In the matter of Railway & Transport Health Fund Ltd [2020] NSWSC 1435

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Railway & Transport Health Fund Ltd [2020] NSWSC 1435 Hearing dates: 9 October 2020 Decision date: 16 October 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Declarations made that notices of proposed resolutions and calling a general meeting are invalid. Declaration that directors are not compelled to call a general meeting. First Defendant to pay costs. Catchwords: CORPORATIONS — Meeting of members — Resolutions — Resolutions for removal of directors — Resolutions for appointment of new directors — Resolutions proposed by shareholders under ss 203D and s 249D — Where constitution provides mechanism to appoint new directors only at AGM — Where constitution excludes replaceable rules — Whether implied power to appoint directors outside of AGM CORPORATIONS — Meeting of members — Resolutions — Where notice of meeting provides for replacement of six of seven directors — Whether altering motion to removing but not replacing these directors would require new notice of meeting Legislation Cited: - Corporations Act 2001 (Cth), ss 201A, 201G, 203D, 249D, 249G Cases Cited: - Aveo Group Ltd v State Street Australia Ltd [2015] FCA 1019 - Barron v Potter [1914] 1 Ch 895 - CIC Insurance Ltd v Hannan & Co Pty Ltd (2001) 38 ACSR 245 at 247; [2001] NSWSC 437 - Donaldson v Natural Springs Australia Ltd [2015] FCA 498 - DVT Holdings Ltd v Bigshop.com.au (2002) 42 ACSR 378; [2002] NSWSC 571 - Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] ALR 1046 - Link Agricultural Pty Ltd v Shanahan [1999] 1 VR 466; (1998) 28 ACSR 498; [1998] VSCA 3 - Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144 - National Roads & Motorists Association Ltd (NRMA) v Bradley (2002) 42 ACSR 616; [2002] NSWSC 788 - Oil Basins Ltd v Bass Strait Oil Company (2012) 297 ALR 261; [2012] FCA 1122 - State Street Australia Ltd (Trustee) v Retirement Village Group Management Pty Ltd (2016) 113 ACSR 483; [2016] FCA 675 - Taylor v McNamara [1974] 1 NSWLR 164 - Totally and Permanently Incapacitated Veterans' Association of NSW Ltd v Gadd (1998) 146 FLR 161; 28 ACSR 549 - Worcester Corsetry Ltd v Witting [1936] Ch 640 Texts Cited: - Ford, Austin and Ramsay's Principles of Corporations Law (LexisNexis), [7.230.21] and [7.370] - Australian Corporations Law Principles and Practice (LexisNexis online) Category: Principal judgment Parties: Railway & Transport Health Fund Ltd (Plaintiff) Mark Diamond (First Defendant) Representation: Counsel: N Hutley SC/N Kirby (Plaintiff) R Newlinds SC/A D Lang (First Defendant)