minimum f three directrs (s201a(2)); mst cmpanies have a large a bard in any case (7-9 directrs is the nrm in Australia); and iii. N Pty in name; and iv. Seek funds frm the public: chapter 6D f the Act cntains rules cncerning fund raising and prspectus rules fr crpratins ffering shares; and v. The ptin t list n a stck exchange. A Pty cmpany may transit frm being a Pty t Ltd (public cmpany): s162 Act gives prcedures fr this cnversin t ccur. A Large Pty Cmpany: A Pty cmpany meets any 2 f additinal criteria in s45a(3). A Small Pty Cmpany: Any 2 criteria in s45a(3) and is reevaluated each financial year. Hw is the Liability f Cmpanies members Structured?

9 There are 2 significant ways: i. Limited by shares: s516 Act- member need nt cntribute mre than the amunt (if any) unpaid n the shares in respect f which the member is liable as a present r past member. ; and ii. Limited by guarantees: s.517act- member need nt cntribute mre than the amunt the member has undertaken t cntribute t the cmpany s prperty if the cmpany is wund up. Separate Legal Entity Sectin 119 f the Act prvides that a cmpany cmes int existence as a bdy crprate at the beginning f the day f its registratin. This basic dctrine, cdified in the Act as stated abve, was first espused in English Cmmn Law: Salman s Case (1897) AC 22 and then again in Lee v Lee s Air Farming Ltd [1961] AC 12. The fllwing discussin cncentrates n the Cmmn Law rules n the dctrine f cmpany s having a separate legal identity, independent f individuals and managers. If yu have any queries regarding the administrative law summary please us -

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