Central Exchange Ltd v Rivkin Financial Services Ltd

FEDERAL COURT OF AUSTRALIA

Central Exchange Ltd (ACN 000 742 843) v Rivkin Financial Services Ltd (ACN 061 287 045) [2004] FCA 1546

CORPORATIONS – Meetings – general meeting convened by members – power of directors to postpone and change venue for meeting convened by members – whether company constitution inconsistent with provisions of s 249F of the Corporations Act 2001 (Cth) – whether company constitution is inconsistent with s 249F of the Corporations Act – no material interest by directors in postponing meeting –notice requirements.

Corporations Act 2001 (Cth), ss 140, 191(1), (2), 195(1),(1A), 195(5), 203D, 203D, 249D, 249F, 249J, 249J(3), 249P, 249R, 250N, 1043A, 1322(4)(a), 1322(6), 1324
Company Law Review Bill 1997

Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38 cited
Pinnacle VRB Ltd v Ronay Investments Pty Ltd [2000] VSC 330; (2000) 35 ACSR 240 cited
Bulfin v Bebarfalds Limited (1938) 38 SR (NSW) 423 applied

CENTRAL EXCHANGE LIMITED (ACN 000 742 843) v RIVKIN FINANCIAL SERVICES LIMITED (ACN 061 287 045)

N1473 OF 2004

EMMETT J
21 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1473 OF 2004

BETWEEN:	CENTRAL EXCHANGE LIMITED (ACN 000 742 843) PLAINTIFF
AND:	RIVKIN FINANCIAL SERVICES LIMITED (ACN 061 287 045) DEFENDANT
JUDGE:	EMMETT J
DATE OF ORDER:	2 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT:

1.Declares that the Notice of General Meeting dated 1 October 2004 despatched by the Plaintiff to shareholders in the Defendant (‘Notice of Meeting’) gave 27 days notice of the meeting to the members.

2.Declares pursuant to section 1322(4)(a) of the Corporations Act that the Notice of Meeting is not invalid by reason of 27 days notice being given of the meeting.

3.Declares that the Defendant through its Chairman of the meeting of members to be held pursuant to the Notice of Meeting is not obliged to put to the shareholders resolution numbered 7 in the Notice of Meeting, by reason of the fact that such resolution is invalid.

4.The Originating Process and the Defendant’s Interlocutory Process, including in particular the prayer for relief in paragraph 4(a) of the Defendant’s Interlocutory Process, be otherwise dismissed.

5.Each party file and serve, by 4pm on 3 November 2004, written submissions in relation to costs.

6.The proceeding be stood over to 5 November 2004.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1473 OF 2004

BETWEEN:	CENTRAL EXCHANGE LIMITED (ACN 000 742 843) PLAINTIFF
AND:	RIVKIN FINANCIAL SERVICES LIMITED (ACN 061 287 045) DEFENDANT

JUDGE:	EMMETT J
DATE:	21 OCTOBER
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Section 249F(1) of the Corporations Act 2001 (Cth) (‘the Act’) provides that members of a company with at least 5 per cent of the votes that may be cast at a general meeting of the company ‘may call, and arrange to hold, a general meeting’. Clause 13.4 of the constitution (‘the…