Corporations Act 2001

CHAPTER 2A - REGISTERING A COMPANY  

PART 2A.2 - HOW A COMPANY IS REGISTERED  

SECTION 117   APPLYING FOR REGISTRATION  
Lodging application

117(1)    
To register a company, a person must lodge an application with ASIC.

Note 1: For the types of companies that can be registered, see section 112 .

Note 2: For modifications applicable to applications to register a CCIV, see section 1222A .

Contents of the application

117(2)    
The application must state the following:

(a)    the type of company that is proposed to be registered under this Act;

(b)    the company ' s proposed name (unless the ACN is to be used in its name);

(c)    the name and address of each person who consents to become a member;

(d)    the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a director;

(e)    the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary;

(f)    the address of each person who consents in writing to become a director or company secretary;

(g)    the address of the company ' s proposed registered office;

(h)    for a public company - the proposed opening hours of its registered office (if they are not the standard opening hours);

(j)    the address of the company ' s proposed principal place of business (if it is not the address of the proposed registered office);

(k)    

for a company limited by shares or an unlimited company - the following:

(i) the number and class of shares each member agrees in writing to take up;

(ii) the amount (if any) each member agrees in writing to pay for each share;

(iia) whether the shares each member agrees in writing to take up will be fully paid on registration;

(iii) if that amount is not to be paid in full on registration - the amount (if any) each member agrees in writing to be unpaid on each share;

(iv) whether or not the shares each member agrees in writing to take up will be beneficially owned by the member on registration;

(l)    for a public company that is limited by shares or is an unlimited company, if shares will be issued for non-cash consideration - the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application;

(m)    for a company limited by guarantee - the proposed amount of the guarantee that each member agrees to in writing;

(ma)    

whether or not, on registration, the company will have an ultimate holding company;

(mb)    

if, on registration, the company will have an ultimate holding company - the following:

(i) the name of the ultimate holding company;

(ii) if the ultimate holding company is registered in Australia - its ABN, ACN or ARBN;

(iii) if the ultimate holding company is not registered in Australia - the place at which it was incorporated or formed;

(mc) (Repealed)

(n)    the State or Territory in this jurisdiction in which the company is to be taken to be registered.

Note 1: Paragraph (b) - sections 147 and 152 deal with the availability and reservation of names.

Note 2: Paragraph (f) - the address that must be stated is usually the residential address, although an alternative address can sometimes be stated instead (see section 205D ).

Note 3: Paragraph (g) - if the company is not to be the occupier of premises at the address of its registered office, the application must state that the occupier has consented to the address being specified in the application and has not withdrawn that consent (see section 100 ).

Note 4: Paragraph (h) - for standard opening hours , see section 9 .

117(3)    
If the company is to be a public company and is to have a constitution on registration, a copy of the constitution must be lodged with the application.

117(4)    
The application must be in the prescribed form.

117(5)    
An applicant must have the consents and agreements referred to in subsection (2) when the application is lodged. After the company is registered, the applicant must give the consents and agreements to the company. The company must keep the consents and agreements.

117(6)    

An offence based on subsection (5) is an offence of strict liability.

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

SECTION 118   ASIC GIVES COMPANY ACN, REGISTERS COMPANY AND ISSUES CERTIFICATE  

Registration

118(1)    
If an application is lodged under section 117 , ASIC may:

(a)    give the company an ACN; and

(b)    register the company; and

(c)    issue a certificate that states:

(i) the company ' s name; and

(ii) the company ' s ACN; and

(iii) the company ' s type; and

(iv) that the company is registered as a company under this Act; and

(v) the State or Territory in this jurisdiction in which the company is taken to be registered; and

(vi) the date of registration.

Note 1: For the evidentiary value of a certificate of registration, see subsection 1274(7A) .

Note 2: For modifications applicable to applications to register a CCIV, see section 1222C .

ASIC must keep record of registration

118(2)    
ASIC must keep a record of the registration. Subsections 1274(2) and (5) apply to the record as if it were a document lodged with ASIC.

SECTION 119  

119   COMPANY COMES INTO EXISTENCE ON REGISTRATION  
A company comes into existence as a body corporate at the beginning of the day on which it is registered. The company's name is the name specified in the certificate of registration.

Note: The company remains in existence until it is deregistered (see Chapter 5A ).

SECTION 119A   JURISDICTION OF INCORPORATION AND JURISDICTION OF REGISTRATION  
Jurisdiction in which company incorporated

119A(1)    
A company is incorporated in this jurisdiction.

Jurisdiction of registration

119A(2)    
A company is taken to be registered in:

(a)    the State or Territory specified:

(i) in the application for the company ' s registration under paragraph 117(2)(n) (registration of company under this Part); or

(ii) in the application for the company ' s registration under paragraph 601BC(2)(o) (registration of registrable body as company under Part 5B.1 ); or

(b)    the State or Territory in which the company is taken to be registered under paragraph 5H(4)(b) (registration of body as company on basis of State or Territory law).

This subsection has effect subject to subsection (3).

Note 1: ASIC must specify the State or Territory in which the company is taken to be registered in the company ' s certificate of registration (see paragraph 118(1)(c)(v) and 601BD(1)(c)(v) ).

Note 2: The company ' s legal capacity and powers do not depend in any way on the particular State or Territory it is taken to be registered in (see section 124 ).

Note 3: A law of a State or Territory may impose obligations, or confer rights or powers, on a person by reference to the State or Territory in which a company is taken to be registered for the purposes of this Act. For example, a State or Territory law dealing with stamp duty on share transfers might impose duty on transfers of shares in companies that are taken to be registered in that State or Territory for the purposes of this Act.

119A(3)    
The State or Territory in which a company is taken to be registered changes to the State or Territory in this jurisdiction nominated by the company if:

(a)    either:

(i) the relevant Minister of the State or Territory in which the company is taken to be registered before the change approves the change; or

(ii) the State in which the company is taken to be registered ceases to be a referring State; and

(b)    the procedural requirements specified in the regulations are satisfied.

119A(4)    
A company continues to be registered under this Act even if the State in which the company is taken to be registered ceases to be a referring State.

SECTION 120   MEMBERS, DIRECTORS AND COMPANY SECRETARY OF A COMPANY  

120(1)    
A person becomes a member, director or company secretary of a company on registration if the person is specified in the application with their consent as a proposed member, director or company secretary of the company.

Note: For the equivalent provision for a CCIV, see section 1222D .

120(2)    
The shares to be taken up by the members as specified in the application are taken to be issued to the members on registration of the company.

Note: A member ' s name must be entered in the register of members (see section 169 ).

SECTION 121  

121   REGISTERED OFFICE  
The address specified in the application for registration for the company's proposed registered office becomes the address of the company's registered office on registration.

SECTION 122  

122   EXPENSES INCURRED IN PROMOTING AND SETTING UP COMPANY  
The expenses incurred before registration in promoting and setting up a company may be paid out of the company's assets.

SECTION 123   COMPANY MAY HAVE COMMON SEAL  

123(1)   [ Common seal]  

A company may have a common seal. If a company does have a common seal, the company must set out on it:

(a) for a company that has its ACN in its name - the company ' s name; or

(b) otherwise - the company ' s name and either:

(i) the expression " Australian Company Number " and the company ' s ACN; or

(ii) if the last 9 digits of the company ' s ABN are the same, and in the same order, as the last 9 digits of its ACN - the expression " Australian Business Number " and the company ' s ABN.

Note 1: A company may make contracts and execute documents without using a seal (see sections 126 and 127 ).

Note 2: For abbreviations that can be used on a seal, see section 149 .

123(2)   [ Duplicate]  

A company may have a duplicate common seal. The duplicate must be a copy of the common seal with the words " duplicate seal " , " share seal " or " certificate seal " added.

123(3)   [ Prohibition]  

A person must not use, or authorise the use of, a seal that purports to be the common seal of a company or a duplicate if the seal does not comply with the requirements set out in subsection (1) or (2).

123(4)   [ Strict liability offence]  

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

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