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Dispute Resolution & Litigation
Security of Payment NSW - Know your right to receive progress payments for construction works and related goods and services
As a direct or indirect result of the COVID-19 pandemic and uncertainty in a global economy, various issues have been adversely impacting the construction industry, such as an increase in raw material price and supply chain disruption. Particularly, contractors and subcontractors are struggling with their cash flow due to their outstanding payments for the works carried out. Accordingly, security of payment legislation in each state has played a role in ensuring that anyone carrying out construction work, and supplying related goods and services under a construction contract gets paid promptly. This article discusses and explains your rights under the NSW Security of Payment Act, and each state has its own security of payment legislation, which may differ from each other in detail. Know Your Rights In New South Wales, the relevant security of payment legislation is the Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOPA”). The significance of the SOPA is that it grants contractors rights to receive progress payment even if there is no formal written contract or even if a contract says that you are only allowed to receive a payment at the end of works, i.e., after the completion of works. Fundamentally, the SOPA entitles a person or a company, who carried out construction work or supplied construction related goods and services, to receive progress payment. A progress payment means a partial payment for works as the project progresses even if the assigned works are not completed. Therefore, the progress payment facilitates cash flow for contractors and suppliers in the construction industry. Under SOPA, the following rights are granted to you: A right to receive a progress payment at least on a monthly basis; Maximum time limits to respond to claims for progress payments; Maximum payment terms; A right to suspend work in the event of non-payment; No ‘pay when paid’ clause: No need to wait until a contractor you worked for gets paid by a head contractor or principal; and Interest rates applicable on unpaid progress payment. Who is entitled to receive a progress payment? A person or company who, under a construction contract or any other construction arrangement, has undertaken to carry out construction work or supply construction related goods or services in New South Wales is eligible to receive a progress payment under the SOPA.[1] The “construction work” is broadly defined, including construction, alteration, repair, maintenance or demolition of buildings or structures forming part of land.[2] The “related goods and services” also include various related goods and services such as materials for construction or plant for use in construction work, labour service, design or engineering service.[3] While the SOPA is drafted to cover contractors, subcontractors, suppliers and service providers as broadly as possible, it should be noted that there are also exceptions such as those engaged in the extraction of oil, natural gas or minerals. Payment Claims The procedure for receiving a progress payment is triggered by a person entitled under the SOPA (Claimant) making a Payment Claim in writing to the other person who is responsible to make a payment under a construction contract (Respondent) In making a Payment Claim, Claimants must ensure that the following requirements are met:[4] 1) The construction work related to the progress payment must be identified; 2) The amount of the progress payment must be indicated; 3) A statement that a Payment Claim is made under this SOPA must be inserted; 4) A Payment Claim must be served on the Respondent within 12 months after the construction work was last carried out; and 5) A Payment Claim is only made one (1) time in a month on and from the last day of each month in which the construction work was carried out. How to respond to a Payment Claim? The Respondent is required to respond to the Payment Claim by providing a Payment Schedule to the Claimant within 10 business days after receipt of the Payment Claim. By failing to do so, the amount claimed in the Payment Claim is fixed and Respondents are liable for such amount on the due date. In issuing a Payment Schedule, Respondents also are required to comply with the following requirements:[5] 1) A Payment Claim related to a Payment Schedule must be identified; 2) The amount of the payment the Respondents propose to make must be indicated; and 3) If applicable, reasons why the amount in the Payment Schedule is less than that in the Payment Claim and reasons for withholding payment must be identified. Maximum payment terms One of the most important benefits available under the SOPA is that there are statutory deadlines for a progress payment to be made.[6] If the Respondents fail to pay the progress payment by the deadline in the diagram below, such amount is deemed due and payable, and interest on the unpaid amount is also payable at the prescribed rate. Your rights to suspend works A Claimant also has a right to suspend construction work or supply of related goods and services if a Respondent fails to pay the amount by the due date for payment as described above.[7] At least two (2) business days prior to the suspension, the Claimant must serve on the Respondent a Notice of Intention to Suspend Work in writing. As the date on which the Notice is given is not counted, the Claimant is eligible to suspend work on and from the fourth day of the Notice. Please see the above diagram. Once the work is suspended under SOPA, the Claimant is not liable for any loss or damage suffered by the Respondent as a result of such suspension. However, once the whole outstanding amount is paid, the Claimant must resume the work within three (3) business days from the payment date. Don’t wait until a head contractor gets paid The SOPA expressly prohibits and invalidates any clause in a construction contract that the payment of money is contingent on a milestone or an event in other contracts including a head contract.[8] A common example of these clauses is that a payment under a subcontract is made upon the payment by a principal under a head contract or upon the practical completion of a head contract. Such clauses are deemed unenforceable under the SOPA, and you have a right to claim the progress payment regardless of the operation of other contracts. Adjudication A person eligible under the SOPA also can start an adjudication process for unpaid or disputed progress payments. Adjudication is an informal and independent process which an issue or issues are determined by an independent adjudicator regarding the payment claims. The adjudicator’s determination can be enforced as if it is a judgment rendered in a Court. However, the Claimant must file an adjudication application in writing by the following deadlines:[9] Type Deadline When: 1) Respondent issues a Payment Schedule, and 2) the amount in a Payment Schedule is less than the amount in a Payment Claim Within 10 business days after a Payment Schedule is issued When: 1) Respondent issues a Payment Schedule; and 2) Respondent fails to pay the amount in the Payment Schedule by the due date Within 20 business days after a Payment Schedule is issued When 1) Respondent fails to issue a Payment Schedule; 2) Respondent fails to pay the amount in a Payment Claim by the due date; 3) Claimant serves written notice of intention to apply for adjudication of the payment claim on Respondent within 20 business days from the due date; and 4) Respondent has been given an opportunity to provide a Payment Schedule within 5 business days after receiving notice of intention to apply for adjudication of the payment claim Within 10 business days after the end of the 5 business days for Respondent to provide a Payment Schedule after receiving notice of intention to apply for adjudication of the payment claim Detailed procedures, requirements for adjudication and enforcing the adjudicator’s determination will be discussed in future articles. Payment Withholding A subcontractor who has made an adjudication application for a progress payment is also entitled to request a principal contractor to retain money owed to a head contractor to cover the claimed amount.[10] This is called a ‘payment withholding request’. Upon receipt of the payment withholding request, the principal must retain the amount of money to which the payment claim relates.[11] When a successful outcome is given in the adjudication process, a subcontractor is able to recover the withheld money from the principal through the procedures set out in the Contractors Debts Act 1997 (NSW). How can we assist If you are involved in construction work in New South Wales, the SOPA entitles you to claim the progress payment and have protections accordingly. However, your rights under SOPA may vary depending on your satisfactory fulfilment of requirements and on whether you took proper actions in a timely manner. Although the SOPA sets out a statutory regime for prompt payment for construction work, there are still a number of disputes arising from unpaid progress payments in a construction contract, which ends up with unsatisfactory outcomes for unpaid contractors and suppliers. If you are unsure what rights you have in your construction payment issues, H & H Lawyers will be happy to review your case to check whether it might fall within a case protected under the Security of Payment Act or other relevant laws. We can further assist in finding a way to enforce your rights. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication. [1] SOPA ss4 and 8. [2] SOPA s5 [3] SOPA s5 [4] SOPA s13 [5] SOPA s14 [6] SOPA s11 [7] SOPA s27 [8] SOPA s12 [9] SOPA s17 [10] SOPA s26A [11] SOPA s26B
Dispute Resolution & Litigation
Security for costs in the context of the foreign judgment registration in Australia: KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551
On 18 May 2021, the Supreme Court of New South Wales in KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551 held that a security for costs application brought by a judgment debtor in its Notice of Motion to set aside a foreign judgment registered in Australia is to be dismissed with costs. This case provides a useful authority where there is limited case law dealing with security for costs applications in the context of the foreign judgment registrations in Australia. H & H Lawyers successfully opposed the security for costs application in these proceedings. Background In this case, the plaintiff, a foreign company, was a judgment creditor in a judgment held in the Republic of Korea against the defendant who was a judgment debtor. Based on that judgment, the plaintiff filed a Summons seeking an order for registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (FJA). The foreign judgment from Korea was ordered to be registered, and the defendant applied to set it aside. A case concerning an application seeking to set aside a registered foreign judgment will be discussed separately in a further case note. Following the setting aside application, the defendant, by another Notice of Motion, sought security for costs against the plaintiff, which is the subject of this case note. The defendant by seeking the security for costs relied upon the prospects of success on the application to set aside the registration of the Korean judgment. The plaintiff opposed the security for costs on, amongst others, the following bases: 1. While security for costs under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is limited to applications made by a defendant in the proceeding, r 53.4 is intended to preclude a judgment debtor from making an application for security; 2. There is no reason to believe that the plaintiff would not pay any costs order if ordered; and 3. The defendant’s prospects of success are minimal. The Court dismissed the defendant’s security for costs application by upholding the plaintiff’s 2nd and 3rd arguments above. The Supreme Court’s Reasoning The first question before the Court was the interpretation of UCPR r 53.4. That rule relevantly provides that: “For the purposes of proceedings under the Foreign Judgments Act 1991 of the Commonwealth, the Supreme Court may make an order under rule 42.21 otherwise than on the application of the judgment debtor.” In the previous hearing, on a motion for extension of time to apply to set aside the registration of foreign judgment before Campbell J in KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 164, one of the defendant’s contentions concerning r 53.4 was that it allows the Court to make a security for costs order of its own motion. However, Campbell J, referring to Richie’s commentary, stated to the effect that either the judgment debtor or creditor may make an application for security under r 53.4. The Court in the present proceedings disagreed with Richie’s commentary, and accepted and cited obiter dicta of Adams J in Raffaele Viscardi SRL v Qualify Centre Food Services Pty Limited (No 2) [2013] NSWSC 2055 (“Viscardi”), which stated that: “Though awkwardly drafted, this (being r 53.4) appears to prevent a judgment debtor, though a defendant, from making an application under r 42.21.” Nevertheless, the Court did not determine this issue as it was not necessary for the Court to decide that in the circumstance where the judgment creditor was found to be not impecunious. During the proceedings, it was not contested that the plaintiff is a company registered in Korea, ordinarily resident outside Australia, and has no assets in Australia. Therefore, the threshold required in r 42.2(1)(a) of UCPR was enlivened without difficulty. The plaintiff is a wholly-owned subsidiary of a statutory authority in Korea that has a similar function to that of the Australian Prudential Regulation Authority (APRA). There was no evidence establishing that the plaintiff, despite it being a foreign entity, is impecunious or will be unable to pay any adverse costs if ordered. Further, given the substantial reciprocity of treatment of judgments between Australia and Korea, the defendant can enforce the costs order in Korea, if ordered. As to the prospect of success on the application to set aside the registration of the Korean judgment, the defendant relied on public policy grounds under s 7(2)(a)(ix) of the FJA for reasons that: 1. There was a time interval between the foreign judgment and the registration in Australia; 2. The defendant did not receive notice of the proceedings in Korea; and 3. The quantum of the registered judgment is excessive. The Court found that the defendant’s public policy arguments were weak. The detailed arguments and analysis of the above contentions will be discussed in a further case note as that is the gist of the further proceedings, however, in summary, it was resolved that the prospect of success in the defendant’s contentions was modest at best. Implications This case is one of the limited authorities that have decided the security for costs application in the context of foreign judgment registrations in Australia. There are three key takeaways to be learned from this case. Firstly, the mere fact that a party is not an ordinary resident and does not possess assets in Australia does not necessarily mean that that party would be unable to pay the costs. There must be something more than evidence simply showing that a party is a foreign entity, particularly in circumstances where that foreign entity is a government-owned company and where an original court and Australian courts mutually recognise judgments of each other. Secondly, when relying on the prospect of success ground in a security for costs application, a party applying for security is required to prove more than a moderate possibility of success in their arguments. In the present case, the Court found that the prospect in the defendant’s arguments was moderate but did not accept that that was sufficient. Lastly and most importantly, it is a persuasive ground to argue that, while it is obiter dicta in this case and also in the Viscardi case, UCPR r 53.4 operates to preclude a judgment debtor from making an application for security. In New South Wales, the registration of a foreign judgment is determined ex parte (i.e. without the other party’s attendance and notice), and it is always the case that a judgment debtor applies for setting aside after the registration is completed. As such, a judgment creditor is relevantly in the position of a respondent/defendant who needs to respond to a motion brought by a judgment debtor. On that premise, it is unreasonable to view that UCPR r 53.4 is interpreted in a way that a moving party seeking a court order, i.e. a judgment debtor, is also allowed to seek security for costs that may stop a judgment creditor from responding to a judgment debtor’s motion
Dispute Resolution & Litigation
Considering buying off-the-plan? Purchasers beware.
H & H Lawyers successfully defends a vendor developer against claims brought by the purchaser of an off-the-plan property in the Supreme Court of NSW. While the benefits of buying an off-the-plan property are often highlighted to a purchaser, the decision in Xu v Lindsay Bennelong Developments Pty Limited & Ors [2020] NSWSC 1692 confirmed the importance of having any terms that are “non-negotiable” for the purchaser to be clearly expressed in writing in the contract for sale of land. Facts In this case, the plaintiff was a purchaser of an off-the-plan property. During the handover inspection of the completed property, the purchaser discovered that there was only one car space attached to her property despite the representation being made prior to entering the contract for sale of land that there would be two car spaces. Subsequently, the purchaser brought a claim against the former vendors of the subject property and the substituted vendor, to whom the contract for sale was novated to, after exchange of contracts. Other relevant facts include: 1. prior to purchasing the property, the agent made representations to the purchaser that there would be two car spaces attached to the property; 2. prior to purchasing the property, the purchaser’s solicitor inquired and the former developer confirmed in writing that the property had two car spaces; 3. the front page of the contract of sale of land did not specify how many car spaces were attached to or formed part of the property; 4. the draft floor plan and draft strata plan of the property which were attached to the contract of sale marked that there are two car spaces allocated to the property; 5. there was no other mention of there being two car spaces attached to the property in the special conditions to the contract or anywhere else in the contract; and 6. it was a special condition to the contract for sale that the purchaser acknowledges and agrees that the vender may make alterations, from time to time, and vary the building floor plan or the draft strata plan, as it sees necessary or desirable. The plaintiff claimed that the defendants breached the fundamental term and purposes, or alternatively, an implied term of the contract, by only transferring one car space with the property instead of two car spaces. The plaintiff also claimed that, in doing so, the defendants engaged in misleading and deceptive conduct or false representation under sections 18 and 30(1)(e) of the Australian Consumer Law (“ACL”) and sought specific performance for the defendants to transfer one more car park under sections 237 and 243 of the ACL. The then Chief Judge in Equity, Ward CJ dismissed the plaintiff’s arguments and held that: 1. the contract was for the sale of a unit with a single tandem car space. However transferring two car spaces was neither a fundamental term nor an essential implied term of the contract; and 2. the representations that the plan would include a space for two cars were clearly made. Nonetheless, such representation does not amount to misleading or deceptive conduct in circumstances where the developer had reasonable grounds to make such representation at the time and the plaintiff suffered no loss by relying on the promise. Key takeaways While this case is not to be generally applied to all circumstances in relation to off-the-plan purchases, a purchaser of an off-the-plan property should be mindful of standard special conditions attached to contracts for sale of off-the-plan properties which are designed to allow a vendor developer to make changes (to a degree) to a draft floor plan or draft strata plan. As in this case, even if the court finds that the draft plan which formed part of the contract was varied, such variation may not constitute a breach of a fundamental or essential term of contract. Thus, a purchaser of an off-the-plan property must scrutinise the terms and conditions before entering into the contract for sale. Further, if the purchaser seeks to rely on any representations made by an agent or vendor prior to entering into the contract, such representation should be expressly and unequivocally included in writing in the contract to make sure the vendor makes good on the promise. The purchaser should also be mindful that the contract would generally provide a limited time to seek rescission. A vendor should also consider the litigation risks associated with the sale of off-the-plan properties. Even if the vendor is successful such as in this case, being involved in court proceedings is costly and time-consuming, and may impact its reputation as a developer as well as open the gate for other purchasers to bring a similar claim against the developer. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Dispute Resolution & Litigation
High Court Clarifies Definition of Casual Employee
As one of the most significant decisions by the High Court in 2021, the High Court has determined the meaning of a casual employee in Workpac Pty Ltd v Rossato [2021] HCA 23. Mr Rossato was employed as a production worker by Workpac’s labour-hire company under a series of six contracts, or assignments, to perform work for one of Workpac’s clients. While Mr Rossato was required to work regular and full-time hours according to a fixed pattern of work, Workpac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave or public holiday entitlements under the Fair Work Act 2009 (Cth) (the Act) and the enterprise agreement. The Court confirmed that the question of whether a person is a casual employee is to be determined by considering the express terms of a written employment contract, and not on the basis of any subsequent conduct of either party. To this extent, the court held any such commitment to further work must be contained in an enforceable agreement to be recognised. The High Court held that a casual employee is an employee who has no “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” and provides no reciprocal commitment to the employer. In considering the nature of the commitment, the court held that ‘the existence or otherwise of a “firm advanced commitment” must be for enforceable terms’, and should not be held to exist from expectations or understandings borne from the manner in which the parties have performed their agreement. The High Court held that a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Act. Mr Rossato’s employment was expressly on an “assignment by assignment basis”. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment Workpac was under no obligation to offer further assignments. The High Court also held that it was not the role of the courts to “moderate a perceived unfairness resulting from a disparity in bargaining power between the parties”. In relation to the employment relationship, it should be noted that the High Court held in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 that: 1. while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute; 2. if the mutual undertakings are said to be implied in what has been agreed, they cannot be inconsistent with the express terms of the contract; and 3. if the mutual undertakings are to be inferred from the conduct, then they may take effect as contractual variations. This decision by the High Court in Workpac v Rossato is important for both employers and employees as it reinforces the importance of specifying the terms of the contract in writing, taking into account the key features of the High Court’s decision. It is also important that casual contract terms and employer’s policies are carefully reviewed to ensure that they do not create any unintentional implied mutual obligations or variations inferred from the conduct. It is also worth noting that a new provision of s 66B of the Act has been introduced which requires employers to offer casual employees to become permanent employees if they have been employed for 12 months and have worked regular and systematic patterns in the last six months. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Dispute Resolution & Litigation
Freedom of Contract: Can parties contract out a statutory limitation period? The High Court says yes.
One of the basic principles of Australian contract law is freedom of contract: parties are free to enter into an agreement on whatever terms they choose. With that principle, a question always arises as to what extent parties can limit or exclude the operation or effect of statutes. In Price v Spoor [2021] HCA 20, the High Court of Australia concluded that a statutory limitation period under the Limitation of Actions Act 1974 (Qld) can be contracted out by an agreement between parties as it is not contrary to public policy. This case made a clear authority in dealing with the boundary of the freedom of contract to the extent of the statutory limitation period. However, caution should be taken in applying it. Background In 1998, Price as a mortgagor and Spoor as a mortgagee entered into two mortgage agreements, but a loan of $320,000 and interest were not repaid to Spoor when due and payable in July 2000. In 2017, Spoor brought proceedings in the Supreme Court of Queensland against Price to recover the principal sum and interest as well as for possession of the land secured under the mortgages. Price by way of defence and counterclaim argued that Spoor was statute-barred from bringing the action pursuant to the Limitation of Actions Act 1974 (Qld) (Limitation Act). In response, Spoor asserted that pursuant to clause 24 of the mortgage agreements, Price agreed not to plea a defence of limitation period. The Limitation Act relevantly provides that an action for breach of contract and that for the recovery of land shall not be brought after the expiration of 6 years and 12 years respectively. In the present case, Spoor brought the proceedings around 17 years after the repayment due date under the mortgages. Clause 24 of the two mortgages provides that: "The Mortgagor covenants with the Mortgage[e] that the provisions of all statutes now or hereafter in force whereby or in consequence whereof any o[r] all of the powers rights and remedies of the Mortgagee and the obligations of the Mortgagor hereunder may be curtailed, suspended, postponed, defeated or extinguished shall not apply hereto and are expressly excluded insofar as this can lawfully be done." Then, the main question before the High Court was, among others, whether the parties can effectively agree in a contract that either party would not rely on the statutory limitation defence. In other words, the question is whether parties can ‘contract out’ the statutory limitation period. The High Court’s Decision Earlier High Court cases already dealt with the effect of statutory limitation, discussed in Price v Spoor. In The Commonwealth v Mewett (1997) 191 CLR 471, Gummow and Kirby JJ said that a statutory bar in the case of a statute of limitations does not go to the jurisdiction of the court to entertain the claim but rather to the remedy available, and therefore to the defences which may be pleaded. In Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129, it was held that a person can waive or renounce its right conferred by a statute unless it would be contrary to the statute to do so. The High Court further went on to say that a contract will be ineffective or void where it operates to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest. Accordingly, the above can be summarised as the following principles: 1. a limitation period is a right conferred on a party seeking to enforce the defence; and 2. a person is allowed to agree to abandon a statutory right conferred on them if that statute does not prohibit them from doing so or if that is not contrary to public policy. The High Court first found that there is no express prohibition against ‘contracting out’ of a statutory defence in the Limitation Act. Then, it went on to decide that while a statutory purpose of imposing a limitation period in the Limitation Act is to promote the finality in litigation, i.e. speedy resolution of disputes, the right conferred is rather an individual benefit which can be elected to utilise as a defence, and it does not intend to remove jurisdiction of the court even if a limitation period has ended. Further, the High Court found that clause 24 of the mortgage agreements effectively gave up the benefit provided by the Limitation Act, on the grounds that the parties intended that clause 24 has wide operation including provisions in the Limitation Act by making reference to its text, context and purpose as well as to the understanding of a reasonable businessperson. Steward J agreed with Kiefel CJ and Edelman J’s reasons but further emphasised that the inclusion of clause 24 is a legitimate adjustment of the private statutory rights by exercising their freedom of contract and noted an important attribute of contract law stated in Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656: “Exceptions from that freedom of contract require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed." Implications It is important to note that the High Court in Price v Spoor clearly rendered the decision that the parties can contract out the statutory limitation defence under the Limitation Act as such conduct is not contrary to the public policy. While bearing in mind this precedent, due regard should also be given to applying this to cases arising in different circumstances. The High Court in reaching its conclusion in Price v Spoor indeed considered the interpretation and the purpose of the Limitation of Actions Act 1974 (Qld) as well as the interpretation of a relevant clause in the contract. Each state in Australia has its own legislation governing statutory limitation period, and the policy reasoning behind each legislation may differ from state to state. Further, whether or not the parties effectively agree to contract out the statutory limitation period is ultimately dependent upon the construction of contract clauses. Therefore, it is worthwhile to note that parties intending to contract out or vary the statutory limitation period in their contract must obtain prior legal advice so as to ensure that such intention is effectively incorporated and enforceable against a breaching party. Finally, it should be noted that a term that purports to waive rights under a statute which serves a public purpose will not be enforceable. For example, an employment contract that purports to waive or renounce employee’s rights such as minimum terms and conditions under the Fair Work Act 2009 (Cth) will be unenforceable. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Dispute Resolution & Litigation
When quorum cannot be constituted at shareholders’ meetings
In a dispute between shareholder and director or joint venture partners, particularly of a small proprietary company, or when company affairs are in deadlock, a common method of opposition by a shareholder is to refuse to attend a shareholders’ meeting so the necessary quorum is not present and the resolutions cannot be passed. In such circumstances, court may intervene to convene a meeting and prescribe a quorum. Section 249G of the Corporations Act 2001 (Cth) (Corporations Act) provides that: "249G – Calling of Meetings of Members by the Court 1. The Court may order a meeting of the company's members to be called if it is impracticable to call the meeting in any other way. 2. The Court may make the order on application by: (a) any director; or (b) any member who would be entitled to vote at the meeting. Note: For the directions the Court may give for calling, holding or conducting a meeting it has ordered be called, see section 1319." If a director or member of the company can establish that it is impracticable to convene a meeting in any other way for whatever reason, any director or member who would be entitled to vote at the meeting can make an application seeking order that a meeting to be convened, held and conducted in such matter as the court thinks fit, and may give such ancillary or consequential directions as it thinks fit under s 1319. In general, impracticability will cover a wide range of circumstances including from where only directors and shareholders have been deceased to situations where it is extremely inconvenient or impracticable for a meeting to be ‘called’ (Jenashare Pty Ltd v Lemrib Pty Ltd (1993) 11 ACSR 345). However, if the company’s constitution or the Corporations Act offers a procedure for meetings to be called in the ordinary course of events, then the court ordinarily will not order that a meeting of the company’s members to be called unless there are exceptional circumstances with strong evidence. Once impracticability is established, the court has the ultimate discretion to make or refuse the order. In Beck v Tuckey Pty Ltd (2004) 22 ACLC 633; 49 ACSR 555; [2004] NSWSC 357, Austin J referred to the following relevant considerations: • whether the company had failed to comply with its statutory requirements; • whether the company’s management was deadlocked; and • whether the inconvenience was caused by the applicant. It should be noted that: • the court’s discretion under section 249G of the Corporations Act can be used to enable the appointment of an effective board of directors (Re Sticky Fingers Restaurant Ltd (1991) 10 ACLC 3011); • however, section 249G does not allow the court a general power to give directions as to the conduct of a meeting; • quorum requirements are not relevant to one member company. A company with only one member may pass a resolution by the member recording and signing the record (section 249B of the Corporations Act); • for companies which elect to have replaceable rules apply as opposed to specific provisions in the constitutions, section 249T applies which provides that the quorum for a meeting of a company’s members is two members and the quorum must be present at all times during the meeting. As demonstrated above, where there is a deadlock between shareholders which prevents the formation of a quorum at a general meeting, an application under section 249G can be made seeking the court’s intervention to call a meeting. Further, it is highly advisable to draft shareholders or joint venture agreements to manage the risk of a member bypassing the quorum requirement or the procedure and limitations where the quorum cannot be attained at a general meeting as a result of a member not attending. Written by Victoria Cha Written on 27 Oct 2021 Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.