Corporations Act 2001

CHAPTER 2A - REGISTERING A COMPANY  

PART 2A.1 - WHAT COMPANIES CAN BE REGISTERED  

SECTION 112   TYPES OF COMPANIES  
Types of companies

112(1)    

The following types of companies can be registered under this Act:

Proprietary companies	Limited by shares
	Unlimited with share capital
Public companies	Limited by shares
	Limited by guarantee
	Unlimited with share capital
	No liability company
Corporate collective investment vehicles	Limited by shares

Note 1: Other types of companies that were previously allowed continue to exist under the Part 10.1 transitionals.

Note 2: For corporate collective investment vehicles, see Chapter 8B .

No liability companies

112(2)    
A company may be registered as a no liability company only if:

(a)    the company has a share capital; and

(b)    

the company ' s constitution states that its sole objects are mining purposes; and

(c)    the company has no contractual right under its constitution to recover calls made on its shares from a shareholder who fails to pay them.

Note 1: Section 9 defines mining purposes and minerals .

Note 2: Special provisions on no liability companies are found in the provisions referred to in the following table:

No liability company provisions
item	topic	provisions
1	names	148 , 156 , 162
2	terms of issue of shares	254B
3	liability on partly-paid shares	254M
4	calls	254P - 254R
5	winding up	477 - 478 , 483 , 514
6	registering a body as a company	601BA
7	transitional	the Part 10.1 transitionals

112(3)    
A no liability company must not engage in activities that are outside its mining purposes objects.

112(4)    
The directors of a no liability company must not:

(a)    let the whole or proportion of a mine or claim on tribute; or

(b)    make any contract for working any land on tribute;

unless:

(c)    the letting or contract is approved by a special resolution; or

(d)    no such letting or contract has been made within the period of 2 years immediately preceding the proposed letting or contract.

112(5)    
An act or transaction is not invalid merely because of a contravention of subsection (3) or (4) .

SECTION 113   PROPRIETARY COMPANIES  

113(1)    
A company must have no more than 50 non-employee shareholders if it is to:

(a)    be registered as a proprietary company; or

(b)    change to a proprietary company; or

(c)    remain registered as a proprietary company.

Note: Proprietary companies have different financial reporting obligations depending on whether they are small proprietary companies or large proprietary companies (see section 45A and Part 2M.3 ).

113(2)    
In applying subsection (1) :

(a)    count joint holders of a particular parcel of shares as 1 person; and

(b)    an employee shareholder is:

(i) a shareholder who is an employee of the company or of a subsidiary of the company; or

(ii) a shareholder who was an employee of the company, or of a subsidiary of the company, when they became a shareholder; and

(c)    

do not count as a shareholder any CSF shareholder of the company; and

(d)    

do not count as a shareholder an entity, in relation to a security of the company held by the entity, if:

(i) that security was originally issued to another entity pursuant to a CSF offer by the company; and

(ii) unless the circumstances (if any) prescribed by the regulations for the purposes of this subparagraph exist - no securities of the company have been traded on a financial market (whether in Australia or elsewhere); and

(iii) all the other requirements (if any) prescribed by the regulations for the purposes of this subparagraph are met.

113(3)    

A proprietary company must not engage in any activity that would require disclosure to investors under Chapter 6D , except for:

(a)    

an offer of its shares, or of options in respect of its shares, to:

(i) existing shareholders of the company; or

(ii) employees of the company or of a subsidiary of the company; or

(b)    a CSF offer.

113(3A)    

An offence based on subsection (3) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

113(4)    
An act or transaction is not invalid merely because of a contravention of subsection (3) .

Note: If a proprietary company contravenes this section, ASIC may require it to change to a public company (see section 165 ).

SECTION 114  

114   MINIMUM OF 1 MEMBER  
A company needs to have at least 1 member.

SECTION 115   RESTRICTIONS ON SIZE OF PARTNERSHIPS AND ASSOCIATIONS  

115(1)   [ Restrictions]  

A person must not participate in the formation of a partnership or association that:

(a) has as an object gain for itself or for any of its members; and

(b) has more than 20 members;

unless the partnership or association is incorporated or formed under an Australian law.

Note: For the effect of a contravention of this section, see section 103 .

115(2)   [ Regulations]  

The regulations may specify a higher number that is higher than the number specified in paragraph (1)(b) for the purposes of the application of that paragraph to a particular kind of partnership or association.

115(3)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 116  

116   TRADE UNIONS CANNOT BE REGISTERED  

A trade union cannot be registered under this Act.