Corporations Act - Australia

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Subsection (3) does not affect the powers of the Court as to costs.

      242 Power of the Court to make costs orders

      The Court may at any time make any orders it considers appropriate about the costs of the following persons in relation to proceedings brought or intervened in with leave under section 237 or an application for leave under that section:

      (a) the person who applied for or was granted leave;

      (b) the company;

      (c) any other party to the proceedings or application.

      An order under this section may require indemnification for costs.

      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.

      246B Varying and cancelling class rights

      If constitution sets out procedure

      (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.

      If constitution does not set out procedure

      (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.

      (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.

      (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.

      246C Certain actions taken to vary rights etc.

      Company with share capital

      (1) If the shares in a class of shares in a company are divided into further classes, and after the division the rights attached to all of those shares are not the same:

      (a) the division is taken to vary the rights attached to every share that was in the class existing before the division; and

      (b) members who hold shares to which the same rights are attached after the division form a separate class.

      (2) If the rights attached to some of the shares in a class of shares in a company are varied:

      (a) the variation is taken to vary the rights attached to every other share that was in the class existing before the variation; and

      (b) members who hold shares to which the same rights are attached after the variation form a separate class.

      Company without share capital

      (3) If the members in a class of members in a company without share capital are divided into further classes of members, and after the division the rights of all of those members are not the same:

      (a) the division is taken to vary the rights of every member who was in the class existing before the division; and

      (b) members who have the same rights after the division form a separate class.

      (4) If the rights of some of the members in a class of members in a company without a share capital are varied:

      (a) the variation is taken to vary the rights of every other member who was in the class existing before the variation; and

      (b) members who have the same rights after the variation form a separate class.

      Company with 1 class of shares issuing new class of shares

      (5) If a company with 1 class of shares issues new shares, the issue is taken to vary the rights attached to shares already issued if:

      (a) the rights attaching to the new shares are not the same as the rights attached to shares already issued; and

      (b) those rights are not provided for in:

      (i) the company’s constitution (if any); or

      (ii) a notice, document or resolution that is lodged with ASIC.

      (6) If a company issues new preference shares that rank equally with existing preference shares, the issue is taken to vary the rights attached to the existing preference shares unless the issue is authorised by:

      (a) the terms of issue of the existing preference shares; or

      (b) the company’s constitution (if any) as in force when the existing preference shares were issued.

      246D Variation, cancellation or modification without unanimous support of class

      (1) If members in a class do not all agree (whether by resolution or written consent) to:

      (a) a variation or cancellation of their rights; or

      (b) a modification of the company’s constitution (if any) to allow their rights to be varied or cancelled;

      members with at least 10 % of the votes in the class may apply to the Court to have the variation, cancellation or modification set aside.

      (2) An application may only be made within 1 month after the variation, cancellation or modification is made.

      (3) The variation, cancellation or modification takes effect:

      (a) if no application is made to the Court to have it set aside—1 month after the variation, cancellation or modification is made; or

      (b) if an application is made to the Court to have it set aside — when the application is withdrawn or finally determined.

      (4) The members of the class who want to have the variation, cancellation or modification set aside may appoint 1 or more of themselves to make the application on their behalf. The appointment must be in writing.

      (5) The Court may set aside the variation, cancellation or modification if it is satisfied that it would unfairly prejudice the applicants. However, the Court must confirm the variation, cancellation or modification if the Court is not satisfied of unfair prejudice.

      (6) Within 14 days after the Court makes an order, the company must lodge a copy of it with ASIC.

      (7) An offence based on subsection (6) is an offence of strict liability.

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

      246E Variation, cancellation or modification with unanimous support of class

      If the members in a class all agree (whether

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