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Book/movie review
22/08/2022
Introduction
The Corporations Acts statutory oppression remedy under Part 2 F.1 is contained in
s 232.
What does s 232 provide?
Section 232 allows the court to provide members with a wide range of remedies.
A member needs to show the conduct of a companys affairs is contrary to the interests of the members as a whole, oppressive, unfairly prejudicial or unfairly discriminatory.
Step One: Can the person complaining of oppression apply for a remedy under s 232?
Section 234:
An application can be made by members, past members or a person approved by ASIC
A member can apply even if the oppression relates to:
the member in a capacity other than a member
another member in their capacity as a member
A person removed from the register of members because of a selective capital reduction
A person who will cease to be a member if the oppression action relates to the circumstances in which they cease to be a member
A person whom ASIC thinks appropriate having regard to its investigations into the companys affairs
Apply to the facts
Step Two: Did the conduct complained of occur within the course of the companys affairs?
Section 53:
The affairs of a company are defined in section 53 and include;
– Its promotion, formation, membership, trading activities, profits and losses;
– Its internal management and proceedings, and
– Voting rights.
Apply to the facts
Step Three: Does the conduct being complained of fit within the meaning of s232. Is it:
contrary to the interests of the members as a whole,
oppressive,
unfairly prejudicial or
unfairly discriminatory?
The Legal Test: from Wayde v New South Wales Rugby League ltd (Text p 325-6)
Was directors decision one that no board of directors acting reasonably would have made? (an objective test)
(Apply similarly to major shareholders where relevant to the facts)
Not necessary for directors/majority shareholders to have acted dishonestly or intended to harm the minority it is a question of impact is the conduct oppressive in effect?
To assist in applying the test it can be asked: Have the reasonable expectations of a member been breached?
What would be reasonable expectations?
Have the directors/ majority shareholders failed to meet those expectations?
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