s 246B

Varying and cancelling class rights

In force

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.

Note:

A CCIV must have a minimum of 1 class of shares per sub‑fund: see section 1230A.

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.

Note:

This subsection applies to a CCIV in a modified form: see section 1227J.

(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.

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