Commonwealth Consolidated Acts

CORPORATIONS ACT 2001 - SECT 246B

If constitution sets out procedure

  (1)   If a company has a constitution that sets out the procedure for varying or cancelling:

  (a)   for a company with a share capital--rights attached to shares in a class of shares; or

  (b)   for a company without a share capital--rights of members in a class of members;

those rights may be varied or cancelled only in accordance with the procedure. The procedure may be changed only if the procedure itself is complied with.

Note:   A CCIV must have a minimum of 1 class of shares per sub - fund: see section   1230A.

If constitution does not set out procedure

  (2)   If a company does not have a constitution, or has a constitution that does not set out the procedure for varying or cancelling:

  (a)   for a company with a share capital--rights attached to shares in a class of shares; or

  (b)   for a company without a share capital--rights of members in a class of members;

those rights may be varied or cancelled only by special resolution of the company and:

  (c)   by special resolution passed at a meeting:

  (i)   for a company with a share capital of the class of members holding shares in the class; or

  (ii)   for a company without a share capital of the class of members whose rights are being varied or cancelled; or

  (d)   with the written consent of members with at least 75% of the votes in the class.

Note:   This subsection applies to a CCIV in a modified form: see section   1227J.

  (3)   The company must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or cancellation is made.

  (4)   An offence based on subsection   (3) is an offence of strict liability.

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