悉尼大学公司法笔记

法律笔记
第九章corporate fundraising
公司发行证券来筹资。

回答技巧
先是issue
1.首先确定是否满足CH6下的定义definition of securities s761A （P1040）。

然而Proprietary company是不得以这种方式集资的，除非只面向existing shareholders 或者本公司员工。

2.满足之后，考虑是否需要disclosure document. 不需要：s708（20人或10M上限/私人offer 即只针对某人/专业投资者s9定义/sophisticated 投资者/现有的投资者/自己的高级管理者/for no consideration）书270
3.需要的话，考虑需要哪种类型的公开文件(4种)及其是否符合规定
Prospectus：招股书，s709（1），s710，s711，常见的类型，很详尽，很长，fully disclosure 完全公开的。

Short- form prospectus：简短形式招股书，s709(1), s712,不列出具体内容，仅引用ASIC条款，投资者可免费获得更多的信息。

offer information statement: s709(4), 集资<= 10M; s715 必须包含的内容（公司性质及营业范围，集资性质及用途，投资者所面临的潜在风险，所有的费用，遵循ASIC的声明，必须注明不是招股书，注明投资者必须在投资前获取专业意见，公司的年度报表等）
A profile statement：s709(2)是个简短的总结，必须取得ASIC的同意，附于招股书。

4.如果招股书或者声明文件的内容不充分，有误导，或者新的影响比较的的因素出现的时候，公司有两个选择：一，s724，退还集资到的钱，二，s719,重新发一份替代（replacement）文件或者辅助（supplementary）文件。

Offence
5.S723 公司如果发表声明规定了最低认购量（minimum subscription）才会发行证券，如果声明发出，且四个月内并未达到最低认购量，公司必须同上4..书280
6.ASIC的作用s739 issue a stop order 组织起发行证券
7.如果发行的公司并不存在，s726，
8.没有disclosure document 则发行证券s727
9.Disclosure document中存在误导缺失，s728
10.7，8，9会形成offence s730
11.公司的defence，reasonable inquiries and belief s731，并不知情not knowing s732，合理依赖别人提供的信息而做出的disclosure 文件或者能提供合理证据证明没有意识到新情况的发生s733。

12.Remedies S729 受害人赔偿，可拿回损失，6个月内。

13.考虑是否有违反宣传限制或者兜售股票限制s734 s736
第十章debentures and debt capital
Debenture
1.Debt 定义common law: 书298 statutory：s9 （p141）不包含日常营业中的欠款
2.Trustee 在发行债券之前必须指定，签订trust deed，以确保债权人的利益。

3.可以成为Trustee的人或组织：s283AC，trust deed内容s283AB，trustee的责任s283DA s283EB
4.Defence of trustee s283DB DC
5.Borrower's duties s283BB
Charges (是debenture 的一种)
1.区分fixed charge 和floating charge，首先是定义，书306. 然后是案例支持，书306 illingworth v houldsworth 主要阐述了怎么区分二者。

书307，governments stock阐述了怎样是floating charge。

Re spectrum Plus 揭示了成为floating charge的最重要线索。

2.Floating charge自动转化为fixed charge。

书309，情况是：条款上说明怎么样就会自动转为固定抵押或者公司停止营业或者公司开始清算或者法院或者债权人指定了一个接管公司的人。

案例Fire nymph 309
3.Charge 必须register。

S9charge定义和S262，其中土地不能chargable。

s263：lodgement
within 45days after the creation of charges. S另外，262(11),如果charge没注册成功，并不能说明charge无效。

还有，书312，如果charge没有注册，当公司六个月后进入清算，charge 就会无效s266。

4.Registrable Charge的优先条件书312，五个规则，还有s279,s280,s281,s281.
5.怎样的charge是无效的。

S266, s267
第十一章share capital
Equity capital（shares）
1.首先确定谁是shareholders,class of shares，rights attach to the shares.（voting or dividend right）
2.当公司要改变class rights时，则要考虑protection of class rights 书326，也就是s246B规定了当公司改变其class rights的情况，有constitution，则根据constitution变化，没有则需要special resolution rule。

公司必须提前7天通知股东。

3.看是否有涉及members' rights，看12章members' remedies看20章。

4.再看是不是跟dividends 和破产有关，看13章再加insolvent trading。

看11章
5.再看是否与reduction of capital（buyback shares）有关
Common law, Trevir v whitworth 案子中得出的结论：公司不能直接或者间接买回自己的股票，公司不能直接或者间接资金上帮助另外一个人去买自己的股票，公司只能从profit 中pay dividend。

（笔记）
但是，statutory，公司允许reduction of capital,如果reduction符合三个法则s256A 256B：一，对于整体股东来说是合理公平的，二不影响公司偿还债务的能力，三，必须征得股东的同意，根据每个股东股权的减少数量一致不一致分两种同意形式，s256B(2),S256C(1)(2).但是s258A-F规定了一些情况，可以不得到股东的同意。

违反S256B：s256D 还有书331 很详细。

Statutory允许公司buyback shares s257 还有书334 很详细
Statutory 允许公司资助他人买自己股票s260 还有书331 很详细
第十二章members' rights
1.首先确定是不是公司的member。

满足s231 membership of a company
S169(1) register of members, requires to record the details of each company member on the Register of members. 案例说明登记的重要性(p347)Maddocks vDJE constructions Pth Ltd, the high court held that a person who subsequently to incorporation applies fro shares to be alloctted to him, or purchase shares from an existing shareholder, does not become a member of the company until his name is entered in the share register.
If the person is not a member of the company, the person have rights against the seller or company directors in respect of their failure to register the transfer or corrected to properly reflect the names and details of the members of the company.
2.是member的话，要考虑what the member wants to do? Want information? Contact other member? Vote?
Common law rights under the corporate constitution(p351):
The right to enforce the statutory contract ;To appoint directors; To dividend out of profits;To attend members' meeting;To vote at a members' meeting;To receive information from the company.
Statutory supplement (p351):
The right to winding up the company s461;To enforce compliance with the Corporations Act s1324; the right to call members' meeting s249D, the right to receive a copy of the company's annual financial report s314;To inspect the company's registers free of charge s173(2) s177 about the limitation of use of information;To approve certain executive remuneration s200B;To remove directors of public companies from their office s203D; （重要）To bring an oppression action s232 or a statutory derivative action s236 s237, 看20章。

ASX listing rules:
It requires the certain management decisions receive memebership approval through an ordinary or special resolution passed at a members' meeting when the company proposes 。

书355
However，while the members are given rights and powers under the Act and the company's constitution, the member may not attempt to take away the management responsibility and powers from the board of directors: Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame, it held the authority could only be taken away bu amending the corporate constitution that is by changing the document which conferred the managerial authority on the directors in the first place.
3.Members' obligation 书357
the primary obligations of company members are generally the liability to contribute funds to the company. The additional obligations are imposed under the corporate constitution and are subject to strict voting and enforcement requirements both under statute s140(2) and common law (Gambotto's case amendment to a corporate constitution for the proper purpose ).
pany meetings: board meeting and members' meeting
S249J requires notice of meeting, s249L requires the content of the notice is not defective. 书360
If there is a defect, the member will seek a court injunction to stop the meeting being held and the court has the power to cure the defect under s1322.
Board meeting: generally, each directors on the board owes an obligation to attend regular board meeting. However, there are some alternative methods: s248A,the directors may pass a resolution without a board meeting if the motion is circulated to all the directors to sign OR s248F, a replaceable rule,the quorum for a board meeting is normally two directors. The proprietary company may only have one director.
Members' meeting:AGM (s250 every year)and EGM(when required).
Who can attend the meeting P363。

The role of chair: the person who is responsible for controlling the progress of the meeting. How to elect a chair. S249U. The chair's power is to decide on the validity of votes submitted by proxy confers a board discretion but may be open to challenge in court on the basis that the chair acted under a error or law or acted in bad faith: Re portman iron ore ltd:gold west
resources ltd.
Ordinary resolution: over 50% special resolution:75%
Invalidation of meeting: P367 procedural defects (defects on notice of the meeting or minimum number of persons attending the meeting or failed to comply with Act or constitution ) and represent substantive invalidity(the matter considered by the meeting are impermissible, eg minority oppression).
Remedy to prevent procedural defects s1322. 书367
5.如果公司违反了members' right。

Remedies:
S232: oppression or s1324 injunctions.
第十三章Dividends
1.The payment of dividends is regulated by the company's constitution or replaceable rules and Corporations Act.
S254u is a replaceable rule that provides the board of directors with the power to determine dividend payable; when ,how much and how to pay.记着这只是个替代条款，所以有时候会被constitution替换。

2.Dividends 权利：pay不pay 是公司章程说了算，没pay并不能形成oppression of the members 看20章。

当pay的时候，s254W提出必须公平对待同一级别的股东。

如果公司想要改变dividends 权利，必须考虑protection of class rights，也就是上面第十一章2中所谈的内容。

3.产生债务：s254V 当有constitution provision for dividend payable, debt incurred when the time for payable.
当没有constitution provision，debt incurred when the dividend are declared.
还要考虑insolvent trading.s588G
4.Profit calculation. S254T requires that dividends only be paid out of the company's profit.
Professional accounting standards: it can be guide but not binding on court书379。

if the company has outstanding current year trading losses, these must be made good before a dividend
can be legitimately paid:Lee v neuchatel asphalte co. 书380
但是p380,Ammonia Soda Company Ltd v Chamberlain concerned the corporate accounts are to be viewed on a yearly basis, which means that prior year trading losses need not to be made good in order to pay a dividend from the current year's profit. This is also approved by court and applied in Marra development ltd v BW rofe pty letd.
5.circulating and fixed capital.
24 External administration
First of all, there are four types of external administration with different purposes. the purpose of winding up is to terminate the company's business, distribute all the company's assets and to deregister the company so that it no longer exists. The receivership is to preserve assets to save it from liquidation. The voluntary administration and scheme of arrangement is to restructure the company and its debt repayment obligations to prevent the company from liquidation. Generally, the winding up will be the last option for the company.
Receivership can be commenced in two ways, first method is for a secured creditor to appoint a private receiver where the debtor company defaults on a requirement of the loan contract. The another method is for the court to appoint a receiver to safeguard the company's assets. The private receiver is more common in practice.
Receiver's power: s420
Receiver's duty: common law,(1)the receiver will perform their function at a level of reasonable skill and diligence and(2) not to recklessly disregard the interests of the debtor company and must account for any surplus once the appointing creditor's debt has been paid:expo international pty ltd v chant. Statutory duty, since a receiver is also an officer of the company under s9 which states that an officer of a corporate means include a receiver, or receiver and manager, of the property of the corporation, the receiver should also have duties under s180-184.
A receiver should exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a receiver of a corporation in the
corporation circumstances:s 180(1); a receiver should also exercise their powers and discharge their duties in good faith in the best interest of the corporation and for a proper purpose: s181(1); they must not improperly use their position to gain an advantage directly or indirectly or cause a detriment to the corporation:s182(1); they also must not improperly use the information to gain an advantage directly or indirectly or cause a detriment to the corporation:s183(1); if they commits an offence if they are reckless or intentionally dishonest and fail to exercise their powers and discharge their duties in s180(1),s181(1),s182(2) , they will commit a criminal offences:s184. The duty of sale of property: s420A provides that in the respect of sale of property of a corporation, a controller(receiver) should take all reasonable care to sell the property not less than that market value or otherwise the best price that is reasonably obtainable having regard to the existing circumstances.
优点:1.the receiver replaces the debtor company's management and thus safeguards the company's assets from the further depletion.2 private receiver perform in the interest of the appointing secured creditor and provides an efficient way to maximise their interests.
缺点: 1privately appointed receiver does not act for the benefit of creditors in a whole, so this will be a disadvantage for other creditors.2 it is lack of a moratorium, particularly with regard to property that is leased by the debtor company.
总结:because receivership was often seen as signalling of death knell of the debtor company and also based on its disadvantages, the voluntary administration will be a better choice in some circumstance.
Voluntary administration: it provides for the rehabilitation of insolvent company by allowing time for the company to restructure:s435A. There are always a final creditor's meeting held under s439A for voluntary administrator to recommend creditors whether terminate the administration and continue trading or enter into a deed of company arrangement between company and its creditors or liquidate the company. There are three ways to commence voluntary administration.1,s436A by the company except where the company is in liquidation.2,s436b by
the liquidator who may appoint an administration in writing.3,s436C by a chargee where a secured creditor has an enforceable charge over the whole or substantially the whole property of the company,except where the company is in liquidation.
Administrators' powers:s437A provides that administrators with the power to control the company's business,property and affairs and carry on that business and manage that property and those affairs and terminate or dispose of all or part of that business and may dispose of any of that property and perform an function and exercise any power,that the company or any of its officers could perform or exercise if the company were not under administration.
Administrators' duties: Statutory duty 1, since a receiver is also an officer of the company under s9 which states that an officer of a corporate means include a receiver, or receiver and manager, of the property of the corporation, the receiver should also have duties under s180-184.
A receiver should exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a receiver of a corporation in the corporation circumstances:s 180(1); a receiver should also exercise their powers and discharge their duties in good faith in the best interest of the corporation and for a proper purpose: s181(1); they must not improperly use their position to gain an advantage directly or indirectly or cause a detriment to the corporation:s182(1); they also must not improperly use the information to gain an advantage directly or indirectly or cause a detriment to the corporation:s183(1); if they commits an offence if they are reckless or intentionally dishonest and fail to exercise their powers and discharge their duties in s180(1),s181(1),s182(2) , they will commit a criminal offences:s184. Statutory duty 2 s438D states that administrator also has responsibility to report any potential breaches of the Act by company's officers to ASIC. s437
B as the agent of the company, they do not usually incur personal liability for their actions, but there are limitations under S443A, a voluntary administrator will incur personal liability for rent payable by the company from five business days after their appointment or for contracts entered into by the administrator during their appointment.
优点：1,voluntary administration provides a very extensive moratorium over claims
against the company which gives the company time to formulate a restructuring process and then hopefully return the company to solvency or at least provide a better return to the creditor than would result from the company's winding up. 2,the coverage of the moratorium over rights of owners and lessors of property used by the debtor company provides considerable leverage for the administrator to continue trading the business or to sell the business as a going concern. 3,voluntary administrations are quicker and cheaper to implement than a scheme of arrangement.
缺点：1,the time limits imposed on administrators is in complex cases does not allow the administrator to fully investigate the company's affairs to make a proper recommendation to the creditors at the final meeting. 2,in some cases it may be that directors appoint a voluntary administrator to delay the winding up of the company or frustrate litigation against the company.
scheme of arrangement: it is more complex and expensive to undertake than voluntary administrations, so it is rarely used outside of insurance company insolvency.
21 Auditing requirements and disclosure requirement
Auditing requirement:
Validity of the auditor's appointment: 书592: the qualifications for appointment.
The independence of the auditor: s324CA(1),individual auditor and audit company一般要求, s324CA(4)defences,s324CE是对其的具体要求;s324CB:member of audit firm一般要求，s324CF是对其的具体要求;324CC:director of audit company一般要求，s324CG是对其的具体要求. S324CD:利益有冲突的情况，s324CH审计员和被审计公司有关系的情况.
The sufficiency of the auditor's actions:
statutory liability: a auditor include the duty to audit the client company's financial reports in accordance with the relevant accounting and auditing standards and attend the annual general meeting for publicly listed companies and report on possible of breach of the Corporations Act 2001(cth) to ASIC and sign an auditor's independence and maintain their independence from the audit client.
Liability to the audit client:obligations to comply with the terms of the contract between the audit client and auditors, any breach will make the client sue for compensation for the breach of contract. In the case of Daniels v Anderson, the court held that the auditor were under the duty in accordance with their won audit manual,the standard practices and procedures to report the acknowledged absence of proper records and the weakness in internal controls and were negligent in failing to immediately report on the internal deficiencies that left the company at risk of substantial losses.
Liability to no-client third party: the decision in the case of esanda finance corp ltd v peat marwick hungerfords(reg)(1997) provides a guidance regarding when auditors may be liable fro losses suffered by individuals other than their audit client. It should be proved that an auditor knew or ought reasonable to have known that the information or advice in the audit report would be communicated to the plaintiff either individually or as a member of an identified class and the information or advice would communicate for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and ti would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound.
Liability under Trade Practices Act : proprotionate liability: this is to reduce the temptation for victims to sue professionals because their liability will be limited to the actual damage or loss that their conduct caused when liability in negligence has been joint and several.
Continuous disclosure:
Disclosing entities: Chapter 6CA of the Corporations Act imposes disclosure obligations on disclosing entities. Pt 1.2A of the Corporations Act identifies the disclosing entities are companies with enhanced securities. They can be ASX listed companies or public companies which do not have their securities listed on the ASX but with more than 100 people holding those securities(s111AF).
Disclosing rule for non-listed disclosing entities: s675(1) (b)is applied to disclosing entities when they are unlisted disclosing entities. S675(2) the disclosing entities must as soon as practicable lodge a document with ASTC containing the information where it becomes aware of information that is not generally available and if it is available but a reasonable person would expect the information will have a material effect on the price or value of enhanced securities of the company.
Disclosing rule for listed disclosing entitirs: firstly, ASX listing rules should be applied. Then S674(1) provides obligation for listed disclosing entities to disclose in accordance with ASX listing rules. S674(2) requires the listed disclosing entities must notify the market operator of the information that is not generally available and if it is available but a reasonable person would expect the information will have a material effect on the price or value of enhanced securities of the company.
Remedies: compensation orders.
20 Members' remedies
首先确定是不是公司的member,用定义s9，然后权利义务。

General law remedies:
Fraud on the minority: this is related to two situations. First one is the alternation of constitution without taking away property rights. Allen v Gold Reed of West Africa held that alternation of constitution requires the voting be done bana fide and in the interest of the company as a whole. The second one is the alternation of constitution with taking away property rights. Gambotto v WCP Ltd imposed a new two-stage test for assessing the validity of constitutional amendments to expropriate members' property rights:1, was the amendment for a proper purpose?
2 was the amendment fair in all of the circumstance?
Other personal rights: rights as part of an express contract or under s140 a statutory contract imposes enforcement rights to protect a member against conduct that impact on their rights as a member of the company or other rights under general law, such as rights to receive notices of
meetings, vote at meetings, have voting rights to protected against improper action by directors.
Statutory remedies:
Statute Derivative Action(SDA): this is the rights brought on behalf of a company to against its directors or against third party where the company is unwilling or unable to bring action. It's about the standing of the applicant to bring the action on behalf of and for the benefit of a company. There must be an underlying cause of action and once the standing is established, the applicant then has to bring the case.
S236 (1)states the scope for a person to enforce the company's right. It includes a member, a former member or a person entitled to be registered as a member, whether of the company or a related body corporate or an officer of former officer of the company. 236(2) proceedings brought on behalf of a company must be brought in the company's name.
Obtain leave of court to bring SDA, the person must satisfy the court that the requirement of s237(2),including that it is 1,probable in action by company2,acting in good faith,3,in best interest of the company,4,a serious question to be tied,5,proper notice given to company. Case related to (2,acting in good faith):Swansson v RA Pratt Properties Pty Ltd, good faith related two interrelated factors: whether the applicant honestly believes that a good cause of action exists an has a reasonable prospect of success and whether the applicant is seeking to bring the derivative action for such a collateral purpose as would amount to an abuse of process. S237(3) 是不能grant leave的情况。

当公司清算时，可不可以grant leave p569案例chahwan和Ragless statutory injunction rights: s1324 provides the court with the power to order an injunction to stop a person from engaging in conduct that is in breach or would breach the Corporations Act or to order a person to do a particular thing or to order compensation be paid either in addition to or instead of granting an injunction .
Just and equitable winding up: s461(1)(k) provides situations for the compulsory winding up of solvent companies by a court order. The rang of situations are:1,justifiable lack of confidence in management of the company's affairs(管理层不依法工作),Loch v John Blackwood
Ltd, where the directors refused to hold general meetings or to pay dividends so as to force the shareholders into selling their shares, ASIC v AS Nominees Ltd where companies have consistently failed to comply with the Corporations Act dealing with a failure to keep proper accounts;2,breach of equitable considerations, Ebrahimi v Westbourne Galleries Ltd where Evrahimi's exclusion from the company;s management breached equitable principles of good faith resulting in the need to dissolve the company, Stapp v Surge Holdings Pty Ltd where a company owned and operated by two families was wound up on the basis that one of the families had excluded the other from information regarding the running the company and had diverted funds from the company without permission; 3 failure of substratum(公司成立的目的), Re Tivoli Freeholds where a company that traditionally owned theatres was liquidated after it ceased trading in the theatre business and became an equity investment vehicle; 4,company unable to make or implement decisions caused by deadlock (停顿僵局)in management, CIC Insurance Ltd v Hannan & Co Pty Ltd where no directors act for the company and no candidates will to fill the board positions, Re Yenidje Tobacco Co where the court wound up a very profitable company managed by two directors who refused to communicate with each other and all the correspondence were done through the company secretary.
Minority oppression remedy: s232 states that the court may make an order if the conduct of a company's affairs is either contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial tom or unfairly discriminatory against a member or members whether in that capacity or in any other capacity. Breach of s232, the court will make an order under s233(1) including to wind up the company or to amend the company;s constitution or to order the company to purchase the member's shares. John J Starr Pty Ltd v Rovert R Andrew Pty Ltd the majority's conducts exploiting their voting power to limit or exclude the minority from participation within the corporation have constituted an oppression. But, in Morgan v 45 Fler Avenue Pty Ltd, low dividends and high levels of remuneration paid to the director were held not to be oppressive as the director had earned financial rewoards. Wayde v NSW Rugby League Ltd where directors who entered into transactions for the sole benefit of the parent company without
any apparent benefit to the subsidiary were engaging in conduct in breach of the predecessor of s232(e). 别的情况在书上579
15 directors and officers
An officer of a corporation means (a) a director or secretary of the corporation or (b)a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation;or who has the capacity to affect significantly the corporation's financial standing;or in accordance with whose instructions or wishes the directors of the corporation are accustomed to act or a receiver of the property of the corporation; or an administrator;or a liquidator;or a trustee administering a compromise between the corporations and someone else.
A director of a corporation means (a) a person who is appointed to the position of a director or is appointed to the position of an alternate director and is acting in that capacity, regardless of the name that is given to their position, and (b) unless the contrary intention appears, a person who is not validly appointed as a director if they act in the position of a director (de facto director)or the directors of the company or body are accustomed to act in accordance with the person's instruction or wishes(shadow director).
De facto director: Corporate Affairs Commission v Drysdale: the case identified a de facto director as one who acts in the position with or without lawful authority. In the case of Forkserve Pty Ltd v Jack, a person can be found to be a de facto director even where they do not actively consent to act as a director, provided that their actions demonstrate that they are acting in the director's position.
Shadow director: Australia Securities Commission v AS Nominees Ltd, a shadow director does not require the person to actually give directions or instructions that cover all matters involving the board, all is required is that whenever the shadow director gives directions or instructions to the board, the board are accustomed to act in accordance with those directions or instructions. Creditor 不能成为shadow director原因见书P424。