Corporations Act 2001

CHAPTER 2F - MEMBERS' RIGHTS AND REMEDIES  

PART 2F.2 - CLASS RIGHTS  

Note: This Part does not apply to the adoption or amendment of benefit fund rules or to consequential amendments to the rest of the company's constitution made under the Life Insurance Act 1995 , see Subdivision 2 of Division 4 of Part 2A of that Act.

SECTION 246B   VARYING AND CANCELLING CLASS RIGHTS  
If constitution sets out procedure

246B(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

246B(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 .

246B(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.

246B(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 .