Corporations Act 2001

SCHEDULE 4 - TRANSFER OF FINANCIAL INSTITUTIONS AND FRIENDLY SOCIETIES  

Note: See section 1465A .

PART 4 - THE TRANSITION PERIOD  

CLAUSE 25   - ASIC MAY DIRECT DIRECTORS OF A COMPANY TO MODIFY ITS CONSTITUTION  

25(1)    
If a company registered under clause 3 of the transition provisions has not modified its constitution so that it complies with subclause 24(1) of the transition provisions by the end of the transition period, ASIC may direct, in writing, the directors of the company to:

(a) take the necessary or specified steps to:

(i) ensure that the company modifies its constitution so that it does comply; or

(ii) ensure that the company makes the modifications to its constitution that ASIC specifies; and

(b) take those steps within a specified time (which must be more than 28 days).

A direction may require the directors to take steps that are inconsistent with the company ' s constitution.

25(2)    
ASIC may issue a direction under subclause (1) before the end of the transition period if requested by a majority of directors of the company.

25(3)    
No civil or criminal liability arises from action taken by a director in good faith and in accordance with a direction issued under subclause (1).

25(4)    
A person contravenes this subclause if, without reasonable excuse, they contravene a direction under subclause (1).

25(5)    
A person who intentionally or recklessly contravenes a direction under subclause (1) is guilty of an offence.

Penalty: 2 years imprisonment.

CLAUSE 27   - WHEN CERTAIN MODIFICATIONS OF A COMPANY ' S CONSTITUTION UNDER AN EXEMPTION OR DECLARATION TAKE EFFECT  

27(1)    
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.

27(3)    
If:

(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.