Section 249H of the Corporations Act requires at least 21 days’ notice to call a general meeting of shareholders for both proprietary and public companies, with some exceptions:
a stock exchange listed (in Australia) company must give at least 28 days’ notice – Sec. 249HA
a company’s constitution may impose a longer minimum notice period – Sec. 249H(1)
a company (other than if listed) may call a meeting on shorter notice – Sec.249H(2) – if:
- for an Annual General Meeting, all¹ shareholders agree
- for any other general meeting, 95%² agree
except – for all companies:
- to remove an auditor (see Sec.329)
or – for public companies:
- to remove a director; or
- appoint a director to replace one removed (see Sec.203D).
It is generally taken that the notice period is “clear days’ notice”, but definitely cannot include the day of the meeting – Sec.105. A company’s Constitution will also probably nominate 2 or more days for postal delivery, so those too must be counted. In practice, therefore, at least 3 days should be added to the statutory periods, making it 24 or 31 days’ minimum notice.
There have been a number of cases in relation to ‘short notice’ and related issues:
Short notice need only be agreed before the meeting starts, not before notice is given – ASIC v Aprais But, for the sake of good order and certainty such notice should be in writing
In Jenashare v Lemrib it was held shortened notice cannot be utilized to inhibit the auditor attending the meeting
Also in the above case, no decision was reached as to whether an Authorised Representative under Sec.250D has the power to approve short notice.
- That is, all members entitled to attend and vote
That is, members with at least 95% of the votes that may be cast at the meeting
*Originally written by Company Secretary, an Australian virtual company secretary service.