Directors management of the Company: Reading:

Transcript:Directors management of the Company: Reading::
Directors management of the Company: Reading: Lipton, Herzberg Welsh Chapter 12. Who is a director ? s9 …includes, a person who is appointed to the position of a director or alternate director regardless of any name that is given to the position. Note difference with definition of “Officer” in Sect 9 includes director and secretary of Co. Also includes persons involved in decision making with the Co. Thus def is broader. Who is a director ? s9 De-Facto Director: person exercises management functions thought not validly appointed: See NSW v Drysdale [1978] 22 ALR 161 Shadow Directors: their instructions are normally followed by other officer of Co; Mistnorm P/L v Yasseen [1996] 14 ACLC 1387 See recent case of: Shafron v ASIC [2012] HCA 18 – Pl argued that he was acting as Co General counsel he was not an officer (Co Secretary). HC rejected this argument. Also see: Grimaldi v Chameleon Mining NL (No2) [2012] FCFC 6. Standard Chartered Bank of Australia v Antico[1995] 38 NSWLR 290. The case shows that Co may be a shadow director, despite the fact that a Co is not permitted to act as a formally appointed director. Directors management of the Company: Boards Power of Management s198A - (1) The business of a company is to be managed by or under the direction of the directors. (2) The directors may exercise all the powers of the company except any powers that this Act or the company's constitution (if any) requires the company to exercise in general meeting. ASX Corp Governance Principles – see pg 265 LH Listing Rules Shareholders and Board Management: Shareholder cannot override Board management decisions: Automatic Self Cleansing Filter Syndicate Co v Cuninghame [1906] 2 Ch 34 John Shaw & Sons (Salford) Ltd v Shaw [1935] 2 KB 113 NRMA v Parker [1986] 4 ACLC 609 Replaceable rules: Statutory powers that can be exercised by directors. Pls see pages 266-267 of LH - s198A - management powers of directors -s198B - negotiable instruments -s198C - managing director -s198D & s190 - delegation to committees Appointment of Directors: appointment on registration, s120, 117(5) subsequent appointment - 201G : shareholder’s reso in GM Who May be Appointed as a Director? S201A - Proprietary Co : Min 1 must reside in Australia, Public : Min 2. s201B(1) : natural person s201C Types of Directors Managing director - s201J Executive and Non executive directors