Board Decisions Without a Meeting | Circular Resolution AU

The Act calls the mechanism a circulating resolution, while practitioners, banks and registered agents usually speak of a circular resolution or a flying minute. For a company with two or more directors, s 248A(1) allows the board to pass a resolution if every director entitled to vote signs a document containing a statement that they are in favour of the resolution set out in it. Separate copies may be signed under s 248A(2) provided the wording of the resolution and statement is identical in each, and the resolution is passed when the last director signs. A sole director company relies on s 248B instead, which only requires the director to record the resolution and sign the record.

A circular resolution must not be confused with a members' resolution without a meeting under s 249A, signed by shareholders. That is the correct instrument whenever the Act or the constitution reserves a decision to members, such as changing the company name, removing a director or confirming a director appointed by the board. Because s 248A is a replaceable rule, a company constitution drafted to displace the replaceable rules can lower the unanimity threshold to a majority or exclude the mechanism entirely. Reading the constitution first is the step most boards skip.

The Corporations Act 2001 (Cth) applies uniformly across every state and territory, and the Australian Securities and Investments Commission administers it under s 5B. Section 198A vests the management of the business in the directors, and ss 248A to 248G set the default rules for how the board exercises that power. Once a circular resolution is passed, s 251A(1) obliges the company to record it in its minute books within one month, and s 251A(3) requires a director to sign that record within a reasonable time. A minute recorded and signed in this way is evidence of the resolution under s 251A(6) unless the contrary is proved. You can read the operative provisions in the Federal Register of Legislation text of the Corporations Act 2001.

The Corporations Amendment (Meetings and Documents) Act 2022 made technology-neutral signing a permanent feature of the Act. Directors can sign a circular resolution electronically, on separate copies, provided the method identifies the signatory and indicates their intention in a reliable way. The same reform confirmed electronic execution of company documents under s 127, which matters when the resolution authorises a contract, deed or bank mandate.

Each decision covered by this pack carries its own statutory consequences. A share issue engages s 254A, the pre-emption replaceable rule in s 254D for proprietary companies, the ASIC notice under s 254X and, unless the terms of issue provide otherwise, the certificate deadline in s 1071H. A director appointment requires the signed consent described in s 201D, a director identification number under s 1272C, member confirmation within two months under s 201H(2) for a proprietary company, and notice to ASIC under s 205B. Where a shareholders agreement with reserved matters for Pty Ltd companies is in place, board approval alone may not be enough: the agreement can require shareholder consent before the directors act.

The most frequent trigger is a change of bank signatories. Banks will not act on an email from a director; they want a signed resolution naming who may operate the account and in what combination, often on their own form and with a certified extract. Issuing shares is the second common use. An incoming investor, an employee share allocation or a capital injection by existing members needs a board decision fixing the number, class, issue price and date of the allotment.

Director changes come next. The board can appoint a director under the replaceable rule in s 201H, supported by a signed consent and, where the new director also takes an executive role, by a separate executive employment contract under the Fair Work Act. Removal is different: the board cannot remove a director, because s 203C gives that power to members of a proprietary company and s 203D does the same in a public company. Boards also use circular resolutions to approve financial statements, determine a dividend under s 254U after applying the s 254T test, or authorise a lease. One edge case worth flagging is the corporate trustee, where the resolution must state that the company acts as trustee of a named trust and within the powers of the trust deed, or its right of indemnity from trust assets can be put at risk.

• The company identification block sets out the full company name, ACN and the capacity in which the company acts. For a trustee company, the trust and deed are identified.
• The statement of entitlement to vote confirms that each signatory is a director entitled to vote on the matter. A director with a material personal interest gives notice under s 191; in a public company that director is excluded by s 195, while s 194 lets a proprietary company director vote after disclosure.
• The operative resolutions cover bank signatories, share issues and director appointments, each in its own schedule. The bank schedule includes a secretary's certificate most banks request.
• The share issue schedule records the allottee, number and class of shares, issue price, payment terms and how the s 254D pre-emption rule has been satisfied, displaced by the constitution or set aside with member approval.
• The director appointment schedule attaches the s 201D consent, the director ID declaration and a members' confirmation resolution under s 201H(2). It also reminds the board that a proprietary company must have at least one director ordinarily resident in Australia under s 201A(1).
• The counterparts and electronic signature clause confirms that separate copies form one document under s 248A(2), with a signing block recording the date each director signed.

The Corporations Act 2001 (Cth) governs the resolution itself identically in every state and territory. State law re-enters through landholder duty when a share issue shifts control of a company that owns land, and through the rules for executing the deeds a resolution authorises.

New South Wales applies landholder duty under Chapter 4 of the Duties Act 1997 (NSW). Duty is triggered when a person acquires a significant interest, 50 per cent or more for a private company, in a landholder whose NSW land exceeds the statutory value threshold. An issue of new shares counts as an acquisition, and interests held by associated persons are aggregated. The resolution approving a significant allotment should record that the directors considered the company's NSW landholdings.

Victoria imposes a comparable regime under the landholder provisions of the Duties Act 2000 (Vic), administered by the State Revenue Office. The private company threshold is also a 50 per cent interest, and the Act separately catches economic entitlements that mimic ownership without any transfer of shares. Where the incoming shareholder is a foreign person and the company holds residential land, foreign purchaser additional duty can apply on top.

Queensland treats the same transactions as relevant acquisitions in a landholder under the Duties Act 2001 (Qld), with additional foreign acquirer duty where a foreign person acquires an interest in a company holding residential land. The Property Law Act 2023 (Qld) modernised the law of deeds, including electronic execution. The resolution should name the approved signatories and execution method for any Queensland deed it authorises.

Western Australia applies landholder duty under the Duties Act 2008 (WA), with rules that differ from the eastern states on several points. Land is defined broadly and includes mining tenements, and goods of a landholder can also enter the calculation. A company holding tenements or pastoral leases should treat any capital raising as a potential dutiable event and record the board's consideration of that risk in the resolution.

You start by entering the company details and indicating whether the company has one director or several, since that choice determines whether the pack is built on s 248A or s 248B. The form then asks whether the company has adopted a constitution and whether it modifies the circular resolution rule, so the printed signing threshold matches your governance.

Next, you select the decisions you want to record. A bank signatory change opens fields for the account and signing combination, a share issue asks for the allottee, class, number and price of shares, and a director appointment generates the consent, the director ID declaration and the members' confirmation.

For companies limited by guarantee and charities, the questionnaire flags where a board charter and delegations pack may already set rules for written decisions. The template then adds a checklist of minute book, ASIC and register steps. Directors sign on paper or electronically, and the company secretary files the signed copies together.

The error we see most often is a resolution signed by every director except one who was "travelling" or "would have agreed anyway". Under the default rule, a single missing signature means the resolution has not been passed, whatever the other directors intended. A close second is the board that issues shares in a proprietary company without dealing with the s 254D pre-emption rule, leaving the allotment open to challenge by an existing member. Another is the director appointed without a signed consent or a director ID, or a board that purports to remove a director when only members hold that power.

Timing errors are just as common. Companies record the resolution months later, file the ASIC notice late, or forget that the members of a proprietary company must confirm a board appointment within two months, failing which the director ceases to hold office. Finally, a resolution cannot fix a constitution that is silent on share classes or a cap table that was never documented. Our Australian company and commercial templates cover those foundations, and each resolution should be read against them before anyone signs.