TOPIC_5_MANAGEMENT_notes - TOPIC 5 MANAGEMENT Definition of...

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TOPIC 5 MANAGEMENT Definition of officer Section 9 a) A director or secretary b) A person who makes or participates in making decisions that :- 1) affect a substantial part of the business 2) have the capacity to significantly affect the coy financial standing c) A person in accordance with whose instructions the directors are accustomed to act. c) A receiver d) An administrator e) A liquidator f) A trustee administering a compromise or arrangement. 5.1 COY SECRETARY A public Coy must have at least one secretary who ordinarily resides in Australia. s204A(2) A Pty Ltd Coy need not have a secretary. s204A(1) A secretary must be :- An individual At least 18 years of age Not disqualified from managing a coy 5.2 DIRECTORS Sec 9 Definition of Director a) A person appointed to the position regardless of the name given to the position b) A person not validly appointed if they:- 1) Act in the position of director 2) The directors of the coy are accustomed to act in accordance with the persons instructions or wishes Appointment 1. First By Promoters. 2. Subsequent By members at general meetings by ordinary resolution. 3. Casual Vacancy Can usually be filled by the other directors. 4. Sec 225 Can only elect directors one at a time. Qualifications 1) Age limit Minimum 18 (sec201B) 2) Must be a natural person ( Sec 201A ) 3) Ltd min 3 directors / Pty Ltd min 1 director. (s121A) 4) Australian resident ( Sec 201A ) [Public 2, Pty 1] 5) Cannot be a bankrupt ( Sec 201B ) 6) Cannot be convicted of fraud or offence in promotion or administration of company ( Sec 206B ) 7) Cannot act if court makes an order under Sec 206C; 206D & 206E that persons disqualified from managing a corporation. Removal of Directors Sec 203D & 203E Removal can be carried out by ordinary resolution at a general meeting. [Public Co.] Director must be given a copy of the notice proposing the dismissal. Director can make written representations to members of the company and has a right to speak at the meeting. Note: In regard to managing directors who usually have a contract, they can still be dismissed but the company may be liable for damages. Case: Read V Astoria Garage [Streathham] Ltd.
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Facts: Articles provided for dismissal but contract did not. Held: Director could not claim compensation. Case: Shindler V Northern Raincoat Co. Ltd. Facts: Agreement provided for dismissal. Held: Director could claim compensation. Case: Carrier Australia Ltd. V Hunt. Held: Alteration of Articles in a way inconsistent with the contract cannot be restrained but may make company liable for compensation. Validity of Directors actions Sec 201M & 204E The actions of a director or secretary are valid regardless of any defect which may later be discovered in his appointment or qualifications. NB: Links in with Sec 128 & 129 where a person having dealings with the company is entitled to assume the person held out as a director is a director.
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