Corporations act Chapter 2F sec 232 Oppressive conduct of affairs

[incitem3]

Have we reached the stage that there are grounds for asking the court to interevene and have the CPA constitution repealed to allow a vote of non confidence for the BoD by the membership. The changes to the selection of the BoD in the past where the representative councils appoint directors using some shadowy process that is not fully detailed and the excessive remuneration and therefore excessive membership fees of the CPA members that has evolved I feel is oppressive conduct by the Board of directors. Maybe others do to!
When the conduct of a Board is oppressive to the members the court can order that the constitution be modified and also give a statutory injunction as to the Board making any more decisions or taking any more CPA money. We could even apply for a derivative action where CPAA takes and pays for the court action against the BoD under the corporations act.
This is all just an idea for now and to progress I wonder are there any lawyers out there in the CPA membership who could or are willing to take the first steps in the applications to the court and getting the order on the docket. Section 234 corporations act 2001 says it only takes one member to do this. We don't need 5% or 100 just one brave CPA soul who either is a lawyer or has a lawyer friend who would help. We could start a fund to collect money from the members to fund a lawyer if no one is willing to do this. Am I alone in thinking mutiny in the ranks here? Is there anybody out there thinking the same things as me?

[JJF]

We can also include resolutions at the AGM per s249N although the next AGM will probably be held in Moscow!

[chuck_meister]

I'm not a lawyer, but by my analysis is to link conduct with its impact on members

1. Conduct of affairs, ie how they have spent members funds and
Internal management of proceedings, ie how the process in which directors are currently elected was changed.

2. Need to show that such conduct of affairs and internal management of proceedings are either
against the members interests as whole and or oppressive to.

So what is "oppressive behaviour?

Examples given include:

The oppression remedy is commonly considered as being operative where the oppression occurs in relation to a minority shareholder. Examples of oppressive and unfair conduct include:
improper diversion of a business to another entity; (CPA Advice?)
payment of excessive remuneration to a controller or associate; (Hell yes, pardon my language)
improper exclusion from participation in management; (Singapore AGM?)
denial of access to information; (members list, emails of members and remuneration etc)
misuse of company funds; (See excessive remuneration, but also include marketing/promotion here.)
oppressive conduct at board meetings. (Well our ex chairman did say no twice to the remuneration question and not one of the submitted questions were answered, which leads back to denial of information)

So what are the remedies?:

that the existing constitution be modified or repealed;
regulating the future conduct of the company’s affairs;
that the company institute or defend legal proceedings or authorise a shareholder to institute or defend legal proceedings in the name of the company;
appointing a new receiver or a receiver and manager;
restraining a person from engaging in specified conduct or from doing a specified act; and
requiring a person to do a specified act.

Source: http://www.findlaw.com.au/articles/4614 ... ained.aspx

The ideal outcome would be a wholesale change of the constitution back to direct member election.
Direction to end/suspension any unnecessary expenditure, ie the book, the show, overseas travel, consultants etc
Compel the existing board/CEO/COO & co to resign. (including CPAA Advice)
Appoint a receiver/manager to oversee the election of totally new board.

*****


Here is the actual provisions of the act.

CORPORATIONS ACT 2001 - SECT 232

Grounds for Court order
The Court may make an order under section 233 if:

(a) the conduct of a company's affairs; or
***
(Section 53 (a) defines "Affair as "the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body")

(c) the internal management and proceedings of the body;
***
(b) an actual or proposed act or omission by or on behalf of a company; or

(c) a resolution, or a proposed resolution, of members or a class of members of a company;

is either:

(d) contrary to the interests of the members as a whole; or

(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.

[nakedadmin]

4 Directors are paid above the limit in the constitution if you include the payments they get from CPA Advice. The financial statements of CPA Advice state that these payments were determined as per article 45 (pay limits). But the recent info released says payments from subsidiaries does not count. I think that fails the pub test and any other test. Could be considered oppressive conduct or theft either way you'd think there are some legal grounds here.

THE CONSTITUTION IS AN AGREEMENT BETWEEN THE COMPANY AND THE MEMBERS AND HAS BEEN BREACHED BY THE CURRENT BOARD! Just my opinion that CPAA Advice payments count.

[MarkG]

Can someone post the CPAA Advice financial statements ?

[Red_Ferrari]

.
The accounts for Dec 2016 are attached. It is funded by CPAA and owned by CPAA yet the directors can by pass the limits in the Constitution by paying themselves further remuneration from here .. out of CPAA funds! This is getting beyond a joke.
.

[nakedadmin]

Note 12 Related parties on page 13 of the CPAA Advice financial statements, states that the remuneration of Directors is as per article 45 of the CPAA constitution so I don't think we should accept that statement in the recent s202B so quickly. I think payments from subsidiaries counts. The constitution article 45 states:

Code: Select all

(b) Subject to Article 45(i), the amount paid to a Director (other than the
             President or the Deputy Presidents), the employer of such a Director or a
             Practice Entity with which such a Director is Closely Associated (as
             applicable, and when and where permissible) pursuant to Article 45(a) (for
             the avoidance of doubt, excluding any amounts paid pursuant to Articles
             45(e) or (f)), in any calendar year will be determined by the Board for the
             relevant calendar year but must not exceed 15% of the total annual salary
             package of the Auditor-General of Australia, as prevailing at the date of the
             Board determination. The amount paid to a Director (other than the
             President or Deputy Presidents) will be prorated for any period where the
             Director is not entitled to be paid fees by reason of Article 45(g) or serves as
             a Director for a period of less than 12 months in a calendar year.

"the amount paid to a Director ... must not exceed 15%"

Also fails the pub test.

Not to mention that CPA Australia Advice did not make any money. Has lost $7.4m. they told us about the loan but not the $2.5m capital. So they are going to claim the $70,000 paid per Director was paid by CPA Australia Advice and NOT paid by CPA Australia. Total revenue of CPA Australia Advice was about $50k.

[nakedadmin]

http://cpamembers.org/viewtopic.php?f=1 ... 1104#p1102

[JWheldon]

Hi Red Ferrari,

It looks like Graeme Wade has possibly breached the Corporations Act by not disclosing his residential address. What do other members think?????

If you have a look at the address which he states on the corporate documents for CPA Australia Advise and CPA Australia which is 275 Auburn Road, Hawthorn, Vic 3122. This is an Australian Post office. This is appears to be a clear breach of the CORPORATIONS ACT 2001 - SECT 205D Address for officers

Address is normally residential address

(1) A person's address for the purposes of a notice or application under subsection 5H(2), 117(2), 205B(1), (2) or (4) or 601BC(2) must be their usual residential address unless they are entitled to have an alternative address substituted for their usual residential address under subsection (2).

Entitlement to have alternative address

(2) The person is entitled to have an alternative address substituted for their usual residential address if:

(a) their name, but not their residential address, is on an electoral roll under the Commonwealth Electoral Act 1918 because of section 104 of that Act; or

(b) their name is not on an electoral roll under that Act and ASIC determines, in writing, that including their residential address in the notice or application would put at risk their personal safety or the personal safety of members of their family.

This alternative address must be in Australia and be one at which documents can be served on the person. At any particular time, a person is entitled to have only 1 alternative address under this section.

Note: See subsection 109X(2) on the status of the alternative address as an address for service.

(3) A person who takes advantage of subsection (2) must:

(a) before or at the same time as the alternative address is first included in a notice or application, lodge with ASIC notice of the person's usual residential address; and

(b) lodge with ASIC notice of any change in the person's usual residential address within 14 days after the change.

A notice under this subsection must be in the prescribed form.

(4) If a court gives a judgment for payment of a sum of money against a person who is taking advantage of subsection (2), ASIC may give details of the person's usual residential address to an officer of the court for the purposes of enforcing the judgment debt.

[Accountability]

.
The accounts for Dec 2016 are attached. It is funded by CPAA and owned by CPAA yet the directors can by pass the limits in the Constitution by paying themselves further remuneration from here .. out of CPAA funds! This is getting beyond a joke.
.

glad to see someone at CPA HQ... most likely the coy sec is earning his $950k p.a. by reading this forum daily.

on the 15th May I posted the following -
" CPA Australia Advice has an AFSL licence was granted 15 April 2016.
Therefore their accounts were due at the latest 30 April 2017 (if they are also a Dec balancer)
I’ve queried ASIC as to why this company hasn’t lodged accounts.
They haven’t divulged other than to say they don’t reveal if a company has lodged an extension request, but it would seem that CPA Australia Advice wouldn’t qualify. So maybe they have just chosen not to lodge yet? Unusual for a member organisation."

guess what day the accounts were lodged?
Yep you guessed it 16th May. only a few weeks late fortuitously
despite being signed waaaay back 4th Feb 2017 by both the coy directors and Deloitte audit

Too busy counting your money or buying up property to be bedding down those fiduciary duties boys?

[JWheldon]

http://asic.gov.au/for-business/changes ... l-address/

Application for suppression of residential address

How to make an application
Once ASIC has granted approval
Additional information
Lodgement of applications

As a company director or secretary, you are required to give ASIC details of your usual residential address on various forms and applications that you lodge with us. Your address details form part of our public database and will be available to the public. In certain circumstances, it is possible to apply to ASIC for approval to have your usual residential address suppressed on our public database and, in its place, to use an alternative address (under s205D of the Corporations Act 2001).

You may be entitled to use an alternative address in place of your usual residential address in forms and applications lodged with us, and on our public database, if:

the Australian Electoral Commission (AEC) has granted you 'silent enrolment' status. This means your name, but not your residential address, is on an electoral roll (under the Commonwealth Electoral Act 1918 because of section 104 of that Act); or
your name is not on an electoral roll at all within Australia and ASIC determines, in writing, that including your residential address on our public database would put at risk your personal safety or the personal safety of members of your family.

Some forms or applications that normally require your residential address details to be included are:

Application for registration as an Australian company (s117(2)) (Form 201)
Change to company details (s205B) (Form 484 - online)

If you are granted ASIC approval to use an alternative address, you may provide an alternative address in place of your usual residential address on these forms and applications when lodged with us. An alternative address must be within Australia and be one at which documents can be served on you. A post office box address is not acceptable. At any particular time, you may use only the one alternative address in all of your company roles.

How to make an application

There are two situations in which an application may be made. If your name and address are currently on the Australian electoral roll, go to Step 1 below. If your name is not on an electoral roll at all within Australia, go to Step 2 below.

1. If your name and address are on the Australian electoral roll

If your name and address are currently on the Australian electoral roll, you need to apply to the AEC for ‘silent enrolment’ before you apply to ASIC to suppress your residential address. If silent enrolment is granted, the AEC will remove your residential address from the electoral roll and will display only your name. You then lodge with ASIC an Application for suppression of residential address (Form 379).

On the Application for suppression of residential address (Form 379) you need to provide:

your full name, date of birth and place of birth
your usual residential address. This is the address that we will suppress on our public database.
your alternative address. This is the address that we will show on our public database in place of your usual residential address.

NOTE: Attach to the Application for suppression of residential address (Form 379) a copy of the AEC's approval letter to confirm your ‘silent enrolment’ status.

The person whose address is to be suppressed must sign the Application for suppression of residential address (Form 379). There is no fee for an Application for suppression of residential address (Form 379)Form 379.

2. If your name is not on the Australian electoral roll at all

If your name is not on the Australian electoral roll, ASIC must determine in writing that including your residential address in forms and applications lodged with us, or on our public database, would put at risk your personal safety or the personal safety of members of your family. To enable us to make this determination, you will need to lodge with us:

Application to use an alternative address (Form 378). There is an application fee of $38.00 for the Application to use an alternative address (Form 378).
Statutory declaration. The Application to use an alternative address (Form 378) must be accompanied by a statutory declaration providing reasons why your personal safety or the personal safety of your family members is at risk.
Application for suppression of residential address (Form 379). The requirements for the Application for suppression of residential address (Form 379) are the same as in Step 1 above, except the AEC's letter is not required in this situation.

Once ASIC has granted approval
ASIC approval number

If we approve your application, we will send you a notice setting out an ASIC approval number. You should quote your approval number, next to your name and alternative address details, on any form that you lodge with us, that would normally require your residential address to be included.
Notifying ASIC of a change in address

After ASIC approval to use an alternative address is granted, you must notify ASIC of any change to your:

usual residential address on a Application for suppression of residential address (Form 379) within 14 days of the change, and/or
alternative address on a Application for suppression of residential address (Form 379) (not a Change to company details (Form 484 - online)) within 28 days of the change.

Late fees apply if the form is lodged outside this time. Quote the ASIC approval number on the Application for suppression of residential address (Form 379) when lodged.

Additional information
Using an alternate address where ASIC hasn't been notified of your appointment

If you have recently been appointed but ASIC has not been notified of your appointment, you can use an alternate address.

Contact us if you have been recently appointed to the company and need to use an alternate address.
Effect of address suppression

The residential address provided on an Application for suppression of residential address (Form 379) will be suppressed wherever it appears on our public database. Instead, we'll use the alternative address provided on the form.

This will include when the residential address is used by another person for a company or business name.

The application forms and any attachments will not be available for public inspection.
Lodgement of applications

All applications to use an alternative address under section 205D(2) should be addressed to:

Attn: Alternative Address Officer
Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841

This is Information Sheet 5 (INFO 5), reissued in November 2015. Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.

[nakedadmin]

It looks like Graeme Wade has possibly breached the Corporations Act by not disclosing his residential address. What do other members think?????

It seems he did. This conversation came up last week and was pointed out by GreenVisor.

Brett said Graeme phoned him and asked him to take the conversation down as he had some apparent reason for it. Like received abusive mail. In late 2014 about 6 Directors changed their addresses.

GRAEME WADE IF YOU ARE READING THIS, YOU ARE PART OF THE BOARD THAT APPROVED PAYMENTS OVER ARTICLE 45 LIMITS BY SETTING UP A 7.4 MILLION DOLLAR LOSS SUBSIDIARY AND YOU PAID YOURSELF $100,000 FROM THIS SUBSIDIARY.

FAILS PUB TEST AND POSSIBLY OTHER TESTS!

ALL FUTURE REQUESTS IN WRITING TO NAKEDADMIN AT CPAMEMBERS.ORG THANKS HAVE A NICE DAY!

[theallseeingeye]

First post from this CPA.

I am not too hung up on Wade's address, as long as the authorities have it and know where to serve legal papers. If, as reported, these guys are getting foul items sent to their families or death threats - that's not on, its not clever, not helpful to uncovering the truth, and good reason for keeping personal addresses out of the public domain.

But here's another random thought. Previous posts I have seen suggest that a person of interest at CPA has form for directing business towards his wife's company when he was in a prior role. Let's hope for the sake of our members that CPA Australia has been squeaky clean on the subject of related party transactions. The NBL sponsorship sailed close to that line.

[nakedadmin]

Hi theallseeingeye,

I think everyone sympathises with them. But the fact is it's the law. It's the same rule for Qantas Directors and the mum and dad ones. These guys are supposed to be an example for the rest they are running one of 3 associations recognised by ASIC, but the Directors don't mind breaking the rules. There was about 6 Directors who changed address at the end of 2014.

If he does not want his address there he can resign. He's over 11 years anyway. How about that spirit of renewal.

The NBL sponsorship sailed close to that line.

That would be looking at it in the best light possible.

Let's hope for the sake of our members that CPA Australia has been squeaky clean on the subject of related party transactions.

We are currently have FOIs with the universities. CPA Australia has now stated in a couple places that they fund research. We want to know how much and which Directors' projects it goes to. The Universities are probably not related parties but we think the money still goes under the control of the person running the research project.

[The Nude CPA]

Let's hope for the sake of our members that CPA Australia has been squeaky clean on the subject of related party transactions.

Hmmm... I would not at all be surprised that they are not.

We are currently have FOIs with the universities. CPA Australia has now stated in a couple places that they fund research. We want to know how much and which Directors' projects it goes to. The Universities are probably not related parties but we think the money still goes under the control of the person running the research project.

This will be interesting.

[theallseeingeye]

.....

We are currently have FOIs with the universities. CPA Australia has now stated in a couple places that they fund research. We want to know how much and which Directors' projects it goes to. The Universities are probably not related parties but we think the money still goes under the control of the person running the research project.

That's the sponsorship side; but do all CPA Aus purchases go through objective competitive tender? or at least the material ones ?