Corporations Act. Australia
Чтение книги онлайн.

Читать онлайн книгу Corporations Act - Australia страница 91

Название: Corporations Act

Автор: Australia

Издательство: Проспект

Жанр: Юриспруденция, право

Серия:

isbn: 9785392086429

isbn:

СКАЧАТЬ that the company be wound up

      (2) If an order that a company be wound up is made under this section, the provisions of this Act relating to the winding up of companies apply:

      (a) as if the order were made under section 461; and

      (b) with such changes as are necessary.

      Order altering constitution

      (3) If an order made under this section repeals or modifies a company’s constitution, or requires the company to adopt a constitution, the company does not have the power under section 136 to change or repeal the constitution if that change or repeal would be inconsistent with the provisions of the order, unless:

      (a) the order states that the company does have the power to make such a change or repeal; or

      (b) the company first obtains the leave of the Court.

      234 Who can apply for order

      An application for an order under section 233 in relation to a company may be made by:

      (a) a member of the company, even if the application relates to an act or omission that is against:

      (i) the member in a capacity other than as a member; or

      (ii) another member in their capacity as a member; or

      (b) a person who has been removed from the register of members because of a selective reduction; or

      (c) a person who has ceased to be a member of the company if the application relates to the circumstances in which they ceased to be a member; or

      (d) a person to whom a share in the company has been transmitted by will or by operation of law; or

      (e) a person whom ASIC thinks appropriate having regard to investigations it is conducting or has conducted into:

      (i) the company’s affairs; or

      (ii) matters connected with the company’s affairs.

      Note: 1: If an application is made under this section, in certain cases the court may order that the company be wound up in insolvency (see section 459B).

      Note: 2: For selective reduction, see subsection 256B(2).

      235 Requirement for person to lodge order

      (1) If an order is made under section 233, the applicant must lodge a copy of the order with ASIC within 14 days after it is made.

      (2) An offence based on subsection (1) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      Part 2F.1A — Proceedings on behalf of a company by members and others

      236 Bringing, or intervening in, proceedings on behalf of a company

      (1) A person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them), if:

      (a) the person is:

      (i) a member, former member, or person entitled to be registered as a member, of the company or of a related body corporate; or

      (ii) an officer or former officer of the company; and

      (b) the person is acting with leave granted under section 237.

      (2) Proceedings brought on behalf of a company must be brought in the company’s name.

      (3) The right of a person at general law to bring, or intervene in, proceedings on behalf of a company is abolished.

      Note: 1: For the right to inspect company books, see subsections 247A(3) to (6).

      Note: 2: For the requirements to disclose proceedings and leave applications in the annual directors’ report, see subsections 300(14) and (15).

      Note: 3: This section does not prevent a person bringing, or intervening in, proceedings on their own behalf in respect of a personal right.

      237 Applying for and granting leave

      (1) A person referred to in paragraph 236(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings.

      (2) The Court must grant the application if it is satisfied that:

      (a) it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

      (b) the applicant is acting in good faith; and

      (c) it is in the best interests of the company that the applicant be granted leave; and

      (d) if the applicant is applying for leave to bring proceedings — there is a serious question to be tried; and

      (e) either:

      (i) at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or

      (ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied.

      (3) A rebuttable presumption that granting leave is not in the best interests of the company arises if it is established that:

      (a) the proceedings are:

      (i) by the company against a third party; or

      (ii) by a third party against the company; and

      (b) the company has decided:

      (i) not to bring the proceedings; or

      (ii) not to defend the proceedings; or

      (iii) to discontinue, settle or compromise the proceedings; and

      (c) all of the directors who participated in that decision:

      (i) acted in good faith for a proper purpose; and

      (ii) did not have a material personal interest in the decision; and

      (iii) informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and

      (iv) rationally believed that the decision was in the best interests of the company.

      The director’s belief that the decision was in the best interests of the company is a rational one unless the belief is one that no reasonable person in their position would hold.

      (4) For the purposes of subsection (3):

СКАЧАТЬ