BLAW20001 Study Guide - Final Guide: Board Of Directors, Oppression Remedy, Legal Personality
19 Jun 2018
School
Department
Course
Professor
CORPORATE LAW SEM 1 2018
Contents: (Replaceable rules and public v proprietary separate)
i. Agents
ii. Assumptions
iii. Business judgement rule
iv. But for… (proper purpose)
v. Civil v criminal
vi. Class rights and variation
vii. Companies powers
viii. Controlling entities/ Related bodies
ix. Corporate contracting
x. De facto and shadow directors.
xi. Definitions
xii. Directors: appointment/removal
xiii. Directors: duties
xiv. Directors: misbehaviour/carelessness
xv. Directors: powers
xvi. Dividends
xvii. Expropriation rules
xviii. Financial assistance
xix. Gambotto
xx. Holding out
xxi. Incorporated v unincorporated
xxii. Internal governance
xxiii. Limited liabilities
xxiv. Material personal interest
xxv. Meetings
xxvi. Members remedies
xxvii. Members rights
xxviii. Nearing insolvency
xxix. Oppressive conduct
xxx. Oppression remedy
xxxi. Ordinary v special resolution
xxxii. Piercing the corporate veil
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xxxiii. Private v public law
xxxiv. Proper and improper purpose
xxxv. Procedural irregularity
xxxvi. Proceedings against a company by members
xxxvii. Proceedings on behalf of a company
xxxviii. Proxy’s
xxxix. Related party transactions
xl. Reliance on information/advice from others
xli. Remedies
xlii. Secretary responsibilities
xliii. Separate legal entity doctrine
xliv. Shares
xlv. Statutory contract
xlvi. Statutory derivative action
xlvii. Statutory injunction
xlviii. Unhappy shareholders
xlix. Winding up
Agents
s 126 An agent exercising a company’s power to make contracts. A company’s power to make, vary, ratify or discharge a contract may be exercised by
an individual acting with the company’s express or implied authority on behalf of the company. The power may be exercised without using a
common seal.
Implied actual
authority
Hely-Hutchinson v Brayhead
Implied Actual authority can arise by implication e.g. appointing someone to a certain position. Different company officers have different levels
of implied authority. Express restrictions limit implied authority. Implied actual authority by acquiescence(agreement)- ‘ratifying’(approving) past
exceeding of authority.
Express actual
authority
Express Actual authority can arise from a provision in CA or the company’s constitution e.g. s 198A (powers of directors) and s 198D
(delegation). It can also arise when someone who has actual authority delegated some of their own actual authority.
Common seal
s 190 s 190(1): responsibility for actions of the delegate. If directors have delegated a power under s 198D, a director is responsible for the actions of the
delegate as if they had exercised the power themselves.
s 190(2): a director is not responsible under s 190(1) if:
a. the director believed on reasonable grounds at all times that the delegate would exercise the power in conformity with the duties imposed
on directors of the company by this Act and the company’s constitution (if any); and
b. the director believed:
i. on reasonable grounds; and in good faith; and
ii. after making proper inquiry if the circumstances indicated the need for inquiry;
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that the delegate was reliable and competent in relation to the power delegated.
Assumptions
s 128 s 128(1). Entitlement to make assumptions. A person is entitled to make the assumptions in s 129 in relation to dealings with a company. The
company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.
s 128(2). Title to property. A person is entitled to make the assumptions in s 129 in relation to dealings with another person in which the person has,
or purports to have, either directly or indirectly acquired title to property from a company. The company and the other person are not entitled to
assert in proceedings in relation to the dealings that any of the assumptions are incorrect.
s 128(3). Fraud of forgery. The assumptions may be made even if an officer or agent of the company acts fraudulently, or forges a document, in
connection with the dealings.
s 128(4). Knowledge or suspicion. A person is not entitles to make an assumption under s 129 if at the time of the dealings they knew or suspected
that the assumption was incorrect.
s 129 Assumptions which can be made under s 128.
s 129(1). Constitution and replaceable rules. A person may assume these have been complied with.
s 129(2). Director or company secretary. A person may assume that anyone who appears, from information provided by the company that is
available to the public from ASIC, to be a director or company secretary of the company:
a. Has been duly appointed; and
b. Has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a
similar company .
s 129(3). Officer or agent. A person may assume that anyone who is held out by the company to be an officer or agent of the company:
a. Has been duly appointed; and
b. Has the authority to exercise the powers and perform the cuties customarily exercised or performed by that kind of officer or agent of a
similar company.
s 129(4). Proper performance of duties. A person may assume that the officers and agents of the company properly perform their duties to the
company.
s 129(5). Document duly executed without seal. A person may assume that a document has been duly executed by the company if the document
appears to have been signed in accordance with subsection 127(1). For the purpose of making the assumption, a person may also assume that
anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company
occupies both offices.
s 129(6). Document executed with seal. A person may assume that a document has been duly executed by the company if:
a. The company’s common seal appears to have been fixed to the document in accordance with s 127(2); and
b. The fixing of the common seal appears to have been witnessed in accordance with that subsection.
For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to
their name that they are the sole company director and sole company secretary of the company, occupies both offices.
s 129(7). Officer or agent with authority to warrant that document is genuine or true copy. A person may assume that an officer or agent of the
company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is
genuine or a true copy.
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Document Summary
Contents: (replaceable rules and public v proprietary separate) i. Limited liabilities ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi. xvii. xviii. xix. xx. xxi. xxii. xxiii. xxiv. Piercing the corporate veil xxxiii. xxxiv. xxxv. xxxvi. xxxvii. xxxviii. xxxix. xl. xli. xlii. xliii. xliv. xlv. xlvi. xlvii. xlviii. An agent exercising a company"s power to make contracts. A company"s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company"s express or implied authority on behalf of the company. The power may be exercised without using a common seal. Implied actual authority can arise by implication e. g. appointing someone to a certain position. Different company officers have different levels of implied authority. Implied actual authority by acquiescence(agreement)- ratifying"(approving) past exceeding of authority. Express actual authority can arise from a provision in ca or the company"s constitution e. g. s 198a (powers of directors) and s 198d (delegation).
