Corporations Act 2001

CHAPTER 2F - MEMBERS' RIGHTS AND REMEDIES  

SECTION 231  

231   MEMBERSHIP OF A COMPANY  
A person is a member of a company if they:

(a) are a member of the company on its registration; or

(b) agree to become a member of the company after its registration and their name is entered on the register of members; or

(c) become a member of the company under section 167 (membership arising from conversion of a company from one limited by guarantee to one limited by shares).

PART 2F.1 - OPPRESSIVE CONDUCT OF AFFAIRS  

SECTION 232  

232   GROUNDS FOR COURT ORDER  
The Court may make an order under section 233 if:

(a)    the conduct of a company ' s affairs; or

(b)    an actual or proposed act or omission by or on behalf of a company; or

(c)    a resolution, or a proposed resolution, of members or a class of members of a company;

is either:

(d)    contrary to the interests of the members as a whole; or

(e)    oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.

Note 1: For affairs , see sections 53 and 53AAA .

Note 2: The effect of paragraph (d) is extended in relation to a sub-fund of a CCIV: see section 1227F .

SECTION 233   ORDERS THE COURT CAN MAKE  

233(1)    
The Court can make any order under this section that it considers appropriate in relation to the company, including an order:

(a)    that the company be wound up;

(b)    that the company ' s existing constitution be modified or repealed;

(c)    regulating the conduct of the company ' s affairs in the future;

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

(e)    for the purchase of shares with an appropriate reduction of the company ' s share capital;

(f)    for the company to institute, prosecute, defend or discontinue specified proceedings;

(g)    authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company;

(h)    appointing a receiver or a receiver and manager of any or all of the company ' s property;

(i)    restraining a person from engaging in specified conduct or from doing a specified act;

(j)    requiring a person to do a specified act.

Note: If the company is a CCIV there are modifications for paragraphs (1)(a) and (h) (see section 1227G and Part 8B.6 ).

Order that the company be wound up

233(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

233(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.

Note: If the company is a CCIV the reference to section 136 is modified (see subsection 1227G(2) ).

SECTION 234  

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 amember; 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).

SECTION 235   REQUIREMENT FOR PERSON TO LODGE ORDER  

235(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.

235(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 .