8公司法课件.pdfVIP

BUSL301 Corporations Law Lecture Area 8 – Meetings and Members Rights Michael Quilter Members Rights • 2 main sources of members rights:  Personal Rights  Belong to shareholders  Personal to shareholders  Enforceable by the shareholders  Derivative Rights  Belong to the company  The problem that exists is company’s problem and not the shareholder’s personal problem  Shareholder acquires company’s right and brings proceedings on behalf of company. Derivative Rights – General Law • Originally arose as an exception to the rule in Foss v Harbottle • Under general law, members had to overcome the rule in Foss v Harbottle to enables them to bring a derivative action. The rule in Foss v Harbottle had two aspects:  Internal Management Rule  Proper Plaintiff Rule • The exceptions to the rule in Foss v Harbottle:  fraud on the minority shareholders (main exception)  Where personal rights are infringed  Where actions were not bona fide for the benefit of the company as a whole  Where members’ property is expropriated – Case: Gambotto v WCP  Where company’s property is expropriated – Case: Cook v Deek Derivative Rights – Statutory Law • Derivative rights at general law now abolished. • Now a statutory derivative action is available under s236 of the Corporations Act – right to bring proceedings on behalf of the company • To succeed under s236 the shareholder must satisfy the criteria in s237  The company won’t bring the action  The shareholder must act in good faith  That the action is in the company’s best interests  The matter is a serious matter  The shareholder must also rebut the presu