The company constitution and any replaceable rules

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the company constitution and any replaceable rules that apply to the company have the effect as a contract: o (a) between the company and each member; and o (b) between the company and each director and company secretary; and o (c) between a member and each other member Under whish each person agrees to observe and perform the constitution and rules so far as they apply to that person (3) Under Corporations Act 6
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Shareholder Remedies Under {s 249F and 249D(1) Corporations Act} a member who holds at least 5% of the votes can call a general meeting or force directors to call a general meeting Shareholders with at least 10% of voting shares in affected class, have the right to have a variation of class rights set aside {s 246D Corporations Act} Shareholders can seek injunctive relief under {s 1324 Corporations Act} Remedy against oppressive conduct in Part 2F.1 F. Application to Wind-Up the Company Winding up the Company is another word for liquidation Under {s 461 Corporations Act} it deals with winding up the company on grounds other than insolvency – so it functions as a shareholder remedy F.1 Who has Standing under s 461? Under {s 461(2)(c) Corporations Act} standing to make an application to wind up a company is given to a ‘ contributory’ Under {s 9 Corporations Act} a ‘contributory’ is defined to include the holder of a fully paid shares as well as a person who is liable to contribute to the property of the company if it were wound up Therefore shareholders have standing under s 461 to apply to wind up the company Standing is also given to the o company, {s 461(2)(a) Corporations Act} o a creditor – including a contingent or prospective creditor {s 461(2)(b) Corporations Act} o the liquidator, {s 461(2)(d) Corporations Act} o ASIC and {s 461(2)(e) or (f) Corporations Act} o Australian Prudential Regulation Authority (APRA) {s 461(2)(g) Corporations Act} Grounds for Winding Up o There are several grounds under which winding up may be sought (which may be relevant to minority shareholders) o (1) Directors have acted in their own interests {s 461(1)(e) Corporations Act} o (2) Just and equitable grounds {s 461(1)(k) Corporations Act} Court may also find a ground to wind up the company based on oppressive conduct {s 461(1)(f) or (g) Corporations Act} – see next part F.2 Directors Acting in their Own Interests {s 461(1)(e) Corps Act} The first ground for applying to wind up the company is if the directors are acting in their own interests – this is a two limb test Under {s 461(1)(e) Corporations Act } , winding up can be ordered by the court where the directors have acted: o (i) in affairs of the company in their own interests rather than the interests of the members as a whole; or o (ii) in any other manner whatsoever that appears to be unfair and unjust to other members This ground for winding up is seldom used in Australia – the cases in which it has been successfully relied upon have concerned corporate groups
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