Corporations Act - Australia

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resolution; and

      (b) it is not cast on behalf of a related party or associate of a kind referred to in subsection (1).

      (3) The regulations may prescribe cases where subsection (1) does not apply.

      (4) ASIC may by writing declare that:

      (a) subsection (1) does not apply to a specified proposed resolution; or

      (b) subsection (1) does not prevent the casting of a vote, on a specified proposed resolution, by a specified entity, or on behalf of a specified entity;

      but may only do so if satisfied that the declaration will not cause unfair prejudice to the interests of any member of the public company.

      (5) A declaration in force under subsection (4) has effect accordingly.

      (6) If a vote is cast in contravention of subsection (1), the related party or associate, as the case may be, contravenes this subsection, whether or not the proposed resolution is passed.

      (7) For the purposes of this section, a vote is cast on behalf of an entity if, and only if, it is cast:

      (a) as proxy for the entity; or

      (b) otherwise on behalf of the entity; or

      (c) in respect of a share in respect of which the entity has:

      (i) power to vote; or

      (ii) power to exercise, or control the exercise of, a right to vote.

      (8) Subject to subsection 225(1), a contravention of this section does not affect the validity of a resolution.

      (9) Subject to Part 1.1A, this section has effect despite:

      (a) anything else in:

      (i) this Act; or

      (ii) any other law (including the general law) of a State or Territory; or

      (b) anything in a body corporate’s constitution.

      225 Voting on the resolution

      (1) If any votes on the resolution are cast in contravention of subsection 224(1), it must be the case that the resolution would still be passed even if those votes were disregarded.

      (2) If a poll was duly demanded on the question that the resolution be passed, subsections (3) and (4) apply in relation to voting on the poll.

      (3) In relation to each member of the public company who voted on the resolution in person, the public company must record in writing:

      (a) the member’s name; and

      (b) how many votes the member cast for the resolution and how many against.

      (4) In relation to each member of the public company who voted on the resolution by proxy, or by a representative authorised under section 250D, the public company must record in writing:

      (a) the member’s name; and

      (b) in relation to each person who voted as proxy, or as such a representative, for the member:

      (i) the person’s name; and

      (ii) how many votes the person cast on the resolution as proxy, or as such a representative, for the member; and

      (iii) how many of those votes the person cast for the resolution and how many against.

      (5) For 7 years after the day when a resolution under this Division is passed, the public company must retain the records it made under this section in relation to the resolution.

      (6) An offence based on subsection (3), (4) or (5) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      226 Notice of resolution to be lodged

      The public company must lodge a notice setting out the text of the resolution within 14 days after the resolution is passed.

      227 Declaration by court of substantial compliance

      (1) The Court may declare that the conditions prescribed by this Division have been satisfied if it finds that they have been substantially satisfied.

      (2) A declaration may be made only on the application of an interested person.

      Part 2E.2 — Related parties and financial benefits

      228 Related parties

      Controlling entities

      (1) An entity that controls a public company is a related party of the public company.

      Directors and their spouses

      (2) The following persons are related parties of a public company:

      (a) directors of the public company;

      (b) directors (if any) of an entity that controls the public company;

      (c) if the public company is controlled by an entity that is not a body corporate — each of the persons making up the controlling entity;

      (d) spouses of the persons referred to in paragraphs (a), (b) and (c).

      Relatives of directors and spouses

      (3) The following relatives of persons referred to in subsection (2) are related parties of the public company:

      (a) parents;

      (b) children.

      Entities controlled by other related parties

      (4) An entity controlled by a related party referred to in subsection (1), (2) or (3) is a related party of the public company unless the entity is also controlled by the public company.

      Related party in previous 6 months

      (5) An entity is a related party of a public company at a particular time if the entity was a related party of the public company of a kind referred to in subsection (1), (2), (3) or (4) at any time within the previous 6 months.

      Entity has reasonable grounds to believe it will become related party in future

      (6) An entity is a related party of a public company at a particular time if the entity believes or has reasonable grounds to believe that it is likely to become a related party of the public company of a kind referred to in subsection (1), (2), (3) or (4) at any time in the future.

      Acting in concert with related party

      (7) An entity is a related party of a public company if the entity acts in concert with a related party of the public company on the understanding that the related party will receive a financial benefit if the public company gives the entity a financial benefit.

      229 Giving a financial benefit

      (1) In determining whether a financial benefit is given for the purposes of this Chapter:

      (a) give a broad interpretation to financial benefits being given, even if criminal or civil penalties may be involved; and

      (b) the economic and commercial substance of conduct is to prevail over its legal form; and

      (c) disregard any consideration that is or may be given for the benefit, even if the consideration is adequate.

      (2) Giving a financial benefit includes the following:

      (a) giving a financial benefit indirectly, for example, through 1 or more interposed entities;

      (b) giving a financial benefit by making an informal agreement, oral agreement or an agreement that has no binding force;

      (c) giving a financial benefit that does not involve paying money (for example by conferring a financial advantage).

      (3) The following are examples of giving a financial

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