Following the message received from the Board on December 1st, many parents wonder how it is possible that the Board may legally function with only 5 Directors wherease the LCS Constitution clearly calls for 9 to 12 Directors (of which 7 to 10 elected, 0 to 2 co-opted):
26.1 The Company shall have minimum of 9 and maximum of 12 Directors.
26.2 […] the Directors shall comprise:
(a) at least 7 but no more than 10 directors elected by the Members of the Company (Member Directors); and
(b) a maximum of 2 directors appointed by the Board (Board Directors).
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The answer comes from these 2 articles in the Constitution:
32.9 A quorum for meetings of Directors is five Directors.
37.1 The Directors may act even if any of the directors’ positions are vacant.
The situation where the number of Directors falls below the minimum prescribed by the constitution was dealt with in legal cases, such as this one by the Supreme Court of NSW, as pointed out by the Legal Counsel of LCS:
26. There is authority that, if the number of a company’s directors has fallen below the minimum prescribed in the constitution, but sufficient directors attend a meeting to constitute a quorum, those directors may validly act provided a company’s constitution expressly or impliedly authorises them to do so: Re Scottish Petroleum Co (1883) 23 Ch D 413 at 431; Re Bank of Syria [1900] 2 Ch 272 at 278, aff’d Re Bank of Syria [1901] 1 Ch 115 at 120-121; and see Halsbury’s Laws of Australia at [120.8185]. […]
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Therefore the conclusion is that our Board can function with a quorum of 5 Directors (as set in 32.9) even if the number of Directors is less than 9, by effect of 37.1 .
Elections must be called when the number of Directors falls below 9 and no co-optation is made to reach 9 again, which in most cases should only occur when the number of elected Directors falls below 7.
Association des Parents d'Élèves (APE) du Lycée Condorcet, Sydney 