Section 246B — Corporations Act 2001: Varying and cancelling class rights

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.