314 Chapter 11Companies (2): Management, control and winding up
and the court held that this was a breach of Pender’s rights as a member. However, this is
not a true exception to the rule in Foss vHarbottle. A member whose rights have been
infringed will have a contractual right to sue on account of the articles forming a contract
between himself and the company and between himself and the other members.Actions which are ultra vires
Any member of a company has the right to prevent the company from entering into an ultra
virestransaction, that is to say a transaction which is outside the company’s objects clause.
But if the transaction has already been concluded a member has no power to undo it. The
members will not have the power to prevent the company entering into an ultra virestrans-
action if the transaction has been approved by special resolution.The company secretary
Every public company must have a company secretary, who might also be one of the
directors. Private companies do not need to have a company secretary but might choose to
have one. The company secretary of a plc must be suitably qualified (generally, as a lawyer
or an accountant). The company secretary of a private company does not need to hold any
qualifications.
The secretary’s duties are to look after the administration of the company. This would
include matters such as keeping the company registers up to date, sending information to
the Registrar of Companies, arranging meetings, sending notice of meetings and resolutions
to members and keeping up to date with legislation which affects the company.
The company secretary has a limited power to make contracts which bind the company,
but only as regards the type of administrative contracts which a company secretary could
be expected to make.Section 275(1) requires every company to keep a register of its secretaries at its registered
office or at a place specified in regulations under s. 1136. The register must give the follow-
ing details of the company secretary: his full name, any former name and his address. The
address required to be stated is a service address and can be ‘The company’s registered
office’. If the company secretary is changed, notification must be sent to the Registrar within
14 days, along with signed consent by the new secretary appointed. If the details on the
register change, the Registrar must be informed within 14 days. Members can inspect the
register of directors and secretaries free of charge, and non-members can be charged a small
fee. If the register is not open to inspection, the company and its officers may be fined and
the court may order immediate inspection to be allowed.Panorama Developments (Guildford) Ltd vFidelis Furnishing Fabrics Ltd
(1971) (Court of Appeal)A company secretary hired cars in the company name. It appeared to the hirers that the
cars were being used to meet the customers of the company. In fact the secretary was
using the cars for his own purposes. The hirers sued the company for the hire charges.
HeldThe company was liable. The secretary had been held out as having authority to hire
the cars on behalf of the company and so he had apparent authority to do so.