Corporations Act - Australia

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a resolution to appoint directors by an amendment to the company’s constitution (if any); or

      (b) a ballot or poll to elect 2 or more directors if the ballot or poll does not require members voting for 1 candidate to vote for another candidate.

      (3) For the purposes of paragraph (2)(b), a ballot or poll does not require a member to vote for a candidate merely because the member is required to express a preference among individual candidates in order to cast a valid vote.

      201F Special rules for the appointment of directors for single director/single shareholder proprietary companies

      (1) The director of a proprietary company who is its only director and only shareholder may appoint another director by recording the appointment and signing the record.

      Appointment of new director on death, mental incapacity or bankruptcy

      (2) If a person who is the only director and the only shareholder of a proprietary company:

      (a) dies; or

      (b) cannot manage the company because of the person’s mental incapacity;

      and a personal representative or trustee is appointed to administer the person’s estate or property, the personal representative or trustee may appoint a person as the director of the company.

      (3) If:

      (a) the office of the director of a proprietary company is vacated under subsection 206B(3) or (4) because of the bankruptcy of the director; and

      (b) the person is the only director and the only shareholder of the company; and

      (c) a trustee in bankruptcy is appointed to the person’s property;

      the trustee may appoint a person as the director of the company.

      (4) A person who has a power of appointment under subsection (2) or (3) may appoint themselves as director.

      (5) A person appointed as a director of a company under subsection (2), (3) or (4) holds office as if they had been appointed in the usual way.

      201G Company may appoint a director (replaceable rule — see section 135)

      A company may appoint a person as a director by resolution passed in general meeting.

      201H Directors may appoint other directors (replaceable rule — see section 135)

      Appointment by other directors

      (1) The directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors’ meeting even if the total number of directors of the company is not enough to make up that quorum.

      Proprietary company — confirmation by meeting within 2 months

      (2) If a person is appointed under this section as a director of a proprietary company, the company must confirm the appointment by resolution within 2 months after the appointment is made. If the appointment is not confirmed, the person ceases to be a director of the company at the end of those 2 months.

      Public company — confirmation by next AGM

      (3) If a person is appointed by the other directors as a director of a public company, the company must confirm the appointment by resolution at the company’s next AGM. If the appointment is not confirmed, the person ceases to be a director of the company at the end of the AGM.

      201J Appointment of managing directors (replaceable rule — see section 135)

      The directors of a company may appoint 1 or more of themselves to the office of managing director of the company for the period, and on the terms (including as to remuneration), as the directors see fit.

      201K Alternate directors (replaceable rule — see section 135)

      (1) With the other directors’ approval, a director may appoint an alternate to exercise some or all of the director’s powers for a specified period.

      (2) If the appointing director requests the company to give the alternate notice of directors’ meetings, the company must do so.

      (3) When an alternate exercises the director’s powers, the exercise of the powers is just as effective as if the powers were exercised by the director.

      (4) The appointing director may terminate the alternate’s appointment at any time.

      (5) An appointment or its termination must be in writing. A copy must be given to the company.

      Note: ASIC must be given notice of the appointment and termination of appointment of an alternate (see subsections 205B(2) and (5)).

      201L Signpost — ASIC to be notified of appointment

      Under section 205B, a company must notify ASIC within 28 days if a person is appointed as a director or as an alternate director.

      201M Effectiveness of acts by directors

      (1) An act done by a director is effective even if their appointment, or the continuance of their appointment, is invalid because the company or director did not comply with the company’s constitution (if any) or any provision of this Act.

      (2) Subsection (1) does not deal with the question whether an effective act by a director:

      (a) binds the company in its dealings with other people; or

      (b) makes the company liable to another person.

      Note: The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the company’s members or signing a document to be lodged with ASIC or minutes of a meeting). Sections 128‑130 contain rules about the assumptions people are entitled to make when dealing with a company and its officers.

      Subdivision B — Limits on numbers of directors of public companies

      201N Application of Subdivision

      (1) This Subdivision applies in relation to a public company if its constitution allows its directors to set a limit (a board limit) whose effect is to restrict the number of directors of the company to a number less than the maximum number of directors specified in the constitution.

      Note: This Subdivision applies however the constitution or board limit is expressed.

      (2) If a company’s constitution provides that the maximum number of directors is either a specified number or another number determined by the directors:

      (a) any number determined by the directors that is lower than the specified number is a board limit; and

      (b) any lowering by the directors of that lower number is also a board limit.

      (3) Subsection (2) does not limit, and is not limited by, subsection (1).

      201P Directors must not set board limit unless proposed limit has been approved by general meeting

      (1) The directors must not set a board limit unless:

      (a) a resolution (a board limit resolution) approving the proposal to set the limit specified in the resolution has been passed by a general meeting of the company; and

      (b) the notice of the meeting set out an intention to propose the board limit resolution and stated the resolution; and

      (c) the notice was accompanied by a statement explaining the resolution and meeting the requirements in section 201Q.

      Note: 1: Subsection 249L(3) requires information in the notice of meeting to be presented clearly, concisely and effectively.

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