New South Wales Consolidated Acts

AGL CORPORATE CONVERSION ACT 2002 - SECT 11

11 Irregularities concerning conversion and registration resolutions

(1) Procedural irregularity does not invalidate resolution without court order An applicable resolution is not invalidated because of any procedural irregularity unless, on an application made under this section, the Supreme Court by order declares the resolution to be invalid (an "invalidity order").

(2) Who may apply for invalidity order An application to the Supreme Court for an invalidity order under this section may be made only if no fewer than 200 persons who were eligible to vote at the meeting at which the applicable resolution was passed make the application.

(3) Time for application for order Such an application can only be made to the Supreme Court within:

(a) if the resolution was passed before the date of assent to this Act-the period of 7 days commencing on the date of assent to this Act, or

(b) if the resolution was passed on or after the date of assent to this Act-the period of one month commencing on the date of the passing of the resolution.

(4) Parties to an application The parties to any such application are as follows:

(a) the applicants,

(b) AGL or corporatised AGL (as the case may be),

(c) the Minister.

(5) When Supreme Court may make invalidity order The Supreme Court must not make an invalidity order unless it is of the opinion that:

(a) the irregularity was not, or was not the result of, an accidental omission or non-receipt of a notice required under the constitution of AGL or corporatised AGL (as the case may be), and

(b) the irregularity has caused or may cause substantial injustice.

(6) Supreme Court may enjoin Minister from making conversion order or issuing compliance certificate The Supreme Court may, of its own motion or on the application of a party to an application for an invalidity order in relation to an applicable resolution, make an order that enjoins the Minister from making a conversion order or issuing a compliance certificate (as the case may be) in relation to the resolution until the application for the invalidity order is determined by the Court.

(7) Minister may make conversion order or issue compliance certificate if not enjoined The Minister may make a conversion order or issue a compliance certificate in relation to an applicable resolution even if it is the subject of an application for an invalidity order, unless the Minister is enjoined from doing so under subsection (6). Any such order or certificate is to be treated in the proceedings for the invalidity order as having the same effect as it would have had if no application for the invalidity order had been made.

Note: Section 13 (5) provides that a conversion order is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the conversion of AGL into a body corporate. Similarly, section 32 (4) provides that a compliance certificate is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the transfer of the incorporation of corporatised AGL to the Corporations Act 2001 of the Commonwealth as a public company limited by shares.

(8) Effect of invalidity order on conversion orders or compliance certificates If the Supreme Court makes an invalidity order in relation to an applicable resolution:

(a) in the case of a conversion resolution or purported conversion resolution-the Minister cannot make a conversion order in relation to the resolution, and

(b) in the case of a registration resolution or purported registration resolution-the Minister cannot issue a compliance certificate in relation to the resolution.

(9) Rules of court may be made Rules of court (not inconsistent with this Act or the regulations) may be made under the Supreme Court Act 1970 for the purposes of this section. This subsection does not limit the rule-making powers conferred by the Supreme Court Act 1970 .

(10) Meaning of procedural irregularity In this section, a reference to a procedural irregularity includes a reference to:

(a) any defect, irregularity or deficiency of notice or time, and

(b) any miscalculation of voting entitlements.