Corporations Act 2001
Note: See section 1465A.
[ CCH Note: The reference to " section 1465A " is a reference to the former Corporations Law.]
If the constitution of a company registered under clause 3 of the transition provisions was modified under an exemption or declaration made under clause 26 of the transition provisions, and that modification varies or cancels, or allows the variation or cancellation of:
(a) rights attached to shares in a class of shares; or
(b) rights of members in a class of members;
the following provisions apply, and to the exclusion of section 246D if it would otherwise apply.27(2)
If the company is not required to lodge a copy of the modification with ASIC by or under any other provision of this Act, the company must lodge a copy of the modification with ASIC within 14 days of the modification being made.
[ CCH Note: Cl 27(2) will be amended by No 69 of 2020, s 3, Sch 1 and [ 1363], by substituting " the Registrar " for " ASIC " (wherever occurring) and inserting " The lodgement must meet any requirements of the data standards. " at the end, (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
(a) members in the class do not all agree (whether by resolution or written consent) to the modification of the company ' s constitution; or
(b) the members in the class did not have an opportunity to vote on or consent to the modification;
10% or more of the members in the class may apply to the Court to have the modification set aside.
Note: If a company has only 1 class of shares, all members are members of the class.27(4)
An application may only be made within 1 month after the modification is lodged. 27(5)
The modification takes effect:
(a) if no application is made to the Court to have it set aside - 1 month after the modification is lodged; or
(b) if an application is made to the Court to have it set aside - when the application is withdrawn or finally determined. 27(6)
The members of the class who want to have the modification set aside may appoint 1 or more of themselves to make the application on their behalf. The appointment must be in writing. 27(7)
The Court may set aside the modification if it is satisfied that it would unfairly prejudice the applicants. However, the Court must confirm the modification if the Court is not satisfied of unfair prejudice. 27(8)
Within 14 days after the Court makes an order, the company must lodge a copy of it with ASIC.
[ CCH Note: The next clause is cl 29.]