The Tomago Coal Mining Company’s Incorporation Act 1861 No tcm (NSW)

A N N O V I C E S I M O Q U I N T O

V I C T O R I A H EG I X.E.

An Act to incorporate " The Tomago Coal

Mining Company." [ 2 M October, 1861.]

WH E R E A S a jo in t stock company called " The Tomago Coal Min ing C o m p a n y " has been lately established a t Sydney in t he

Colony of New South "Wales unde r and subject to t he rules regula t ions

and provisions contained in a cer ta in deed of se t t lement bear ing date t he twenty-first day of September in t he year of our Lord one thousand eight h u n d r e d and sixty-one pu rpo r t i ng to be the deed of set t lement of the said company A n d Avhereas by the said deed of se t t lement the, several par t ies there to have respectively and mu tua l l y covenanted and agreed t h a t they whilst holding shares in t he capi tal of the said company shall be and con t inue u util dissolved under t h e provisions in t h a t behalf there in contained a jo in t stock company or pa r tne r sh ip u n d e r t he name style and t i t le of " The Tomago Coal M i n i n g C o m p a n y " for work ing or con t rac t ing for the work ing of the coal and o ther minera l s in or upon any laud of which the said company may from I hue to t ime be owners or lessees for purchas ing or t ak ing on lease coal or o ther minera l lands or t h e coals or o ther minera l s the reupon or the reunder and for work ing the same for following u p and ac t ing upon any t rade or purpose men­ t ioned in any regula t ions for the m a n a g e m e n t or conduct of coal or other mines in t he said Colony of N e w South Wales for purchas ing the necessary mach ine ry for work ing the said mines for t es t ing t h e m i n i n g capabili t ies of any land purchased or t aken on lease or in tended to be purchased or t aken on lease or t h e coal or minera l s whereon a re or may be purchased or t aken on lease or in tended to be purchased or taken on lease by the said company lor dra in ing any mines or any other purposes in connect ion the rewi th for expor t ing selling or otherwise disposing of all coal or o ther minera ls to be raised from any land belonging to or t aken on lease by the said company or from any land wha tever for disposing of the t imber on any such land for ra is ing fire­ clay for m a k i n g and disposing of f ire-bricks for m a k i n g and disposing of coke for l e t t ing or selling any such lands for cons t ruc t ing rai lways roads wharves and other ma t t e r s necessary for the promot ion of t he objects of t he said company and for such o ther purposes as shall from t ime to t ime be agreed on as thereinaf ter men t ioned A n d it was by t h e same deed of se t t lement agreed t h a t t he capital of t he said company should consist of twen ty thousand pounds to be con t r ibu ted in five thousand shares of four pounds each and of such fur ther sum or sums as m i g h t thereafter be ra ised by t h e c rea t ion and sale of new shares of t he l ike a m o u n t as there in provided And whereas by the same deed of se t t lement provision has been m a d e for t he due manage­ m e n t of the affairs of the company by cer ta in directors a l ready appointed and by o ther directors to be from t ime to t ime elected and appointed as the i r successors by t he shareholders of the said company A n d whereas t he said company is desirous of be ing incorpora ted and i t is expedient t h a t t h e said company should be incorporated accord­ ingly

ing ly subject to t he provisions hereinaf ter conta ined Be i t therefore

enac ted by the Queen ' s Mos t Exce l len t Majesty by a n d wi th t h e advice and consent of t h e Legislat ive Council and Legislat ive Assembly of N e w South W a l e s in Pa r l i amen t assembled and by t h e au tho r i t y of t he same as follows—

1. Such and so m a n y persons as have already become or a t any subject to t h e ru les regula t ions a n d provisions conta ined in t h e said deed of se t t l ement become shareholders or propr ie tors of shares of or in t he capi ta l for t h e t ime be ing of t he said company shall subject never theless to t he condit ions regula t ions and provisions hereinaf ter contained be one body polit ic and corporate by n a m e and in deed by t h e n a m e of " The Tomago Coal M i n i n g Company " and by t h a t n a m e shall a n d m a y sue and be sued by any persons whe the r members of the said corporat ion or not and shall and m a y implead and be impleaded in all Cour ts whatsoever a t law or in equi ty and m a y prefer levy and prosecute any ind i c tmen t informat ion and prosecut ion agains t any person whomsoever w h e t h e r a shareholder or no t for any s teal ing embezz lement fraud forgery or o ther cr ime or offence and in all indict­ m e n t s informations and prosecut ions it shall be lawful to s ta te t h e money a n d goods effects bills no tes securi t ies or o ther p roper ty of t h e said company to be t h e money goods effects bills notes securit ies or o ther p roper ty of t h e said corporat ion and to designate t h e said com­ p a n y by its corporate n a m e whenever for t h e purpose of any allegation of an in ten t to defraud or otherwise howsoever such designat ion shall be necessary and t h e said corporat ion shall have pe rpe tua l succession wi th a common seal which m a y be a l tered varied and changed from t i m e or t imes hereafter shal l and m a y in t h e m a n n e r provided by a n d

t ime to t ime a t t h e pleasure of t h e said corporat ion.

2. The several laws rules r egu la t ions clauses and agreements conta ined in t h e said deed of se t t l ement or to be made u n d e r or by v i r tue or in pu r suance thereof shall be deemed and considered to be and shal l be t h e by-laws for t he t ime be ing of t he said corporat ion save and except in so far as any of t h e m are or shall or m a y be a l tered or repealed by or are or shall or may be inconsis tent or incompat ible w i t h or r e p u g n a n t to any of t h e provisions of th i s A c t or of any of t he laws or s ta tu tes now or hereafter to be in force in t h e said Colony B u t no ru le or by-law shall on any account or p re tence whatsoever be m a d e by the said corporat ion ei ther u n d e r or by v i r tue of t h e said deed

of se t t lement or of th i s A c t in opposition to t h e general scope or t r u e

i n t en t and m e a n i n g of th i s A c t or of any of t h e laws or s ta tu tes in

force for t he t ime be ing in t h e said Colony.

3. I t shall be lawful for t he said corporat ion from t ime to t ime to ex tend or increase i ts capi tal for t he t ime be ing by the creat ion and disposal of new shares in t he m a n n e r specified and set forth and subject t o t h e ru les regula t ions and provisions conta ined in t he said

deed of se t t lement .

4 . The capi tal or jo in t stock for t h e t ime be ing a n d all t he

funds and proper ty of the said corporat ion and the several shares the re in and the profits and advantages to be derived therefrom shall be a n d be deemed to be personal es ta te a n d be t ransmiss ible accord­ ingly subject to t he regula t ions of t he said deed of se t t lement .

5. The corporat ion shall not be bound by any t rus t s or equi­ table in teres ts or demands affecting any shares of t he capi tal s t and ing in t he n a m e of any person as t he ostensible shareholder or p ropr ie to r thereof or be requi red to t a k e any not ice of such t ru s t s or equi tab le in teres ts or demands b u t t he receipt of t he person in whose n a m e the shares shall s tand in t he books of t he said corporat ion shall no twi th­ s tand ing such t r u s t s or equi table in teres ts or demands a n d not ice thereof to t h e said corporat ion be a good valid and conclusive discharge

to

to t h e corporat ion for or in respect of such shares and a t ransfer of t he said shares in accordance wi th t he regula t ions in t h a t behalf conta ined in t he said deed of se t t lement by t he person in whose n a m e such shares shall so s tand shall no twi ths tand ing as aforesaid be b ind ing and conclusive as far as may concern t he said corporat ion against all persons c la iming by v i r tue of such t rus t s or equi table in teres ts or

demands Provided always t h a t n o t h i n g the re in or here in contained

shall be deemed or t a k e n to interfere w i th or abr idge t h e r igh t and

power of a Cour t of E q u i t y to res t ra in t h e p a y m e n t of any such dividend or o ther money payable thereafter by t h e corporat ion in respect of any such shares or the transfer thereaf ter of any such shares or to direct the paymen t of such dividend or o ther money by the corporat ion or t h e t ransfer of such shares by t he person in whose name

t h e y may s tand to such other person as such Cour t may t h i n k fit.

G. I t shall be lawful for t h e said corporat ion no twi ths tanding

any s ta tu te or law to t h e con t ra ry to purchase t ake hold and enjoy to t h e m and the i r successors for any estate t e r m of years or in teres t or unde r license any coal or o ther minera l lands whatsoever and all such houses offices bui ld ings and other lands and he red i t ament s as may be necessary or p roper for t h e purpose of m a n a g i n g a n d conduct ing and ca r ry ing on t h e affairs concerns and business of t he said corporat ion and to sell convey assign assure lease and otherwise dispose of or act in respect of such coal or o ther minera l lands houses offices bui ld ings

a n d other lands a n d he red i t ament s as occasion m a y requi re .

7. I t shall and m a y be lawful to and for all persons who are or shall be otherwise competen t so to do to g ran t sell alien and convey demise assign assure and dispose of u n t o and to t he use of t h e said corpora t ion and the i r successors for t he purposes aforesaid or any of t h e m any such houses offices lands mines minera ls he red i t amen t s and o ther real es ta te whatsoever as aforesaid accordingly.

8. N o dividend or bonus shall in any case be declared or paid out of t he subscribed capi ta l for t h e t ime being of t he said company or otherwise t h a n out of t h e declared surp lus capital and ne t gains and profits thereof.

9. I n any act ion or suit to be b r o u g h t by t h e said corporat ion agains t any shareholder or propr ie tor of any shares in t he capi ta l of the said corpora t ion to recover any s u m of money due and payable to the said corporat ion for or by reason of any call made by v i r tue of th i s Ac t or of t h e said deed of se t t l ement it shall be sufficient for the corporat ion to declare and allege t h a t t he defendant be ing a holder of

to t h e said corporat ion in such s u m of money (as t he calls in ar rear	such or so m a n y shares in t he capi tal of t he said corporat ion is indebted
shall a m o u n t to) for such call of such s u m of money upon such or so m a n y shares be longing to t h e said defendant whereby an act ion h a t h accrued to t he said corporat ion wi thou t se t t ing forth any special ma t t e r and on the t r ia l of such action or suit it shall no t be necessary to prove the appo in tment of the directors who made such call or any other m a t t e r s except t h a t t he defendant a t t he t ime of m a k i n g such call was a holder or propr ie tor of one or more share or shares in t he capi tal of t he said corporat ion and t h a t such call was in fact m a d e and t h a t such notice thereof and of t he t ime fixed for t he paymen t thereof was given as is directed by the said deed of se t t l ement and the said corporat ion shall t he reupon be ent i t led to recover w h a t shall appear due.
10. The share regis ter of the said company shall at all t imes be prima facie evidence to show who are t he shareholders or propr ie tors for the t ime being of t he capi tal thereof and the n u m b e r of shares held by each shareholder .

1 1 . N o t h i n g here in conta ined shall prejudice or be deemed to

prejudice any call made or any cont rac t or o ther act deed m a t t e r or

t h ing

t h i n g entered in to made or done by t h e said company pr ior to or unde r or by v i r t ue of t he said deed of se t t l ement before th i s A c t shall come in to operat ion b u t t h e same call cont rac t act deed m a t t e r or t h ing shall be as val id and effectual to all in ten ts a n d purposes as if th i s A c t h a d no t been passed and m a y be enforced in l ike m a n n e r as if t he said company had been incorporated before t h e same call cont rac t

ac t deed m a t t e r or t h i n g h a d been m a d e entered in to or done.

12 . I n t h e event of t h e assets of t h e corporat ion being insuffi­

cient t o m e e t i t s engagements the shareholders shall in addi t ion to t he a m o u n t of the i r subscribed shares in t h e capi ta l of t h e said corpora t ion be responsible to t he ex ten t only of a sum equal to t he

a m o u n t of the i r said shares .

1 3 . The directors for t he t ime be ing shall have t h e custody of

t h e common seal of t h e said corporat ion and the form thereof and all

o ther m a t t e r s r e la t ing the re to shall from t ime to t ime be de termined by t h e board of directors in t h e same m a n n e r as is provided in and by t h e said deed of se t t l ement for t h e de te rmina t ion of o ther m a t t e r s by t h e board of directors A n d the di rectors p resen t a t a board of directors of t he said corporat ion shall have power to use such common seal for t h e affairs and concerns of t he said corporat ion and unde r such seal t o au thor ize and empower any person wi thou t such seal to execute any deeds and do all or any such other m a t t e r s and th ings as m a y be requi red to be executed a n d done on behalf of t h e said company in conformity wi th the provisions of t h e said deed of se t t lement and of th i s A c t B u t it shal l no t be necessary to use t he corporate seal in respect of any of t he ord inary business of t h e company or for t he appo in tmen t of an a t to rney or solicitor for t he prosecut ion or defence of any act ion suit or proceeding.

14. The directors of t he said company appointed by t h e said deed of se t t lement shall go out of office in t h e m a n n e r provided by the deed of se t t lement A n d vacancies in t he directors shall be tilled u p a t t he t imes and in m a n n e r provided by t h e said deed of se t t lement a n d shall otherwise be subject to t h e several provisions the re in in t h a t behalf contained.

15. I t shall and may be lawful for the board of directors in pu r suance of a resolut ion to t h a t effect t o be passed a t special general meet ings of t h e shareholders to be called for t h e purpose from t i m e to t ime to borrow upon m o r t g a g e of t he p roper ty of t he company or upon debentures chargeable the reon issued u n d e r t h e hands of any two of t he directors named in such resolut ions any sum or sums of money not

exceeding in t he whole an a m o u n t equal to one-half of t he paid u p

capi ta l of t he company Provided always t h a t t he shareholders p resen t

a t any such mee t ing ei ther in person or by p roxy specially given for t h e occasion shall hold shares represen t ing not less t h a n one- th i rd of the 1 paid u p capital of t he company.

16 . This Ac t shall be deemed and t a k e n to be a publ ic A c t and shall be judic ia l ly t a k e n not ice of as such by t h e J u d g e s of the Supreme Cour t of N e w South Wales and by all other J u d g e s Jus t i ces and o thers wi th in t he Colony of N e w South Wales and i ts dependencies w i thou t be ing specially pleaded and t h e same whenever cited shall be suffi­ cient ly described as " The Tomago Coal M i n i n g Company ' s Inco r ­

pora t ion A c t 1 8 6 1 . "

17 . A n d be it enacted t h a t in th is Act t h e following words

shall have t he following mean ings hereby assigned to them unless

the re be someth ing in t h e subject or context r e p u g n a n t to such

cons t ruc t ion ( tha t is to say) words impor t ing t he p lu ra l n u m b e r shall

inc lude t h e s ingular and words impor t i ng t h e mascul ine gender shall

inc lude females and bodies corpora te as A\rell as individuals .

A n