Corporations Act. Australia
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Название: Corporations Act
Автор: Australia
Издательство: Проспект
Жанр: Юриспруденция, право
isbn: 9785392086429
isbn:
(j) section 346C (response to extract of particulars);
(k) section 348D (response to return of particulars);
(l) section 349A (change to proprietary company’s ultimate holding company).
Note: 1: See section 204A for the circumstances in which a company must have a secretary.
Note: 2: This subsection is a civil penalty provision (see section 1317E).
Responsibility of directors of proprietary companies
(2) Each director of a proprietary company contravenes this subsection if:
(a) the proprietary company contravenes a corporate responsibility provision; and
(b) the proprietary company does not have a secretary when it contravenes that provision.
Note: 1: See section 204A for the circumstances in which a company must have a secretary.
Note: 2: This subsection is a civil penalty provision (see section 1317E).
Defence of reasonable steps
(3) A person does not contravene subsection (1) or (2) in relation to a company’s contravention of a corporate responsibility provision if the person shows that he or she took reasonable steps to ensure that the company complied with the provision.
189 Reliance on information or advice provided by others
If:
(a) a director relies on information, or professional or expert advice, given or prepared by:
(i) an employee of the corporation whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or
(ii) a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence; or
(iii) another director or officer in relation to matters within the director’s or officer’s authority; or
(iv) a committee of directors on which the director did not serve in relation to matters within the committee’s authority; and
(b) the reliance was made:
(i) in good faith; and
(ii) after making an independent assessment of the information or advice, having regard to the director’s knowledge of the corporation and the complexity of the structure and operations of the corporation; and
(c) the reasonableness of the director’s reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under this Part or an equivalent general law duty;
the director’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.
190 Responsibility for actions of delegate
(1) If the directors delegate a power under section 198D, a director is responsible for the exercise of the power by the delegate as if the power had been exercised by the directors themselves.
(2) A director is not responsible under subsection (1) if:
(a) the director believed on reasonable grounds at all times that the delegate would exercise the power in conformity with the duties imposed on directors of the company by this Act and the company’s constitution (if any); and
(b) the director believed:
(i) on reasonable grounds; and
(ii) in good faith; and
(iii) after making proper inquiry if the circumstances indicated the need for inquiry;
that the delegate was reliable and competent in relation to the power delegated.
190A Limited application of Division to registrable Australian bodies
This Division does not apply to an act or omission by a director or other officer or employee of a corporation that is a registrable Australian body unless the act or omission occurred in connection with:
(a) the body carrying on business outside its place of origin; or
(b) an act that the body does or proposed to do outside its place of origin; or
(c) a decision by the body whether or not to do or refrain from doing outside its place of origin.
190B Division does not apply to Aboriginal and Torres Strait Islander corporations
This Division does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.
Note: Division 265 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 deals with the general duties of directors, secretaries, officers and employees of Aboriginal and Torres Strait Islander corporations.
Division 2 — Disclosure of, and voting on matters involving, material personal interests
191 Material personal interest — director’s duty to disclose
Director’s duty to notify other directors of material personal interest when conflict arises
(1) A director of a company who has a material personal interest in a matter that relates to the affairs of the company must give the other directors notice of the interest unless subsection (2) says otherwise.
(1A) For an offence based on subsection (1), strict liability applies to the circumstance, that the director of a company has a material personal interest in a matter that relates to the affairs of the company.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) The director does not need to give notice of an interest under subsection (1) if:
(a) the interest:
(i) arises because the director is a member of the company and is held in common with the other members of the company; or
(ii) arises in relation to the director’s remuneration as a director of the company; or
(iii) relates to a contract the company is proposing to enter into that is subject to approval by the members and will not impose any obligation on the company if it is not approved by the members; or
(iv) arises merely because the director is a guarantor or has given an indemnity or security for all or part of a loan (or proposed loan) to the company; or
(v) arises merely because the director has a right of subrogation in relation to a guarantee or indemnity referred to in subparagraph (iv); or
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