LAW 2505 Lecture Notes - Lecture 7: Oppression Remedy
23 May 2018
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Department
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Professor
MEMBER’S REMEDIES
ALWAYS START
STEP 1: to exercise member’s remedies, the person must be a member
STEP 2: The facts state (client’s) is a member/ holds… shares in (Co) which they obtained through
• Subscription upon registration s 117
• agreement: issue, transfer (purchase)- for issues re transfer see shares notes
• transmission upon death or bankruptcy s 1072A, B)
STEP 3: therefore (Client) is a member according to s 231 provided that their name has been entered on the member’s register
which the Co is required to maintain by ss 168-169 at their registered office or business premises CA s 172
• membership commences on date entered on register)
• In the absence of evidence to the contrary, register is proof of the matters shown in the register s 176 (entry to register is
evidence of member's rights (to vote); gives standing to exercise members remedies)
• Co’s refusal to transfer- see shares notes
SELF HELP
Enforce personal rights
• Express contractual
• Breach of statutory contract
• C*/ RRs apply as a contract between members & Co/ Members and members s 140
• Breach cannot be a procedural irregularity (appointment of D), unless they relate to fundamental rights of shareholders
• Remedy= injunction (below)
• Hold a meeting
STEP 1: s 259F RR: holding at last 5% of the votes entitled to be cast at the meeting may call for a meeting, however they
are borne with the expenses of the meeting (this power can be excluded by contrary provision in the constitution)
• The board s 249D(1): must convene a meeting of members, at Co’s expense, when requested to do so by
1. Members with at least 5% of the votes that may be cast at the meeting, or
2. At least 100 members entitled to vote at the meeting
• Failure to arrange within 21 days
1. shareholders holding more than 50% of the votes of all shareholders who made the request may call
and arrange a meeting s 249E(1);
2. Co must assist shareholders to call the meeting by providing a copy of the shareholders' register s 249E(3);
3. Co to pay all reasonable expenses incurred by shareholders in calling and arranging the meeting s 249E(4)
STEP 2: person calling a meeting must provide a proper purpose for it, regardless of the motivation behind it s 249Q
• If not for a proper purpose, member aggrieved may apply to court for an injunction under s 1324
STEP 3: meeting must be held at a reasonable time and place 249R
• Time: 6pm on NYE reasonable (no religious significance- different if gd Friday/ x-mas) if location not difficult
(business location) Howard; day before a scheduled meeting not reasonable Bisan
• Place: maybe two or more places, as long as tech used allows all a reasonable opportunity to participate s 249S
STEP 4: notice requirements
• S 249 J written notice of proposed meeting to each member entitled to vote/ each D (and to auditor s 249K)
o S 1322(3) accidental omissions of members or non-receipt will not invalidate the meeting unless the
person applied to court
• Minimum period of notice: Unlisted Co 21 days; Public Co 28 days
• Must include S 249L: Agenda; Place, time and date of the meeting and the tech used to facilitate it; General
nature of business to be covered; If it is a special resolution, must include the intention to propose and the text of
the resolution; Details about procedure to appoint proxies
o Must be presented in a clear, concise and effective manner, not be misleading Devereaux
o In addition to the agenda specified in the notice, meeting may include the following
▪ consideration of reports
MEMBER's
(shareholder's)
RIGHTS
call a meering-
member's self-
help opition
personal rights, s
140; common law
- take out small
targets
right to inspect
books s 247A
- gather info to
assist in bringing
legal action
SDA
-use for breach of
DDs, member
bring proceeding
fo Co when it
refuses to
opression remedy
s 232
injunction s 1324
- stop Co from
contravening CA
- quick and lethal
winding up s 461
- destroy Co
- where D acts in
own interests,
need not harm
members as a
whole
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Member"s remedies call a meering- member"s self- help opition personal rights, s. 140; common law right to inspect books s 247a. Gather info to assist in bringing legal action. Dds, member bring proceeding fo co when it refuses to opression remedy s 232 injunction s 1324. Quick and lethal winding up s 461. Where d acts in own interests, need not harm members as a whole. Step 1: to exercise member"s remedies, the person must be a member. Step 2: person calling a meeting must provide a proper purpose for it, regardless of the motivation behind it s 249q. If not for a proper purpose, member aggrieved may apply to court for an injunction under s 1324. In this instance, court may make order declaring meeting void s 1322(2), (3), (3a), (3b) Sda- enforce dds when co won"t- dds notes. Oppression remedy pt2f. 1- shares notes- if insufficient, member may seek injunction/ winding up.
