Minutes

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Litera scripta manet, verbum ut inarie perit - Words fly, writing remains

Foreword

This document has been produced by the Chartered Secretaries New Zealand Inc. in consultation with member and non-member company secretaries. It is intended to be an authoritative guide to minutes and minute-taking for New Zealand registered companies. The minutes shown herein will not be sufficient for every Not-for-Profit organisation and may not meet the requirement of the prudent persons’ rule for Trustees.

Control and direction of companies is exercised by meetings, both General and Board. Minutes of both need to be made not only as a matter of record, but also to evidence that duties and responsibilities have been exercised as required.

To be able to evidence the latter a record should be made even of "meetings" of a single person, such as where there is only one shareholder or director.

Although there is no obligation to hold Board Meetings it could be difficult to prove that the directors had exercised their duty of care if there is no record of decisions taken. There is no set format for minutes but it is generally accepted that minutes should record decisions only, rather than commentary, argument and/or reasons for the decisions

For those who are newly appointed to the office of company secretary, this document should provide invaluable guidance as to the importance of minutes.

We record our appreciation and thanks to Mark Robertson Shaw of The F.I.R.S.T. Foundation who prepared this booklet.

Introduction

There is no common law requirement for minutes of meetings to be kept. However, the statutes which regulate the affairs of bodies usually require minutes to be kept, while their rules, articles or constitutions invariably do this.

Minutes are the official, permanent record in writing, expressed in formal terms, of the business transacted at a meeting. The purpose of minutes is to provide an accurate, objective account of the proceedings of a meeting and in particular the decisions made.

It is imperative that decisions made are recorded precisely and maintained securely as all new and developing policy and significant changes in procedure are to be found within those decisions.

The office of the Company Secretary as a minute taker is as old as the concept of the corporation or company. The latter has a respectable history looking back beyond the trading companies of the 16th, 17th and 18th centuries to the guilds, monasteries, colleges and municipalities of the early Middle Ages. Scholars trace the office back even further to the Forbidden City in China, the Roman municipum and the Greek city state, and to the Pharoahs, who had their secretaries 5,000 years before Christ. Memorial to these early corporate managers can still be seen in the tombs on the outskirts of Cairo.

All these institutions were impersonal legal entities owning property or engaging in mercantile transactions. They dealt with the outside world through secretaries, clerks, bursars, or other permanent officers, however described, who were the lineal ancestors of the modern company secretary and corporate manager. Such officers also had internal duties. For example, as well as an alderman and one or more wardens or stewards, the early guild had a dean or clerk who summoned meetings and kept the register of members. The duties of the Secretary of the Bank of England, appointed at its inception in 1694, were similar, and the same can be said for the secretaries of other trading companies incorporated by Royal Charter or Act of Parliament in the century and a half before and after 1694.

Companies have always been required to keep records in one form or another to show the state of affairs of the company and record decisions made by their managers and or owners. The secretary has historically been the person who performed these tasks.[1]

In New Zealand the 1993 Companies Act requires that minutes of meetings be kept, signed, entered in books and preserved as a record, but it does not give much useful guidance about what should be in them.

Minutes do not take themselves, and nor do meetings just happen, they require an individual to "craft" them and to organise the meeting. This is one of the core duties of the company secretary of a New Zealand company.

A distinction between minutes and reports should be recognised and the differences appreciated. For the most part minutes record no more than the occurrence of the meeting, essential details of the proceedings and the decisions which were made, expressed in a factual and affirmative manner, thus they are confined to recording the things that were achieved.

Minutes comprise resolutions with explanatory narrative only where necessary to provide essential information and circumstances leading to a resolution, or desirable to clarify reasons for, or a background to, a particular decision. They provide directors and management with a record of what occurred and action required. As a result the minutes become the foundation upon which future decisions will be based.

Over the last few years it has become increasingly important for the corporate record to demonstrate that the board has done what was required to discharge its duty of care. Whilst minutes can be a vital link in shielding directors and the company from legal liability it can be equally true that over-elaborate minutes can inculpate an organisation or its directors. It is important for minutes to exclude unnecessary material, a detailed recording of a disagreement or controversy is more likely to do harm than good.

The art and science of minute taking is a careful crafting of words, and whilst they must be capable of sharpening memories on the one hand they must sufficiently demonstrate the proper discharge of the duties of the directors.

In the well known 1992 case of AWA in Australia, it was the minutes that saved the non-executive directors from heavy damages. Because the minutes clearly demonstrated that they had fulfilled their duty of care by establishing a policy and requesting from management confirmation of it being adhered to and that this was recorded in the minutes.

"I am satisfied that the directors laid down certain basic principles. These were that no risks were to be taken..."

Over the last few years as the powers of regulators have grown, both they and the courts have shown themselves ready to seek discovery of minutes. When those minutes contain too much or too little detail they may make things either easy for those on a commercial fishing expedition or not sufficiently detailed to assist directors.

Preparation of the minutes is one of the Company Secretary's core duties, and being satisfied that they provide an accurate record, is among the chairman's most important.

Core Duties Of The Company Secretary

The core duties of the Company Secretary of a New Zealand company limited by shares are as follows:

q Co-ordinating the operation of the company's formal decision making and reporting machinery

q Originating and obtaining internal and external agreement to all documentation for circulation to shareholders

q Maintaining the books and statutory registers as set out in the Companies Act 1993 section 189

An efficiently administered company secretariat will institute procedures whereby:

q Minutes are stored in a secure and safe environment, separately for each company within the group

q Minutes should be maintained in sequential order and in appropriate categories such as directors' minutes , members' minutes etc

q An index of projects is maintained and each is adequately cross-referenced, dated and available for filing and retrieval

Types Of Meetings

Board Meetings

Nowhere within the 1993 Companies Act does it prescribe the number of Board Meetings that a company is required to hold within any one year.

What then is a reasonable frequency? Regular board meetings should rarely be held less than quarterly and more often will be held monthly or on average ten times a year. Large organisations meet even more frequently than smaller ones, and public companies meet more frequently than their private counterparts. The frequency of board meetings will also be dependant upon the use of board committees.

Annual Meeting of Shareholders

Section 120 of the Companies Act 1993, as amended by Section 3 of the Companies Act 1993 Amendment Act 1996, requires the board to call an annual meeting of shareholders once in every calendar year, in the case of an exempt company, if all the shareholders agree, not later than 10 months after the balance date of the company. In the case of a company which is not exempt not later than 6 months after the balance date of the company. And in all cases not later than 15 months after the previous annual meeting

Special General Meeting

Under Section 121 of the Companies Act 1993 a special meeting of shareholders, or classes of shareholders, entitled to vote on an issue may at any time be called by the board or a person authorised by the constitution to call a meeting or where a written request is received by the board from shareholders holding shares carrying not less than 5% of the voting rights entitled to be exercised on the issue.

Each of these classes of meeting requires a different type of minutes to be produced as a consequence of the different types of resolutions required of the classes of meeting.

The decisions of meetings are taken by the passing of resolutions. Whilst this is true in theory, in practice most Board Meetings' minutes will record 'it was agreed that...' indicating that the decision was taken by consensus agreement rather than by means of a formal ratification of the resolution.

There are two distinct styles or classes of minute and a third type being a combination of both styles.

Minutes of narration record matters that do not result in a resolution, but are important enough to be recorded, for example, a matter that was considered and not carried, or was deferred for further consideration or information.

RESOLVED that a casual vacancy caused by the death of Mr Smith be filled by the appointment of Mrs Jones to the Board.

This is often all that is necessary. The precise words of the resolution are preceded with either "RESOLVED" or "RESOLVED THAT" which ensures that it is brought to the attention of anyone who reads the minutes, including anyone absent from the meeting, that these decisions were taken which had some consequential effect or involved some form of action to be taken.

The blending of the two classes of minute may allow for the recording of a more precise minute

Most large companies have rules in their own constitutions to cover detailed aspects of their meetings. In their absence and subject to any specific requirements of the Companies Act the Westminster Rules or Rules of Debate should be and may well be enforceable through common law.

Style And Format

It is useful to have a consistent or corporate style so that all those who are expected to read the papers can do so quickly and efficiently.

In order to highlight significant matters the following words should appear in bold and in capital letters at the left hand side of the page:

- as these are not of the same significance. They should therefore appear in the main body of the text.

The Agenda

No standard agenda, applicable to all organisations, is possible. The principal activities and main issues vary too greatly among organisations.

If the agenda is well set and Board papers well researched and presented with clear recommendations then the minutes can almost be prepared in advance of the meeting and which the Chairman may use as a running sheet. Naturally this means that a first draft of the minutes will be available for the Chairman and CEO almost immediately after the conclusion of the meeting.

The agenda itself can be broken down into three distinct categories, regular, periodic and special.

All meetings commence with the same formal matters, the confirmation of a quorum, recording of attendance and apologies, agreeing the agenda and the addition of any missing item and the confirmation or amendment and subsequent confirmation of the minutes of previous meeting.

Opportunity is usually provided for those present to discuss any matters arising from the minutes not covered elsewhere within the agenda and for the list of actions to be taken from the previous meeting to be reviewed for completion.

The other items which appear regularly on an agenda are those which the Chairman (and Directors in the case of a Board meeting) believe are the most important to ensure they carry out their duty as a director.

Other regular items likely to be included on the agenda consist of Financial matters compared with budget and previous year.

Such items should be presented in a logical and consistent order to allow for easy comparison with earlier reports also allowing comparison of actual outcomes against management forecast.

q Performance indicators reflecting actual performance in selected non-financial respects compared with agreed targets

q Operating data e.g. orders received, output achieved, indicators of service to customers

q Organisations with a large workforce my need to consider personnel issues such as number of recruitments and departures and the amount of over time worked

Legal matters

q Delegated authority reports - where the Board has delegated authority it may wish to receive a report on the use of any such delegated power.

q Almost all organisations will have matters that are of particular importance and on which regular reports will be required, for instance banks will require reports on loan portfolios and bad debts and airlines on safety matters.

q Reporting progress to owners through annual financial accounts (or where appropriate six monthly or quarterly)

The list above is not intended to cover the needs of all organisations, and of course not all items are applicable in all cases.

Special Items

Special board meetings may be needed or special items may be added to scheduled meetings which may then be extended.

Special agenda items may arise out of key resignations, legislative change, hostile takeover bids etc. Special items may also arise out of constructive initiatives. However with good planning and their identification in a strategic plan and budget these items should not be bolts from the blue.

Minutes of First Meeting of Directors held on [DATE] at [ADDRESS] at [TIME]

Apologies: An apology for absence due to illness was received from UVW and accepted. Those present signed the attendance book (2)

1. Election of Chairman

The secretary reported that all matters in connection with the registration of the company had been attended to, and produced the Certificate of Incorporation and a copy of the Constitution as registered.

3. Appointment of Managing Director

4. Appointment of Secretary

5. Registered Office

6. Auditor

7. Bankers

RESOLVED that a banking account for the company be opened with [BANK NAME] and is hereby empowered to honour cheques so long as its account shall be in credit, or, [CONDITIONS] (4)

RESOLVED that the seal, an impression whereof is affixed to these Minutes, be and is hereby adopted as required of the Constitution.(5)

9. Agreement with Vendor

RESOLVED that the Preliminary Agreement dated [DATE] and made between ABC as vendor and Ms. A. Lawyer as trustee for the Company be adopted by the company.

RESOLVED that 500 ordinary shares subscribed for by ABC be considered as fully paid up in accordance with the Preliminary Agreement so adopted by the company, and that his name be entered in the Register of Members as holder of such shares.

RESOLVED that the five thousand ordinary shares subscribed for by the understated be allocated as follows

RESOLVED that JKL the Secretary be authorised to ensure that the books of account necessary to record financial transactions of the company are kept.

Instructions were given to JKL the Secretary to forward the necessary application form for the company to be registered for GST

The date of the next meeting of directors was fixed for the [DATE], at the same time and place.

1. Pages of minutes should be consecutively numbered (particularly if a loose leaf binder is used). The subject of each minute (where applicable) should be indexed and a degree of cross-referencing provided. (The numbers for following pages have been omitted here purely in the interests of clarity).

2. Stating the exact length of attendance of advisers, and even of members if they do not stay for the whole meeting , is advisable.

3. A resolution not to support the appointment of an auditor under Section 196 (2) of the Companies Act 1993 requires unanimous approval. A written resolution in lieu of a meeting to pass such a resolution must be signed by all shareholders entitled to vote

4. It is important to check with your bankers for the conditions under which your account will operate and where required always take the necessary steps to have these ratified by the Board.

5. Although not a statutory requirement, the use of a Register of Seals or Documents Executed and subsequent approval of all entries provides Board authority for the items. It also enables details to be noted of items signed as deeds where the use of the seal has been dispensed with. The Chairman should sign under the last number authorised at the meeting and should add the date. Ideally the number of each entry in the Register should appear on the item sealed or executed as a further cross-reference of authority.

Apologies: An apology for absence due to illness was received from Mr UVW and accepted.

RESOLVED THAT the minutes of the Board Meeting and of the Annual General Meeting held on

[DATE] as circulated previously were taken as read, confirmed as a true and correct record of the proceedings, approved and signed. (4)

RESOLVED THAT a share transfer covering 1000 ordinary shares in the company from QWE to RTY is approved, that shares in the name of RTY be issued and the required entries be made in the Register of Members. The Secretary was asked to write personally to RTY welcoming him/her as a shareholder. ACTION: JKL (5)

ACCEPTED a report from the Company Secretary recommending that responsibility for the share registration work of the company be placed with Share Registrars Ltd was accepted and the terms of the contract approved. The Company Secretary was requested to make the necessary arrangements in liaison with the Chairman. ACTION: JKL

NOTICE of general disclosure by DEF of interest by virtue of being a party to a consulting agreement with Share Registrars Ltd did not take part in any discussion or decision) (6)

ASD reviewed the Managing Director's report for the month of [DATE] as previously circulated.

RESOLVED THAT the Managing Director's report for the month of [DATE] be received.

IOP reviewed the Financial report for the month of [DATE] and the year to date as previously circulated.

The full set of management accounts for [MONTH] and the cumulative six months were tabled and discussed in detail.

The favourable comparison with budget was welcomed, as was the Managing Director's opinion that the trading and financial situation would continue to show improvement, both in real terms and against budget.

It was noted that the situation regarding discounts and promotional payments was still being clarified and additional controls would be introduced from the start of the new financial year.

A number of estimated provisions were listed for possible incorporation in the year-end accounts. ACTION: ABC

It was AGREED to change the company's accounting policies so that depreciation for the current year would be charged on vehicles, office equipment and computers: 33 per cent p.a. straightline.

It was noted that this change was required to be in the Accounting Policies note to the next set of audited accounts.

a) It was agreed that a further five production units at a cost of around $4,000 each could be purchased in stages over the remainder of [PERIOD] to allow the sale of [DETAIL]. UVW would authorise each item bearing in mind the effect on cash flow. (7)

b) The Chairman referred to Capital Expenditure Project form number 13/01 for the investment in [DETAIL] which projected a first year return of 14 per cent rising to 17 percent in year 2 on a fully absorbed basis. The project was approved for implementation no earlier than [DATE]. ACTION: ABC

The latest projection for the period ending [DATE] was tabled, discussed and approved.

Investigations for the replacement of company vehicles allocated to six area managers would be carried out. The guidance of the auditors as to the company's and individual's tax situation would be sought. ACTION: GHI

vi. Bank Mandate

The Secretary reported that the company's bankers had requested that a new mandate on the main drawing account be completed.

RESOLVED THAT the company operate the No. 1 Main Drawing account in its name with the

[NAME] on the terms and subject to the restrictions set out in a new mandate a copy of which initialled by the Chairman for the purposes of identification is attached to these minutes, and that the Secretary is authorised to take such actions as might be necessary to give effect to this resolution ACTION: JKL (8)

The Secretary reported that in the absence of UVW he had negotiated an additional $100,000 overdraft facility with the [NAME] on the same terms as the existing facility. This additional borrowing was available for the 26 weeks until the end of [DATE]. Although they had expected to receive documentation requiring Board approval to evidence this borrowing, this had failed to arrive.

RESOLVED THAT the Chairman, ABC and UVW are authorised to sign such documents and take such actions to provide the company's bankers with the documentation they required in order to facilitate the advance of this additional borrowing requirement.

The Secretary was instructed to let each Board member have copies of the relevant items and documentation when these were to hand.

The Secretary confirmed that even with this additional borrowing the limits in the Constitution had not been breached. ACTION: XYZ, ABC, JKL (9)

The Managing Director reported that [RESUME OF REPORT]. An analysis showing the deterioration over a five year period of sales of the main product was tabled, and it was agreed that the deadline for delivery of supplies of Project X needed to be brought forward to compensate for the expected shortfall in sales in the latter part of the calendar year.

DEF requested that his dissent from this course of action be noted in the minutes with the note that in his opinion not enough was being done to motivate the sales force and he had serious doubts about the effectiveness of the recently appointed Sales Manager. (10)

i. ACCEPTED a report from the Divisional Director (Personnel) had been sent to all members and the contents were accepted.

AGREED that negotiations should commence with employee representatives to try to agree on the wage increase with effect from [DATE] along the lines outlined in the report.

ii. The Secretary reported that he had investigated the requirements of the current Occupational Safety and Health legislation and tabled a brief resume of the action he felt was necessary for the company to take to comply with the requirements. The Board requested him to obtain detailed cost estimates for the various requirements with an indication of the proposed timetable for implementation of each recommendation. ACTION: JKL

(At this point DEF apologised and, with the Chairman's permission left the meeting.) (11)

i. Little progress had been made on any of the pending rent reviews which would update the list accompanying the agenda for the meeting other than the following : (12)

[FACILITY NAME]: Approval was granted for a letter of response to the Landlords requesting that an extension to the user be agreed.

[FACILITY NAME]: Evidence thought to be misleading had been submitted by the Landlord's agent.

[FACILITY NAME]: The Landlord's agents had reduced their figure for the reviewed rent to [AMOUNT].

ii. The sale of [FACILITY NAME] was proceeding. An exchange of contracts is expected by mid July and completion by 1 August. It was noted that receipt of the sale monies had not been built into the cash flow forecast and that if the sale was completed as anticipated the additional overdraft facility would not be needed beyond the end of July.

iii. The possibility of selling the business and licensing or underletting the lease at [FACILITY NAME] was being pursued urgently.

iv. Insurance: The Secretary would draft a letter for Landlords requesting that the interest of the company be noted on the insurance policy to ensure any liability in the event of loss was minimised. ACTION: JKL

The Secretary produced the Register of Seals/Documents Executed to the Board and approval was granted to items numbered 345 to 357 and 359 to 361, and approval granted to the signing as a deed of item 358. The Chairman was authorised to sign the register in evidence of this approval. (13)

The dates of the meetings of the Board for the remainder of the year were confirmed as [DATES]

The Secretary was requested to inform Messrs DEF and UVW of these dates as soon as possible. (14)

2. Stating the exact length of attendance of advisers, and even of members if they do not stay for the whole meeting, is advisable.

3. Not only has the apology been noted but it has been accepted. If a director is absent from Board Meetings for six months or more without good cause co-directors should look to his or her removal from office (the Constitution or rules may specify a period). Some companies require their directors to sign an attendance book (although it would not normally be necessary to minute this if it is done as routine), but this is not a legal requirement.

4. See note 15 below regarding the advisability of signing the minutes. Ideally the Chairman should initial each page of the minutes except for the last page which should be signed.

5. Under section 95 of the 1993 Companies Act share certificate are now only required to be issued upon receipt of an application for a share certificate by a shareholder.

Placing the initials of the person due to deal with the item enables the minutes (already a document of record and reference) to act also as a means of encouraging action. Some companies repeat the action required with the initials and even completion dates at the end of the minutes.

6. It is important that any director with an interest in the subject matter should declare that interest and that the pointed should be noted. Failure to do so could incur a fine of $10,000 ref. Companies Act 1993 s.140(4). The minutes should be referred to regarding the QUORUM of the meeting, the directors’ ability to speak and/or vote on the subject, and/or the directors’ rights as regards any profit made from the contract.

7. Framing a decision in this way leaves some leeway for delay should the circumstances of the time warrant.

8. Where a lengthy document requires approval, rather than repeating the whole item in the minutes, photocopying it and attaching it to the minutes is advisable. It should then be numbered either consecutively after the last page number for that meeting, or take a number of the past page and 'a', 'b', 'c', etc. added with a designatory letter for each page of the item. Financial sector institutions may wish to have a set form of resolution used.

9. Since the Constitution often sets out requirements on the Board's actions, reference should be made to them.

10. In the event that any director wishes his/her dissent to be recorded this must occur although often the Chairman will seek to avoid the inclusion of such comment since it evidences a lack of unanimity.

11. Ideally, all directors should be present for the whole meeting but if this is not possible, the time that a director left (or, if late, arrived) should be noted in the minutes.

12. To save the time of the meeting, it may be possible to distribute a report (as here) with the Agenda and simply report on any update since the date of the Agenda.

13. Although not a statutory requirement the use of a Register of Seals/Documents Executed and subsequent approval of all entries provides Board authority for the items. It also enables details to be noted of items signed as deeds where the use of the seal has been dispensed. The Chairman should sign under the last number authorised at the meeting and should add the date. Ideally the number of each entry in the Register should appear on the item sealed or executed as a further cross-reference of authority.

14. When meetings are arranged in the absence of a colleague, these may clash with other commitments already entered into. Early advice of the dates is essential. Ideally the dates of Board Meetings should be arranged on a rolling 18 month basis. With the immediate six month dates firm, the following six months subject to some leeway and the third six months indicative only. Progressively, of course, the six month sections become firmer with additional outline indications added.

15. Inserting a place for the Chairman to sign and adding the date (of the next planned meeting) emphasises the importance of signing as well as completing the audit trail.

Minutes of the [NUMBER] Annual Meeting of Shareholders, held at the Registered Office [ADDRESS] held on [DATE] at [TIME]

RESOLVED THAT the minutes of the previous Annual General Meeting held on [DATE] as circulated previously were taken as read, confirmed as a true and correct record of the proceedings, approved and signed. (3)

The Chairman referred members to the Report and accounts for the year ended [DATE] and the Balance sheet as at that date which had been circulated with the notice of meeting. The Chairman requested MNO of [ACCOUNTANCY FIRM] to read the audit report (4)

RESOLVED that the Director's Report and Financial Statement for the year ending [DATE]be received and adopted.

RESOLVED that a Final Dividend at the rate of [AMOUNT] % per annum on the Ordinary shares for the half year ending [DATE], making [AMOUNT] % for the year, be declared and payable on [DATE] to shareholders on the Register at [TIME] on [DATE] (6)

The Chairman stated that in accordance with the Constitution and as set out in the notice of meeting , ABC, DEF and GHI retired by rotation and each being eligible, had submitted themselves for re-election. The Chairman proposed, and HIJ seconded and it was

RESOLVED that the re-election of all those retiring directors could be put to the meeting as one motion. (7)

The Chairman proposed, Mr S. Hareholder seconded, and it was RESOLVED that ABC, DEF and GHI be re-elected and that they hereby are re-elected as directors of the company.

The Chairman referred to the need to re-elect auditors of the company. It was proposed by the Chairman and Mrs F. Undmanager seconded andRESOLVED nemo contendare that MNO of [ACCOUNTANCY FIRM] be and they are hereby appointed auditors of the company until the conclusion of the next following AGM on terms agreed by the directors. (8)

A vote of thanks to the chairman, directors, secretary, and staff for their services during the past year concluded the meeting.

1. In order to aid security every page should be numbered consecutively. Minutes of General and Board meetings are often kept in the same folder as one record. This presents a difficulty should a shareholder wish to inspect the minutes as he or she is not entitled to see the minutes of Board Meetings, only General Meetings. The minutes will then have to be separated and the numbering will then not be consecutive and may generate questions. It may be easier to hold a complete consecutively numbered set of minutes from board and general meetings as well as a separate set of consecutively numbered minutes for general meetings which is easily made available to the shareholder.

Minutes of meetings of shareholders must be kept at the registered office of the company, but there is no restriction regarding the location of Board minutes.

2. There is no requirement to read the notice of meeting other than to bring the meeting to order and allow those late comers to take their seats.

3. The minutes of a general meeting can be confirmed and signed at the next Board meeting, there is no requirement to wait for the next General Meeting.

4. There is no requirement for the auditors to read their report, the report will have been signed by them already.

5. When the Chairman of a meeting proposes, strictly speaking a seconder is not required although by convention this is generally not observed. A resolution is not strictly necessary under the 1993 Companies Act.

6. Members can either approve or reduce the dividend but cannot increase it. A dividend can also be declared by the Board without reference to shareholders

7. Re-election of directors en masse can only occur when the meeting has previously approved such action as occurred here.

8. Nemo contendare is used when there are no objections to the proposal, and can be shortened to nem con. Used when although no one votes against the resolution, one or more abstain and it is not therefore unanimous.

Cases And Precedent

Toole v Flexihire Pty Ltd (1992) 10 ACLC 190

The validity and force of a resolution depend upon it being the decision of the majority of the directors present at a duly convened meeting, whether it is subsequently confirmed or not

A resolution is not rendered invalid merely because it has not been recorded in the minutes

(cf HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 (CA) at p 171) In Saunders v The Liquidator of Woodware Products Ltd (in liq) (1982) 1 NZCLC 95-039 at p 98, 346

The court found that the liquidator of a company which treated a debenture as invalid on the grounds that a resolution for issue of the debenture had not been entered into the minute book, which was being held by the company's former accountants against payment of money owed to them. The court found that the resolution was not strictly necessary for the valid execution of the debenture. The court held that provided the resolution was properly passed, failure to enter the resolution in the minute book did not render it invalid

Lands Allotment Co [1894] 1 Ch 616 CA

Directors who are not present at a meeting at which a breach of trust occurs by the board do not become liable for that breach merely because they attend a subsequent meeting at which the minutes are read and confirmed. Acquiescence in the breach must be shown by some positive conduct by a director such as publicly affirming the action of the board at a general meeting.

British Provident Life and Fire Assurance Society (1863) 1 De G J & Sm 504

The court held that if no minutes are forthcoming it is to be presumed that whatever ought to have been submitted at any general meeting was so submitted

The directors found that because a decision which they claimed they had not taken was included as a decision in the minutes which they confirmed as accurate, they were legally bound by that decision.

Conclusion

The resume of duties referred to in this booklet demonstrates the importance of the role of the Company Secretary, or person acting in that role whoever this may be. The role is much more than a meeting administrator or scribe particularly in today's company when the position has the legal responsibilities of a deemed director.

Whilst not a director, nor a member of the meeting, unless he/she holds a dual appointment, the Company Secretary must be able to provide advice of legal compliance and obligations to all members of the board; and in particular the Chairman, to whom the Secretary will often report, and ensure that the decisions of the Board are communicated and implemented.

The recommendations of various internationally eminent reports on Corporate Governance have seen the Secretary given a more prominent role. To take one instance, the Cadbury Committee 1992 recommended that all directors should have access to the Company Secretary and that, should there be a question of the removal of the Secretary, then that is a matter for the Board, in particular for the Chairman.

The company can be prosecuted for the following offences under the Companies Act 1993. The list of offences has been grouped under the same headings used in the List of Core Duties of the Company Secretary.

3. GENERAL COMPLIANCE

The 1993 Act does not require a company to have a company seal unless provided for by the company constitution and it should therefore be used in accordance with the conditions set out within the individual company constitution. For best practice the sections in the Companies Act 1955 should be used.

The company can be prosecuted for the following offences under the Companies Act 1993. The list of offences has been grouped under the same headings used in the Companies Act Part XXI Sections 373 - 374.

A person convicted of an offence against any of the following sections is liable to a fine not exceeding $5,000:

A person convicted of an offence against any of the following sections is liable to-

PENALTY THAT MAY BE IMPOSED ON DIRECTORS IN CASES OF FAILURE BY A BOARD OR COMPANY TO COMPLY WITH ACT

A director of a company who is convicted of an offence against the following section of this Act is liable to a fine not exceeding $5,000:

A director of a company who is convicted of an offence against any of the following sections is liable to a fine not exceeding $10,000

Section 210(2) duty to send financial statements to shareholders who elect not to

APPENDIX III: - Procedural Resolutions

The following formal resolutions, which are otherwise known as "procedural" resolutions, are legitimate methods of terminating discussion of a resolution

Closure

"That the question now be put". If this motion is carried, the resolution before the meeting is immediately put to the vote. A person who has moved, seconded, or spoken on the resolution before the meeting cannot move or second the closure, or any other procedural resolution. Therefore, directors or shareholders who have had their say, cannot prevent others from enjoying the same right.

The Previous Question

"That the question not now be put". If this motion is carried, a vote is prevented and the resolution can no longer be discussed at that meeting. If this resolution is lost, the mover of the original motion has the right of reply and without further discussion the matter is put to the vote. Either way, debate on the original resolution ceases once this procedural resolution is accepted. Therefore, the Chairperson has discretion over the acceptance of this procedural resolution. Otherwise, two shareholders could frustrate the intentions of the rest, by preventing discussion of a resolution. This procedural resolution may not be moved during the discussion of an amendment.

"That the meeting proceed to the next business". This resolution can be moved at any time, except during a speech. If the resolution is carried during the discussion of an amendment, discussion returns to the main resolution. The Chairperson must accept this resolution and a seconder is not required. The effect of this motion, when carried, is to shelve the matter until a future meeting. If this procedural resolution is lost, the debate resumes and the Chairperson need not accept the same procedural resolution again, until he or she considers that enough time has elapsed since it was previously moved.

Adjournment

"That the debate be adjourned". Here, a date for the resumption of discussion need not be specified. The subject could be raised again later at the same meeting. If this resolution is carried while an amendment is being debated, the whole main resolution is deferred. When the debate is continued, those who have spoken before the adjournment may not speak a second time. However, the mover of the original resolution still has a right of reply.

Subject to the rules contained in the company's own constitution and to the provisions of the First Schedule of the Companies Act 1993 in regard to failing to achieve a quorum at a company meeting, a meeting may be adjourned to a later date. An adjournment cannot be indefinite, but if carried, a resolution to this effect suspends the entire proceedings. The Chairperson may make the resolution to adjourn, or it may come from those present such as shareholder. The company's own constitution must be consulted and understood along with the First Schedule of the Act, in order to ensure that adjournments are valid and within the applicable rules.

"That the Chairperson leave the chair" is a variation on the resolution to adjourn the meeting as it then is adjourned until the next regular meeting, or indefinitely as no time or place is fixed by this resolution and no amendment is possible.

[1] For further information see “The Disposal and Retention of Documents” 5^th Edition available from the Institute.

[2] “Powers and Duties of the Company Secretary” and “The Disposal and Retention of Documents” 5^th edition both available from the Institute.

[3] Also see “The Company Secretary and the Performance Evaluation of Boards” available from the Institute.

* Bosch Henry, A.O., Conversations between Chairmen, P.72, Australian Institute of Company Directors 1999

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