Reference no: EM133230255

If all directors are requishioned to be removed by s 203D in conjunction with a 249D notice, Re Railway and Transport Health Fund [2020] NSWSC 1435 makes it clear that a residual power is enacted to allow shareholders to appoint directors even if the company constitution says that directors can only be appointed at a AGM, as no other method to elect directors exists. However, what happens if three directors are put forward in the resolution, but one of the directors are not qualified as stated under the constitution. The constituion also allows for a director to appoint vacancy directors. Would the directors that are qualified be able to appoint the third director, that is not qualified as a director, instead be appointed as a vacancy director? what are the rules surrounding a vacancy director? Or would a residual power exist where the third director has to be elected even if not qualified, considering only three directors are on resolutions to be elected, and three directors must be elected due to it being a public company?