Meetings held using virtual meeting technology
(1) Virtual meeting technology may be used in holding a meeting, provided the technology gives all persons entitled to attend the meeting a reasonable opportunity to participate without being physically present in the same place.
(2) All persons so participating in the meeting are taken for all purposes to be present in person at the meeting while so participating.
(3) A vote taken at the meeting must be taken:
(a) on a poll, if:
(i) the notice of the meeting specifies that votes taken at the meeting must be taken on a poll; or
(ii) a poll is requested by the person presiding at the meeting or by a person participating and entitled to vote at the meeting; or
(b) otherwise—on a show of hands.
Note: A vote on a show of hands may be taken using electronic mechanisms: see the definition of show of hands in section 5‑5.
(4) All persons so participating in the meeting who are entitled to vote at the meeting:
(a) must be given the opportunity to participate in the vote in real time; and
(b) may be given the opportunity to record a vote in advance of the meeting at the election of the voter.
Place and time of virtual meetings
(5) If any of the persons entitled to attend the meeting is entitled to physically attend the meeting:
(a) the place for the meeting is taken to be:
(i) if there are 2 or more locations at which persons who are entitled to physically attend the meeting may do so—the main location for the meeting as set out in the notice of the meeting; and
(ii) otherwise—the location where the persons may physically attend the meeting; and
(b) the time for the meeting is taken to be the time at the place for the meeting.
(6) If none of the persons entitled to attend the meeting is entitled to physically attend the meeting:
(a) the place for the meeting is taken to be the physical address in this jurisdiction nominated by the convenor of the meeting in the notice of the meeting; and
(b) the time for the meeting is taken to be the time at the place for the meeting.
Tabling of documents at virtual meetings
(7) If:
(a) virtual meeting technology is used in holding a meeting; and
(b) a document is required or permitted to be tabled at the meeting;
the document is taken to have been tabled at the meeting if a copy of the document is made reasonably accessible to persons attending the meeting, for example by:
(c) giving a copy of the document before the meeting to the persons entitled to attend the meeting; or
(d) giving a copy of the document during the meeting to the persons attending the meeting; or
(e) screencasting the document in a reasonable way during the meeting to the persons attending the meeting, as a whole.
75‑85 Entitlement to vote at meetings of creditors
(1) A person other than a creditor (or the creditor’s proxy or attorney) is not entitled to vote at a meeting of creditors.
(2) Subject to subsections (3), (4) and (5), each creditor is entitled to vote and has one vote.
(3) A person is not entitled to vote as a creditor at a meeting of creditors unless:
(a) his or her debt or claim has been admitted wholly or in part by the external administrator; or
(b) he or she has lodged, with the person presiding at the meeting, or with the person named in the notice convening the meeting as the person who may receive particulars of the debt or claim:
(i) those particulars; or
(ii) if required—a formal proof of the debt or claim.
(4) A creditor must not vote in respect of:
(a) an unliquidated debt; or
(b) a contingent debt; or
(c) an unliquidated or a contingent claim; or
(d) a debt the value of which is not established;
unless a just estimate of its value has been made.
(5) A creditor must not vote in respect of a debt or a claim on or secured by a bill of exchange, a promissory note or any other negotiable instrument or security held by the creditor unless he or she is willing to do the following:
(a) treat the liability to him or her on the instrument or security of a person covered by subsection (6) as a security in his or her hands;
(b) estimate its value;
(c) for the purposes of voting (but not for the purposes of dividend), to deduct it from his or her debt or claim.
(6) A person is covered by this subsection if:
(a) the person’s liability is a debt or a claim on, or secured by, a bill of exchange, a promissory note or any other negotiable instrument or security held by the creditor; and
(b) the person is either liable to the company directly, or may be liable to the company on the default of another person with respect to the liability; and
(c) the person is not an insolvent under administration or a person against whom a winding up order is in force.
75‑86 Other persons entitled to vote—persons by whom money is advanced to a company
(1) A person by whom money is advanced to a company as described in section 560 of the Act is entitled to one vote at a meeting of creditors.
Note: Paragraph 560(c) of the Act provides that a person by whom money is advanced to a company in specified circumstances has the same rights as a creditor of the company in relation to matters set out in Chapter 5 of the Act. This includes voting at a meeting of creditors of the company.
(2) Subsection (1) applies whether the person has advanced money to the company:
(a) on 1 occasion only; or
(b) on more than 1 occasion in respect of the same matter; or
(c) on 1 or more occasions in respect of more than 1 matter.
75‑87 Votes of secured creditors
(1) For the purposes of voting, a secured creditor must state in the creditor’s proof of debt or claim:
(a) the particulars of his or her security; and
(b) the date when it was given; and
(c) the creditor’s estimate of the value of the security;
unless he or she surrenders the security.
(2) A creditor is entitled to vote only in respect of the balance, if any, due to him or her after deducting the value of his or her security as estimated by him or her.
(3) If a secured creditor votes in respect of his or her whole debt or claim, the creditor must be taken to have surrendered his or her security unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.
(4) This section does not apply to:
(a) a meeting of creditors convened under Part 5.3A of the Act; or
(b) a meeting held under a deed of company arrangement.
75‑90 Evidence relating to proof of debt
An external administrator must ensure that each creditor’s claim or proof of debt in relation to an administration bears evidence of:
(a) its admission or rejection; and
(b) the reason for its admission or rejection; and
(c) the amount for which the claim or proof of debt has been admitted.
75‑95 Evidence of liability for debt
(1) If necessary, an external administrator must ask a creditor to give evidence in writing in relation to a debt claimed by the creditor to establish the liability of the company for the debt.
(1A) If:
(a) a resolution is proposed at a meeting of creditors of a company; and
(b) a debt claimed by a creditor of the company is owed to the creditor as assignee;
the external administrator of the company must ask the creditor to give evidence in writing in relation to the debt and the consideration given for the assignment of the debt.
(2) If the external administrator considers that the evidence is insufficient for the purposes of subsection (1) or (1A), the administrator, before asking for further information, must have regard to the expected dividend rate and the materiality of the issue requiring clarification.
(3) An external administrator must keep a copy of any evidence or information relied on in deciding, for the purposes of voting or distributing dividends, whether to accept or reject a creditor’s claim.
75‑97 Voting by proxy if financially interested
A person acting under a general proxy must not vote in favour of any resolution which would directly or indirectly place:
(a) the person; or
(b) the person’s partner; or
(c) the person’s employer;
in a position to receive any remuneration out of assets of the company except as a creditor rateably with the other creditors of the company.
75‑100 Decisions in relation to entitlement to vote at creditors’ meeting
(1) The person presiding at a meeting may determine any question that arises as to the entitlement of a person to vote.
(2) In deciding whether a person is entitled to vote at a meeting of creditors, the person presiding must:
(a) have regard to the merits of the person’s claim; and
(b) act impartially and independently.
(3) If the person presiding is in doubt whether a proof of debt or claim should be admitted or rejected, her or she must mark that proof as objected to and allow the creditor to vote, subject to the vote being declared invalid if the objection is sustained.
(4) A decision by the person presiding to admit or reject a proof of debt or claim for the purposes of voting may be appealed against to the Court within 10 business days after the decision.
75‑105 Quorum
(1) Subject to subsection (3), if a quorum is not present, a meeting must not act for any purpose other than the following:
(a) the election of a person to preside at the meeting;
(b) the proving of debts;
(c) the adjournment of the meeting.
(2) A quorum consists of:
(a) if the number of persons entitled to vote exceeds 2—at least 2 of those persons; or
(b) if only one person is, or 2 persons are, entitled to vote—that person or those persons;
present in person or by proxy or attorney.
(3) A meeting is sufficiently constituted if only one person is present in person at the meeting if the person represents personally or by proxy or otherwise a number of persons sufficient to constitute a quorum.
(4) If, within 30 minutes after the time appointed for a meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the meeting is adjourned to a meeting (the resumed meeting) at a later time.
(4A) The person presiding may specify the day (not being less than 5 or more than 15 business days after the day on which the meeting is adjourned), time and place of the resumed meeting.
(4B) If the person presiding does not specify one or more of the things mentioned in subsection (4A):
(a) if the day is not specified—the meeting is adjourned to the same day in the next week; and
(b) if the time is not specified—the meeting is adjourned to the same time; and
(c) if any of the persons entitled to attend the meeting was entitled to physically attend the meeting and the place is not specified—the meeting is adjourned to the same place; and
(d) if the meeting was held using virtual meeting technology and sufficient information to allow members to participate in the resumed meeting by means of the technology is not specified—participation in the resumed meeting by means of the technology must be provided in the same manner as set out in the notice for the original meeting.
(5) Subsections (4), (4A) and (4B) do not apply in relation to a meeting under section 436E of the Act.
(6) The convenor of the meeting, or a person nominated by the convenor, must give notice of the adjournment by the end of the next business day to the persons to whom notice of the meeting must be given under section 75‑10.
(7) A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subsection (6) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.
(8) If within 30 minutes after the time appointed for the adjourned meeting:
(a) a quorum is not present; or
(b) the meeting is not otherwise sufficiently constituted;
the adjourned meeting lapses.
(9) Subsection (8) does not apply in relation to a meeting in relation to a voluntary administration.
75‑110 Voting on resolutions
(1) A resolution put to the vote at a meeting is to be decided:
(a) if virtual meeting technology is not used in holding the meeting:
(i) if a poll is requested by the person presiding at the meeting or by a person participating and entitled to vote at the meeting—on a poll; or
(ii) otherwise—on the voices; or
(b) if virtual meeting technology is used in holding the meeting—in accordance with subsection 75‑75(3).
(2) Despite subparagraph (1)(a)(i), a vote taken at a joint meeting of creditors and members of a company must be decided on the voices unless virtual meeting technology is used in holding the meeting.
(3) Unless a poll is requested or virtual meeting technology is used in holding the meeting, the person presiding at the meeting must declare that a resolution has been:
(a) passed; or
(b) passed unanimously; or
(c) passed by a particular majority; or
(d) lost;
on the voices.
(4) A declaration is conclusive evidence of the result to which it refers, without proof of the number or proportion of the votes recorded in favour of or against the resolution, unless a poll is requested or virtual meeting technology is used in holding the meeting.
(5) If a poll is requested:
(a) the poll must be taken immediately; and
(b) the person presiding at the meeting may determine the manner in which the poll is to be taken.
(5A) If a poll is required because virtual meeting technology is used in holding the meeting, the person presiding at the meeting may determine the manner in which the poll is to be taken.
(6) If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors:
(a) the creditor must not vote except in accordance with the contract; and
(b) any vote which is not in accordance with the contract will not be counted.
(7) For the purposes of determining whether a resolution is passed at a meeting of creditors of a company, the value of a creditor of the company who:
(a) is a related creditor (within the meaning of subsection 75‑41(4) of the Insolvency Practice Schedule (Corporations)), for the purposes of the vote, in relation to the company; and
(b) has been assigned a debt; and
(c) is present at the meeting personally, by telephone, by proxy or attorney; and
(d) is voting on the resolution;
is to be worked out by taking the value of the assigned debt to be equal to the value of the consideration that the related creditor gave for the assignment of the debt.
75‑115 When a resolution is passed at a meeting of creditors after a poll is demanded or required
(1) A resolution is passed at a meeting of creditors of a company if:
(a) a majority of the creditors voting (whether in person, by proxy or by attorney) vote in favour of the resolution; and
(b) a majority in value of the creditors voting (whether in person, by proxy or by attorney) vote in favour of the resolution.
(2) A resolution is not passed at a meeting of creditors of a company if:
(a) a majority of the creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and
(b) a majority in value of the creditors voting (whether in person, by proxy or by attorney) vote against the resolution.
(3) Subject to subsection (7), if no result is reached under subsection (1) or (2) and the resolution does not relate to the remuneration or the removal of the external administrator of the company:
(a) the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is passed; or
(b) the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not passed; or
(c) if the person presiding at the meeting does not exercise a casting vote, the resolution is not passed.
(4) If no result is reached under subsection (1) or (2) and the resolution relates to remuneration, the resolution is not passed.
(5) If no result is reached under subsection (1) or (2) and the resolution relates to the removal of the external administrator of the company:
(a) the external administrator may exercise a casting vote in favour of the resolution, in which case the resolution is passed; or
(b) if paragraph (a) does not apply—the resolution is not passed.
(6) If no result is reached under subsection (1) or (2), and the meeting is not a meeting of eligible employee creditors, the person presiding at the meeting must:
(a) inform the meeting of the person’s reasons for exercising, or not exercising, as the case may be, a casting vote under subsection (3); and
(b) include those reasons in the minutes of the meeting.
(7) In the case of a meeting of eligible employee creditors mentioned in paragraph 444DA(2)(a) of the Act, if no result is reached under subsection (1) or (2), the resolution is not passed.
75‑120 When a resolution is passed at a meeting of contributories after a poll is demanded or required
(1) A resolution is passed at a meeting of contributories of a company if a majority of the contributories voting (whether in person, by proxy or by attorney) vote in favour of the resolution.
(2) In counting the majority, regard must be made to:
(a) the number of votes cast for or against the resolution; and
(b) the number of votes to which each contributory is entitled by the Act or the company’s constitution.
75‑125 Resolution about remuneration must deal only with remuneration
To be effective, a resolution determining the remuneration of an external administrator under section 60‑10 or 60‑16 of the Insolvency Practice Schedule (Corporations) must deal exclusively with remuneration of the external administrator.
Note: This means that the resolution must not be bundled with any other resolution.
75‑130 When a resolution is passed without a meeting of creditors
(1) This section is made for the purposes of paragraphs 75‑40(5)(a) and (b) of the Insolvency Practice Schedule (Corporations).
(2) A proposal put to the creditors of a company by giving notice under section 75‑40 of the Insolvency Practice Schedule (Corporations) is taken to have been passed as a resolution if:
(a) a majority of the creditors whose replies to the notice are received by the external administrator of the company within the time specified in the notice (the responding creditors) vote Yes; and
(b) a majority in value of the responding creditors vote Yes; and
(c) for a company that is not subject to the simplified liquidation process—not more than 25% in value of the responding creditors notify the external administrator within the time specified in the notice that they object to the proposal being resolved without a meeting of creditors.
(3) The time specified for the purposes of paragraphs (2)(a) and (c) must be at least 15 business days after the day the notice is given.
(4) For the purposes of subsection (2), a creditor is not to be counted as a responding creditor unless:
(a) the creditor has submitted particulars of his or her debt or claim to the external administrator on or before the creditor replies to the notice; and
(b) the external administrator has admitted the proof of debt or claim, including the amount, for the purposes of voting.
(4A) For the purposes of paragraphs (2)(b) and (c), the value of a responding creditor of the company who:
(a) is a related creditor (within the meaning of subsection 75 41(4) of the Insolvency Practice Schedule (Corporations)), for the purposes of responding to the notice, in relation to the company; and
(b) has been assigned a debt;
is to be worked out by taking the value of the assigned debt to be equal to the value of the consideration that the related creditor gave for the assignment of the debt.
(5) If subsection (2) does not apply, the proposal is not taken to have been passed as a resolution.
(6) The external administrator must:
(a) make a written record of the outcome of the proposal in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations); and
(b) lodge with ASIC a notice, in the approved form, of the outcome of the proposal within 5 business days of the outcome being known.
75‑135 When a resolution is passed without a meeting of contributories
(1) This section is made for the purposes of paragraphs 75‑40(5)(a) and (b) of the Insolvency Practice Schedule (Corporations).
(2) A proposal put to the contributories of a company by giving notice under section 75‑40 of the Insolvency Practice Schedule (Corporations) is taken to have been passed as a resolution if:
(a) a majority of the contributories whose replies to the notice are received by the external administrator of the company within the time specified in the notice (the responding contributories) vote Yes; and
(b) for a company that is not subject to the simplified liquidation process—not more than 25% in value of the responding contributories notify the external administrator within the time specified in the notice that they object to the proposal being resolved without a meeting of contributories.
(2A) In counting the majority, regard must be made to:
(a) the number of votes cast for or against the resolution; and
(b) the number of votes to which each contributory is entitled by the Act or the company's constitution.
(3) The time specified for the purposes of paragraphs (2)(a) and (c) must be at least 15 business days after the day the notice is given.
(4) If subsection (2) does not apply, the proposal is not taken to have been passed as a resolution.
(5) The external administrator must:
(a) make a written record of the outcome of the proposal in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations); and
(b) lodge with ASIC a notice, in the approved form, of the outcome of the proposal within 5 business days of the outcome being known.
75‑140 Adjournment of meetings
(1) A meeting may be adjourned from time to time and from place to place:
(a) by resolution; or
(b) by the person presiding at the meeting.
(2) The meeting must not be adjourned to a day that is more than 15 business days after the first day on which the original meeting was held.
(3) Despite subsection (2), a meeting convened under section 439A of the Act must not be adjourned to a day that is more than 45 business days after the first day on which the original meeting was held.
(4) Unless otherwise provided by the resolution by which it is adjourned:
(a) if any of the persons entitled to attend the adjourned meeting is entitled to physically attend the adjourned meeting—the meeting is adjourned to the same location or locations as were specified for the original meeting; and
(b) if the original meeting was held using virtual meeting technology—participation in the resumed meeting by means of the technology must be provided in the same manner as set out in the notice for the original meeting.
(5) The convenor of the meeting or a person nominated by the convenor must, by the end of the next business day, give notice of the adjournment to the persons to whom notice of the meeting must be given under section 75‑10.
(6) If a meeting is adjourned to a day more than 6 business days after the passing of the resolution by which it is adjourned, the company must cause notice of the day, time and place of the resumption of the meeting to be lodged in accordance with subregulation 5.6.75(4) of the regulations at least 5 business days before that day.
Note: Subregulation 5.6.75(4) provides for notices to be electronically lodged and published on a website maintained by ASIC.
(7) A resolution passed at a meeting resumed after an adjournment is passed on the day it was passed.
75‑145 Minutes of meetings
(1) The person presiding at the meeting must, within the period specified in subsection (2):
(a) cause minutes of the proceedings to be drawn up and entered in a record kept for the purpose; and
(b) sign the minutes after they have been entered in the record; and
(c) lodge with ASIC in the approved form a copy of the minutes, certified by him or her to be a true copy.
(2) The specified period is:
(a) for a meeting other than a meeting convened under section 436E or 439A of the Act—1 month after the end of the meeting; or
(b) for a meeting convened under section 436E or 439A of the Act—10 business days after the end of the meeting.
(3) If the person presiding at a meeting:
(a) dies without having complied with paragraph (1)(b) or (c); or
(b) otherwise becomes incapable of complying with paragraph (1)(b) or (c);
the convenor of the meeting (if the convenor attended the meeting) or a creditor, member or contributory who attended the meeting, may sign the minutes as required by paragraph (1)(b) and may certify and lodge a copy of the minutes as required by paragraph (1)(c).
(4) A record of the persons present in person, by proxy or by attorney at a meeting must be prepared and kept as part of the minutes of proceedings prepared under subsection (1).
(5) The external administrator, after a meeting of creditors, must cause the minutes and the record of persons present at the meeting to be made available for inspection by creditors or contributories at the principal place at which the external administrator practises.
(6) If the meeting is a consolidated meeting of creditors of companies that are members of a pooled group, this section does not require the person presiding to:
(a) draw up and enter separate minutes for each of the companies to which the meeting relates; or
(b) lodge with ASIC separate copies of the minutes for each of the companies to which the meeting relates.