Corporations Act 2001

CHAPTER 2B - BASIC FEATURES OF A COMPANY  

PART 2B.2 - ASSUMPTIONS PEOPLE DEALING WITH COMPANIES ARE ENTITLED TO MAKE  

SECTION 128   ENTITLEMENT TO MAKE ASSUMPTIONS  

128(1)   [ Entitlement]  

A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

128(2)   [ Title to property]  

A person is entitled to make the assumptions in section 129 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

128(3)   [ Fraud or forgery]  

The assumptions may be made even if an officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings.

128(4)   [ Knowledge or suspicion]  

A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

SECTION 129   ASSUMPTIONS THAT CAN BE MADE UNDER SECTION 128  
Constitution and replaceable rules complied with

129(1)    
A person may assume that the company ' s constitution (if any), and any provisions of this Act that apply to the company as replaceable rules, have been complied with.

Director or company secretary

129(2)    
A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company:

(a)    has been duly appointed; and

(b)    has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company.

Officer or agent

129(3)    
A person may assume that anyone who is held out by the company to be an officer or agent of the company:

(a)    has been duly appointed; and

(b)    has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company.

Proper performance of duties

129(4)    
A person may assume that the officers and agents of the company properly perform their duties to the company.

Document duly executed without seal

129(5)    

A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1) . For the purposes of making the assumption, a person may also assume that, if any person who signs the document states next to their signature that:

(a)    they are a director of the company - that is the case; or

(b)    they arethe company secretary of the company - that is the case; or

(c)    they are the sole director of the company and that the company does not have a company secretary - that is the case; or

(d)    they are the sole director and sole company secretary of the company - that is the case.

Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA .

Document duly executed with seal

129(6)    

A person may assume that a document has been duly executed by the company if:

(a)    the company ' s common seal appears to have been fixed to the document in accordance with subsection 127(2) ; and

(b)    the fixing of the common seal appears to have been witnessed in accordance with that subsection and subsection 127(2A) .

For the purposes of making the assumption, a person may also assume that, if any person who witnesses the fixing of the common seal states next to their signature that:

(c)    they are a director of the company - that is the case; or

(d)    they are the company secretary of the company - that is the case; or

(e)    they are the sole director of the company and that the company does not have a company secretary - that is the case; or

(f)    they are the sole director and sole company secretary of the company - that is the case.

Note: For provisions about technology neutral signing, see Division 1 of Part 1.2AA .

Officer or agent with authority to warrant that document is genuine or true copy

129(7)    
A person may assume that an officer or agent of the company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

129(8)    
Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

SECTION 130  

130   INFORMATION AVAILABLE TO THE PUBLIC FROM ASIC DOES NOT CONSTITUTE CONSTRUCTIVE NOTICE  

A person is not taken to have information about a company merely because the information is available to the public from ASIC.