Wun v CellOS Software Ltd [2018] FCA 1947

Wun v CellOS Software Ltd [2018] FCA 1947

The Board of CellOS Software Ltd validly exercised its power under cl 14.1(d) of the Constitution to postpone the extraordinary general meeting convened by members under s 249F of the Corporations Act 2001 (Cth), provided appropriate notice was given; the power does not abrogate the statutory right under s 249F but is procedural; the Board's postponement decision was for a proper purpose and was justified given the circumstances. The Notice of Meeting dated 20 March 2018 was invalid due to defects in the proxy process and confusion regarding electronic lodgement, contrary to s 250B of the Corporations Act.

Parties
First Applicant: Lim Chean Wun; Second Applicant: Lim Geok Boon; Third Applicant: Jeffrey Sng; Respondent: CellOS Software Ltd
Jurisdiction
Australia
Judgment Date
10 May 2018
Procedural Posture
Corporations Law Application / Final Hearing
Outcome
Application dismissed; declaratory relief granted; costs ordered against applicants; Notice of Meeting declared invalid.
Legal Topics
Calling of General Meetings, Power to Postpone Shareholders' Meetings, Company Constitution and Statutory Rights, Proxy Voting Requirements, Statutory Interpretation
Corporations Calling of General Meetings Power to Postpone Shareholders' Meetings Company Constitution and Statutory Rights Proxy Voting Requirements Statutory Interpretation

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Parties

Lim Chean Wun

First Applicant

Lim Geok Boon

Second Applicant

Jeffrey Sng

Third Applicant

CellOS Software Ltd

Respondent

Procedural Posture

Corporations Law Application / Final Hearing

Legal Issues

  1. 1 Whether the Board cancelled or postponed the Proposed EGM
  2. 2 Whether power in company constitution to postpone a meeting called under s 249F of the Corporations Act is valid
  3. 3 Whether Board exercised postponement power for improper purpose

Ratio Decidendi

The Board of CellOS Software Ltd validly exercised its power under cl 14.1(d) of the Constitution to postpone the extraordinary general meeting convened by members under s 249F of the Corporations Act 2001 (Cth), provided appropriate notice was given; the power does not abrogate the statutory right under s 249F but is procedural; the Board's postponement decision was for a proper purpose and was justified given the circumstances. The Notice of Meeting dated 20 March 2018 was invalid due to defects in the proxy process and confusion regarding electronic lodgement, contrary to s 250B of the Corporations Act.

Court Disposition

Application dismissed; declaratory relief granted; costs ordered against applicants; Notice of Meeting declared invalid.

Orders

  • The Application filed on 13 April 2018 is dismissed.
  • The applicants jointly and severally pay costs to the respondent.