THE CORPORATIONS LAW

CHAPTER 2B - BASIC FEATURES OF A COMPANY

PART 2B.7 - CHANGING COMPANY TYPE

SECTION 164   ASIC CHANGES TYPE OF COMPANY  

164(1)  [Notice]  

ASIC must give notice under subsection (3) that it intends to alter the details of the company's registration if:

(a)  ASIC is satisfied that:

(i) the application complies with section 163; and

(ii) for an application by a company limited by guarantee to change to a company limited by shares - the company's creditors are not likely to be materially prejudiced by the change; and

(b)  for an application by a company limited by guarantee to change to a company limited by shares that is accompanied by a copy of a special resolution dealing with an issue of shares according to section 167 - ASIC is not of the opinion that the obligations that would attach to the shares are unreasonable compared with the obligations that attach to membership of the company limited by guarantee.

164(2)  [ASIC direction]  

To make a decision under subparagraph (1)(a)(ii), ASIC may direct the company in writing to:

(a)  notify some or all of its creditors of the proposed change in the way ASIC specifies; and

(b)  invite those creditors to make submissions to ASIC.

164(3)  [Publication of notice]  

The notice that ASIC intends to alter the details of the company's registration must be:

(a)  included on ASIC database; and

(b)  published in the Gazette.

The notice must also state that ASIC will alter the details of the company's registration 1 month after the notice has been published in the Gazette unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.

164(4)  [Alteration of details]  

Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company's registration to reflect the company's new type.

164(5)  [Effect]  

A change of type under this section takes effect when ASIC alters the details of the company's registration. Despite subsection 246D(3) and section 246E, a special resolution passed in connection with the change of type also takes effect when ASIC alters the details of the company's registration.

164(6)  [Certificate of registration]  

ASIC must give the company a new certificate of registration after it alters the details of the company's registration. The company's name is the name specified in the certificate of registration issued under this section.

Note:

For the evidentiary value of a certificate of registration, see subsection 1274(7A).

164(7)  [Court not to make order]  

If ASIC alters the details of a company's registration under subsection (4), a court is not to make an order reversing the alteration of the details of the company's registration.

Note:

The Administrative Appeals Tribunal cannot review the change of the company's type once ASIC has issued a new certificate of registration to the company (see subsection 1274(7A) and paragraph 1317C(b)).