Properly convening an AGM: what not to do

In Esposito v The Wilderness Society Inc [2010] TASSC 21 the Supreme Court of Tasmania made declarations that the Wilderness Society’s 2009 AGM and the re-appointment of the Management Committee and changes to the Constitution were invalid.

In respect of the proposed amendment of the constitution, the Notice of AGM failed to satisfy the requirement that it specify the nature of the business to be transacted at the meeting and give details of the proposed constitution change. In addition, the meeting was invalid as the Notice was not placed on all notice boards as required by the constitution.

The Constitution required the notice be advertised in a Tasmanian newspaper and be displayed on the notice board situated within all premises operated by the Association. In fact notice was published in a newspaper in Burnie in north west Tasmania and it was not displayed in at least 5 locations. In 1 location the notice was attached to an Annual Review document and was concealed by that document so as not to be visible to anybody looking at the notice board.

The purported annual general meeting of the Society on 5 November 2009 was held without the knowledge of a group of the dissatisfied members and Judge Evans said “The subterfuge in relation to the meeting of 5 November 2009 was blatant to the point of dishonesty”.

The purported amendment to the Constitution increased the number of members of the Society that could require that a general meeting be held from 20 members to 10 per cent of its membership. Had this amendment been valid, it would have increased the number of members that could call a general meeting from 20 to more than 4,500. The Society has about 46,000 members.

In the circumstances the Judge ordered that the Society pay all of the plaintiff’s legal costs.

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