or acquiring already issued shares from another person
A person ceases to be a member by transferring their shares, or having them cancelled 转让股份或注销股份即不再是会员
Classes of shares 不同的股票 考点
Shares can be created with different rights attaching
Typically classes of shares have differing:
entitlement to dividends
priority in relation to payment of dividends
voting rights
priority in repayment of capital on a winding up
Stakeholders.
2. Corporate Governance 公司治理
3. Internal Governance 公司内部治理 这个有点重要
After July 1998:
Replaceable rules ss140, 141
Or constitution
Or a combination s134
Replaceable rules: 记住 replaceable rule 不是万能的 考过
Companies may elect to rely on some or all of the replaceable rules in the Corporations Act 公司可选择依赖《公司法》中的部分或全部可替换规则
Not all of the replaceable rules are suitable for all types of companies 并非所有可替换规则都适合所有类型的公司
Some companies may wish to do things not provided for in the replaceable rules eg issue partly paid shares 有些公司可能希望做一些可替换规则中没有规定的事情,例如发行部分缴款的股份。
S135 replaceable rules do not apply to single director companies but Act has other sections e.g. S135 可替换规则不适用于单一董事公司,但法案还有其他条款,例如
s198E deals with single director companies - powers of directors;
appointment of other directors
202C remuneration of sole director
Constitution 考过
alternative to relying on the replaceable rules, a company can adopt a constitution 除了依赖可替换规则外,公司还可以通过章程
Can be done when the company is registered, s117
or later s135
Constitution contains customised internal governance rules for that particular company 公司章程包含为特定公司定制的内部治理规则
修改 constitution 需要召开股东大会. 比较重要的知识点
Amending the corporate constitution 修改公司宪法:
Under s136 the constitution can be amended by passing a special resolution in a members' meeting 根据第 136 条,章程可在成员会议上通过特别决议进行修订
Restrictions:
s 140(2) prohibition on imposing further liability on members-公司不可以收取股东其他费用。Ding v Sylvania
s 232 protection of minority members from oppression by the majority
Ding v Sy/vania Waterways-- s140(2)
Members of the company were property owners in a canal development Company needed more money to dredge & clean the canals, sought to amend the constitution to charge all members a fee Members were successful in avoiding the fee by arguing s140(2). 公司成员是运河开发项目的业主,公司需要更多资金来疏浚和清理运河,因此寻求修改公司章程,向所有成员收取费用。
4. Decision making 考过
Power to make decisions is divided between:
the members in general meeting
the board of directors
Residual decision making powers of members
Under the common law, members may also make decisions:
where the board is unable to act:
to ratify breaches of directors' duty.
Division of powers
s198A means that the board is exclusively vested with general powers of management. 第 198A 条意味着董事会被专门授予一般管理权。
HD EDU
Members cannot override management powers: 相对比较重要
Automatic Self Cleansing; NRMA v Parker
The issue depends upon interpretation of the constitution (if there is one) 问题取决于对宪法的解释(如果有的话)
John Shaw & Sons
NRMA v Parker
The constitution of NRMA required at every AGM, half the board members to stand down and seek re-election, The board had the power to conduct the election NRMA 的章程规定,在每次年度股东大会上,半数董事会成员必须退任并寻求连任。
Members requisitioned a meeting to direct the board
to appoint a particular person as returning officer for the election
To conduct a postal ballot 可以邮寄选票
It is not the function of members to express an opinion as to how the powers vested in the board are to be exercised. 就如何行使赋予董事会的权力发表意见并不是成员的职能。
The general meeting could not pass its resolutions Members' decision making 大会无法通过决议 会员国的决策
Members have specific decision making powers
DVT v Bigshop - an example of members' power subject to constitution:
directors appointed by either board or at AGM only. There were 4 directors, (public company = minimum 3) 董事由董事会或股东大会任命。共有 4 名董事,(上市公司 = 至少 3 名董事)
Members wanted to pass a resolution at a general meeting (not AGM) for the appointment of 3 new directors and removal of 3 current directors 成员希望在股东大会(非年度股东大会)上通过决议,任命 3 名新董事并免去 3 名现任董事的职务
Members had no power to appoint under the constitution, there may be residual power if the company was left in a position of unable to act, but no residual power 根据公司章程,成员无权任命,如果公司处于无法行动的境地,则可能有剩余权力,但没有剩余权力
Members could validly remove directors and assume that the remaining director would fill the vacancies 成员可以有效地罢免董事,并假定其余董事将填补空缺
就是说股东想要任命新的董事但是在公司宪法下股东没办法任命所以只能移除现任董事。
Members' powers
Decisions relating to the constitution, the structure of the company and its capital 有关公司章程、结构及其资本的决定
Decisions affecting the board (appointment, removal) and auditor
Statutory powers to approve or veto certain transactions
Auditor appt/removal
Voluntary winding up (special resolution)
Finally, the general meeting can override the board in very limited circumstances 最后,在非常有限的情况下,大会可以凌驾于董事会之上
Eg where the board cannot act
Variation of class rights
Example of constitutional/structural change 什么情况下可以改变宪法 考过
Section 246B: variation or cancellation permitted only:
in accordance with the constitution, or
where the constitution is silent, by special resolution of the company and a separate special resolution of the class 在章程未作规定的情况下,通过公司的特别决议和集体的单独特别决议
Section 246D: rights of dissenting members where the variation, cancellation or modification does not have unanimous consent. Members holding at least of the class can apply to the Court for change to be set aside for unfair prejudice 第 246D 条:在变更、取消或修改未获得一致同意的情况下,持异议成员的权利。持有至少 的成员可向法院申请以不公平损害为由撤销变更。
HD EDU
Composition of the Board 董事会
Appointment - member election or approval may be required under the internal governance rules, eg 任命--根据内部治理规则,可能需要成员选举或批准,例如
members elect the directors by ordinary resolution: RR sec 201G - but see DVT v Bigshop 成员通过普通决议选举董事:RR 第 201G 条 - 但参见 DVT 诉 Bigshop 案
members must approve appointments made under casual vacancy power: RR
Listed companies always provide for director election
Members' right to remove a director: 股东如何移除董事
public company: sec 203D (ordinary resolution)
proprietary company: only if provided for in the internal governance rules eg RR sec 203C 自营公司:仅在内部治理规则(如《注册条例》第 203C 条)中有规定的情况下。
Veto of transactions 否决交易
This refers to certain statutory rights given to members to approve of particular transactions 这是指赋予成员批准特定交易的某些法定权利
For example: 只有在这两种情况下
Related party transactions
Financial benefits prohibition
Related Party Transactions 必考 考过 重点
Chapter 2E member approval needed for related party benefit
S208 applies to a public company or an entity controlled by a public company Is a financial benefit being given to a related party to the public company? S208 讲的关联方交易的定义 第 208 条适用于上市公司或受上市公司控制的实体 是否向上市公司的关联方提供了经济利益?S208 讲的关联方交易的定义
Related Party 的定义是 s228
确定 related party transaction 的基本思路是先确定 related party 在确定有 financial benefit,然后再看是不是符合 exception, 最后就可以确定是不是 related party transaction 了。
An entity that controls a public company
Directors of a public company
Directors of public company that controls another public company
Each of the persons making up the entity that controls a public company
Spouses and de facto spouses of any of these persons
Parents and children of these persons
An entity controlled by a related party
A related party in previous 6 months
Entity with reasonable grounds to believe it will become a related
party in the future
An entity acting in concert with a related party
Financial benefit defined at s229
Includes indirect financial benefits
Includes a financial advantage even if no money is actually paid over e.g. a discount 包括经济利益,即使没有实际付款,如折扣
Examples include:
giving finance or property
Buying or selling an asset with a related party
Leasing an asset
Supplying or receiving services
Issuing securities or options to a related party
Taking up or releasing an obligation of a related party
s211 benefits that are reasonable remuneration for officers or employees 第 211 条 作为官员或雇员合理报酬的福利
s212 officers' indemnities and insurance for legal costs
s213 small amounts of or less to a director or director's spouse
s214 benefit to or by a closely held subsidiary (no other member apart from the relevant person) 第 214 条 紧密控股的子公司(除相关人员外没有其他成员)获得或由其获得的利益
s215 a benefit given to members generally and this may
include a related party
s216 by court order
Lecture 4-Corporate governance
Officer 什么是 officer 从来没考过
Statutory definition s9 wider than a director
Includes director or secretary
Includes Person:
Who makes or participates in decision that affects a substantial part of the company's business 做出或参与做出影响公司大部分业务的决定的人
Who has the capacity to affect the corporations' financial standing
In accordance with whose instructions or wishes the directors are accustomed to act 董事习惯于按照其指示或意愿行事
Company secretaries. 公司秘书会 也没考过
An officer of the company
Chief administrative officer
s204A every public company required to have a secretary
S188(1) company secretaries duties and responsibilities:
Registered office s142
Office open to public s145
Lodgement of notices with ASIC e.g. ss146, 178A
Lodgement of financial reports with ASIC s319A
Provide particulars to ASIC ss346C and 346D
Director 考过-作业
Statutory Definition: s 9
Person who is a director
Appointed to position of alternate director and is acting in that capacity 被任命为候补董事并以此身份行事
A person "not validly appointed" if they are not appointed but:
Merely act in the position of director or
The directors are accustomed to act in accordance with the person's instructions or wishes 董事习惯于按照当事人的指示或意愿行事
Different types of directors 考过 但是不是单独考的
Chairman of the board -
someone to chair the meetings
Required by all companies
ASIC v Rich (2003)
Managing directors s198C
Directors can confer or revoke powers to a managing director
Executive directors
Manage a significant part of the business of the company
Non Executive directors
Not employees of the company
directors who bring external view to the management of the company
Different types of validly appointed director 经过任命的
Nominee directors
Appointed to represent interests of a particular group e.g. major shareholder, large creditor 被任命代表某一特定群体的利益,如大股东、大债权人
Walker v Wimborne(1976) 137 CLR 1
Must act in the paramount interest of the company not the stakeholder 以公司利益为重
Alternate directors (s 201K) 代理董事
With approval of other directors
Some or all of the director's powers
Appointment and termination must be in writing
Directors other than those validly appointed 未经过任命的但是也是合法的
De facto director
Corporate Affair Commission v Drysdale (1978)
Appointed director of Command Minerals to fill casual vacancy
Not re-elected at AGM
Continued to act as director and attend meetings for next 2 years, participating in management of the company 在接下来的两年中,继续担任公司董事并出席会议,参与公司管理
Found to be a de facto director
Mason J "who acts in the position [of director], with or without lawful authority" 梅森-J "以[董事]身份行事的人,无论是否有合法授权"。
Deputy Commissioner of Taxation v Austin (1998)
DD negotiated with creditors including ATO
Mistmorn v Yasseen (1996)
undertook tasks typically expected of a
Shadow director
The board is accustomed to act in accordance with directions or instructions of that person when they are given 董事会习惯于按照该人发出的指示或指令行事
Does not have to cover all matters involving the board
Qualifications for company directors
The person must not be disqualified from being a director: s 201B(2)
The person must be at least 18 years of age
The person must be an individual s 201B(1)
The person must agree to the appointment s201D
How can a director be removed from office? 如何移除 redictor
By complying with a removal procedure in the corporate constitution
By complying with the statutory conditions for proceedings of the board 通过遵守理事会程序的法定条件
s203C replaceable rule - ordinary resolution at a meeting of members, 21 days notice and at least of member votes to requisition the meeting 第 203C 条 可替换规则--成员会议上的普通决议、21 天通知和至少 的成员票数要求召开会议
203D public companies, not replaceable, ordinary resolution at a meeting of members, 2 months notice to the director 203D 公众公司,不可更换,成员会议上的普通决议,2 个月内通知董事
s203E public companies - directors CANNOT be removed by other directors 第 203E 条 上市公司--其他董事不得罢免董事
By resignation s 203A
By the director becoming disqualified from managing a corporation s 206A 董事丧失管理公司的资格 第 206A 条
Automatic disqualification s 206B
Indictable offence concerning a decision affecting business of the corporation 与影响公司业务的决定有关的可公诉罪行
Conviction of an offence
Against Corporations Act with greater than 12 months prison
Dishonesty offence with greater than 3 months prison
Undischarged bankrupts
People who have entered deeds of arrangement under the Bankruptcy Act 1966 (Cth) 根据《1966 年破产法》(澳大利亚联邦)签订协议的人
Disqualification on application by ASIC to court
s206C - must have contravened a civil penalty provision under s1317E
Court uses its discretion
s206D - failed companies and insolvency, non-payment of debts
s206E repeated contraventions of the Corporations Act
s206F power of ASIC to disqualify
Person involved in several failed companies
Disqualification on application by ASIC to court
ASIC v Adler (2002) 42 ACSR 80
Disqualification on application by ASIC to court ASIC v Vizard (2005) 145 FCR 57 澳大利亚证券和投资委员会向法院申请取消资格 澳大利亚证券和投资委员会诉 Vizard (2005) 145 FCR 57
也是 by asic to court
Directors duties 必考必考
Common law and Equitable duties
Duty to act with reasonable care and diligence
Equitable duty of loyalty and good faith includes:
Duty to use powers for a proper purpose
Duty to act in good faith and in the interests of the company
Duty to avoid conflicts of interest
Duty to retain discretions
Statutory duties
S180 duty to act with reasonable care and diligence
applies to directors and officers
S181 duty to act in good faith in best interests of the company and for a proper purpose 第 181 条 在符合公司最佳利益和适当目的的情况下善意行事的责任
Applies to directors and officers
SS182,183 duty not to misuse information or position
Applies to directors, officers and employees
S588G duty to prevent insolvent trading
Applies to directors
S187 director of wholly owned subsidiary
ss191 to 196 requirement to disclose certain interests
Chapter 2E Related Party Transactions
Who owes the duties? 没有专门考过这个
Officers
Directors
Secretary
Shadow director, de facto director
Employee
Fiduciary (common law)
To whom are directors' duties owed? 也没考过这个
To the company as a whole
Greenhalg v Arderne Cinemas Ltd [1951] Ch 286
Individual shareholders
Brunninghausen v Glavanics (1999) 46 NSWLR 538
Employees
Parke v Daily News Ltd [1962] Ch 927
Case law that officers do not owe a duty to consider the company's employees ahead of shareholder interests 判例法认为,高管没有义务将公司员工置于股东利益之上考虑
Nominee directors
Re: Broadcasting Station 2GB Pty Ltd [1964-5] NSWLR 1648
Nominee Ds can act in interests of their shareholder if no conflict with interests of the Co 如果与公司的利益没有冲突,被提名的董事可以为其股东的利益行事
Best interests of the Company remain paramount
Corporate groups
Walker v Wimborne (1976) 137 CLR 1
High Court decision, Ds of a subsidiary have to act in its interest and not the interests of the corporate group 高等法院的裁决,子公司的董事必须为子公司的利益而不是公司集团的利益行事
S187 Corporations Act
Some exception for a wholly owned subsidiary if constitution allows to act in interests of holding 如果公司章程允许 为控股公司的利益行事,全资子公司也有例外
- See also the Equiticorp Case
Creditors
Except for situations of insolvent trading, Ds' duties are owed to the shareholders and not to creditors of the Co 除了在无力偿债的情况下,董事的职责是对股东而不是对公司的债权人负责
Spies V R(2000) 201 CLR 603
Where the company is insolvent or approaching insolvency, the Ds owe a duty to creditors 在公司无力偿债或濒临破产的情况下,董事对债权人负有责任
Kinsela v Russell Kinsela Pty Ltd (in liq)(1986) 4 NSWLR 722
Duty of care - s180
Duty of care - modern standard
A director must obtain a basic understanding of the business of the company and must be familiar with the fundamentals of the company's business. 董事必须对公司业务有基本的了解,必须熟悉公司业务的基本要素。
Directors are under a continuing obligation to keep informed about the activities of the company. 董事有持续了解公司活动的义务。
Detailed inspection of day-to-day activities is not required but what is required is a general monitoring of the company's business affairs. 不需要对日常活动进行详细检查,但需要对公司的商业事务进行总体监督。
Accordingly, a director should attend board meetings regularly.
While directors are not required to audit the company's books they should maintain familiarity with the financial status of the company by a regular review of financial statements. 虽然董事无须审计公司账簿,但他们应通过定期审查财务报表来了解公司的财务状况。
Statutory duty of care
Section 180(1)
A director or other officer must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they: 董事或其他高级职员在行使权力和履行职责时,必须以一个合理的人在以下情况下会采取的谨慎和勤勉程度为标准:
A) were a director or officer in the corporation's circumstances and
B) had the same office and responsibilities as the director or officer
这个 duty common law and statory 都有但是结果不同
Consequences are different
Common law
damages
Statutory breach
Civil penalty s1317E
Disqualification as director s206C
Compensation s1317H ( like damages)
Statutory defences for duty of care
Business judgment rule:
Business involves risks and not all business judgments will end up being profitable for a corporation 商业涉及风险,并非所有商业判断最终都能为公司带来利润
Ds and officers taken to meet s180(1) for a business judgment if
Make judgment in good faith and for a proper purpose and
Do not have a material personal interest in subject matter and
Inform themselves to extent they believe reasonable and
Rationally believe it is in best interests of corporation
HD EDU
- ASIC v Adler 经典案例
Santow J found that the payment of from HIHC to PEE and subsequent use of these shares was a breach of Santow 法官认为,HIHC 向 PEE 支付 并随后使用这些股份违反了
A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise 公司的董事或其他高级职员在行使权力和履行职责时,必须以一个合理的人所应有的谨慎和勤勉来行事
Santow J also held that the payment by HIHC to PEE meant that Adler had breached s181 (the duty to act in good faith and for a proper purpose) and s182 (the duty not to improperly use his position as director). Santow 法官还认为,HIHC 向 PEE 支付 意味着 Adler 违反了第 181 条(出于正当目的善意行事的责任)和第 182 条(不不当利用其董事身份的责任)。
Possible defence?
Adler failed to ensure that HIHC followed investment practices
Failed to get approval for the investments from the "investment committee" 未能获得 "投资委员会 "对投资的批准
Adler knew about the investment committee
Delegating responsibility to others s190(2)
If delegate a power to another under s198D you are still responsible unless terms of are met: 如果根据第 198D 条将权力授予他人,除非符合 的条款,否则您仍需承担责任:
Reasonable grounds to believe delegate will conform with director's duties 有合理理由相信受委托人将履行董事职责
Director believed on reasonable grounds, in good faith and after proper enquiry that delegate is reliable and competent regarding delegated power 董事基于合理的理由,真诚地并经过适当的调查,相信受委托人在授权方面是可靠和称职的
Reliance on others: s 189
In cases of an employee or an expert providing information and advice
Again require reasonable grounds for reliance
Duty to avoid insolvent trading - s588G 很难用,除非在题里面有明显说破产否则不要用
Section 588G:
Person is a director at a time when the company incurs a debt
At that time, the company is insolvent or becomes insolvent by incurring that debt 届时,公司已无力偿债,或因举债而无力偿债
At that time, a reasonable person would have grounds to suspect that the company was insolvent or would become insolvent by incurring the debt 当时,一个通情达理的人有理由怀疑该公司已无力偿债或将因举债而无力偿债
When is a debt incurred
Hawkins v Bank of China (1992)
A debt is incurred when a company subjects itself to an unavoidable obligation to pay a sum of money at a future time, even if the obligation is conditional 当公司 承担在未来某个时间支付一笔钱的不可避免的义务时,债务就产生了,即使该义务是有条件的。
s588G(1A) a deemed debt includes a declared dividend
When is the company insolvent?
S 95A off the Corporations Act
s95A(1) A person is solvent if and only if ...able to pay all debts as and when they become due and payable. 第 95A(1)条 一个人有偿债能力,当且仅当......有能力偿还所有到期应付的债务。
S95A(2) A person who is not solvent is insolvent
HD EDU
Cash flow test
When is the company insolvent?
Fryer v Powell (2001) 37 ACSR 589
The conclusion of insolvency must be derived from a proper consideration of the company's financial position, in its entirety, based on commercial reality. 破产的结论必须是在商业现实的基础上对公司整体财务状况进行适当考虑后得出的。
Not just a temporary lack of liquidity
Not just immediately available cash resources but also to moneys it can procure by realisation by sale, or borrowing against the security of the assets, or otherwise reasonably raise from those associated with it, or supportive of it 不仅包括立即可用的现金资源,还包括通过出售变现或以资产为抵押借款,或以 其他方式从与其有关联者或支持者那里合理筹集到的资金
It is not appropriate to say the company may be able to trade profitably in the future and so restore its financial position 说公司将来可能会进行盈利性贸易,从而恢复其财务状况是不恰当的
Section - Defences:
Director had reasonable grounds to expect, and did that company was solvent 董事有合理理由预期并确实认为公司有偿付能力
Harder to "expect" than to "suspect" Metropolitan Fire Systems v Miller
Ignorance of co's finances no excuse
Delegation and reliance on competent and reliable person: CBA Friedrich 委托和依靠有能力和可靠的人:CBA Friedrich
Absence from management, due to illness or other good reason: Tourprint v Bott; Clark 因病或其他正当理由缺席管理:Tourprint 诉 Bott;Clark
Director took all reasonable steps to prevent the company incurring the debt 董事采取一切合理措施防止公司举债
Defences to insolvent trading
Reasonable grounds to expect solvency
Southern Cross Interiors Pty Ltd
Mr and Mrs Clark directors of Southern Cross Interiors
Financial difficulties although creditors not enforcing payment of debts 虽然债权人不强制偿还债务,但仍有财务困难
Mr Clark was a carpenter. Company was formed.
Assumption that he intended to be the sole director. Mrs Clark has never been a director, had no business experience. She said she signed company documents, but that they were not explained to her and signature occurred in situations in which: 假设他打算成为唯一的董事。克拉克夫人从未担任过董事,也没有商业经验。她说她在公司文件上签了字,但没有人向她解释这些文件,而且签字是在以下情况下进行的:
" I would usually have a frying pan in one hand and be signing with the other." ""我通常会一手拿煎锅,一手在签名"。
6. Absence from management s
Statewide Tobacco Services v Morley (1990)
Mrs Morley was a director of a small family company with no participation in its 莫利夫人是一家小型家族公司的董事,并不参与公司的经营。
management, company managed by son and traded while insolvent
Her defence was she relied on her son
This did not save her, she was liable for insolvent trading
Consequences of insolvent trading
S588G is a civil penalty provision
subject to a criminal offence if caused by dishonesty ss588J and 588K
Compensation orders
Under s588G civil penalty
Liquidator can bring proceedings s588M
Creditors can bring proceedings with consent of liquidator or the court ss 588R-588U 债权人可在清算人或法院同意下提起诉讼 第 588R-588U 条
s588V allows holding companies to be liable for insolvent trading by subsidiaries 第 588V 条允许控股公司对子公司在破产情况下的交易承担责任
s596AB says a person must not enter into an agreement with the intention of preventing the recovery of entitlements of employees e.g. wages etc 第 596AB 条规定,任何人不得以阻止追讨雇员应得权益(如工资等)为目的订立协议
s596AC provides for compensation on application of an employee or the liquidator 第 596AC 条就雇员或清算人提出的赔偿申请作出规定
lecture 5
第一个 duty: Director must act in good faith in the best interests of the company
Statutory duty contained in s 181(1)(a)
Also a general law duty
What is good faith?
ASIC v Adler [2002] NSWSC 171
Interests of the company: Corporate groups 在集团公司的时候怎么办
Each director must act in the interests of the company that they are a director of. 基本原则, 但是也有例外
But consider:
Section 187
Equiticorp
Interests of the company: section 187
Directors are taken to meet the requirements if:
Wholly-owned subsidiary
Constitution expressly authorises
Act in good faith in best interests of holding company
Company not insolvent or made insolvent
Interests of the company: Legal test
Where s 187 does not apply, each company's separate interests prevail
Test: whether an intelligent and honest person in the position of the director could have reasonably believed the decision was for the benefit of the company. 检验标准:一个聪明而诚实的人在董事的位置上是否可以合理地认为该决定是为了公司的利益。
Charterbridge Corp Ltd v Lloyds Bank Ltd [1970] Ch 62 at 74 text
Equiticorp Finance v BNZ (1993) 32 NSWLR 50 text 13.120
Issues involved:
whether the directors had acted honestly in the interests of the company (EFSA & EFL) as a whole 董事们的行为是否符合公司(欧洲食品安全局和欧洲食品有限公司)的整体利益
A transaction involving companies in a group may benefit one, but have derivative benefits for others 涉及集团内公司的交易可能对其中一家公司有利,但对其他公司有衍生利益
第二个 duty: Directors must act for a proper purpose
Statutory duty contained in s 181(1)(b)
Also a general law duty
Proper purpose - Two step test
Two part test
Question of law - for what purpose was the power conferred?
HD EDU
Question of fact - for what purpose was the power exercised?
"Dominant purpose", "but for" test
Howard Smith, Whitehouse
Proper purposes include:
to raise capital
for an employee share scheme
as consideration for purchase of an asset
Improper purposes include:
to entrench the existing board of directors
to fight off a hostile takeover bidder
to make a majority member a minority member
Howard Smith v Ampol [1974] All ER 1126 text 13-200
Mixed purposes
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 text 13-200 经典
Kokotovich Constructions Pty Ltd v Wallington (1995) 13 ACLC 1113 text 13-200
Issue of shares by governing dr to his children was invalid even though one of the purposes was to raise capital 管理人向其子女发行股票无效,尽管目的之一是筹集资金
Held: But for the improper purpose of manipulating voting power the share issue would not have been made 裁定:如果不是出于操纵投票权的不正当目的,就不会发行股票
Advance Bank of Australia Ltd v FAI Insurances Australia Ltd (1987) 5 ACLC 725 text 13-200 - used company money to fund re-election campaign Advance Bank of Australia Ltd 诉 FAI Insurances Australia Ltd (1987) 5 ACLC 725 text 13-200 - 使用公司资金资助连任竞选活动
Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 - exercise of discretion to refuse to register transfer of shares must be exercised for a legitimate purpose eg to prevent insolvent person becoming a member see also s 1071F 澳大利亚大都会人寿保险有限公司诉 Ure (1923) 33 CLR 199 - 行使拒绝登记股份转让的自由裁量权必须出于合法目的,例如防止无力偿债者成为成员,另见第 1071F 条。
ASIC v Adler (see later slide)
Permanent Building Society (in Liq) v Wheeler [1994] WASC 395 (28 July 1994) text 13-200
Permanent Building Society v Wheeler (Contd)
PBS purchased land at twice its value to enable the seller to have enough money to purchase a company called JCDL PBS 以两倍于其价值的价格购买土地,使卖方有足够的资金购买一家名为 JCDL 的公司
Hamilton was the managing director and CEO of PBS and agreed to the action 汉密尔顿是公共广播公司的常务董事兼首席执行官,他同意采取这一行动
JCDL was wholly owned by Capital Hall Ltd, controlled by Wheeler (chairman of PBS) and Holding (executive director of PBS) JCDL 由 Capital Hall Ltd 全资拥有,该公司由 Wheeler(公共广播公司主席)和 Holding(公共广播公司执行董事)控制。
Permanent Building Society v Wheeler (Contd)
Principles of improper purpose:
Fiduciary duties should not be exercised for collateral purposes 附带目的
Must show substantial purpose of directors was improper or collateral to their duties 必须证明董事的实质性目的是不正当的或与其职责无关的
Honest or altruistic behaviour does not prevent a finding of improper conduct 诚实或利他行为并不妨碍对不当行为的认定
4. "The court must determine whether but for the improper or collateral purpose the directors would have performed the act impugned" but for test 4.法院必须确定,若非出于不正当或附带目的,董事是否会实施受指责的行为",若非出于测试目的,董事是否会实施受指责的行为"。
第三个 duty: 这是一个 general law duty: Duty to avoid conflict of interest
Directors have a duty not to misappropriate company property or business opportunities or misuse corporate information 董事有责任不盗用公司财产或商业机会,或滥用公司信息
Directors have a duty not to make undisclosed or secret profits from their position 董事有责任不从其职位中获取未披露或秘密的利润
Conflicts of interest
General law conflict rule
Director must not be in a position where there is an actual or substantial possibility of conflict between a personal interest and the director's duty to act in the interests of the company 董事不得在个人利益与董事为公司利益行事的职责之间存在实际或实质性冲突的情况下任职
Unless the permission of the company is obtained
Arises in several contexts:题目设置的可能, 案例可能出现的情况
director entering contract with her or his company
director making personal profit as a result of her or his position as a director 董事因其董事职位而牟取私利
director misusing confidential company information
director working for a competitor
Checklist for corporate opportunities conflicts of interest 的一种情况
Identify the opportunity
Does the opportunity belong to the company?
Not if the offer has been made to the individual (Peso Silver Mines)
It doesn't matter if the co can take advantage of the opportunity (Regal)
What may matter is whether the Co has relinquished the opportunity (Q/d Mines) 重要的是公司是否放弃了机会(Q/d 矿井)
Has the d made a profit?
Has the d disclosed the conflict and potential profit?
第四个 duty: Duty to disclose: ss 191
director who has a material personal interest in a matter that relates to the affairs of the company must disclose the nature and extent of the interest to the other directors 在与公司事务有关的事项中拥有重大个人利益的董事必须向其他董事披露利益的性质和程度
Can give standing notice: s192
McGellin v Mt King Mining NL (1998) 144 FLR 288 text 14-320
Interests must be of a real or substantial kind.
Does not apply to a proprietary company with only one director
Restriction on voting by directors of public companies: s195
A director with a material personal interest in a matter being considered at a directors' meeting must not be present or vote at the meeting unless the other directors (or ASIC in limited circumstances) agree 在董事会议审议的事项中有重大个人利益的董事不得出席会议或在会上投票,除非其他董事(或在有限情况下经澳大利亚证券和投资委员会)同意
Directors of proprietary companies may vote if disclosure is made: s194 (RR 自有产权公司的董事可在披露信息的情况下投票:第 194 条 (RR)
第五个, 这两个基本总是一起用到 Statutory duty: ss182 and 183
s182 director ,officer, employees must not improperly use their position to: 第 182 条 董事、高管、员工不得不恰当地利用职务之便:
Gain an advantage for themselves or someone else
Cause detriment to the corporation
Eg - The Adler case
S183 director ,officer, employees must not improperly use information to: S183 董事、高管、员工不得将信息用于不正当目的:
Gain an advantage for themselves or someone else
Cause detriment to the corporation
Would a reasonable director consider it to be an appropriate use of their position? (Grove v Flave) 一个通情达理的董事会认为这是对其职位的适当利用吗?(Grove 诉 Flave 案)
Company's remedies for breaches of officers' general law and statutory duties 公司对高级职员违反一般法律和法定职责的补救措施
Relief from liability for breach of duty
Relief granted by the court
Relief given by the company ("ratification")
Insurance and indemnification
Statutory duties - Civil penalty provisions
ASIC can apply for any of the three "civil penalty orders"
Only some sections are "civil penalty provisions" e.g. ss180, 181, 182, 183, 588G: 只有部分条款是 "民事处罚条款",如第 180、181、182、183、588G 条:
1 pecuniary penalty of up to (1317G)
2 disqualification from managing companies (s206C)
3 compensation order ( )
The company can only apply for a compensation order: s1317H
Statutory duties - Criminal penalties
Not available for breach of sec 180 (care and diligence)
Can apply to breaches of sec 181, 182, 183 and 588G: s 184, s1311
Generally require officer to act dishonestly Standard of proof - beyond reasonable doubt 一 般 要 求 有 關 人 員 作 出 不 誠 實 的 行 為 舉 證 標 準 - 無 合 理 疑 點
Criminal penalties :
1 fine of up to
2 up to 5 years' jail
The company's remedies
Remedies for breaches of officers' general law duties
Injunction
e.g. to restrain proposed improper issue of shares
Compensation or damages
Account of profits
e.g. Regal (Hastings)
Rescission of contract
Constructive trust
Lecture 6
Who can seek remedies for breach of duty?
Statutory duties - ASIC, company
General law duties - company
Statutory duties - ASIC remedies
Civil penalties apply to some sections including ss180-183 and s588G
Following a declaration of contravention, the court can order any of the three remedies: 在宣布违法后,法院可下令采取上述三种补救措施中的任何一种:
Pecuniary penalty up to
Disqualification order: s206C
Compensation order: s1317H
Enforceable undertakings: s93AA AS/C Act
ASIC is given power to accept enforceable undertakings. 强制执行
If ASIC believes the undertakings have been breached then court action can be taken. 如果澳大利亚证券和投资委员会认为这些承诺已被违反,则可向法院提起诉讼。
Statutory duties - Criminal
Section 184 allows for ss181-183 to be considered criminal offences.
Section 588G(3) makes dishonest insolvent trading a criminal offence.
Generally require officer to act dishonestly
Standard of proof - beyond reasonable doubt
Criminal penalties:
Fine of up to
Up to 5 years' gaol
Not available for breach of sec 180
Statutory duties - Company remedies
Compensation for loss or damage as a result of the breach: s1317H
Obtain any profit made by the D (or officer) resulting from a breach: s1317H(3) 獲取部門(或高級人員)因違規而獲得的任何利潤:第 1317H(3)條
Injunction 禁令 for person whose interests are affected by the conduct: s1324
Note: ASIC may seek to recover compensation on behalf of the company: s50 AS/C Act 注:澳大利亚证券和投资委员会可代表公司寻求赔偿:《澳大利亚证券和投资法》第 50 条。
Company's remedies - breach of general law duties
Injunction - order of the court requiring the director to stop doing something or to undertake a particular action 禁令--法院要求董事停止做某事或采取特定行动的命令
Compensation or damages - where a breach causes loss to the company
Account of profits - D makes a profit because of a breach of fiduciary duty may have to pay that profit to the company: Regal Hastings v Gulliver, Canadian Aero Service v O'Malley 利润账目 - D 因违反信托责任而获利,可能必须将利润支付给公司:Regal Hastings 诉 Gulliver,加拿大航空服务公司诉 O'Malley
Rescission of contract - parties are returned to their pre-contract position 合同的废止--双方恢复到合同签订前的状态
Constructive trust - Where as a result of a breach of directors duties, the has some property of the company: Cook Deeks 推定信托--由于董事违反职责, 公司的某些财产:Cook Deeks
Company's remedies - breach of general law duties
General principles applying to equitable remedies
Company must not unduly delay bringing proceedings against the director 公司不得无故拖延对董事提起诉讼
The company must not be guilty of misconduct in relation to the dealing with the director 公司在与董事打交道时不得有不当行为
If the company (ie members) later agrees to the transaction with the director on the basis of full knowledge of the relevant facts then the company will not be able to later sue the director. 如果公司(即成员)后来在完全了解相关事实的基础上同意了与董事的交易,那么公司以后就不能起诉该董事。
Relief from liability - court
Court may excuse a breach of statutory duty: s1317S (civil)
HD EDU
Relief may be from all or part of the liability
Available where the person:
has acted honestly; and
should fairly be excused, considering all the circumstances
Court may excuse breach of general law duty on the same basis as above: s1318 法院可根据与上述相同的依据免除违反一般法律义务的行为:第 1318 条
Relief from liability - ratification
Company may ratify a breach of duty
Ordinary resolution of shareholders
Members must have all necessary information
Notice of the meeting must set out clearly the breach of duty and state: -members are asked to ratify the breach; and -waive the right to sue. 会议通知必须明确列出违反义务的情况,并说明-要求成员批准违约行为;并放弃起诉权。
Must occur within a reasonable time.
Those who are alleged to have breached cannot vote: Cook v Deeks
Note: Cannot ratify a breach of a statutory duty. 修正
Limits on members power to ratify a breach
It is oppressive
The result is to prejudice creditors because the company is insolvent
Breaches the equitable limitation on majority voting power
Results in a personal right of a member being eliminated
Results in the misappropriation of the company's property
Members acted for the same improper purpose as directors
Members' remedies 这个比较重要
Members' statutory remedies
Oppression remedy
Court-ordered winding up
Statutory injunction
Statutory right to inspect company books
Member's personal action
Member's derivative action 股东代表诉讼
Why do minority members need remedies? 作业考过了
Directors and majority shareholders can use their power to harm minority shareholders 董事和大股东可以利用他们的权力损害小股东的利益
Not always possible for a shareholder to sell their shares
This explains why the oppression remedy is most commonly sought by shareholders in proprietary companies rather than public companies 这就解释了为什么压迫救济最常由专有公司而非上市公司的股东寻求
Oppression remedy 作业的知识点
S232: It is available in respect of:
the conduct of the company's affairs, or
an actual or proposed act or omission by or on behalf of the company, or
a resolution, or a proposed resolution, of members or a class of members
S232 - Where the conduct complained of is either:
contrary to the interests of the members as a whole, or
oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members 压制、不公平地损害或不公平地歧视一个或多个成员
Who can apply to the court?
A member, even if the oppression relates to some capacity other than a member. 成员,即使压迫与成员以外的其他身份有关。
A person removed from the register of members because of a selective capital reduction 因选择性减资而从成员登记册上除名的人
A person who will cease to be a member if the oppression action relates to the circumstances in which they cease to be a member 如果压迫诉讼与不再是会员的情况有关,则不再是会员的人
A person whom ASIC thinks appropriate having regard to its investigations into the company's affairs 澳大利亚证券和投资委员会在对公司事务进行调查后认为合适的人
Wayde v NSWRL (1994) 180 CLR 459一这个跟我们有一年的作业的题是基本一样的
Examples of oppressive conduct
Diversion of business opportunities Scottish Co-op v Meyer
Improper exclusion from management Hogg Dymock
Does member have a "reasonable expectation"?
Unfairly restricting dividends
Oppressive conduct of board meetings John J Star
Share issue for improper purpose Kokotovich
Breaches of directors' duties Re Spargos
Reasonable expectation
Hogg v Dymock (1993) 11 ACSR 14 text 16-210
Held: there had been common expectation of continuing involvement of the plaintiff, so this was oppressive. 裁定:原告有继续参与的共同期望,因此这是一种压制。
Thomas v HW Thomas Ltd (1984) 2 ACLC 610 text 16-210
Held: No oppression, other members were content and not unreasonable to comply with the expectation of the majority of members. 裁定:没有压迫,其他成员满足了大多数成员的期望,并非不合理。
Oppressive conduct at board meetings
John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'asia) Pty Ltd (1991) 9 ACLC 1372 text John J Starr (Real Estate) Pty Ltd 诉 Robert R Andrew (A'asia) Pty Ltd (1991) 9 ACLC 1372 正文
Not providing board with proper budget
Insufficient notice of significant matters that affected the franchisees (who were represented on the Board) 对影响特许经营者(他们在董事会中有代表)的重大事项通知不足
Restricted speaking time
Decisions made without reference to board.
Failure of directors to act in the best interests of the company
Re Spargos Mining NL (1990) and Jenkins v Enterprise Gold Mines NL (1992) text 16-210 Re Spargos Mining NL (1990) 和 Jenkins 诉 Enterprise Gold Mines NL (1992) 案文 16-210
Spargos and Enterprise were both taken over (but not 100%) by Independent Resources Group (IRL) Spargos 公司和 Enterprise 公司均被独立资源集团(IRL)接管(但不是 100%)。
Ds entered into transactions for the benefit of the IRL
Series of breaches of directors duties.
Those breaches of duty found to be unfairly prejudicial to the interest of minority members. 被认定为不公平地损害少数成员利益的失职行为。
Sale of company assets undervalue
Cassegrain v Gerard Cassegrain & Co Pty Ltd (2012) 88 ACSR 358 text 16-210
Company sold shares that the company held in another company undervalue to a person 公司将其持有的另一家公司的股份低价出售给某人
HD EDU
who was a relative of 2 of the directors
no independent valuation and no consent of minority shareholders.
What orders can the court make?
winding up
To modify or repeal the constitution
regulating the company's affairs
purchase of oppressed member's shares
Commence or defend legal proceedings
appointment of a receiver
restraining someone from doing something, or requiring someone to do something 限制某人做某事,或要求某人做某事
1. Court-ordered winding up
Section 461(1)(e), (f), (g), (k)
A member (and some others, eg a creditor, ASIC) can apply to court to have company wound up where : 在下列情况下,成员(以及其他一些人,如债权人、澳大利亚证券和投资委员会)可向法院申请将公司清盘: :
just and equitable, or
directors acting in own interests, or
oppressive, unfairly prejudicial or unfairly discriminatory conduct 压迫、不公平的偏见或不公平的歧视行为
Winding up: "just and equitable"
Deadlock
Fraud or misconduct
Failure of substratum--The reason for the company's existence is no longer being pursued
Breakdown in mutual trust
Deadlock/breakdown in mutual trust
Ebrahimi v Westbourne Galleries Ltd [1972] 2 All ER 492 text 334
Deadlock
Fraud or misconduct
Re Neath Harbour Smelting & Rolling Works - The company was established was to commit a fraud on investors.
Loch v John Blackwood - Financial reports were not distributed and audits were not conducted in accordance with the law. 底层失效--不再追究公司存在的原因 相互信任破裂 僵局/相互信任破裂 Ebrahimi 诉 Westbourne Galleries Ltd [1972] 2 All ER 492 text 334 僵局 欺诈或不当行为 Re Neath Harbour Smelting & Rolling Works - 公司成立的目的是对投资者进行欺诈。Loch 诉 John Blackwood 案 - 未依法分发财务报告和进行审计。
Failure of substratum
Re Tivoli Freeholds [1972] VR 445 text 16-220
co not pursuing its objects
note that companies not now required to have objects clauses.
Public interest
ASIC v Pegasus Leveraged Options Group Pty Ltd (2002) 41ACSR 56 text 16-220 澳大利亚证券和投资委员会诉 Pegasus 杠杆期权集团私人有限公司(2002 年) 41ACSR 56 案文 16-220
Repeated contraventions of the Corporations Act and mismanagement of the company's affairs 屡次违反《公司法》和对公司事务管理不善
winding up order granted to protect investors.
Protections on the minority
Members may exercise voting rights in their own self-interest (even if they are also 成员可为自身利益行使表决权(即使他们同时也是
directors)
How does the law protect the minority?
Equitable limitation on majority voting power (including Gambotto)
Procedural requirements
Voting restrictions
Protection of members' personal rights
Statutory protections
Limits on ratification
The equitable limitation
Not a positive duty
Rule: if majority passes a resolution which no group of reasonable people would think is within majority's power, a court can declare the resolution void (invalid) 规则:如果多数人通过了一项决议,而任何一群通情达理的人都不会认为该决议属于多数人的权力范围,则法院可宣布该决议无效(失效)
Sometimes overlaps with oppression remedy
Applying the equitable limitation
FIGURE 9.2 - EQUITABLE LIMITATION ON MAJORITY VOTING POWER
这个基本看到上面的这个图就明白了
Member's personal action
From the Corporations Act
eg right of a member holding at least of votes to call a general meeting (s249F) 例如:持有至少 票数的成员有权召开股东大会(第 249F 条)。
From the general law
eg the right to receive adequate information in a notice of general meeting 例如,在大会通知中获得充分信息的权利
HD EDU
Member's derivative action
What is a derivative action?
An action to enforce a right of the company
eg to enforce a breach of directors' duties
Even though a member brings a derivative action, the action is not for the benefit of the member - it's for the company's benefit 即使成员提起衍生诉讼,诉讼也不是为了成员的利益,而是为了公司的利益
any remedies go to the company
Statutory derivative action: Pt 2F.1A
Who may apply (s236)?
a member, former member, or person entitled to be registered as a
member of the company or a related company
an officer or former officer of the company
What are the criteria?
Court must grant leave if all of the criteria are met (s237):
is probable that the company will not take legal action
applicant is acting in good faith
is in the best interests of the company for applicant to be granted
leave
serious question to be tried
Members' meetings 考过
Meetings
types of meetings
convening meetings
conducting meetings
member voting
Calling a meeting
Usually, meetings are called by the board. Can also be called:
RR s 249C by single director
Listed company by single director: s 249CA
Court, on application by a director or member if it is otherwise impracticable: s 249G 法院在董事或成员提出申请后,如认为其他方式不可行:第 249G 条
Requisition by :
s 249D
Directors need not convene if the purpose is improper: NRMA Parker
Direct convening by members:
Directors remuneration 老师给的考试例题里面有这个
S202A (RR) the directors' remuneration may be approved by ordinary resolution. S202A (RR) 董事酬金可通过普通决议批准。
Note Chapter 2E of Corporations Act requirements may apply if it is not "reasonable remuneration" 注意:如果不是 "合理报酬",则可能适用《公司法》第 2E 章的要求
ASX listing rule 10.17 requires member approval for remuneration and other benefits paid to directors of listed companies in certain circumstances. 澳大利亚证券交易所上市规则第 10.17 条规定,在某些情况下,支付给上市公司董事的酬金和其他福利须经会员批准。
s300A and 250R require a company to produce a remuneration report. Until the 2011 amendments, the shareholder vote on that report was advisory only. Those provisions have been strengthened by amendments in 2011 which provide a "2 strikes then spill" process. 第 300A 和 250R 条要求公司编制薪酬报告。在 2011 年修订之前,股东对该报告的投票仅是咨询性的。2011 年的修订加强了这些规定,规定了 "两击即撤 "的程序。
If more than of votes at an AGM are cast against adopting the remuneration report - that is the first strike 如果在股东大会上反对通过薪酬报告的票数超过 --这就是第一次罢工
Then in its next remuneration report the board must address any comments and explain its proposed action if any 然后,董事会必须在其下一份薪酬报告中回应任何意见,并解释其建议采取的任何行动。
If more than of votes are cast against the next remuneration report - that is the second strike 如果反对下一份薪酬报告的票数超过 ,即第二次罢工
If there is a second strike a spill resolution (declaring all directors positions, except MD, vacant and requiring an election) must be put to the shareholders at the same AGM as the second strike vote 如果出现第二次罢免,则必须在第二次罢免投票的同一次股东大会上向股东提交溢出决议(宣布除 MD 外的所有董事职位空缺,并要求进行选举)。
If more than of eligible votes are in favour of the spill then the co must hold another AGM within 90 days at which all drs except MD, who were on the board when it resolved to put the remuneration report to the AGM, must stand for reelection 如果超过 的合格票数赞成溢出,则公司必须在 90 天内召开另一次股东大会,除 MD 外,所有在董事会决议将薪酬报告提交股东大会时在董事会的博士都必须参加改选。
Notice of meeting
General rule - 21 days. Consent to short notice is possible: s
Listed companies - 28 days: s 249HA
Notice must be given to members, directors and auditor
Contents of notice: 249L
Place, date, time
General nature of business
Text of any proposed special resolution
Procedure for appointment of proxies
- Proxies 指定代理人: 代理人可以代替股东进行投票 考过 1 次
A proxy: is the right given by a member to a party to represent that members & vote at a general meeting 代理:是指会员授权 一方代表该会员在会员大会上投票的权利。
Commonly, in listed companies, shareholders will appoint the chair of the meeting as proxy 在上市公司中,股东通常会指定会议主席作为代理人
S 249X - gives members right to appoint a proxy (RR for pty companies but mandatory for public companies) 第 249X 条--赋予成员委任代表的权利(对私人公司是 RR,对公众公司是强制性的)。
怎样指定代理人?
S 250A - an appointment of a proxy must be signed by member, member's name & address, company name, proxy's name or office held (e.g. Chair of meeting), the meetings for which appointment is to apply 第 250A 条 - 委托书必须由成员、成员姓名和地址、公司名称、委托人姓名或担任的职务(如会议主席)、适用委托的会议签署
S 250B - appointment of proxy must be received by company at least before meeting 第 250B 条 - 公司必须在会议召开前至少 收到委任代表的通知
Proxy must vote in accordance with the instructions of the person appointing the proxy: 代理人必须按照委托人的指示投票:
S 250BB - an appointment may specify the way the proxy is to vote on a particular resolution, if it does: 第 250BB 条--委任书可以指定受委代表对某项决议的投票方式(如果有的话):
proxy need not vote on a show of hands, but if proxy does so, proxy must vote that way 委托人不必举手表决,但如果委托人举手表决,委托人必须以这种方式投票
if proxy has 2 or more appointments that specify different ways to vote on the resolution - the proxy must not vote on show of hands 如果受委代表有 2 项或 2 项以上指定对决议进行表决的不同方式--受委代表不得举手表决
if proxy is the chair - proxy must vote on a poll, must vote that way
if proxy is NOT chair - proxy need not vote on a poll, but if proxy does so, proxy must vote that way 如果受委代表不是主席--受委代表无须在投票表决时投票,但如果受委代表投票,则受委代 表必须这样投票
if the proxy is not the Chair is instructed which way to vote proxy either: 如果委托人不是主席 ,则指示 委托人如何投票:
does not attend or
does not vote
proxy defaults to Chair s 250BC
For listed companies- notice to members that a non-binding resolution on the remuneration report will be put to the meeting 上市公司--通知成员将在会议上就薪酬报告提出不具约束力的决议案
Notice must contain sufficient information to enable the member to decide whether or not to attend the meeting and how to vote 通知必须包含足够的信息,使会员能够决定是否出席会议以及如何投票
Must not be misleading or deceptive (even if this is unintentional)
Must "fully and fairly inform and instruct the shareholder about the matter on which he or she will have to vote": Devereaux Holdings Pty Ltd Pelsart Resources NL (1986) 4 ACLC 12 text 168 必须 "充分、公平地告知并指示股东其必须投票的事项":Devereaux Holdings Pty Ltd Pelsart Resources NL (1986) 4 ACLC 12 text 168
Need to balance the information presented, to make it accessible: Fraser NRMA Holdings Ltd (1995) 13 ACLC 853 需要平衡所提供的信息,使其易于获取:Fraser NRMA Holdings Ltd (1995) 13 ACLC 853
Company's constitution to be complied with if it sets out procedure for variation 246B (1) 公司章程如列明更改程序则须遵守 246B (1)
Otherwise S 246B (2) applies - special resolution (75% majority) of members and special resolution of members of that class 否则第 246B(2)条适用--成员的特别决议(75% 多数)和该类成员的特别决议
s 246C - matters assumed to vary class rights - see Table 7.1 on p 148 - 149
s - dissenters ( ) may apply to court
s 246E - if there is unanimous agreement the variation takes immediate effect 第 246E 条 - 如果一致同意,变更立即生效
Decision-making without a meeting
In single member companies, resolution is passed by the member recording and signing it: s 249B 在单一成员公司中,决议由记录和签署决议的成员通过:第 249B 条
Proprietary companies may use "flying minutes", in which all members entitled to vote must sign a document agreeing to the resolution: s 249A 会议记录 股份公司可使用 "飞行会议记录",即所有有权投票的成员必须签署一份同意决议的文件:第 249A 条 会议记录
Irregularities
Section 1322 - outcome of meeting may be valid despite some irregularity (ie failure to follow required procedure) 第 1322 条 - 尽管存在某些不规范之处(即未遵循规定程序),会议结果仍可有效
Applies to "proceeding under the Act" - includes directors' and members' meetings 适用于 "根据法案进行的程序"--包括董事会议和成员会议
Automatic validation (valid unless a court says no) or curing declaration Procedural irregularity 自动生效(除非法院拒绝,否则有效)或更改声明 程序违规
Section 1322(2) - includes absence of quorum, defect of notice or time
Not invalid unless court is of the opinion that a substantial injustice has resulted or may result, and declares it invalid 除非法院认为已经造成或可能造成重大不公正,并宣布其无效,否则无效
Onus on the person arguing invalidity
Other automatic validation provisions
Examples are - non receipt of notice, technology failure, voting in contravention of 259D 例如--未收到通知、技术故障、投票违反 259D
Person seeking to overturn proceeding must establish "substantial injustice" 寻求推翻诉讼程序的人必须证明 "实质性不公正"
Requirements for court order
Section 1322(6) - court can declare that an act, matter, or thing, or a proceeding, is not invalid so long as: 第 1322(6)条 - 只要符合以下条件,法院就可以宣布某项行为、事项或事情,或某项诉讼程序不是无效的:
Onus on the person asserting validity 责任举证
WEEK7
Share capital (sometimes called "equity")
Debt finance
Off balance sheet financing eg equipment leasing
Trade finance
Retained earnings
Debt 考点
Company's obligation to pay interest does not depend on whether it has made a profit 公司支付利息的义务并不取决于是否盈利
Creditors expect repayment of principal at the end of the agreed term of the loan 债权人预期在商定的贷款期限结束时偿还本金
Creditors are not members of the company
Has priority for payment of distributions and repayment of principal
No right to share in surplus assets on a winding up
Interest payments may be tax deductible
Equity 考点 股票
Dividends payable only out of profits
No expectation of a return of capital while the company is a going concern 在公司持续经营期间,不预期资本回报
Equity holders are members, with members' rights
Entitled to distribution and return of capital only after all creditors' entitlements are satisfied 只有在所有债权人的权利都得到满足后,才有权分配和返还资本
Residual claimants of company assets
Dividends are not deductible.
Share capital
Ordinary
All have identical voting & dividend rights
Preference 优先股
Preference to receive dividend, fixed rate ( of issue price)
Redeemable
Similar to debt capital, share price can be repaid without a liquidation 与债务资本类似,无需清算即可偿还股价
How do you know if there are different classes of shares?
S117(2)(k) registration application must set out the type of shares
Subsequent to registration, pass a resolution and advise ASIC: s246F
For preference shares, s254A & requires the company to approve by special resolution, the rights attaching. If not, then use the common law rules 对于优先股,第 254A 和 条要求公司通过特别决议批准所附权利。如果没有,则使用普通法规则
Issue of shares 考点
"issue" in s124 = "allot"
Five main steps to allotment
Board resolution to issue shares s254A
Proposed member applies and pays for new shares
Application accepted by member being placed on the register s246A
Share certificate issued s1071H, s1070C
Company must notify ASIC s254X
Issue st step, Allot all steps
Debt capital
May be secured or unsecured, mortgage=security
A secured debt is one the repayment of which is secured by rights over the company's property 担保债务是指以对公司财产的权利作为偿债担保的债务
Companies may choose to raise finance through issuing debentures to the investing public S9 defines debentures 公司可选择通过向投资大众发行债券来筹集资金 第 9 节 界定债券
Debentures are "securities" and in some cases are quoted and traded on ASX 债券是 "证券",在某些情况下在 ASX 挂牌交易
Law requires a trustee for debenture holders to protect their interests and enforce the terms of the trust deed 法律要求债券持有人的受托人保护他们的利益并执行信托契约的条款
s283AC requires a trustee to not have a conflict of interest
s283DA requires trustee to monitor the activities and enforce breaches 第 283DA 条要求受托人监督活动并强制执行违规行为
Sources of law for debt finance
Remember there are multiple sources of law:
Contract - the loan agreement
Property - securities
Company law - priorities, registration of charges, winding up, creditor protection 公司法--优先权、抵押登记、清盘、债权人保护
Trust law - debenture trustee
Nature of company charges
Secured debt:
Repayment of the debt is secured by a charge over some or all of the company's assets Security gives the lender the right to apply the charged property to satisfy the debt in the event of a default 以公司的部分或全部资产作为抵押偿还债务 抵押赋予放款人在发生违约时使用抵押财产清偿债务的权利
S9 "Charge"
Means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise. 指以任何方式设定的抵押,包括按揭和提供或执行抵押或按揭的协议,无论是否应要求提供。
Fixed and floating charges
Fixed charge - security over a specific asset (eg land). Company cannot dispose of the asset without the consent of the lender 固定抵押--特定资产(如土地)的抵押。未经贷款人同意,公司不得处置资产
Floating charge - "floats" over the assets, allowing the company to dispose of them in the normal course of business and replace them with others of the same class until crystallisation Illingworth v Houldsworth [1904] AC 355 浮动抵押--"浮动 "于资产之上,允许公司在正常业务过程中处置这些资产,并以同类其他资产取代,直至结晶 Illingworth 诉 Houldsworth [1904] AC 355
Floating charges
Company's power to give a floating charge is contained in s 124(1)(f)
Useful device enabling companies to give security over trading stock and book debts 公司为交易股票和账面债务提供担保的有效手段
Free to deal with charged assets in the normal course of business, until "crystallisation" 在 "结晶化 "之前,可在正常业务过程中自由处理抵押资产
Crystallisation 考过
Charge crystallises automatically on the company ceasing to carry on business or on winding up 公司停止经营或清盘时,押记自动生效
Charge document may provide for crystallisation on the happening of specified events ("events of default") eg breaching debt/equity covenants selling a major asset 抵押文件可规定在发生特定事件("违约事件")(如违反债务/股本契约,出售主要资产)时将其具体化。
On crystallisation, the charge effectively becomes a fixed charge over the assets at that time and any later acquired assets 在具体化时,抵押实际上成为对当时的资产和后来购置的任何资产的固定抵押
This means that the company can no longer dispose of the asset without the consent of the security holder 这意味着,未经担保持有人同意,公司不得再处置资产
Fire Nymph Products Ltd v The Heating Centre Pty Ltd (1992) 7 ACSR 356
F previously sold heaters to THC
F was concerned about THC's ability to pay so reversed sale and converted to consignment. F 担心 THC 的支付能力,因此撤销了销售,转为寄售。
THC had a loan with AGC finance, and gave AGC a floating charge over goods
Reversal of sale was not in the ordinary course of business and trigger crystallisation 销售逆转不属于正常业务流程并引发结晶化
AGC had benefit of the heaters not
Protection of Creditor Interests - registers
A company must maintain a register of debenture holders (s171)
Charges and other security interests created by companies over personal property (everything other than land) must be registered on the personal property register. 公司对个人财产(土地以外的所有财产)设定的抵押和其他担保权益必须在个人财产登记簿上登记。
HD EDU
A company may create two or more charges
"Priority" refers to the order in which the charges are satisfied
Order of registration determines priority for registrable charges
Note that priority can be altered by agreement between the chargees
公司破产之后赔付顺序:
Priority is as follows:
Secured creditors
The first registered charge
Fixed over floating
Subject to agreement by lenders
Further advances - don't get the same priority as original loan
unless the chargee had actual or constructive notice of an earlier unregistered charge 除非受押記人已實際或推定地知悉早前有一項未經登記的押記
Expenses of winding up
Unpaid wages
Unsecured creditors
Members
其他人员
Unenforceable
Some charges are unenforceable
Charges that should be registered, but are not, cannot be enforced: s267, 267A (PPSA) 应登记但未登记的收费不能强制执行:第 267 和 267A 条(《公共和私人财产保护法》)。
Certain other charges created within 6 months of winding up in insolvency, either because 在破产清算后 6 个月内产生的某些其他费用,原因是
they are floating s588FJ
They are fixed and amount to a preference s588FA
We look at these sections in more detail later
Financial reporting 考点
Record keeping
Registered office s121
Statutory record keeping obligations:
Financial records- s 286
minute books --s251A
registers
Record keeping
Financial records:
s 286 - all companies must keep sufficient records to enable the preparation of financial statements if required 第 286 条 - 所有公司必须保存足够的记录,以便在需要时编制财务报表
Minute books
Part 2G.3 - minutes of meetings and resolutions of directors and members
s251A record minutes within 1 month
s251B right of members to inspect and copy
Registers
register of members s169
register of option holders s170
register of charges e.g. s171 debenture holders
Register of relevant interests s672DA
Annual review - Chapter 2N
Review date and extract of particulars (may include request for particulars) s346A. 审查日期和详情摘录(可包括要求提供详情)第 346A 条。
Company must correct, and respond to request within 28 days s346C.
Event based notifications
change registered office s142 (28 days),
change of director s205B (28 days),
creation of registrable charge s263 (45 days),
change of name (2) (14 days)
Change of type of company s162(3) (14 days).
Periodic reporting
Chapter 2M of the Corporations Act
S285 overview of obligations
Annual (and half-yearly for disclosing entities)
Applies to all public and large proprietary companies (s45A); small proprietary 适用于所有上市公司和大型专有公司(第 45A 条);小型专有公司
company s293 and s294
Reports are lodged with ASIC and sent to shareholders
Public company
Any company that is not a proprietary company
Can be listed or unlisted
Proprietary company
Defined at s45A
Distinguish 'large' and 'small' for reporting purposes
Small proprietary company
s293 members with of voting rights can request the reports
s294 ASIC can direct that reports are prepared
Disclosing entities:
Are required to lodge half yearly reports
Defined at s111Ac and 111AD
All listed companies are included
unlisted companies that have issued shares covered by Chapter 6D disclosure requirements 已发行第 6D 章披露要求所涵盖股份的非上市公司
Financial reports S 295
Comprises
financial statements (income statement, statement of financial position and cash flow statement), 财务报表(损益表、财务状况表和现金流量表)、
disclosures and notes,
directors' declaration
Remuneration report s300A listed copies
Audit requirements
Removal by special resolution at a general meeting (s.329)
Powers and duties (ss.307-309)
CLERP9 changes since 2004 - affect independence
Professional Independence CLERP 9
HD EDU
Substancial independence
Appointment & removal of auditors
Controlled by general meeting
Protection provided by qualified privilege
Auditor's independence declaration (s.307C)
Auditor rotation for listed companies (s324DA-DD)
Obligation to report to ASIC s311
General independence requirements - conflict of interest situations (s324CACD) 一般独立性要求 - 利益冲突情况(第 324CACD 条)
Specific independence requirements - specific relationships(s324CE-CH) 特定独立性要求--特定关系(s324CE-CH)
Director's declaration re non-audit services & fees s300(11A)
Disclosing entities MUST have their annual financial report audited : s301 披露实体的年度财务报告必须经过审计:S301
Public company - must appoint an auditor of the company within one month after the date of the company's registration: s 327A. 上市公司 - 必须在公司注册日期后一个月内任命公司审计员:第 327A 条。
A large proprietary company must have annual financial statements prepared and audited, s292 大型自营公司必须编制和审计年度财务报表,第 292 条
Proprietary company - directors of a proprietary company appoint an auditor only if an auditor has not been appointed by the company in general meeting: s325. 专有公司--只有在公司未在股东大会上委任审计师的情况下,专有公司的董事才可委任审计师:第 325 条。
Objective of conducting an audit of financial statements
ASA200: general duty of care.
The auditor shall obtain reasonable assurance as to whether the financial report taken as a whole is free from material misstatement, whether due to fraud or error, when conducting an audit in accordance with Auditing Standards. 审计员在根据《审计准则》进行审计时,应对财务报告整体上是否不存在因欺诈或错误造 成的重大错报获取合理保证。
S307:
The auditor shall express an opinion on whether the financial statements and notes for a financial year give a true and fair view of: 审计员应就某一财务年度的财务报表和附注是否真实公允地反映了以下情况发表意见
the financial position and performance of the company
审计师是否要对投资者负责? ?
WEEK8
Disclosure documents
Takeovers 考点
Continuous disclosure 考点
Generally, a decision of the board
Directors must act;
in good faith,
proper purpose,
with reasonable care and
without conflict of interest
s254X must notify ASIC within 1 month of new issue and ASX if a listed company s254X 必须在新股发行后 1 个月内通知澳大利亚证券和投资委员会(ASIC),如果是上市公司,则必须通知澳大利亚证券交易所(ASX
GENERAL RULE: Disclosure is required for ALL offers of securities: s706
Unless
the offer is excluded by sec 708,
secondary trading s 707 (trading in existing securities)- refinance
involves non- "securities" eg retirement villages
s708AA (rights issues)
What is a disclosure document?
S705 distinguishes 4 types of disclosure doc:
Prospectus: ss710, 711, 713 招股说明书
Short form prospectus: s712
Offer information statement: s714
Profile statement: 715
When is a disclosure document required to be lodged with ASIC
excluded issues under s 708 include:
"small scale offerings": "personal offers" to no more than 20 persons per year "小规模提供":每年向不超过20人的 "个人提供"
offers to "sophisticated investors"
offers to "professional investors"
bonus share issues
employee share schemes
Prospectuses 招股说明书 考过
S 113(3) limitation on proprietary companies fundraising that requires a prospectus 第 113(3)條 對須提交招股章程的自營公司 籌款活動的限制
securities defined generally in , but for ch 6D, go to s 700 , then to s761A Includes 证券的一般定义见 ,但关于第 6D 章,请查阅第 700 条,然后查阅第 761A 条 包括
(a) a share in a body;
(b) a debenture of a body;
(c) a legal or equitable right or interest in a share or debenture;
(d) an option
Prospectuses: Form & Content
2 levels of disclosure:
basic eg nature of securities
s710 general:
all information investors and professional advisers would reasonably expect to make an informed investment decision 投资者和专业顾问为做出知情投资决策而合理预期的所有信息
consider:
the nature of securities
Financial position, performance & prospects of company
Liability under
A person must not offer securities under a disclosure document if there is: 考点
(a) a misleading or deceptive statement
(b) an omission
(c) a new circumstance
Consequences for breach Ch6D
stop order on prospectus: 5739
civil liability: s729
criminal liability: s1311
rescind & have money refunded
injunction: s1324
Takeovers
What is a takeover?
Generally,
"Takeover" - change of control in a company
Bidder acquires voting shares in the target
Regulated by Ch 6
Note - only voting shares
Objectives of the Code
Ch 6 - attempts to protect shareholders in the target
s602 - objectives:
The takeover should happen in an efficient, competitive and informed market. 收购应在高效、竞争和知情的市场中进行。
The identity of the bidder should be known.
There should be reasonable time for the target company to consider the offer. 目标公司应有合理的时间考虑收购要约。
There should be sufficient information of the takeover so shareholders and directors can form a reasoned judgment. 应提供足够的收购信息,以便股东和董事做出合理判断。
Each shareholder should have an equal opportunity to participate.
Trigger
When the takeover provisions will be triggered:
S606(1) - prohibits certain increases in voting power, referred to as the threshold test 第 606(1)条 - 禁止某些投票权的增加,称为门槛测试
Subject to exceptions listed in s611
Then sets out certain permissible methods
Off market bid
On Market bid
Trigger elements:
Bidder
Cannot acquire RELEVANT INTEREST
In issued voting shares
In listed or unlisted coy members
If a transaction
Increases voting power to the threshold
Threshold - 90%
When are the takeover provisions triggered?
Threshold test
s606(1)
(a) a bidder's voting power cannot increase from below to more than of the voting shares of the target. (a) 投标人的投票权不能从低于 增加到超过 。
(b) a bidder's voting power cannot increase from above and below of the voting shares of the target. (b) 投标人的投票权不得从高于 增加到低于 。
从低于 到多于
Trigger - relevant interest
S608(1) - "relevant interest" if
The holder of the shares, or
have power or ability to control the voting rights attached to that share, or 有权力或能力控制该股份所附的表决权,或
rule: s608(3)
to control the disposal of a share
A bidder does not need to own the shares to have a relevant interest in them 投标人不一定要拥有股份才能拥有相关权益
More than one person can have a RI in the same share
Edensor Nominees Pty Ltd v ASIC [2002] FCAFC 72
Together 3 companies held of the shares in target mining company
The three companies had an informal agreement not to sell their shares in the target 这三家公司达成了一项非正式协议,不出售其在目标公司的股份。
Held: this is enough for a relevant interest, so breach of s606
Trigger - Applying the threshold test
FIRST, identify what the bidder is entitled to (ie % Relevant interest)
SECOND, identify which of the 2 threshold tests applies
THIRD, identify some transaction where the bidder's increase in relevant interest has increased voting power in shares - assosciate 第三,确定竞标者增加相关权益增加了股份投票权的某些交易--联系
Trigger-definitions
Voting power: s610
A person's voting power
Person (relevant interest)'s and associates' votes
Total votes in the company
Look out for voting power increases
Associates 母公司和子公司, 集团公司和子公司,
S12 defines associates:
A second person is an associate of the
primary person if:
It is controlled by the primary person or
it controls the primary person or
It is a body corporate controlled by an entity that controls the primary person 它是由控制主要负责人的实体控制的法人团体
S 12 Also includes relationships where:
there are agreements or proposed agreements for controlling or influencing the composition of the board or conduct of its affairs 存在控制或影响董事会组成或其事务处理的协议或拟议协议
The persons are acting or proposing to act in concert in relation to the entity's affairs 这些人正在或打算在实体事务方面采取一致行动
Exemptions - Creeping Takeovers
S611 item 11 - If bidder has greater than of voting shares for 6 months or more, bidder can acquire up to every 6 months S611 第 11 项 - 如果投标人在 6 个月或更长时间内拥有超过 的有表决权股份,投标人每 6 个月最多可获得
Takeover bids - off market bid s633
HD EDU
Bidder sends bidder's statement to target and target shareholders
S619 - all offers to must be the same
Bidder sends offer to target shareholders
Target sends target's statement to bidder and target shareholders
Variation or withdrawal of offer
Shareholders accept / reject offer
Bidder's statement
Content s636
Must disclose:
sources of any cash to be provided under the takeover;
identity of the bidder, directors, etc
bidder's future intentions regarding the target
any information material to the target shareholders whether or not to accept the offer 对目标股东是否接受收购要约有重要影响的任何信息
If a scrip takeover, must also comply with s710 prospectus disclosure
statement must disclose
Directors' recommendations as to the offer.
any information material to the target shareholders whether or not to accept the offer 对目标股东是否接受收购要约有重要影响的任何信息
GIO Australia Holdings Ltd v AMP Insurance Investment Holdings Pty Ltd (1998) GIO 澳大利亚控股有限公司诉 AMP 保险投资控股私人有限公司(1998 年)
Facts:
AMP prospectus (April 1998) contained forecast earnings for 1998-9
AMP bidder's statement (September) stated that AMP Board had approved inclusion of prospectus forecast AMP 投标人声明(9 月)称,AMP 董事会已批准将招股说明书预测纳入其中
Held:
Statement was misleading because AMP Board had not formally approved NOT because updated forecast required, as claimed by GIO 声明具有误导性,因为 AMP 董事会尚未正式批准,并非如 GIO 所称需要更新预测
Market bid - The Announcement
S635: Bidder company advises ASX that it will stand in the market - ie, purchase all shares target shares tendered to the market for a certain price. S635:投标公司通知 ASX,它将站在市场上,即以一定价格购买所有向市场投标的目标股份。
s621(3): must be for cash
S621(4): The minimum price to be paid will be the highest price paid by the bidder in the four months preceding the announcement S621(4):应支付的最低价格将是投标人在公告前四个月内支付的最高价格
misleading or deceptive statements in takeover documentation
Material omission
New circumstance requiring disclosure
s670B damages provision to any person who suffers loss
Defence:
s670D - Person having reasonable grounds to believe that the statement was true. 第 670D 条--有合理理由相信陈述属实的人。
Exceptions to the General Prohibition
Found at s611
Authorised takeover bids whether on or off market
Approval by target shareholders
Less than 3% increase in 6 months - creeping take over.
Scheme of arrangement
Downstream acquisitions
Breach of General Prohibition
Fine up to for individual and for a company and/or 6 months gaol s1311
Transactions are not invalid
Court orders as it sees appropriate s1325A
S606(5) defence of inadvertence or mistake, but ignorance of the law is no defence 第 606(5)条 以疏忽或错误为辩护理由,但对法律的无知不能作为辩护理由
Compulsory Acquisition
Chapter 6A allows where:
Bidder has relevant interests in at least AND
Have acquired at least of the shares they bid for s661A
Strategic stake: increasing your holding above mitigates (but does not eliminate) the risk of rival bidders because it limits their ability to compulsorily acquire remaining shares. 战略股份:将持股比例提高到 以上,可减轻(但不能消除)竞争对手竞购的风险,因为这限制了他们强制收购剩余股份的能力。
Compulsory buy-out:
Where threshold passed but do not use compulsory acquisition
Instead offer minority holders the opportunity to sell shares at the same price as the takeover bid s662A to s663C 而不是向少数股权持有人提供以与收购出价相同的价格出售股份的机会 第 662A 至 663C 条
Substantial shareholder provisions
s671B provision
Person must notify a listed company if they begin or cease to have a substantial holding, that is 如果个人开始或停止拥有实质性控股权,则必须通知上市公司,即
Once a substantial shareholder then you must notify of changes in holding of or more, increases or decreases 一旦成为大股东,则必须通知持股 或更多的变化、增加或减少
S 9 definition of substantial holdings includes associates ( defined at s12) 第 9 条中 "大量持股 "的定义包括联营公司(定义见第 12 条)。
Other trading issues
Insider trading 考点重点
s1042 - definitions
A - inside information
C - generally available
D - material effect
s1043 - category of offences
Trading
Tipping
Procuring
Companies prohibited from acquiring shares in themselves - s260A
■ Share buyback - s257A
Continuous disclosure 考过
Applies to all "disclosing entities"
ASX Listing Rule 3.1 requires listed companies to disclose certain price sensitive information to the market as it occurs (subject to exceptions) 澳大利亚证券交易所上市规则》第 3.1 条要求上市公司在出现某些价格敏感信息时向市场披露这些信息(例外情况除外)
Corporations Act Ch 6CA underpins the Listing Rule requirements
What must be disclosed?
information concerning the company
of which it is or becomes aware
that a reasonable person would expect to have a material effect on the price of its shares. 一个合理的人预计会对其股票价格产生重大影响。
Some exceptions ASX Listing Rule 3.1A: confidential information, incomplete proposals, internal management information ASX 上市规则》第 3.1A 条的某些例外情况:机密信息、不完整提案、内部管理信息
Must meet all 3 criteria to rely on exception: 考点
Reasonable person would not expect disclosure
Information is confidential
One or more of the following apply
Breach of law to disclose
Incomplete proposal
Matters insufficiently definite as yet
Information for internal management use
Trade secret
S674 statutory liability for failing to disclose
S1311 company has committed an offence
S674(2A) person in company can be liable if involved
It is a civil penalty offence
ASIC can enforce using infringement notices (on the spot fines)
WEEK9: Company Contracts Corporate Liability, Corporate Veil 一般考简答题
Contract directly: 直接签合同 没考过但是这部分是理解的基础
HD EDU
As well as proper signing/sealing procedure, there must also be authority for the company to enter the contract 除了适当的签署/盖章程序外,公司还必须有权签订合同
normally comes from the board
resolution # 1 approves company entering the
contract ("substantive authority")
resolution # 2 authorises the execution of the documents in a specified way ("formal authority") 第 2 号决议授权以特定方式执行文件("正式授权)
表见代理 和显见代理
Actual Authority: 当代理人明确表明当事人可以作为代理人行使权利。(express or implied)
Express actual authority:
Can arise from a provision in the Corporations Act or the company's constitution eg s 198A 可能源于《公司法》或公司章程中的规定,如第 198A 条
Can also arise when a company agent (eg the board) who has actual authority delegates some of their own actual authority. 当拥有实际权力的公司代理人(如董事会)将自己的部分实际权力下放时,也会出现这种情况。
Implied actual authority:
Actual authority can arise by implication from things the principal says and does eg appointing someone to a certain position. 实际权力可以通过校长的言行暗示产生,例如任命某人担任某个职位。
Different company officers have different levels of implied authority 不同的公司官员有不同程度的默示权力
Requirements for apparent authority
There must be:
a "holding out" (or "representation") - can
be words or conduct
by someone with actual authority
on which the outsider relied - outsider must be "induced"
Indoor management rule: 考过
Statutory assumptions:
ss
Officers on public record at ASIC - assume proper appointment and customary authority s 129(2) 澳大利亚证券和投资委员会公开记录中的官员--假定有适当的任命和惯常授权 第 129(2)条
Persons held out as officers - same assumptions as above s 129(3)
ss 129(5) and 129(6)
Assumption can be made even if an officer or agent acts fraudulently or forges a document s 128(3) 第 128(3)条 即使官员或代理人有欺诈行为或伪造文件,也可作出推定
Story v Advance Bank of Australia Ltd (1993) 11 ACLC 629 - husband forged wife's signature of mortgage by co of property (family home). Story 诉澳大利亚 Advance 银行有限公司(1993 年)11 ACLC 629 案--丈夫伪造了妻子在共同财产(家庭住房)抵押贷款上的签字。
Bank was entitled to assume that the mortgage was validly executed.
Limitation on assumptions:
Knowledge or suspicion that assumption is incorrect s 128(4)
Corporate criminal liability will depend on the particular crime and either the statute or the common law 公司刑事责任取决于特定罪行以及成文法或普通法
Week10
Receivership, Administration, Winding up 公司破产流程
External administration
A company is ordinarily managed by the board of directors
When in financial difficulty or insolvent external administration allows sound business decisions that allow best opportunity for debts to be repaid 当出现财务困难或资不抵债时,外部管理部门可以做出合理的业务决策,为偿还债务提供最佳机会
Three types of external administration:
Receivership
Private appointment (secured creditor)
Court appointed (remedy)
Voluntary administration
Ends in a winding up; or
Ends with a deed of company arrangement
Winding up
Court appointed
Voluntary - initiated by shareholder resolution
Receivership 破产接管
What is a receiver?
HD EDU
Person appointed to take control of some or all of a company's assets
Who is allowed to be appointed?
A registered liquidator (with ASIC)
Who may appoint a receiver?
Court as a remedy eg s233 under oppression remedy
Secured creditor as a term of a charge (loan agreement)
Regulated by Corporations Act in ss 416 - 434, but largely left to the agreement of parties and general law 受《公司法》第 416 - 434 条管辖,但主要由当事人协议和一般法律管辖
任命的几种方式;
Private appointment
Appointed by chargee pursuant to rights under the charge/debenture document ie company has defaulted, charge has crystallised or chargee entitled to crystallise the charge and appoint a receiver. 由受押記人根據押記/債權文件所賦予的權利(即公司違約、押記已具體化或受押記人有權使押記具體化並委任接管人)委任。
Court appointment
Application of ASIC s 1323
Supreme Court's own power to appoint a receiver where "just and convenient" Eg where secured property is at risk 最高法院本身有权在 "公正和便利 "的情况下指定破产管理人。
National Australia Bank Ltd v Bond Brewing Holdings (1990) 1 ACSR 445
unsecured creditors, unsuccessfully (ultimately) sought the appointment of a receiver. 无担保债权人要求指定破产管理人,但未获成功(最终)。
Court appointed receivers are officers of the court - interference with a court appointed receiver may be a contempt of court. 法院指定的破产管理人是法院官员--干扰法院指定的破产管理人可能构成藐视法庭罪。
Privately appointed receivers are normally appointed as agents of the company so that the company is bound by receiver's acts. Receiver will normally have a right of indemnity from company assets. See also ss 419, 419A 私人指定的破产管理人通常作为公司的代理人,因此公司受破产管理人行为的约束。接管人通常有权从公司资产中获得补偿。另见第 419、419A 条
Receiver's powers and duties
S 420 wide powers of management
Duties of receivers s 420A - to take reasonable care to sell for market value or best price reasonably obtainable 接管人的职责 第 420A 条 - 采取合理的谨慎措施,以市值或可合理获得的最佳价格出售
S 424 - receiver can apply to the court for directions
Role of receiver - to sell secured property and distribute proceeds to the secured creditor. 破产管理人的作用 - 出售担保财产并将收益分配给有担保债权人。
See for the priority of payment of debts
Potential impact of retention of title clauses - receiver may be liable in conversion to property owner. 保留所有权条款的潜在影响--接管人可能要对财产所有人的转换负责。
Effect of receivership on the company and its directors
Company continues in existence
Directors still hold office but have no assets to manage - can still make some decisions eg to challenge appointment of receiver. 董事仍担任职务,但无资产可管理 - 仍可做出某些决定,如质疑接管人的任命。
Breach of duty by receiver
Officer of the company under Chapter 2D (duties of directors/officers)
Court or ASIC may inquire into potential breach of duty s 423
Liability of Receivers
Receivers are personally liable for debts incurred in the course of the receivership goods purchased, property hired, leased, used or occupied s 419 接管人对在接管过程中产生的债务承担个人责任 购买的货物、租用、租赁、使用或占用的财产 第 419 条
Receiver may repudiate contracts made by the co prior to receivership without 接管人可撤回公司在被接管前签订的合同,而无需
incurring personal liability although the other party may sue co for breach of contract 尽管另一方可能会以违约为由起诉 co,但仍需承担个人责任
Termination of receivership
Objective achieved
Liquidator may apply that receiver cease to act
Chargee may remove receiver
Court may remove s 418
Removal for misconduct s 434A
Invalid appointment s 418A
VOLUNTARY ADMINISTRATION 自愿托管
Objects s 435A
Is to provide for the business property and affairs of an insolvent company to be administered in a way that: 是规定破产公司的商业财产和事务的管理方式应符合以下条件
(a) maximises the chances of the company, or as much as possible of its business continuing in existence; or (a) 尽可能增加公司或其业务继续存在的机会;或
(b) results in a better return for the company's creditors and members than would result from immediate winding up Voluntary administration may be initiated by 资源托管任命 (b) 为公司债权人和成员带来比立即清盘更好的回报 自愿管理可由托管资源任命发起
Company s 436A
Liquidator or provisional liquidator s 436B
Person holding charge over the whole or substantially the whole of the company's property s 436C 对公司全部或实质上全部财产持有押记的人 第 436C 条
Effect of administration
Statutory moratorium ss 440D
key provision - gives company a breathing space as legal proceedings cannot be commenced against co while it is in administration except with administrator's written consent or with leave of the court 关键条款 - 为公司提供喘息空间,因为在公司处于管理期间,除非得到管理人的书面同意或法院许可,否则不得对公司提起法律诉讼
stay of proceedings s
proceedings which have already been commenced cannot be proceeded with except as above 除上述情况外,已开始的诉讼不得继续进行
suspension of enforcement action s
ie action to recover a judgment debt cannot be begun or proceeded with except with leave of the court 除非获得法庭许可,否则不得开始或进行追讨判决债务的诉讼。
Secured creditors s 440B
cannot enforce a charge during administration without administrator's written consent Owners and lessors of property s 440C 在沒有管理人的書面同意 下,不得在管理期間強制 執行押記 物業業主及出租人 第 440C 條
-cannot recover property during administration except as above
Company cannot be wound up s 440A
-voluntarily except in accordance with s 446A
-hearing of application to wind up generally adjourned
-generally no appointment of provisional liquidator
Exceptions
Chargee with a charge over the whole or substantially the whole property s 441A 对全部或实质上全部财产设有押记的承押记人 第 441A 条
is entitled to enforce the charge if it does so before or during the decision period (13 如果在决定期之前或期间执行,则有权执行收费(13
days from appointment of administrator)
Any charge can continue to be enforced if the circumstances in s 441B apply 如果第 441B 条规定的情况适用,则可以继续执行任何收费
Entered into possession
Agreed to sell property
Made auction arrangements
Invited tenders
Exercised other power in relation to the property
Charges over perishable property ss 441C and 441G
-chargee may enforce the charge over perishable property
Recovery of property can continue if begun before the administration s 441F 如果在行政管理之前就开始追回财产,则可继续追回第 441F 条
Liabilities of administrator
General law and statutory duties - administrator is an officer of the company and is in a fiduciary relationship 一般法律和法定职责 - 管理人是公司的高级职员,具有信托关系
Contracts (including employee contracts)s 443A, s 443D
administrator is personally liable on contracts which he/she enters into and has a right of indemnity out of the company's assets (same as receiver) 管理人对其签订的合同承担个人责任,并有权从公司资产中获得赔偿(与接管人相同)
administrator may terminate existing contracts - any action for breach against the company rather than the administrator (same as receiver) 管理人可终止现有合同 - 任何针对公司而非管理人的违约诉讼(与接管人相同)
Leases s 443B and s 443D
-administrator has 7 days to give the owner or lessor notice that the company does not propose to occupy the property -管理人有 7 天时间通知业主或出租人公司不打算占用该物业
-if no notice given becomes personally liable for payment of rent from 5 business days after administration. -如果未发出通知,则从行政管理后 5 个工作日起,个人有责任支付租金。
-Administrator has a right of indemnity out of company's assets. (same as receiver) -管理人有权从公司资产中获得赔偿。(与接管人相同)
Company guarantees given by drs s 440J
company guarantees given by directors cannot be enforced against them during the moratorium period 在暂停期内,不能对董事提供的公司担保强制执行
Transactions of the company
anything done by the administrator in good faith is effective and not liable to be set aside by liquidator on winding up s 451C 管理人真誠作出的任何事情均屬有效,清盤人在清盤時不得將之撤銷 第 451C 條
only the administrator can deal with the company's property. Any transaction is void unless entered into by administrator or with his/her consent 437D 只有管理人可以处理公司财产。除非由管理人进行或经其同意,否则任何交易都是无效的 437D
■ Regd liquidator s 448B
Consent s 448A
Disqualifications s 448C
similar to auditor disqualifications, owing money or being owed money greater than , being director or auditor of the company, other matters which would compromise independence 与取消审计员资格类似,欠钱或被欠钱超过 ,担任公司董事或审计员,其他有损独立性的事项
WINDING UP
Voluntary winding up
Members ss 491- 495
Initiated by special resolution of members
Company must be solvent
Winding up
Creditors ss
Initiated by special resolution of members
Proceeds as creditors voluntary winding up where drs do not make declaration of solvency or where liquidator forms the opinion that the company will be unable to pay its debts within 12 months 在董事未作出偿付能力声明或清算人认为公司将无法在 12 个月内偿还债务的情况下,作为债权人自动清盘的收益
Compulsory winding up - insolvency
Applicant for winding up in insolvency s 459P (applicants) s459A (application) 第 459P 條 (申請人) 第 459A 條 (申請)
Company
Creditor (most common)
Contingent or prospective creditor (needs leave of court)
Contributory (needs leave of court)
Director (needs leave of court)
Liquidator/provisional liquidator
ASIC (needs leave of court)
Compulsory winding up - insolvency
Is the company solvent?
Remember s 95A definition of insolvency
How would a creditor go about proving that the company is solvent?
Presumptions of insolvency s 459C
Execution of judgment returned unsatisfied
Receiver appointed
Possession of property taken (by creditor or agent without appointment of receiver). (债权人或代理人在未指定接管人的情况下)占有被夺走的财产。
Statutory demands s 459E
Written demand in prescribed form signed by or on behalf of creditor
Specifies debt (s) more than the statutory minimum, presently
Must require payment or to secure or compound the debt to creditor's satisfaction within 21 days 必须在 21 天内要求付款,或为债务提供担保或复合担保,使债权人满意
Technical defects to be ignored s 459J unless substantial injustice if demand not set aside 第 459J 条 技术上的缺陷可不予考虑,除非不撤销要求会造成重大不公
Irregularity
Misstatement of an amount or total see below s
Misdescription of a debt or other matter see below s 459H
Misdescription of a person or entity however see B & M Quality Constructions Pty Ltd v WG Brady Pty Ltd (1994) 12 ACLC 970 where court set aside stat demand because creditor was referred to as WG Brady Pty Ltd instead of W & J Brady Pty Ltd 对个人或实体的描述有误,但参见 B & M Quality Constructions Pty Ltd 诉 WG Brady Pty Ltd (1994) 12 ACLC 970,在该案中,由于债权人被称为 WG Brady Pty Ltd 而不是 W & J Brady Pty Ltd,法院撤销了统计要求。
Overstatement of debt s - to be ignored so long as admitted debt is more than statutory minimum 多报债务 s - 只要承认的债务超过法定最低限额,则不予考虑
Co may dispute the debt or may have off-setting claim but demand my be varied if still above the stat minimum 公司可以对债务提出异议,也可以提出抵消要求,但如果要求仍高于法定最低限额,则可更改要求
Company must satisfy the court that the dispute or off-setting claim is genuine 公司必须使法院确信争议或抵消性索赔是真实的
Setting aside statutory demand s 459G - application must be made within 21 days of service of demand. 撤销法定要求 第 459G 条 - 必须在要求书送达后 21 天内提出申请。
(Failure to do so will limit the grounds upon which the application for winding (不这样做将限制申请清盘的理由
HD EDU
up can be opposed s 459S)
Grounds other than insolvency s 461 include:
Special resolution
Failure to commence business
No members
Drs have acted in own interests
affairs being conducted in a way that is oppressive or unfairly prejudicial or unfairly discriminatory to member of members 处理事务的方式对成员造成压迫、不公平的偏见或不公平的歧视
act or omission is oppressive etc
ASIC has prepared report that the co cannot pay it debts and should be wound up 澳大利亚证券和投资委员会(ASIC)撰写报告称,该公司无力偿还债务,应予以清盘
The court is of the opinion that it is just and equitable that the company be wound up 法院认为,对公司进行清算是公正和公平的。
Liquidator
Official liquidator (regd liquidator regd by ASIC as official liquidator) for court appointment) - compulsory winding up 正式清盘人(由澳大利亚证券和投资委员会重新指定为正式清盘人)供法院委任) - 强制清盘
Registered liquidator (s1282) for members' voluntary winding up (except for pty co) 成员自动清盘的注册清盘人(第 1282 条)(公司除外)
Liquidator's functions and duties
Take possession of assets, make a list of contributories, have disputed cases adjudicated, realise the assets and distribute to creditors and contributories 接管资产,编制出资人名单,对有争议的案件进行裁决,变现资产并分配给债权人和出资人
Official liquidator is an officer of the court and has responsibility to investigate past activities and take appropriate legal proceedings 官方清算人是法院官员,有责任调查过去的活动并采取适当的法律程序
Subject to statutory duties as an officer
Powers of liquidator ss 477 and 506
Carry on business so far as necessary for beneficial disposal of business 在必要的范围内开展业务,以便对业务进行有益的处置
Sell company's property
Bring or defend legal proceedings in company's name
Unusual transactions
Voidable transactions
A company goes into liquidation on a particular day.
A liquidator may look back at transactions which the company has entered into prior to liquidation and seek to avoid (or reverse) some transactions. 清算人可以回顾公司在清算前进行的交易,并寻求避免(或撤销)某些交易。
The relation back period, the amount of time prior to liquidation over which the liquidator can seek to avoid transactions, depends on the type of transaction. 追溯期,即清算人在清算前可以寻求撤销交易的时间,取决于交易类型。
Voidable transactions
Seven different types at s588FE
insolvent transaction entered 6 months prior to relation back date
s588FE(3) insolvent and uncommercial transaction entered up to 2 years before relation back date 第 588FE(3)條 無力償債而在追溯既往日期前 2 年內訂立的非商業交易
Insolvent transaction with a related entity, relation back 4 years
Insolvent transaction with purpose of interfering with a winding up, relation back 10 years s588FE(5) 以干扰清盘为目的的破产交易,追溯至 10 年前 第 588FE(5)条
Unfair loan made at anytime on or before winding up s588FE(6)
Unreasonable director related transaction, 4 years relation back period 不合理的董事关联交易,4 年追溯期
Other similar types of transactions entered into when the company was in voluntary administration s588FE(2A) 公司处于自愿管理状态时达成的其他类似类型的交易 第 588FE(2A)条
Unfair preferences s 588FA
Insolvent transaction s 588FC (company is insolvent or becomes insolvent as a result of the transaction) 破产交易 第 588FC 条(公司破产或因交易而破产)
Relation back period 6 months s 588FE(2)
Factual question - Would creditor receive more than if the transaction were set aside and the creditor were to prove for the debt in a winding up? 事实问题--如果交易被搁置,债权人在清盘中证明债务,债权人会得到比这更多的钱吗?
Defences: unfair preferences
Running account S588FA--- Air Services Australia v Ferrier
Not a party to the transaction s588FG (1)--- Re Pacific Hardware Brokers Pty Ltd 不是交易的一方 第 588FG(1)条--关于 Pacific Hardware Brokers Pty Ltd
Good faith s588FG(2)--- Spedley Securities v South Sea Farms
Solvency of debtor s588FC
Uncommercial transactions s 588FB
Insolvent transaction
Relation back period 2 years s588FE(3)
Would a reasonable person in the company's circumstances have entered into the transaction having regard to 考虑到以下因素,一个合理的人在公司的情况下是否会进行交易
Benefits to the company
Detriment to the company
Respective benefits to other parties to the transaction
Other relevant matters
■ McDonald and Anor v Hanselmann
Transactions for the purpose of defeating creditors -s 588FE(5)
Insolvent transactions
Relation back period 10 years
Entered into for the purpose of defeating creditors' claims (doesn't have to be the only purpose) 为挫败债权人的债权而签订合同(不一定是唯一目的)
Unfair loan s 588FD
Unlimited relation back period s 588FE(6)
Interest or charges were or have become extortionate taking into account 考虑到以下因素,利息或费用曾经是或已经是敲诈性的
Risk to the lender
Value of any security
Term of the loan
Schedule for repayments and amount of loan
Other relevant matters
Unreasonable director related transactions s 588FDA
Relation back period is 4 years s 588FE(6A)
Company enters into transaction
Payment,
Conveyance
Issue of securities or incurring the obligation to do so with a director or close associate or someone on behalf of either of those and a reasonable person would not have entered into the transaction. 与董事或关系密切的合伙人或代表他们中任何一方的人发行证券或承担发行证券的义务,且一个合理的人不会进行该交易。
Exceptions s 588FG (2)
Court can't make an order materially prejudicing a right or interest of a party to a voidable transaction (not an unfair loan or unreasonable dr related transaction) if 在以下情况下,法院不能下达命令,实质性地损害可撤销交易(非不公平贷款或不合理的钻孔机相关交易)一方的权利或利益
The person became a party to the transaction in good faith
No reasonable grounds for suspecting insolvency
Valuable consideration provided or person changed their position relying on the transaction 提供了有价值的对价,或某人因交易而改变了立场
Void charges
Floating charge created within 6 months of winding up s 588FJ is void unless 在清盤後 6 個月內設立的浮動押記 第 588FJ 條無效,除非
Company was solvent
The company received some benefit or consideration such as a fresh loan (eg not just providing extra security for an existing loan) 公司获得了某些利益或对价,如新贷款(例如,不仅仅是为现有贷款提供额外担保)。
Unregistered charge void against the liquidator s266
A charge in favour of an officer of the company cannot be enforced within 6 months of its creation without leave of the court s 267 未经法院许可,不得在公司设立后 6 个月内强制执行对公司高管的抵押 第 267 条
PAYMENT OF DEBTS
Distribution of the estate
Priorities
s 555 general rule that all debts and claims rank equally and if assets insufficient will be paid proportionately 555 一般规则:所有债务和债权一律平等,如果资产不足,则按比例偿还
S 556 give priority to some payments - costs of winding up and employee entitlements 第 556 条优先支付某些款项--清盘费用和雇员应得权利
The general order is:
Secured creditors, then
Expenses of winding up, then
Unpaid wages, unpaid superannuation
contributions, and other employee
entitlements, then
Unsecured creditors, then
Members (assuming there is a surplus)
Consider the main types of creditors secured creditors
fixed charge
floating charge subject to s561
unsecured creditors:
priority
SECURED CREDITORS:
Check that the security is valid against the liquidator:
Is it registered?
Is it an invalid floating charge s588FJ
UNSECURED CREDITORS
Employee entitlements and insolvent trading
Transactions to prevent recovery of employee entitlements s 596AB
S 596AC liquidator may recover loss from person who has entered into an agreement in contravention of s 第 596AC 條 清盤人可向在違反第 596AC 條的情況㆘訂立協議的㆟追討損失。
Liquidator may recover compensation from director in relation to insolvent trading s 清盘人可向董事追讨与在破产情况下 营商有关的赔偿 s
Administration of winding up
A creditor claims for a debt or claim by lodging a proof of debt with the liquidator 553D 债权人通过向清算人提交债务证明对债务或债权提出申索 553D
The liquidator then admits the debt or rejects it
A creditor is entitled to a set-off in relation to mutual debts or other mutual dealings ie to lodge a proof the net debt without having to pay their debt in full and claim for the full amount of the debt owed s 553C 债权人有权就相互债务或其他相互交易进行抵消,即提出债务净额证明,而不必全额偿还债务,并要求全额偿还所欠债务第 553C 条
Secured creditors can exercise their rights over the property which is subject to security and can lodge a proof of debt for the balance. A secured creditor can only prove for the whole debt if security is surrendered 有担保债权人可以对附带担保的财产行使权利,并可就余额提出债务证明。有担保债权人只有在放弃担保的情况下才能为全部债务举证。
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