Failure of responsible entity to call meeting of the scheme’s members

ASIC Interview

You should seek legal advice from one of our experienced criminal lawyers as soon as you are aware that you are under investigation for Failure of Responsible Entity to Call Meeting of the Scheme’s Members. Your specialised criminal lawyer will explain your rights to you and provide you with clear advice about how best to conduct yourself in the interview with ASIC so that you do not harm your position later on. An interview is an important part of the investigation process and should not be treated casually.

We always recommend having one of our lawyers present during the interview because they can get a sense of the case against you by speaking with the investigator.

Pleading Not Guilty

Being charged with a criminal offence can be daunting and you may feel isolated. It is important to engage an expert criminal lawyer at an early stage if you have been charged with Failure of Responsible Entity to Call Meeting of the Scheme’s Members to have someone look after your interests.

One of our criminal defence lawyers will prepare a defence strategy for you and carefully analyse the brief of evidence. Our criminal defence lawyers will prepare you for the rigorous Court process and will meticulously examine the prosecution brief of evidence looking for flaws.

The Court process for pleading not guilty can be a long and difficult one. It is important to engage an experienced and trusted criminal lawyer to advocate on your behalf at each step of the proceedings.

Pleading Guilty

If you are pleading guilty to Failure of Responsible Entity to Call Meeting of the Scheme’s Members, our lawyer’s role is to make sure the Court understands who you are and not just your wrong-doing. It may be particularly important for your current or future employment that you are not convicted of the offence. In those circumstances, an experienced criminal lawyer will make detailed submissions to the Court about why you should not be convicted for this offence.

Which court will the case be heard in?

This charge will be heard in the Magistrates’ Court.

Examples of Failure of Responsible Entity to Call Meeting of the Scheme’s Members

• You are the Director of a company and responsible for calling a meeting of the scheme’s members every 6 months and you do not call a meeting for a year. Members entitled under s 252B to call a meeting try to call a meeting but they are not provided with a register of all the members.
• Members entitled to call a meeting of scheme’s members hold a meeting but they are not reimbursed for the cost of printing.

What is the legal definition of Failure of Responsible Entity to Call Meeting of the Scheme’s Members?

It is an offence for Directors of a company not to provide a copy of the register of members to the members holding the meeting of scheme’s members. It is also an offence for Directors not to pay the reasonable expenses of holding a meeting of scheme’s members.

The responsible entity must pay the reasonable expenses the members incurred because the responsible entity failed to call and arrange to hold the meeting and to make the distribution (if any). The responsible entity must not pay those expenses from the scheme’s assets.

Legislation

The section that covers this offence is section 252C of the Corporations Act 2001.

“Did you fail to call and arrange to hold a meeting within 21 days?”

Elements of the offence

• Members with more than 50% of the votes carried by interests held by the members make a request under section 252B
• The responsible entity does not call and arrange to hold a meeting within 21 days after the request is given to the responsible entity

Defences

• You are not responsible for calling the meeting.
• You did not fail to call a meeting within the time limit.
• You are a director in a company and you took reasonable steps to provide the members with the register.
• You are a director in a company and took reasonable steps to reimburse the members who organised the meeting.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this

• What is the time limit for calling the meeting?
• Did you fail to call a meeting within this time limit?
• Did you know that a register of members was not provided?
• Did you know that members were not reimbursed for holding a general meeting?

Maximum penalty for section 252C of the Corporations Act 2001

The maximum penalty for Failure of Responsible Entity to Call Meeting of the Scheme’s Members (s252C of the Corporations Act 2001) is 5 penalty units.