All public companies with more than one (1) member must hold an annual general meeting at least once each calendar year and within 5 months of the end of the company’s financial year, s 250N of the Corporations Act 2001 (Cth) (Corporations Act). Other general meetings and directors meetings are held as required.
This article details the notice requirements for both meetings of members and directors meetings.
Meetings of Members
What is the notification period?
For non-listed companies
At least 21 days notice must be given of a meeting of a company’s members s 249H of the Corporations Act.
Shorter notice may be given for an Annual General Meeting (AGM) if all members entitled to attend and vote agree, or in the case of other general meetings if 95% of the members who may cast a vote at the meeting agree.
Where the meeting intends to pass a resolution relating to the removal of an auditor or director, or the appointment of a director, no shorter notice is allowed.
For listed companies
At least 28 days must be given of a meeting of a company’s members, s 249HA of the Corporations Act.
Who needs to be notified?
Written notice must be given individually to each member who is entitled to vote and to each director s 249J of the Corporations Act.
Failing to notify individuals entitled to be notified may result in the meeting being rendered invalid and costs being awarded against the company, Esposito v Wilderness Society Inc (2010) TASSC 21.
The ASX Listing Rules (LR) also impose on the company a requirement to:
- submit a copy of the notice to the ASX; and
- comply with LR 14.1 through 14.9 and 14.11.
What must the notice contain?
Pursuant to s 249L of the Corporations Act, the contents of the notice must clearly and concisely:
- set out the time, date and location of the meeting;
- state the general nature of the meeting’s business;
- where a special resolution will be passed, state the intention to propose the resolution and what the resolution is; and
- include details of any entitlement to appoint a proxy.
In addition, if the company is a listed company, it must include information about the remuneration report and any other requirement of the Listing Rules.
Meetings of Directors
In contrast to members meetings the notice requirements of director’s meetings are considerably less formal.
Even meetings conducted informally may constitute a directors meeting, so long as the intention was the meeting was to be a directors meeting, Poliwka v Heven Holdings Pty Ltd (1992) 7 ASCR 85 at 92, and Poliwka v Heven Holdings Pty Ltd (No 2) 8 ACSR 747 at 765.
Who needs to be notified?
Directors meetings may be called by a director, by giving reasonable notice to every other director, s 248C of the Corporations Act. 248C is a replaceable rule, as such may be altered by the company’s constitution.
Subject to the constitution, each director must be given notice even if they are overseas, Mitropoulos v Greek Orthodox Church of Marrickville & District Ltd (1993) 10 ACSR 134, or have a conflict of interest that would prohibit them from voting, Galipienzo v Solution 6 Holdings Ltd (1998) 28 ACSR 139.
If an appointing director requests the company to notify an alternate director, the company must comply unless the its constitution states otherwise, s 201K of the Corporations Act.
What is the notification period?
The Corporations Act does not specify a notice period for directors meetings. Absent any rules in the company’s constitution directors meetings may be given on very short notice.
The common law only requires the notice to be fair and reasonable, Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546. What is fair and reasonable largely comes down to the practice of the directors of the individual company, Toole v Flexihire Pty Ltd (1991) 6 ACSR 455.
Less than three (3) days was acceptable in the circumstances of Hua Cheng Properties Pty Ltd v Hua Cheng International Holdings Group Pty Ltd [2012] NSWSC 1482.
What must the notice contain?
Regardless of the informality, notice of a general meeting should indicate the date, time and location of the meeting. Where a description of the business to be conducted is provided, it must be accurate, Dhami v Martin [2010] NSWSC 770.
Failure to sufficiently inform directors may result in irregularities. Where irregularities arise the court has considerable scope pursuant to s 1322 of the Corporations Act to redress those irregularities.
Michael BarberBSc, Grad Dip IT, Grad Cert Bus Admin, MAcct, LLB(Hons), GDLP, MQLS, FGIA.
Commercial, Corporate and Technology Lawyer
Contact Michael here or call on 07 3356 1245.
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