Passing a company resolution

This is Information Sheet 22 (INFO 22).

A resolution is a formal way in which a company can note decisions that are made at a meeting of company members. There are two types of resolutions: ordinary and special.

Under the Corporations Act 2001, most of the decisions that affect a company need to be made by a resolution. Additionally, a company's constitution may have its own rules about what decisions need to be made by resolution.

• How to pass a resolution
• Ordinary resolutions
• Special resolutions

How to pass a resolution

For a resolution to pass, it must meet the following criteria:

• the resolution is passed at a meeting which is properly convened and satisfied any quorum (minimum number of members are present) requirements
• the resolution is put into the company's records within one month of the meeting being held, and
• the minutes of the meeting where the resolution was passed must be signed by the chair of the meeting, or the chair of the following meeting.

If these criteria aren't met, the resolution could be considered as invalid. You also need to determine if you are required to pass an ordinary resolution or a special resolution.

If you are passing a special resolution, there may be other requirements you need to fulfil. See 'Special resolutions' below for more information.

Voting on resolutions

Where a company has share capital, a member has one vote for each share they hold. These votes are subject to any rights or restrictions attached to their specific class of shares.

If the company doesn't have share capital, each member is entitled to one vote. The chair has a casting vote. If the chair is also a member, they have a member's vote as well.

Notice of a meeting of members for a company or scheme

Before a meeting of members takes place, the company must give its members at least 21 days notice. A listed company must give at least 28 days notice.

Shorter notice can be given if the members that hold at least 95% of the company's votes agree. This does not apply for a resolution to appoint/remove a director or remove an auditor.

Registered schemes must give at least 21 days notice. This cannot be shortened.

The notice must include:

• the date and time of the meeting
• the location
• an electronic address (i.e. email)
• planned business for the meeting
• information about any proposed special resolutions, and
• information about proxy votes.

Proxy documents for members of listed companies

The notice must also provide an electronic address (e.g. email) where any proxy vote documents can be sent.

Listed companies are required to record in the minutes:

• the total number of proxy votes, and
• how they were cast.

This must be done for each separate resolution voted on at a meeting of members.

The above requirements are mandated by law and must be followed for both ordinary and special resolutions, regardless of any conflicting requirements in the company's constitution.

Ordinary resolutions

Ordinary resolutions are not specifically defined in the Corporations Act and need only a simple majority (i.e. normally, more than 50% of votes cast in favour) to pass.

Some decisions that may only require an ordinary resolution include:

• election/re-election of directors
• appointment of an auditor
• acceptance of reports at the general meeting
• strategic or commercial decisions
• increasing or reducing number of directors
• passing a board limit resolution (for public companies).

Special resolutions

Special resolutions are needed for certain changes as defined in the Corporations Act. Decisions like changing a company's name, winding up the company, or changing the company's type will require a special resolution.

Special resolutions must meet certain criteria before they can be voted on, or passed:

Notice of a meeting of members for a company or registered scheme

If a special resolution is being proposed at a meeting, the notice to members must include the intention to vote on the special resolution and details of its contents. This is in addition to the other standard requirements like providing a date and time, proxy information, etc.

Passing a special resolution at a meeting

For a special resolution to pass, at least 75% of the votes cast must be in favour.

Passing a special resolution without holding a meeting

A proprietary company with only one member of the company can pass a special resolution by signing a document that sets out the details of the resolution.

A proprietary company with more than one member can pass a special resolution by getting all members entitled to vote to sign a document that states they're in favour of passing the resolution.

Where a partnership holds shares together, each member must sign.

The resolution is considered as 'passed' when the last member signs (i.e. 100% of voting members agree to pass the resolution.)

The 75% threshold only applies to votes cast at a physical meeting; 100% of votes are needed to pass a resolution without a meeting.

Additionally, a resolution to remove an auditor must be passed at a physical meeting.

Once a special resolution has been passed, what forms need to be lodged?

Below is a list of some scenarios where you may need to pass a special resolution and any documents you may need to lodge with us.

The forms you need to lodge will depend on what the special resolution relates to. For example, to change a company name, you need to pass a special resolution and lodge a Form 205 Notification of resolution.

You may also need to include a copy of the special resolution that was passed and any supporting documentation (e.g. minutes of the meeting where the resolution was passed)

Changing the company's name

Lodge a Form 205 Notification of resolution online

Changes to the company's constitution or removing the company's constitution

Lodge a Form 205 (public companies only)

Modifying a registered scheme's constitution

Lodge a Form 5101 Notification of change to managed investment scheme's constitution

Company to be wound up voluntarily or wound up by the Court

Lodge a Form 205.

Changing the company's type

Lodge a Form 205 and a Form 206 Application for change of company type.

Outline powers and duties of an appointed liquidator

Lodge a Form 205.

Giving an appointed liquidator the power to accept shares or other items that are property of the company and sell them

Lodge a Form 205.

Confirming that any arrangements between creditors and the company are binding if the company is being wound up

Lodge a Form 205.

Outlining the procedure for varying the rights attached to shares or the rights of members

Lodge a Form 2205 Notification of resolutions regarding shares. Public companies will also need to lodge a Form 210 Notification of statement of special rights carried by shares. You'll only need to pass a special resolution if the company doesn't have a constitution, or the constitution does not already outline the procedure.

A limited company provides that some or all of its unpaid share capital can be called upon if the company goes into external administration

Lodge a Form 2205.

Selectively reducing share capital

Lodge a Form 2205 and a Form 2560 Notification of reduction in share capital details.

Approving financial assistance for the company to become a shareholder of the company itself

Lodge a Form 2205, a Form 2601 Notification of intention to give financial assistance, and a Form 2602 Notification of financial assistance details.

Approving a public company to give financial assistance to one of its subsidiaries so the subsidiary can purchase shares in the parent company

Lodge a Form 2205, a Form 2601, and a Form 2602.

Converting ordinary shares into preferential shares

Lodge a Form 211 Notification of division or conversion of classes of shares.

Issuing preferential shares

Lodge a Change to company details (Form 484) online. You don't need to pass a special resolution if the company's constitution already provides for this change.

Shareholder approval for selective buy back of shares

Lodge a Form 280 Notification of share buy-back details.

Transferring the company's registration to a State or Territory registration

Lodge a Form 6014 Application for transfer of registration of a company to registration under a law of a State or Territory.

Important notice

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. We encourage you to seek your own professional advice to find out how the applicable laws apply to you, as it is your responsibility to determine your obligations.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.