Section 246B — Corporations Act 2001 (Cth)

If constitution sets out procedure

(1) If a company has a constitution that sets out the procedure for varying or cancelling:

(a) for a company with a share capital—rights attached to shares in a class of shares; or

(b) for a company without a share capital—rights of members in a class of members;

those rights may be varied or cancelled only in accordance with the procedure. The procedure may be changed only if the procedure itself is complied with.

Note: A CCIV must have a minimum of 1 class of shares per sub‑fund: see section 1230A.

If constitution does not set out procedure

(2) If a company does not have a constitution, or has a constitution that does not set out the procedure for varying or cancelling:

(a) for a company with a share capital—rights attached to shares in a class of shares; or

(b) for a company without a share capital—rights of members in a class of members;

those rights may be varied or cancelled only by special resolution of the company and:

(c) by special resolution passed at a meeting:

(i) for a company with a share capital of the class of members holding shares in the class; or

(ii) for a company without a share capital of the class of members whose rights are being varied or cancelled; or

(d) with the written consent of members with at least 75% of the votes in the class.

Note: This subsection applies to a CCIV in a modified form: see section 1227J.

(3) The company must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or cancellation is made.

(4) An offence based on subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Related sections

• s 240 — Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave
• s 241 — General powers of the Court
• s 242 — Power of the Court to make costs orders
• s 246C — Certain actions taken to vary rights etc.
• s 246D — Variation, cancellation or modification without unanimous support of class
• s 246E — Variation, cancellation or modification with unanimous support of class

Research how courts apply s 246B

BriefBridge searches Australian caselaw by meaning — every answer cited to the paragraph.