Company Law Review Act 1998 (61 of 1998)

Schedule 1   Main amendments of the Corporations Law

11   After Division 9 of Part 9.11

Insert:

Division 10 - Changes resulting from the Company Law Review Act 1998

1412 Meaning of commencement , new Law and old Law

In this Division:

commencement means the commencement of section 3 of the Company Law Review Act 1998.

new Law means this Law as in force after commencement.

old Law means this Law as in force immediately before commencement.

1413 Registration - existing companies continue to be registered

A company that was registered or taken to be registered before commencement under Part 2.2 of the old Law continues to be registered as a company of whichever of the following types corresponds to its previous class and type:

(a) a proprietary company limited by shares

(b) an unlimited proprietary company

(c) a proprietary company limited both by shares and by guarantee

(d) a public company limited by shares

(e) an unlimited public company

(f) a company limited by guarantee

(g) a public company limited both by shares and by guarantee

(h) a no liability company.

1414 Registration - application orders under subsection 112(3) of the old Law

An application order in force immediately before commencement under subsection 112(3) of the old Law continues to have effect after commencement as if it were an application order under section 115 of the new Law.

1415 Basic features of a company - memorandum and articles are taken to be constitution

The memorandum and articles of a company immediately before commencement are taken together to make up the company's constitution after commencement.

Note: A company could have had some or all of its articles implied by the operation of section 175 of the old Law.

1416 Basic features of a company - companies limited both by shares and by guarantee

(1) This Law applies to a company limited by shares and by guarantee as if the following provisions of the old Law had not been repealed or amended:

(a) paragraph 260(5)(a)

(b) sections 516, 517 and 518.

(2) This Law applies to the company as if the definition of limited company in section 9 were amended by adding at the end “or a company limited by shares and by guarantee”.

(3) The company may change to one of the following types of companies under Part 2B.7 of the new Law:

(a) a proprietary company limited by shares

(b) a public company limited by shares

(c) a company limited by guarantee.

(4) Part 2B.7 of the new Law applies to the change with any modifications that are necessary.

1417 Basic features of a company - acts before external administration of existing company

(1) This section applies to an act or thing done by or in relation to a company that section 132 of the old Law applied to.

(2) The new Law applies in relation to the company as if:

(a) the company had been a company, and this Law had been in force, at the time when that action was taken; and

(b) that action had been validly taken under, or for the purposes of, Chapter 5.

The new Law has effect with any modifications that are necessary.

(3) Nothing in this section makes a person guilty of a contravention of this Law in respect of anything done or not done before 1 January 1991.

1418 Basic features of a company - registered office

The registered office of a company immediately before commencement continues to be the company's registered office after commencement.

1419 Basic features of a company - opening hours of registered office of public company

A notice lodged under subsection 218(2) or (4) of the old Law has effect after commencement as if it were lodged under subsection 145(3) of the new Law.

1420 Basic features of a company - name, reservation of name and ACN continues

(1) The name of a company or body immediately before commencement continues to be the company's or body's name after commencement.

(2) A name that was reserved in respect of a company or body immediately before commencement is taken after commencement to be reserved under section 152 or 601DA of the new Law, as applicable.

(3) The registration number of a company registered before commencement is taken to be the company's ACN after commencement.

1421 Members' rights and remedies - applications for inspection orders under repealed provisions

An application made before commencement under section 317 of the old Law, but not decided, has effect as if it were an application for an order under section 247A of the new Law.

1422 Meetings - AGM before commencement

An AGM held before commencement can be taken into account for the purpose of deciding whether the requirements of section 250N of the new Law have been satisfied for a public company holding an AGM.

1423 Meetings - first AGM for companies incorporated before commencement

(1) A company that was incorporated less than 18 months before commencement and that did not hold its first AGM by commencement must hold it within 18 months after its incorporation.

(2) A company that was incorporated 18 months or more before commencement and that did not hold its first AGM by commencement must hold it within 7 days after commencement.

1424 Meetings - general transitional arrangements

1425 Nominal value

The nominal value of a share immediately after commencement is the nominal value it had immediately before commencement.

1426 Share capital - calls on partly-paid shares

A resolution to which subsection 188(2) applied immediately before commencement continues to have effect after commencement as if it were a special resolution under section 254N of the new Law.

1427 Share capital - provisions in constitution about amount of share capital and division into shares

(1) Any provisions in a company's constitution stating the amount of the company's share capital, and dividing that share capital into shares of a fixed amount, are repealed on commencement.

(2) If, before commencement (or within 3 months after commencement), a company receives a notice stating that this subsection is to apply to the company and that satisfies subsections (3) to (5), the following provision is inserted in the company's constitution on commencement (or when the notice is received if it is received after commencement) in place of the provision repealed by subsection (1):

“The company must not issue shares if the issue would make the total number of the company's issued shares in a particular class exceed the total number of shares of that class into which the company's authorised share capital was divided immediately before the commencement of Chapter 2H of the Corporations Law.”.

The provision has effect as a provision of the company's constitution and may be amended accordingly.

(3) A notice for the purpose of subsection (2) must be:

(a) in writing; and

(b) signed by:

(i) members who hold shares carrying at least 5% of the votes that may be cast at a general meeting of the company; or

(ii) 100 members entitled to vote at a general meeting of the company.

(4) The notice may consist of copies signed by different members provided each copy has identical wording.

(5) The percentage of votes members hold is to be worked out as at the close of business on the day before the notice was given to the company.

(6) If subsection (2) applies to insert the provision into a public company's constitution, within 14 days after the insertion of the provision the company must lodge a notice with the ASC in the prescribed form that states that subsection (2) applies.

1428 Share capital - conversion of stock into shares

A company must convert stock in the company into shares within 5 months after the end of the first financial year to end after commencement. The conversion is to be by resolution passed in a general meeting. The company may disregard any stock that could only be converted into a fraction of a share. Until all the stock is converted, the register of members must continue to show the amount of stock, or the number of stock units, held by each member who holds stock and indicate any stock that a member does not hold beneficially.

1429 Share capital - previous Law continues to apply to capital reductions initiated before commencement

If a company has called a meeting before commencement for the purpose of section 195 of the old Law to consider a special resolution for a reduction of its share capital, the old Law continues to apply to the reduction of capital.

1430 Share capital - continued operation of other repealed provisions

The old Law continues to apply to:

(a) a body corporate's obligation under section 185 of the old Law to dispose of shares and any related voting restrictions; and

(b) an application for an order, or an order made, under section 194 of the old Law; and

(c) an application for an order, or an order made, under section 202 of the old Law.

1431 Financial reports and audit - application of Chapter 2M to periods that end after commencement, and continued application of repealed provisions to past periods

(1) Chapter 2M of the new Law, and the amendments made by Part 4 of Schedule 2 to the Company Law Review Act 1998, apply to financial years and half-years ending after commencement.

(2) In relation to financial years and half-years that end on or before commencement, the provisions of Parts 3.6, 3.7, 4.4 and 4.5 of the old Law, and the provisions amended by Part 4 of Schedule 2 to the Company Law Review Act 1998, continue to apply as if they had not been repealed, relocated or amended.

1432 Financial reports and audit - lodgment of accounts by public companies that are not disclosing entities

(1) This section applies to a public company that is not a disclosing entity at the end of the last financial year to which the old Law applies.

(2) The company must lodge a copy of the following documents with the ASC for the last financial year to which the old Law applies:

(a) the company's financial statements (within the meaning of the old Law); and

(b) the statement or statements that Division 5 of Part 3.6 of the old Law required; and

(c) the report that Division 6 of Part 3.6 of the old Law required; and

(d) the report about the financial statements that section 331A of the old Law required from the company's auditor.

Note: For the transitional provisions for annual returns see sections 1435 and 1436.

(3) The company must lodge the documents within 1 month after:

(a) the day on which the company's next AGM after commencement is held if it is held when it should be under sections 250N and 250P; or

(b) the last day on which the company should have held its next AGM after commencement under sections 250N and 250P.

1433 Financial reports and audit - continued operation of accounting standards

(1) An accounting standard that was in force immediately before commencement (including under section 288 of the old Law):

(a) continues to have effect after commencement for the purposes of Parts 3.6 and 3.7 as they continue to apply under subsection 1431(2); and

(b) also has effect after commencement, with any necessary modifications, as if it were an accounting standard made for the purposes of Chapter 2M.

(2) This section does not apply an accounting standard to a period to which it would not otherwise apply.

1434 Financial reports and audit - continued operation of exemption orders

(1) An order in force immediately before commencement under section 290, 291, 313 or 314 continues to have effect after commencement, with any necessary modifications, in relation to financial years and half-years ending after commencement as if it were an order under:

(a) section 340 of the new Law; or

(b) if it relates to a class of companies - section 341 of the new Law.

(2) An application made, but not decided, before the commencement under section 290 or 313, so far as it relates to financial years and half-years ending after commencement, has effect after commencement, with any necessary modifications, as if it were an application for an order under section 340 of the new Law.

1435 Annual returns - solvency resolution

The directors of a company are not required to make a resolution under subsection 346(1) of the new Law in relation to the company's first annual return lodged under subsection 345(1) of the new Law if the company has lodged accounts with the ASC under Chapter 3 of the old Law within 12 months before the annual return is lodged.

1436 Annual returns - application of annual return provisions

(1) A public company does not have to lodge an annual return under section 335 of the old Law if the date for lodgment occurs after commencement.

(2) A public company that lodges an annual return under section 335 of the old Law:

(a) before commencement; and

(b) within the 6 months before the first 31 January after commencement;

does not have to lodge the annual return that it would otherwise have had to lodge by that 31 January.

1437 Deregistration - previous Law continues to apply to deregistrations initiated before commencement

If, before commencement, a person has started a procedure under Division 8 of Part 5.6 (including section 574A) to have a company deregistered, the old Law continues to apply in relation to the procedure.

1438 Deregistration - property vested in ASC under previous laws

(1) If property vested in the ASC before commencement under Division 8 of Part 5.6, the ASC may deal with the property under Chapter 5A as if the property were vested in it under section 601AD.

(2) If:

(a) property was vested in the ASC under section 254 of the ASC Law; and

(b) the property was previously vested in the NCSC:

(i) because of the previous law of this jurisdiction corresponding to section 576 of the old Law; and

(ii) not under section 43 of the National Companies and Securities Commission Act 1979;

the ASC may deal with the property under Chapter 5A as if it were vested in it under section 601AD.

(3) If property vested, or vests, in the ASC under section 601, the ASC may deal with the property under Chapter 5A as if the property were vested in it under section 601AD.

(4) This section has effect despite section 601.

1439 Deregistration - reinstatement of registration where application under section 571 or subsection 574(3) made before commencement

An application made under section 571 or subsection 574(3) of the old Law that has not been determined by commencement has effect after commencement as if it were an application for an order for reinstatement of the registration of the company under section 601AH of the new Law.

1440 Deregistration - deregistration of companies dissolved under the State Bank (Corporatisation) Act 1994 of South Australia

ASC to deregister company on notice from South Australian Minister

(1) The ASC must deregister a company if the Minister of the Crown of South Australia responsible for the administration of the State Bank (Corporatisation) Act 1994 of South Australia notifies the ASC in writing that a company has been dissolved under section 23 of that Act.

ASC to give notice of deregistration

(2) The ASC must give notice of the deregistration on the ASC database and in the Gazette.

Law applies as if deregistration were under section 601AB

(3) Subject to subsection (4), this Law (other than section 601AB) applies to the deregistration of the company as if the deregistration were under section 601AB.

(4) Subsection 601AD(2) only applies to property of the company to the extent (if any) that the property is not vested in the State Bank of South Australia under subsection 23(2) of the State Bank (Corporatisation) Act 1994 of South Australia.

1441 Accounting standards made under section 32 of the Corporations Act 1989

An accounting standard that is in force under section 32 of the Corporations Act 1989 immediately before the commencement of item 7 of Schedule 4 to the Company Law Review Act 1998 continues in force after that commencement as if it were made under section 334 of this Law.

1442 References in State laws and other documents

(1) A reference in any law of the Commonwealth or of a State or Territory, or in any document, to a provision of the old Law is to be read after commencement as a reference to the corresponding provision of the new Law except so far as the contrary intention appears in the law or document.

(2) Without limiting subsection (1), the following table sets out provisions of the old Law that correspond to particular provisions of the new Law: