Table of cases

Table of statutes

Guided tour

Acknowledgements

Preface

Part A: THE Nature of the Company

1 Introduction

Business structures

Sole trader

Partnership

Company

2 Regulations

Corporations Act 2001 (Cth)

Australian Securities and Investments Commission (ASIC)

Key roles of ASIC

Other relevant bodies

Corporations and Markets Advisory Committee (CAMAC)

Takeovers Panel

Companies Auditors and Liquidators Disciplinary Board (CALDB)

Australian Prudential Regulation Authority (APRA)

Australian Competition and Consumer Commission (ACCC)

3 Corporate type

Classification of companies

Classification by public status

Proprietary companies

Public companies

Conversion between public and proprietary status

Classification by liability of members

Limited by shares

Limited by guarantee

Unlimited

No liability

Corporate organisations

4 Registration and constitutions

Process of registration

Requirements prior to registration

Searching the ASIC registry

Replaceable rules and constitutions

Ongoing registration requirements

Part B: Basic operation of the company

5 Promoters and outsiders

Common law position

Statutory modifications

Promoters

Duties of promoters

Remedies against promoters

Relationship with third parties

Directing mind and will

Obligations in tort

In criminal law

In contract

Summary of the principles of agency

6 Capital

Shares

What is a share?

Share capital

Classes of shares

Protecting class rights

Issuing of shares

Private issues

Public issues

Share valuation

Fundraising provisions

Disclosure documents

Circumstances where disclosure is not required

Making a return on shareholdings

Reducing capital

Company not to acquire shares in itself

Permitted share buy-backs

Financial assistance to buy shares

Fundraising through loans

Debentures

7 Members

Who is a member?

Membership and the Corporations Act

Evidence of membership

Register of members  

Share certificates

Transfer and transmission of shares

Clearing house electronic subregister system (CHESS)

Meetings and decision-making rights

Annual general meetings

Extraordinary general meetings

Other types of meetings

Notice of meetings

Proceedings at meetings

Voting and resolutions

Part C: Management and stewardship of the company

8 Corporate governance

The members and the board

Regulation of corporate governance

ASX Listing Rules

Governing bodies within a company

Directors

Chair of the board

Committees of the board

Company secretary

Risk management

9 Directors’ duties

Who is a director?

Who is an officer?

Who does a director owe duties to?

Duties owed by officers and directors

Duties of loyalty and good faith

Duty to act in good faith

Duty to pursue proper purposes

Section 181 duties of good faith and proper purposes

Duties to avoid conflicts of interests and personal profit making

Duties of care, skill and diligence

Civil consequences of breach of duties

Penalties

Civil penalties

Criminal penalties

Breach of duty to prevent insolvent trading

Administrative duties of directors

10 Members’ remedies

Members’ rights and remedies in statute

The statutory contract and members’ rights

Oppression

Statutory derivative action

Challenging a fraud on the minority

ASIC class actions

Part D: Wider community responsibility of the company

11 Accountability

Rights to information within the company

Financial recording and reporting obligations

Obligation to keep financial records

Financial reporting

ASIC requirements

ASX requirements

Audit provisions

Duties of an auditor

12 Marketplace activity and regulation

ASIC investigatory powers

Information-gathering powers

Consequences of ASIC investigations

ASIC hearings

Financial services and markets

What is a financial product?

Regulatory provisions

Enforcement

Takeovers

Regulation of takeovers

Prohibition of takeovers

Circumstances where a takeover is allowed

Schemes of arrangement

Takeovers Panel

Part E: Restructuring and finalisation of the company

13 Creditors

Types of creditors

Secured creditors

Unsecured preferential creditors

Unsecured ordinary creditors

Receivership

Receiver and manager

Agent for a mortgagee in possession

Corporations Act provisions

Powers of controllers

Duties of controllers

Liabilities of controllers

Removal of controllers

14 Insolvency, financial difficulty and other arrangements

When is a company insolvent?

Introduction to the insolvency regime

15 Alternatives for insolvent companies

Alternatives for companies in financial difficulty

Liquidation

Receivership

Voluntary administration

Deed of company arrangement (DoCA)

Scheme of company arrangement (SoCA)

16 Voluntary administration

Appointment of an administrator

Requirements of an administrator

Effect of appointment

Administration procedure

Role of the administrator

Meetings to be called by an administrator

Liabilities of an administrator

Outcomes of administration

Deed of company arrangement

17 Liquidation

Types of winding up

Voluntary winding up

Court-ordered compulsory winding up

Role of the liquidator

Collecting, controlling and realising the company’s assets

Investigating conduct of company officers

Distributing assets to creditors and shareholders

Other general powers of a liquidator

Other general duties of a liquidator

Liabilities of a liquidator

Deregistration following liquidation

Index